Opinion
75837.
DECIDED MAY 31, 1988. REHEARING DENIED JUNE 14, 1988.
Prostitution, etc. Fulton State Court. Before Judge Johnson.
Michael R. Hauptman, for appellant.
James L. Webb, Solicitor, Norman R. Miller, Assistant Solicitor, for appellee.
Defendant was charged by accusation and convicted of the offenses of prostitution and solicitation of sodomy. Defendant contends that his conviction of solicitation of sodomy arose out of the same conduct as did his prostitution conviction and that his solicitation of sodomy conviction should have merged into the prostitution conviction as a lesser included offense. Held:
The State's evidence is that an undercover agent of the Georgia Bureau of Investigation (GBI), was on assignment at an Atlanta hotel. The GBI agent "set up" a room, creating the appearance that he actually was visiting in the room. Then, the GBI agent established contact with defendant through an agency, Executive Models Services. Upon defendant's arrival at the hotel room defendant explained to the GBI agent that "the agency fee is $70.00 [and] I work on tips [and] [w]e will discuss [how much] when we are through." The two men had a drink and entered into conversation. In the course of the conversation defendant twice suggested that the two men engage in an act of sodomy. In the first instance defendant suggested oral-genital sex and in the second instance genital-anal sex.
"One crime is included in another as a matter of fact if it is established by proof of the same or less than all the facts required to prove the other, i.e., if all the evidence needed to establish the one is `used up' in proving the other. See OCGA § 16-1-6 (1); Haynes v. State, 249 Ga. 119, 120 ( 288 S.E.2d 185) (1982)." Moreland v. State, 183 Ga. App. 113, 114 (1) 358 S.E.2d 276). In the case sub judice, the conviction for prostitution was predicated on defendant's offer to perform sodomy for money. See Allen v. State, 170 Ga. App. 96 (1) ( 316 S.E.2d 500). Either of defendant's two offers to perform different acts of sodomy would support the prostitution conviction. Whichever of the offers to commit sodomy was not "used up" in supporting the prostitution conviction remained and authorized the conviction and sentence for the offense of solicitation of sodomy. Morris v. State, 179 Ga. App. 228, 229 (6) ( 345 S.E.2d 686).
Judgment affirmed. Pope and Benham, JJ., concur.