State v. DuffyState v. Duffy
Defendant appeals a judgment of conviction for engaging in unlawful prostitution procurement activities, a misdemeanor, in violation of Portland City Code (PCC) section 14A.40.050. Defendant raises two assignments of error. First, she assigns error to the trial court’s denial of her demurrer to the charging instrument. Second, she assigns error to the trial court’s refusal to give her requested jury instructions that would have informed the jury that, in order to convict her of the charged offense, all six of its members were required to agree on the particular activity that she had engaged in that constituted a substantial step in furtherance of an act of prostitution. We affirm.
This court reviews a trial court’s ruling on a demurrer to the charging instrument for errors of law. State ex rel Juv. Dept. v. Aragorn,
“A. As used in this Section, ‘prostitution’ means that unlawful conduct defined in Section 14.A40.040 of this Code. As used in this Section, ‘prostitution procurement activity’ means any conduct by any person that constitutes a substantial step in furtherance of an act of prostitution.Such activity includes, but is not limited to, lingering in or near any street or public place, repeatedly circling an area in a motor vehicle, or repeatedly beckoning to, contacting, or attempting to stop pedestrians or motor vehicle operators.
“B. It is unlawful for any person to engage in any prostitution procurement activity with an intent to induce, entice, solicit, procure, locate, or contact another person to commit an act of prostitution.”
PCC 14A.40.050 (emphasis added). The complaint served on defendant alleges that she “intentional[ly]” or “knowinglly]” committed unlawful prostitution procurement activities in violation of “PCC 14A.40.050” without further specifying the activities alleged. Before trial, defendant demurred to the complaint on the ground that it failed to give her sufficient notice of the factual allegations that would allow her to prepare her defense. The state responded that, even if the contents of the complaint were inadequate to provide sufficient notice, the pretrial discovery furnished to defendant adequately supplemented the complaint and provided the notice required for her to defend against the charge. The discovery provided to defendant informed her that the state would seek to prove at trial that she was observed walking up and down a street while wearing a short dress, looking at passing motorists and attempting to make eye contact with them, and checking the side streets to see if any cars had stopped. Also, the provided discovery informed defendant that she was carrying condoms and money; that when a police officer asked defendant whether she was a prostitute, she responded in the affirmative; and that when the officer asked her how much money she had made, she said, “[N]one yet.” The discovery also notified defendant that the state would offer testimony that, based on the police officer’s training and experience, he would opine at trial that defendant’s conduct was consistent with prostitution activities.
Generally, pretrial discovery is “sufficient to cure imprecision in charging instruments.” State v. Wright,
Defendant relies on our opinion in State v. Cooper,
“[b]ecause the conduct listed in [the statute] is not exclusive, we are unable to say that this is a situation where discovery could remedy the deficiency of the accusatory instrument. Defendant should not be required to undertake a fishing expedition to determine precisely what it is that she did wrong.”
Id.
Defendant compares the ordinance in this case to the statute in Cooper and argues that, because the list of activities that violate the ordinance is not exclusive, the discovery provided to her does not remedy the complaint’s deficiency. But there is a significant difference between the facts in this case and the facts in Cooper. In Cooper, the state appealed the trial court’s grant of defendant’s demurrer before any discovery occurred. Thus, we were unable to say “whether discovery could remedy the deficiency of the accusatory instrument.”
In this case, the charge is not so complex as to prohibit discovery from curing its imprecision. It involves activities that were performed by one defendant, took place in one location, and occurred during a single incident. The amount of discovery and its details are minimal. Under the circumstances of this case, we conclude that the discovery provided to defendant sufficed to put her on notice as to the circumstances relied on by the state to prove the charge. Accordingly, the trial court did not err in concluding that any imprecision in the charging instrument was remedied by the discovery provided to defendant.
In defendant’s second assignment of error, she argues that the trial court erred by refusing to give her requested jury instructions that would have informed the jury that it was required to agree on a particular activity described in the discovery materials before it could convict her of the charge. We review a trial court’s refusal to give a requested instruction for errors of law in light of the facts that are most favorable to the defendant. State v. Averitt,
At trial, defendant requested two jury instructions based on the Supreme Court’s decision in State v. Boots,
“[Defendant] is charged with one count of Unlawful Prostitution Procurement Activities. There are various ways for the state to prove that charge. However, in deliberating as to the charge, Oregon law requires that all six jurors consider the same proof or lack of proof for each possible theory of the case.
“In other words, for example, when deliberating, all six of you must consider whether the state has proven the charge beyond a reasonable doubt with respect to the same alleged act. It would be unfair — and unlawful — for one juror to consider the charge with one activity in mind and another juror to consider the charge with a different activity in mind. All six jurors must agree on any verdict.”
The second proposed instruction listed a number of factual theories and instructed the jury that all six jurors must agree on at least one of the listed theories to convict. The trial court refused to give the instructions, reasoning that the state’s different factual theories were simply alternative ways of proving unlawful prostitution procurement activity.
On appeal, defendant argues that, under Boots, the court was required to give her requested instructions. In Boots, the defendant was charged with aggravated murder under two different subsections of the aggravated murder statute.
On review, the Supreme Court held that the trial courts did not err in refusing to give the requested instructions because the subsections of ORS 813.010(1) provided for different circumstances, each of which by themselves constituted a violation of the statute prohibiting driving while under the influence. Id. at 446. The King court distinguished ORS 813.010(1) from the statute at issue in Boots, which listed 17 different aggravating factors, each of which was an element of a separate and distinct crime. Id. at 442-46. Because each element of a crime must be proved beyond a reasonable doubt, jury concurrence on a particular aggravating factor was required. Id. at 441-42. In contrast, the court held that ORS 813.010 was intended by the legislature to embody a single offense that could be prqved by different sets of circumstances. Id. at 446.
At issue in this case is whether the Portland city council intended, in enacting PCC 14A.40.050, that each activity constitutes a separate offense, or whether the council intended that each activity constitutes an alternative method of proving the same offense.
Because our task is to discern the intent of the city council in that regard, we first examine the language of the ordinance itself. See Comcast of Oregon II, Inc. v. City of Eugene,
Affirmed.