Opinion
No. 75-617-CR.
Submitted on briefs November 5, 1976. —
Decided December 14, 1976.
ERRORS to review a judgment and order of the circuit court for Milwaukee county: JOHN F. FOLEY, Circuit Judge. Affirmed in part; reversed in part.
For the plaintiff in error the cause was submitted on the briefs of Howard B. Eisenberg state public defender.
For the defendant in error the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Betty R. Brown, assistant attorney general.
Two writs of error were issued in this case. They bring up for review a judgment of conviction and an order denying plaintiff in error's motion to set the judgment aside. Plaintiff in error was convicted, following a jury trial, of pandering, contrary to sec. 944.33(1)(a) and (2), Stats.; soliciting a prostitute, contrary to sec. 944.32; and allowing use of a place of prostitution, contrary to sec. 944.34(2). He received concurrent sentences of ten years on the pandering count and five years on the other two counts. Each sentence was subsequently reduced by one year to give plaintiff in error credit for pretrial detention time.
Monica Wesolowski testified that in September, 1971, plaintiff in error told her he wanted her to meet a man named Stanley, for the purpose of turning a "trick" in her apartment. She went to meet Stanley at a bar, where he was working as a bartender. They went to her apartment. Stanley agreed to pay her $100 in return for being allowed to watch her sleep nude for four hours. There was no sexual activity between the two. At one point she woke up to find Stanley "playing with himself," while he watched her sleep.
Monica Wesolowski also testified that in October, 1971, plaintiff in error called her and told her he was sending over a "trick." He told her the person's name was Auggie and gave her a physical description. Auggie arrived at her apartment, identified himself, and engaged in two acts of sexual intercourse with her. The price of the first act was $50. She could not remember whether that price was agreed on between plaintiff in error and Auggie or between Auggie and her. The second act cost $30. She and Auggie agreed on that price.
Plaintiff in error took the whole $100 which she was paid by Stanley and about $50 of the $80 which she was paid by Auggie. He also took approximately 90 percent of the money which Monica charged for acts of prostitution in an apartment at 2807 West Michigan Avenue. This apartment was leased to plaintiff in error and Monica in August, 1973. They had occupied a prior apartment which was leased from the same landlord. Plaintiff in error signed the application for that apartment and represented that he and Monica were married. He often paid the rent for the apartment.
Monica's sister, Joan Ritchie, testified that plaintiff in error suggested that she become a prostitute too. He told her he needed someone to take care of the prostitution business while Monica was out of town working as an exotic dancer. At first Joan refused, but she later did become a prostitute. Plaintiff in error took something more than half her earnings from prostitution.
The issues on appeal are as follows:
1. Is the evidence sufficient to support a conviction for pandering under sec. 944.33(1)(a) or (2), Stats.?
2. Is soliciting a prostitute under sec. 944.32, Stats., an included offense in keeping a house of prostitution under sec. 944.34?
3. Is sec. 944.32, Stats., an unconstitutional restriction of free speech as applied to the facts of this case?
4. Is the evidence sufficient to support conviction for a violation of sec. 944.34(2), Stats.?
The first issue deals with sufficiency of the evidence to convict for pandering. Sec. 944.33(1)(a), Stats., penalizes one who "[s]olicits another to have nonmarital sexual intercourse or to commit an act of sexual perversion with a female he knows is a prostitute." An essential element of a charge under this statute is that the accused solicit the customer. We can find no evidence in the record in this case which will support the conclusion beyond a reasonable doubt that plaintiff in error solicited Stanley or Auggie or the unidentified "trick" for Joan. It is an equally tenable inference that each customer contacted plaintiff in error, rather than the other way around.
We believe plaintiff in error was not charged under the proper subdivision of the statute. Sec. 944.33(1)(b), Stats., penalizes one who "[w]ith intent to facilitate another in having nonmarital intercourse or committing an act of sexual perversion with a prostitute, directs or transports him to a prostitute or directs or transports a prostitute to him." It is probable the plaintiff in error could have been convicted of two violations of this subdivision on the record in this case. First, plaintiff in error directed Auggie to Monica in October, 1971. Second, plaintiff in error directed Joan upstairs to perform the "trick" which he had arranged when Monica was gone. Notwithstanding plaintiff in error's probable guilt under sec. 944.33(1)(b), his conviction under sec. 944.33(1)(a), must be reversed.
It is argued that sec. 944.32, Stats., is an included offense under sec. 944.34. It is claimed that one cannot keep a place of prostitution without soliciting the prostitutes who occupy it. The short answer to this argument is that plaintiff in error was not accused of keeping a place of prostitution. That is prohibited by sec. 944.34(1). He was charged with a violation of sec. 944.34(2), which prohibits granting use or allowing continued use as a place of prostitution. This crime does not have the necessary common elements as does a crime of soliciting a prostitute under sec. 944.32. Sec. 939.66 sets forth the relationship between two crimes which must be satisfied before one can be considered included in the other. The relationship between secs. 944.32 and 944.34(2) does not fall within sec. 939.66.
The plaintiff in error contends his conviction for soliciting a prostitute is a violation of plaintiff in error's right of free speech. It is argued that advocacy by plaintiff in error that Joan become a prostitute was nothing but the expression of an idea. We have held it constitutional to make promotion of unlawful chain distributor schemes a crime. State v. Lambert, 68 Wis.2d 523, 229 N.W.2d 622 (1975). Such promotion is analogous to soliciting a customer for a prostitute. If advertising an unlawful commercial activity can be prohibited by a criminal statute, surely recruiting employees or partners for illegal acts may be prohibited as well.
The plaintiff in error also contends that evidence is not sufficient to convict for allowing use of the apartment as a place of prostitution. It is argued the evidence fails to show plaintiff in error had sufficient control over the apartment. We agree that in order to sustain a conviction under sec. 944.34(2), Stats., the state must prove that plaintiff in error had authority to exclude those engaging in an act of prostitution from the use of the apartment. See: State v. Larson, 206 Wis. 154, 238 N.W. 837 (1931). As regards Joan, it is clear that plaintiff in error had possession and control over the apartment. He had the power to exclude her from the use of the apartment. When he directed her upstairs to meet the unnamed customer, he had already let the customer in. There is no doubt the apartment was a place of prostitution. The evidence is sufficient to support conviction for a violation of sec. 944.34(2).
By the Court. — That part of the judgment and order of conviction adjudicating plaintiff in error guilty of violation of sec. 944.33(1)(a) and (2), Stats., is reversed. The balance of the judgment is affirmed.
The following opinion was filed February 16, 1977.
On motion for rehearing, our attention has been called to erroneous statements in the decision.
For that reason the following, which appears at 74 Wis.2d 642, 645, 247 N.W.2d 694, 695 (1976), is stricken:
"We can find no evidence in the record in this case which will support the conclusion beyond a reasonable doubt that plaintiff in error solicited Stanley or Auggie or the unidentified `trick' for Joan. It is an equally tenable inference that each customer contacted plaintiff in error, rather than the other way around."
In lieu thereof the following is inserted:
"We can find no evidence in the record in this case which will support the conclusion beyond a reasonable doubt that plaintiff in error solicited Auggie for Monica. It is an equally tenable inference that Auggie contacted plaintiff in error, rather than that plaintiff in error solicited Auggie."
Further, the following, which appears at 247 N.W.2d 692, 696, is stricken:
"The state argues that sec. 944.32, Stats., is an included offense under sec. 944.34."
In lieu thereof the following is inserted:
"It is argued that sec. 944.32, Stats., is an included offense under sec. 944.34."
This insertion is identical to the sentence as it appears at 74 Wis.2d 642, 646.
These errors do not otherwise alter the substance of the court's opinion or the outcome of the case.
The motion for rehearing is denied.