State of Minnesota, Respondent, vs. Antonio Dion Washington-Davis, Appellant.
A14-0460
STATE OF MINNESOTA IN SUPREME COURT
June 29, 2016
Court of Appeals
Gildea, C.J.
Took no part, Chutich, J.
Filed: June 29, 2016
Lori Swanson, Attorney General, Saint Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant Ramsey County Attorney, Saint Paul, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
Cort C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne P.A., Minneapolis, Minnesota for amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.
S Y L L A B U S
1.
2. The district court‘s plainly erroneous accomplice-liability jury instructions did not affect the appellant‘s substantial rights.
3. The circumstantial evidence was sufficient to convict appellant of aiding and abetting the solicitation of two women to practice prostitution.
Affirmed.
O P I N I O N
GILDEA, Chief Justice.
This case arises out of a sex-trafficking operation. For his part in the operation, appellant Antonio Dion Washington-Davis was convicted of soliciting and promoting prostitution and conspiracy to commit sex trafficking.1 Washington-Davis argues
substantial rights, and the evidence was sufficient to support Washington-Davis‘s convictions, we affirm.
The actions forming the basis for Washington-Davis‘s convictions occurred between September 2010 and July 2012. During this period, Washington-Davis was involved in a family-operated prostitution scheme that was run out of his uncle‘s house in St. Paul. Washington-Davis, his brother, Otis,2 and his uncles were all involved. The men solicited women into prostitution first by pursuing romantic relationships with them. Once each relationship was established, the men would typically tell each woman that she could make a lot of money through prostitution. After luring them into the prostitution scheme, Washington-Davis or one of his family members would take photos of the women and post advertisements depicting the women online, arrange for the women to engage in sex acts for hire at the St. Paul house, drive the women to meet customers on “out-calls” away from the St. Paul house, and keep most, if not all, of the money the women made. Although each woman reported primarily to one family member, the other family members assisted with placing ads and transporting the women to out-calls. This case involves Washington-Davis‘s conduct with respect to five women: J.M., B.R., S.A., C.B., and T.B. Four of them (J.M., B.R., S.A., and C.B.) testified at trial.
J.M. testified that she first met Washington-Davis in 2008 and continued to work for him through 2011. Washington-Davis took photos of J.M. while she was at his uncle‘s house, posted the photos in online advertisements, and set prices for her services.
Washington-Davis kept all the money from her performance of sex acts for hire, and he became verbally and physically abusive if she attempted to withhold money from him. J.M. twice went to the police to report she was being trafficked, once after being slapped, and again after Washington-Davis drove her outside of the Twin Cities, forced her to work out of a hotel room, took all the money she earned, and physically abused her. For his conduct involving J.M., Washington-Davis was convicted of one count of second-degree promotion of prostitution,
Both B.R. and S.A. testified that they worked as prostitutes for Washington-Davis‘s uncle in 2010. Although B.R. gave all of the money she earned on calls to Washington-Davis‘s uncle, Washington-Davis
C.B. testified that she was 15 years old when she and 18-year-old T.B. met Washington-Davis and his brother, Otis. C.B. explained how she and T.B. met the men,
got into a car with the brothers, and went with them to Washington-Davis‘s uncle‘s house in St. Paul. Upon arriving at the house, C.B. observed three women wearing pajamas and talking on cell phones. C.B. also overheard Washington-Davis and Otis discussing how “they could probably make a lot of money” from T.B., and Otis asked both women if he and Washington-Davis could take pictures of them. Although Otis did most of the talking, Washington-Davis was present during these conversations.
According to C.B., after the discussion about taking photos, Washington-Davis left the house with two of the other women, who had since changed out of their pajamas. When C.B. asked Otis where Washington-Davis and the women had gone, Otis replied, “to go make money.” Otis then explained that “they [Washington-Davis and Otis] place ads on Backpage and that [the women] use the phones . . . for the people to call them, and then [Washington-Davis] gives them a ride to where they are going.” Otis told C.B. that he initially wanted her to go with Washington-Davis and the other women, but that he and Washington-Davis decided C.B. should follow Otis and T.B. instead. Otis then brought C.B. and T.B. along with him and another woman. When the third woman went on two out-calls, Otis tried to convince C.B. to work for him. For his conduct involving C.B., Washington-Davis was convicted of one count of first-degree solicitation to practice prostitution,
In 2013, a large-scale investigation of Washington-Davis and his family members revealed a shared infrastructure of telephone numbers, credit cards, e-mail addresses, and advertisements linking the Washington family to various trafficked women from 2008 to 2013. Following the investigation, Washington-Davis was charged with six counts of prostitution promotion and solicitation and one count of conspiracy to commit sex trafficking.3
Before trial, Washington-Davis argued that
After the jury found Washington-Davis guilty of the six counts against him, the district court convicted Washington-Davis of each count and sentenced him to a total of 432 months in prison. The court of appeals affirmed Washington-Davis‘s convictions.4 State v. Washington-Davis, 867 N.W.2d 222, 241 (Minn. App. 2015). We granted Washington-Davis‘s petition for review.
On appeal to our court, Washington-Davis claims that
I.
We turn first to the question of whether the promotion- and solicitation-of-prostitution statute,
agreeing to hire another individual to engage in sexual penetration or sexual contact.”
Washington-Davis acknowledges that the promotion and solicitation statute may be constitutional as applied to his specific conduct. But he argues that the statute infringes on protected speech of others not before the court. Specifically, Washington-Davis contends that the statute applies to people who promote and solicit consenting adults to participate in constitutionally protected films or photographs involving sexual contact.6 According to Washington-Davis, not only does the statute
For its part, the State argues that the promotion and solicitation statute does not prohibit speech protected by the First Amendment. The statute does not reach the creation of films or photographs involving sexual contact, the State maintains, absent a showing that such a film or photograph is produced “for the purpose of satisfying the actor‘s sexual impulses.” See
The parties’ arguments require us to address whether
293 (2008). If the statute does not reach speech that the First Amendment protects, but instead solely regulates speech undeserving of First Amendment protection, the statute is constitutional unless it results in “content discrimination unrelated to [its] distinctively proscribable content.” State v. Crawley, 819 N.W.2d 94, 109 (Minn. 2012) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84 (1992)). But if we conclude that the statute proscribes some amount of protected speech, we must then determine if the statute is substantially overbroad “in relation to the statute‘s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
A.
We first interpret the statute to determine if it regulates speech that the
a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949); see also Williams, 553 U.S. at 297 (“Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” (citing Giboney, 336 U.S. at 498)). The State relies on this category of unprotected speech in arguing that
The State‘s argument has merit because the conduct at which
individual,” id., § 609.321, subd. 7. To the extent the statute regulates speech at all, speech in soliciting women to be prostitutes and promoting the prostitution of them has no lawful purpose, but rather is aimed at furthering the commission of a crime. See Giboney, 336 U.S. at 502 (identifying speech as unprotected where there was no lawful purpose for the speech).
Washington-Davis does not dispute that the statute at issue here regulates speech that is integral to criminal conduct. His overbreadth argument instead turns on whether
The promotion and solicitation statute, however, criminalizes the solicitation and promotion of individuals to engage in sexual conduct only if the sexual conduct is done “for the purpose of satisfying the actor‘s sexual impulses.”
Their speech will fall under the statute only if the State can meet its high burden to show the purpose in hiring the actors to engage in sexual acts was to sexually gratify the performers. Cf. State v. Theriault, 960 A.2d 687, 692 (N.H. 2008) (concluding that a prostitution statute was overbroad as applied when the State did not have to prove that the defendant solicited a couple to have videotaped sexual intercourse “for the purpose of sexual arousal or gratification“).
B.
But even assuming that the statute does, as Washington-Davis argues, restrict some amount of protected speech, that restriction does not automatically render the statute unconstitutionally overbroad. Rather, such a restriction dictates that we reach the second step in an overbreadth analysis, which requires that we determine whether the restriction is substantially overbroad “in relation to the statute‘s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. A statute is substantially overbroad in violation of the First Amendment if, in addition to prohibiting unprotected speech, it also prohibits a substantial amount of constitutionally protected speech. State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). And, in cases such as this, “where conduct and not merely speech is involved,” the overbreadth of a statute must not only be substantial, but “real” as well. Broadrick, 413 U.S. at 615. That standard is not met here.
The legitimate sweep of
to abstract advocacy, such as the statement ‘I believe that [X] should be legal’ or even ‘I encourage you to [do X].’ “).
Rather, the statute regulates speech and conduct aimed at specific individuals. In order to violate the statute, a person must “solicit[] or induce[] an individual to practice prostitution” or “promote[] the prostitution of an individual.”
Moreover, there is no evidence in this record that protected speech is, in fact, being chilled, or is likely to be chilled, as a result of the promotion and solicitation statute. Washington-Davis‘s argument that the statute is overbroad because it potentially prevents a film producer from soliciting performers for pornographic films is purely speculative. See Williams, 553 U.S. at 303 (“The ‘mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.’ ” (quoting Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984))); see also State v. Theriault, 949 A.2d 678, 680-81 (N.H. 2008) (holding that a promotion-of-prostitution statute was “not substantially overbroad, because the possibility that it might be applied in some unconstitutional
manner is exceedingly slight“). We decline to strike down the statute because the overbreadth, if any, is not real and substantial.
As the Supreme Court noted in Broadrick, 413 U.S. at 618, the statute need not “be discarded in toto because some persons’ arguably protected conduct may or may not be caught or chilled by the statute.” Rather than striking down the statute as unconstitutionally overbroad, the statute‘s application to those involved in the making of pornography should be resolved, if it ever arises, through an as-applied challenge. See generally id. at 615-16 (noting that facial invalidation requires that the overbreadth of a statute be real and substantial, and that “whatever overbreadth may exist should be cured through case-by-case analysis of the [facts]“); Theriault, 949 A.2d at 681 (concluding that “any applications of the statute that infringe upon protected conduct, to the extent that such applications exist, may be remedied on a case-by-case basis“).
In urging us to reach the opposite conclusion, Washington-Davis cites Guinther v. Wilkinson, 679 F. Supp. 1066, 1069-70 (D. Utah 1988). But the statute at issue in Guinther was much different. The statute at issue there defined prohibited “sexual activity” as including the touching of one‘s clothed body in an act of, or in an apparent act of, sexual stimulation, whether alone or between members of the same or opposite sex. Id. (quoting
Utah statute defined “sexual activity” much more broadly than the statute at issue here, and lacked any “purpose” requirement, Guinther is inapposite.
In sum, invalidation of a statute for substantial overbreadth is “strong medicine” that should be used “only as a last resort.” Broadrick, 413 U.S. at 613, 615; see also Williams, 553 U.S. at 292 (stating that “we have vigorously enforced the requirement that a statute‘s overbreadth be substantial, not only in an absolute sense, but also relative to the statute‘s plainly legitimate sweep“). The record before us convinces us that such a prescription is not warranted here. We therefore hold that
II.
We turn next to Washington-Davis‘s argument that he is entitled to a new trial on the counts involving B.R., S.A., C.B., and T.B. because the district court failed to properly instruct the jury on accomplice liability.11 Because Washington-Davis did not
object to the aiding-and-abetting jury instructions at trial, we review the instructions for plain error. See State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). Under the plain-error test, we determine whether the jury instructions (1) contained an error, (2) that was plain, and (3) that affected the defendant‘s substantial rights. Id. If the defendant establishes these three prongs, “we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)); accord State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
An individual is criminally liable for a crime committed by another “if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”
Here, the district court provided the following instruction on accomplice liability:
The defendant is guilty of a crime committed by another person when the defendant has played an intentional role in aiding the commission of the crime and made no reasonable effort to prevent the crime before it was
committed. “Intentional role” includes aiding, advising, hiring, counseling, conspiring with, or procuring another to commit the crime.
(Emphasis added). The specific jury instructions for promotion of prostitution and solicitation of prostitution then required the jury to find that “the defendant, aiding and abetting or being aided and abetted by another, intentionally promoted the prostitution of [the victim]” or ”intentionally
The State concedes that the district court committed plain error by failing to explain “intentionally aiding,” as required by Milton, 821 N.W.2d at 808. We therefore turn to whether this plain error affected Washington-Davis‘s substantial rights. To satisfy the third prong of the plain-error test, Washington-Davis bears the “heavy burden” of showing there is a “reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict.” State v. Kelley, 855 N.W.2d 269, 283 (Minn. 2014).
The instruction in this case is similar to that in State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013). In Bahtuoh, the defendant was convicted of first-degree felony murder while committing a drive-by shooting for the benefit of a gang. Id. at 807. The district court gave the jury an incorrect accomplice-liability instruction, stating that “a person‘s presence can constitute aiding and abetting if it is done intentionally and if it also aids or encourages the commission of the crime.” Id. at 812. The instruction in Bahtuoh was
erroneous because it did not state that the defendant had to play a “knowing role” in the commission of the crime. Id. at 813. We concluded, however, that this error was “counterbalanced” by other instructions that “imposed a more stringent state-of-mind requirement than Minnesota law requires.” Id. Particularly, the crime-specific jury instructions required that the jury find “the defendant, acting alone or intentionally aiding and abetting another, acted with the intent to kill [the victim.]” Id. at 814 (emphasis added). We held that any error in the jury instructions did not result in reversible error because “the jury instructions, considered as a whole, ensured that the jury was required to find, at a minimum, that Bahtuoh knew that [his co-defendant] planned to commit a crime and intended his actions to further it.” Id. at 814-15.
The jury-instruction error here, like the one in Bahtuoh, does not require a new trial. The district court gave an erroneous jury instruction that failed to adequately explain what “intentionally aiding” means. See Kelley, 855 N.W.2d at 277-78 (identifying the failure to adequately explain the intentionality requirement of accomplice liability as a plain error). The court, however, went on to instruct the jury that, in order to find Washington-Davis guilty of aiding and abetting the solicitation or promotion of prostitution, the State had to prove beyond a reasonable doubt that Washington-Davis himself acted with the specific purpose of either soliciting a specific victim to practice prostitution or promoting the prostitution of a specific victim. As in Bahtuoh, the jury in the present case “was required to find that [Washington-Davis] had a more culpable state
of mind than is required for accomplice liability under Minnesota law.” 840 N.W.2d at 814.12
III.
Finally, we consider whether the evidence presented at trial was sufficient to prove that Washington-Davis intentionally aided and abetted his brother Otis‘s solicitation of C.B. and T.B. to become prostitutes. An individual is guilty of a crime if he or she intentionally solicits or induces a person to practice prostitution.
at 53-54. After identifying the circumstances proved, we “independently examine the reasonableness of all inferences that might be drawn from the circumstances proved” to determine “whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id. at 54.
The circumstances proved are inconsistent with any rational hypothesis other than guilt. In addition to Washington-Davis‘s actions on July 6, 2012, his history of involvement in his family‘s long-running prostitution scheme “leads so directly to [] guilt . . . as to exclude beyond a reasonable doubt any reasonable inference other than guilt.” See State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). Washington-Davis was in charge of posting ads and taking pictures of the women for use in the ads. He drove numerous women to out-call locations, where the women would engage in acts of
prostitution, or he rode along to provide protection for the women. He directly solicited a number of women to practice prostitution and promoted the prostitution of a number of women. Washington-Davis‘s extensive involvement in the ongoing criminal scheme, along with his conduct on July 6, 2012, makes it unreasonable to infer that Washington-Davis was a passive bystander in his brother‘s attempt to solicit C.B. and T.B. to practice prostitution. See State v. Yang, 774 N.W.2d 539, 562 (Minn. 2009) (“Presence, companionship, and conduct before and after an offense are circumstances from which a person‘s criminal intent may be inferred.” (quoting State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993))).
In urging us to conclude that the circumstances proved support an alternative hypothesis that he was “passively present” while his brother attempted to persuade the women to work as prostitutes, Washington-Davis cites State v. Ulvinen, 313 N.W.2d 425 (Minn. 1981). In that case, we concluded that the evidence was insufficient to support a conviction of first-degree murder on an accomplice-liability theory when the defendant merely commented that the murder was “for the best” and the evidence did not show the defendant took any active steps to “aid, advise, or counsel” the principal in the commission of the crime. Id. at 427, 429. Ulvinen is inapposite.
Washington-Davis was not a passive observer, but rather an active participant. Washington-Davis actively engaged C.B. and T.B. in an effort to solicit them to practice prostitution: they (Washington-Davis and Otis) wanted C.B. and T.B. “to take pictures,” they discussed how much money they could make, and they decided C.B. would stay with Otis rather than accompany Washington-Davis and two other prostitutes. Washington-
Davis‘s testimony that he and his brother brought the women to the house merely to smoke marijuana and play pool was rejected by the jury, is inconsistent with the verdict, and therefore is of no consequence on our review of the sufficiency of the evidence. See McAllister, 862 N.W.2d at 53-54 (rejecting evidence in the record that conflicts
Washington-Davis‘s active involvement with Otis on July 6, 2012, as well as his past conduct in his family‘s prostitution business, points unerringly to guilt. Washington-Davis knew Otis was soliciting C.B. and T.B. to engage in prostitution and intended his presence and actions to further that goal. Washington-Davis‘s hypothesis that he was “passively present” for the solicitation of C.B. and T.B. is unreasonable in light of all the circumstances proved. We therefore hold that there is sufficient evidence to prove beyond a reasonable doubt that Washington-Davis intentionally aided in the solicitation of C.B. and T.B. to practice prostitution.
Affirmed.
CHUTICH, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.
Notes
(1) solicits or procures patrons for a prostitute;
(2) provides, leases or otherwise permits premises or facilities owned or controlled by the person to aid the prostitution of an individual;
(3) owns, manages, supervises, controls, keeps or operates, either alone or with others, a place of prostitution to aid the prostitution of an individual;
(4) owns, manages, supervises, controls, operates, institutes, aids or facilitates, either alone or with others, a business of prostitution to aid the prostitution of an individual;
(5) admits a patron to a place of prostitution to aid the prostitution of an individual; or
(6) transports an individual from one point within this state to another point either within or without this state, or brings an individual into this state to aid the prostitution of the individual.