COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
BRUCE IRVING FINE
OPINION BY
v. Record No. 3009-98-2 JUDGE MARVIN F. COLE
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Robert L. Lichtenstein (Elliott B. Bender, on
brief), for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General;
Virginia B. Theisen, Assistant Attorney
General, on brief), for appellee.
Bruce Irving Fine, appellant, appeals his conviction for
using a vehicle to promote prostitution or unlawful sexual
intercourse in violation of Code § 18.2-349. Appellant argues
that: (1) the evidence was insufficient to support the
conviction; and (2) the trial court abused its discretion in
refusing to dismiss the charge on the ground of collateral
estoppel. We reverse the conviction, finding the evidence
insufficient to prove that appellant violated Code § 18.2-349.
FACTS
On June 27, 1998, Detective Janice Calhoun worked as a decoy
for the investigation of prostitution. At about 1:15 a.m.,
appellant, driving a Dodge conversion van, stopped in a travel
lane near the corner where Calhoun stood. Appellant lowered the
passenger side window. Appellant asked Calhoun what she was
doing. Calhoun replied, "[H]anging out, what are you looking
for?" Appellant asked if Calhoun was a "cop," and she replied,
"No." Appellant then asked Calhoun if she "was working."
Calhoun replied, "Well, what are you looking for?" Appellant
said, "A blow job." Calhoun then asked appellant, "[W]hat are
you going to do for me?" Appellant replied, "[W]hat do you
want?" Calhoun asked, "[I]s $20 okay?" Appellant replied,
"Yes." Calhoun then told appellant to meet her in a nearby
alley. Appellant did not ask Calhoun to enter the van, and
appellant did not drive into the alley. Instead, appellant
drove out of the area. The police stopped and arrested him a
short distance away.
Calhoun testified that when she told appellant to drive
into the alley, she meant to "portray that [she] was going to
get in his van in the alley." Calhoun also stated that there
was no motel in the area where she directed appellant to meet
her, stating, "[I]t was just an alley." On cross-examination,
Calhoun testified that appellant did not show her any money and
that he drove away in the midst of their conversation.
Appellant testified that he was driving north from North
Carolina, traveling between Florida and Massachusetts on the
morning of the incident. He stated that he needed to exit the
highway in order to rest. Appellant testified that he had never
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been to Richmond before. As he drove through the area,
appellant did not see any place he wanted to stay. He then saw
"this blond woman standing on the side of the road." He stopped
and asked what she was doing. Appellant stated that the woman
asked for money, and he replied, "Yeah, sure," and "just took
off."
Appellant testified he had no intention of paying Calhoun
for sex, and he did not drive to the alley because he "didn't
want anything to do with it." However, appellant admitted on
cross-examination that he asked Calhoun for a blow job.
Also, on cross-examination, the assistant Commonwealth's
attorney asked appellant, "[Y]ou were in your vehicle at this
time that you approached her, correct?" Appellant replied,
"That's right." Furthermore, at the December 18, 1998 hearing
on appellant's motion to reconsider, appellant's counsel stated,
"We don't doubt that they've met the element that he owns the
vehicle, and it's the vehicle involved."
ANALYSIS
Appellant argues that the evidence was insufficient to
prove that he violated Code § 18.2-349.
Code § 18.2-349 provides:
It shall be unlawful for any owner or
chauffeur of any vehicle, with knowledge or
reason to believe the same is to be used for
such purpose, to use the same or to allow
the same to be used for the purpose of
prostitution or unlawful sexual intercourse,
or to aid or promote such prostitution or
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unlawful sexual intercourse by the use of
any such vehicle.
"[B]ecause the statute in question is penal in nature, it
must be strictly construed against the state and limited in
application to cases falling clearly within the language of the
statute." Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d
337, 338 (1983).
Appellant argues that he did not intend to use the van for
the purpose of prostitution or unlawful sexual intercourse. He
contends that both he and Calhoun testified that when the issue
of money for sex arose, appellant failed to do what Calhoun
requested, and he left the area instead of driving into the
alley. Therefore, he contends that he lacked the intention to
use the van for prostitution. He also asserts that he did not
aid or promote prostitution by use of a vehicle, and he did not
engage in a substantial act in furtherance of using the van for
prostitution.
Prostitution or being a prostitute is defined in Code
§ 18.2-346 as follows:
A. Any person who, for money or its
equivalent, commits adultery, fornication or
any act in violation of § 18.2-361, or
offers to commit adultery, fornication or
any act in violation of § 18.2-361 and
thereafter does any substantial act in
furtherance thereof, shall be guilty of
being a prostitute, or prostitution, which
shall be punishable as a Class 1
misdemeanor.
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B. Any person who offers money or its
equivalent to another for the purpose of
engaging in sexual acts as enumerated above
and thereafter does any substantial act in
furtherance thereof shall be guilty of
solicitation of prostitution and shall be
guilty of a Class 1 misdemeanor.
(Emphasis added.)
We agree with appellant's arguments. Although appellant
engaged in conversation concerning the exchange of money for a
sexual act, there is no evidence of "any substantial act in
furtherance thereof." No act of adultery, fornication or any
act in violation of Code § 18.2-361 occurred. As in Adams v.
Commonwealth, 215 Va. 257, 258-59, 208 S.E.2d 742, 744 (1974),
the evidence shows at most "the required offer. Proof of the
equally essential substantial act is completely lacking."
The evidence proved that appellant did not meet Calhoun in
the alley as she requested. After conversing with Calhoun,
appellant drove away. Appellant did not ask Calhoun to enter
the van, and he did not show or give her any money. The
Commonwealth's evidence merely showed that appellant had a
conversation with Calhoun concerning a sexual act. Appellant
made no substantial and overt act in furtherance of the crime.
Moreover, the evidence failed to prove that the van was
used to "aid or promote" prostitution. Code § 18.2-348 defines
the offense of "aiding prostitution" as follows:
It shall be unlawful for any person or any
officer, employee or agent of any firm,
association or corporation, with knowledge
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of, or good reason to believe, the immoral
purpose of such visit, to take or transport
or assist in taking or transporting, or
offer to take or transport on foot or in any
way, any person to a place, whether within
or without any building or structure, used
or to be used for the purpose of lewdness,
assignation or prostitution within this
Commonwealth; or procure or assist in
procuring for the purpose of illicit sexual
intercourse, or any act violative of
§ 18.2-361, or to give any information or
direction to any person with intent to
enable such person to commit an act of
prostitution.
No "substantial act in furtherance" of prostitution
occurred after appellant and Calhoun conversed. Therefore,
appellant did not use the vehicle to transport himself to a
place "to be used for the purpose of . . . prostitution."
Moreover, "procure" means "to take care of, bring about, obtain:
achieve." Webster's Third New International Dictionary 1809
(1981). Appellant did not obtain or bring about for the purpose
of illicit sexual intercourse or any act violative of Code
§ 18.2-361, or give "any information or direction to any person
with intent to enable such person to commit an act of
prostitution."
The Virginia Supreme Court found a violation of Code
§ 18.2-348 where a business was "strictly a medium or conduit
through which orders for prostitutes were received, processed
and filled." Edwards v. Commonwealth, 218 Va. 994, 1000, 243
S.E.2d 834, 838 (1978). In Edwards, "[t]he defendant provided
the girls a base from which they could operate, advertised their
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presence, described to prospective customers their physical
characteristics, got them 'dates', and then dispatched them to
designated hotel and motel rooms in automobiles with drivers
supplied by [the defendant]." Id. Also, in Edwards, the Court
found that "the operation or business carried on by defendant
. . . was a venture by her, for financial gain, to aid and abet
and to give information and direction to persons desiring the
services of a prostitute, and to procure and assist persons who
were willing to provide such services." Id.
Clearly, no evidence in appellant's case supports a finding
that appellant aided or promoted prostitution. He merely
conversed with the detective while he sat in the van, then drove
away from the area. He did not ask her to enter the van, and he
did not drive into the alley as directed by the detective.
Appellant and Calhoun performed no sexual act in the van, and no
money exchanged hands in the van. Appellant committed none of
the acts described in Edwards where the Court found the
defendant aided or promoted prostitution. Therefore,
appellant's actions did not fall within the proscription of Code
§ 18.2-349.
Because we find the evidence insufficient to prove beyond a
reasonable doubt that appellant violated Code § 18.2-349, we do
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not address the collateral estoppel issue. Accordingly, we
reverse the conviction and dismiss the charge.
Reversed and dismissed.
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