(dissenting in part)—The majority is quite correct in concluding that the Seattle prostitution loitering ordinance, SMC 12A.10.010, is constitutional. I therefore disagree with the majority only on the issue of the sufficiency of evidence in this case to justify the conviction of Petitioner Leonard Slack.
The ordinance provides that "[a] person is guilty of prostitution loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to commit prostitution.” (Italics mine.) SMC 12A.10.010(B). It further provides that:
Among the circumstances which may be considered in determining whether the actor intends such prohibited conduct are that he or she:
1. Repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation; or
2. Repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture; or
*8613. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to stop pedestrians; or
4. Is a known prostitute or procurer . . ..
SMC 12A.10.010(C).
The definition section of the ordinance provides that:
As used in this section:
1. "Commit prostitution" means to engage in sexual conduct for money but does not include sexual conduct engaged in as part of any stage performance, play or other entertainment open to the public.
2. "Known prostitute or procurer" means a person who within one (1) year previous to the date of arrest for violation of this section, has within the knowledge of the arresting officer been convicted in Seattle Municipal Court of an offense involving prostitution.
3. "Public place" is an area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), and buildings open to the general public including those which serve food or drink, or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them.
SMC 12A.10.010(A).
Petitioner Slack entered a plea of "not guilty" in the Seattle Municipal Court and stipulated for submission of the case upon the police report. This authorized the court to consider as evidence all information contained in that report. No other evidence was presented to the court by the City of Seattle or by the petitioner.
The City of Seattle, having charged petitioner with prostitution loitering under SMC 12A.10.010, was constitutionally required under any evidentiary arrangement to prove by evidence beyond a reasonable doubt that Leonard Slack on June 26, 1986, committed the offense as charged. The City did not meet that burden of proof with only the police report as evidence.
The police report, in its entirety, is shown below:
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*866However offensive the conduct of Leonard Slack may have been in the early morning of July 26, 1986, at a busy public intersection in Seattle and regardless of his subjective purpose, the City's evidence did not establish that he intentionally either solicited, induced, enticed or procured another to commit prostitution. See SMC 12A.10.010(B). Nor did the City's evidence establish that Leonard Slack repeatedly beckoned to, stopped, or attempted to stop or engage passersby in conversation, SMC 12A. 10.010(C)(1); that he repeatedly beckoned to, stopped or attempted to stop motor vehicle operators by hailing, waiving of arms or any other bodily gesture, SMC 12A.10.010(C)(2); that he circled an area in a motor vehicle and repeatedly beckoned to, contacted or attempted to stop pedestrians, SMC 12A.10.010(C)(3); or that he was a known prostitute or procurer, SMC 12A.10.010(C)(4).
To establish that Leonard Slack was a "known prostitute or procurer," the City is required to establish that "within one year previous to the date of arrest for violation" of the ordinance, he had "within the knowledge of the arresting officer" been "convicted in the Seattle Municipal Court of an offense involving prostitution." (Italics mine.) SMC 12A. 10.010(A) (2). The only evidence in the record tending to support this claim is the following language contained in the police report:
We drove to the area and observed two black females standing on the SW corner of Boren and Pike. We immediately recognized one of the suspects as a known male prostitute whose photo and name was posted on the East precinct bulletin board. We could not recall the suspect's name, but recognized his face. This suspect was later identified as Leonard Slack.
That statement does not establish that the arresting officer (although recognizing Petitioner Slack from a photograph on the precinct bulletin board as a "known male prostitute") at the time of the arrest knew that Leonard Slack had been convicted in the Seattle Municipal Court of an offense involving prostitution or procuring within 1 year prior to the date of this arrest. See SMC 12A.10.010-(A)(2); (C)(4).
*867From the description in the police report, it must have been a bizarre sight—a "theatre of the absurd"—to see a male person dressed in female's clothing standing at the intersection of Pike Street and Boren Avenue peering into windows and windshields of vehicles stopped for the traffic light. The ordinance requires more, however, than someone merely creating a bizarre spectacle. It requires that the accused person remain in a public place and intentionally solicit, induce, entice or procure another to commit prostitution. See SMC 12A.10.010(B).
The evidence of Petitioner Slack's behavior at the scene as narrated in the police report—which constituted the only evidence presented by the City of Seattle—recited that Petitioner Slack and his companion would walk to the edge of the curb as vehicles approached the intersection and stopped at the light or drove through the intersection. As Petitioner Slack's companion would make swinging motions with her hips and other similar motions, the verbal and nonverbal action of Petitioner Slack himself consisted only of the following:
1. At 0445 . . . Slack bent over from the waist up leaning slightly to his right and looked at the driver.
2. At 0447 . . . Slack leaned over the hood of the pickup and looked through the windshield at the driver.
3. At 0450 . . . Slack [and companion] crossed the street and walked directly in front of the Maverick. As they did so, Slack bent over looking at the driver through the windshield.
4. At 0453 ... as the vehicle passed them [Slack and his companion] Slack again bent over and looked at the driver.
The Honorable George T. Mattson, in the Superior Court review of the case, correctly noted that "the acts in themselves do not constitute probable cause to arrest per se," but further stated, in upholding the conviction, that "the defendant was engaged in joint conduct with another person."1 He cited this court's decision in "State [sic] v. *868Jones, 79 Wn.2d 626." (See Seattle v. Jones, 79 Wn.2d 626, 448 P.2d 750 (1971)).
Even assuming, though, that the conduct of Petitioner Slack's companion, as reflected in the police report, could be imputed to him, the City's evidence of the charge against Leonard Slack still falls short of proof beyond a reasonable doubt that he engaged in solicitation of prostitution.
It is apparent from the police report that the City of Seattle could have met its burden of proof by calling the arresting officers as witnesses instead of stipulating for submission of the case on the police report. The officers could have established the extent of their knowledge of Petitioner Slack's convictions for prostitution and could have testified more fully to Petitioner Slack's conduct which constituted the alleged offense.
The police report is well written. Yet it does not establish the evidence against Petitioner Slack beyond a reasonable doubt. It was not written for that purpose. Police officers are not required to be lawyers (although some do have law degrees). They are therefore not expected to write a report which of itself will prove a charge beyond a reasonable doubt. The City Prosecutor, however, is required to be a lawyer and is responsible for the legal sufficiency of a police report to prove a charged offense beyond a reasonable doubt where an accused person agrees to submit a case to the court for decision "on the police report."
A "clean streets" approach to control of crime—including prostitution—may be desirable. However, conduct by persons on the city streets cannot be determined criminal unless the facts supporting criminal charges are proved beyond a reasonable doubt.
It is my belief that my observations on this case are consistent with this court's prior decision in State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). Viewing the evidence in the light most favorable to the prosecution, I see nothing in the police report upon which a trier of fact could conclude that the City of Seattle proved beyond a reasonable doubt *869that Leonard Slack committed the offense of prostitution loitering under SMC 12A. 10.010.
I therefore respectfully dissent from the majority only to the extent that I would reverse the conviction of Petitioner Leonard Slack for insufficient evidence as presented in this case.
Callow, C.J., Utter, J., and Pearson, J. Pro Tern., concur with Smith, J.
Although it is not stated in Judge Mattson's order, it is probable that he relied upon the "complicity'' ordinance, SMC 12A.04.130. However, that ordinance does not seem applicable under the facts stated in the police report in this case.