State v. White

OPINION

TOUSSAINT, Chief Judge.

This appeal is from a pretrial order dismissing a charge of gross-misdemeanor prostitution, committed in a public place, under MinmStat. § 609.324, subd. 2 (2002). We affirm.

FACTS

The complaint alleges that on May 25, 2004, at about 1:00 a.m., undercover Officer Willis was driving an unmarked vehicle at 31st Street and 5th Avenue South in Minneapolis. Officer Willis saw respondent Jessica Rae White standing by the street and pulled his car over to the curb. White walked to the car and entered it “without invitation” from the officer. As Officer Willis drove, White first sought assurance that he was not a police officer and then asked Officer Willis what he wanted to do. After they negotiated an exchange of oral sex for $30, Officer Willis signaled other officers, who arrested White.

White moved to dismiss the complaint for lack of probable cause, arguing that the interior of Officer Willis’s car was not a “public place” as required by the statute under which she was charged. The district court granted the motion to dismiss, and the state filed this appeal.

ISSUE

Is the inside of a motor vehicle traveling on a public street a “public place” for purposes of the gross-misdemeanor prostitution statute?

ANALYSIS

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Respondent White, however, argues that because this is a pretrial appeal by the state, the district court must be affirmed unless the state shows its decision was clearly erroneous. See State v. Trei, 624 N.W.2d 595, 597 (Minn.App.2001), review dismissed (Minn. June 22, 2001). We conclude that under either standard of review the district court’s order must be affirmed.

The statute White was charged with violating applies to anyone who “solicits or accepts a solicitation to engage for hire in sexual penetration or sexual contact while in a public place.... ” MinmStat. § 609.324, subd. 2 (2002). For purposes of the prostitution statutes, “public place” is' defined as:

a public street or sidewalk, a pedestrian skyway system ..., a hotel, motel, or other place of public accommodation, or a place of public accommodation, or a place licensed to sell intoxicating liquor, wine, nonintoxicating malt beverages, or food.

MinmStat. § 609.321, subd. 12 (2002) (emphasis added).

The district court concluded that the statute is ambiguous, and that the intent behind the statute was “to protect citizens from being unwitting witnesses to the agreement that constitutes the criminal conduct.” Therefore, it concluded, the term “public place” should be interpreted to refer to areas “where the public is likely to be present.”

*751A statute is ambiguous if it is subject to more than one reasonable interpretation. See State v. Collins, 580 N.W.2d 36, 41 (Minn.App.1998), review denied (Minn. July 16, 1998). The prostitution statute defines “public place” only in terms of various examples, such as streets, sidewalks, skyways, hotels, motels, and restaurants. Minn.Stat. § 609.321, subd. 12. The definition includes other places of “public accommodation,” id., but that term does not necessarily incorporate into the statute all places that might be considered “public.” See generally Minn.Stat. § 363A.03, subd. 34 (Supp.2003) (defining “place of public accommodation” for purposes of Minnesota Human Rights Act); Wayne v. MasterShield, Inc., 597 N.W.2d 917, 922 (Minn.App.1999) (holding apartment complex was not “place of public accommodation” under Minnesota Human Rights Act), review denied (Minn. Oct. 21, 1999).

As to some of the locations listed in the statutory definition, such as a “pedestrian skyway system,” a motel, or a licensed establishment, the statutory definition of “public place” may be unambiguous. But the primary use of a “public street” is as a place dedicated to the movement of vehicles in which the occupants have some expectation of privacy. See generally State v. Wiegand, 645 N.W.2d 125, 131 (Minn.2002) (holding that search, even of automobile, is substantial invasion of privacy). Thus, much of what occurs on a “public street” is not “public” in the usual sense of the word. We conclude that the district court properly determined that the definition of “public place,” as extended to a “public street,” is ambiguous.

The district court cited the rule of lenity applied when construing statutes that define criminal offenses. A penal statute must be strictly construed in favor of the defendant, although that does not require the court to adopt the narrowest possible interpretation. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). The district court concluded that the statutory definition of “public place” could not be construed, consistent with the rule of lenity, as applying to the interior of a motor vehicle traveling on a public street. We agree.

The object of all statutory interpretation is to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (2002); In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn.2000). The district court concluded that the intent behind this gross-misdemeanor prostitution statute was to further discourage the solicitation and negotiation of prostitution in open view of the public. Although the statute does not include a statement of purpose or intent, this intent can be readily inferred from the definition of “public place,” which explicitly includes hotels, motels, establishments licensed to sell alcohol or food, and other places of “public accommodation,” where prostitution might be visibly solicited. MinmStat. § 609.321, subd. 12. And, as illustrated by the citizen complaints that prompted Officer Willis’s undercover operation here, it is the publicly visible nature of much prostitution activity that prompts criminal enforcement.

The state cites State v. Stevenson, 656 N.W.2d 235 (Minn.2003), as it did in the district court, in support of its argument that White’s conduct occurred in a “public place.” In Stevenson, the defendant was convicted of indecent exposure and attempted fifth-degree criminal sexual conduct for masturbating while sitting in a motor vehicle parked facing a playground area. Id. at 237. The indecent exposure statute required that the act occur in “any public place.” Id. at 240 (quoting Minn. Stat. § 617.23, subd. 1 (2000)). Referring to its decision in State v. Peery, 224 Minn. *752346, 28 N.W.2d 851 (1947), the supreme court held that “[o]ur concept of public was not based on the privacy expectations of the defendant but on the likelihood that the conduct would be witnessed by others.” Id. at 241, 28 N.W.2d 851. The Stevenson court, applying Peery, held that, given the location of the defendant’s vehicle, which was parked next to a public sidewalk by a beach, it was so likely that the defendant’s act would be observed by others that the defendant, it could be reasonably presumed, intended for it to be observed. Id.

As the district court noted, Stevenson did not involve a statutory definition of “public place.” Because the statute also required proof of “deliberate intent of being indecent,” the supreme court’s analysis looked to the defendant’s intent to be observed. But here, there is no need to look to White’s intent to determine the scope of the term “public place.” The issue is whether that part of the “public street” occupied by the vehicle inside which White was sitting was a “public place.”

The state cites another case interpreting the term “public place,” State v. DeLegge, 390 N.W.2d 10 (Minn.App.1986). In De-Legge, a weapons-possession case, this court noted that “public place” “is a relative term and what may be a public place for one purpose may not be a public place for another purpose.” Id. at 11-12 (citation omitted). This court stated:

Because indecent exposure laws are intended to protect innocent people from being exposed to offensive sexual behavior, “public place” in indecent exposure cases has been interpreted broadly to include areas that can easily be seen by pedestrians.

Id. at 12 (citation omitted). The court concluded that because the private driveway on which DeLegge’s car was parked, with a loaded gun inside, was close to the road and other areas “where people regularly walk,” it should be considered a “public place.” Id.

Like Stevenson, DeLegge did not involve a statutory definition of “public place.” And it involved a unique statutory purpose — reducing the risk to innocent passersby from the discharge of a weapon. See id. This statutory purpose is quite different from the purpose of the gross-misdemeanor prostitution statute, which is to reduce the amount of prostitution visible to the public. It is obvious that members of the public may be threatened by the discharge of a weapon that is not visible to them. Thus, we conclude that DeLegge does not compel the conclusion that the interior of a motor vehicle is a “public place” for purposes of the gross-misdemeanor prostitution statute.

The district court also rejected the state’s argument that because the legislature in the vehicle-forfeiture and drivers-license statutes recognized that prostitution, or the solicitation of prostitutes, occurs in motor vehicles, the term “public place” should be read broadly to include the interior of automobiles. A motor vehicle is subject to forfeiture if used in the commission of a prostitution offense. Minn.Stat. § 609.5312, subd. 3(a) (2002). A person who uses a motor vehicle while patronizing a prostitute may also have the conviction noted on his driving record. Minn.Stat. § 609.324, subd. 5 (2002). But these provisions, while recognizing that motor vehicles are used, particularly by patrons of prostitutes, to commit the offense, do not necessarily indicate a legislative intent that solicitation of prostitution inside a motor vehicle should be punished more severely than solicitation in other locations. Had the legislature so intended, it could have defined as a gross-misdemeanor offense the solicitation of prostitution in a motor vehicle. Instead, the legis*753lature defined “public place” to include only the “public street,” and left to inference or argument the extension of “public street” to the vehicles located on it. This court cannot supply that which the legislature overlooks or purposely omits. See State v. Jones, 587 N.W.2d 854, 856 (Minn.App.1999), review denied (Minn. Mar. 16, 1999).1

The district court construed “public place” in the gross-misdemeanor prostitution statute as not extending to the interi- or of a moving vehicle on a public street. That is the most reasonable construction of the term, as well as the one most in accord with the intent of the statute and the one that follows the rule of lenity. Thus, the district court did not clearly err in dismissing the complaint.

DECISION

The district court properly construed the term “public place” as not including the interior of a motor vehicle traveling on a “public street,” and therefore did not clearly err in dismissing the complaint.

Affirmed.

. "Public place” is defined in Black's Law Dictionary, and that definition has been cited in a weapons-possession case. See State v. Hides, 583 N.W.2d 757, 760 (Minn.App.1998), review denied (Minn. Oct. 20, 1998). But, as discussed above, the statute at issue here defines "public place” in terms of specific locations. And the ambiguity here arises not from the term "public place” itself, but the inclusion of "public street” within the statutory definition of that term.