Edwin Hayes, Jr. 1-31 Bailey
(Judge James D. Humphrey, Dearborn Circuit Court, rvsd in part - affd in part)
- Open guilty plea conviction reversed for promoting prostitution (fB) due to fundamental error of an insufficient factual basis. Defendant was the john, not the pimp. The court of appeals raised this issue sua sponte.
- Since Court vacated Promoting Prostitution (fB) charge, the double jeopardy issue on Attempted Sexual Misconduct with a Minor (fB) was alleviated, so the appellate court remanded for sentencing on that count.
- On the remaining sentences for child exploitation (fC) (8yrs) & possession of marijuana (A misd.)(1yr), the length of each sentence was appropriate, based on the nature of the offenses and the character of the offender, but appellate court ran sentences concurrently, instead of consecutively, due to a minimal drug use history, despite a lack of remorse and minimization of responsibility. Nevertheless, the 4 yrs suspended to probation portion of the exploitation count was affirmed.
DISCUSSION:
In Hartman v. State 602 N.E.2d 1013 (Ind. 1992), our Supreme Court reviewed the legislative intent of the criminal statutes for prostitution, patronizing a prostitute, and promoting prostitution. The cast of characters includes: the prostitute, the john and the pimp. One statute targets the prostitute, another targets the customer, and a third targets the pimp. The Supreme Court held it was error for a prostitute to be charged with promoting prostitution just because he gave a willing customer directions to his (Hartman’s) home. When the customer arrived, the defendant… fondled his (the john’s) genitals. Hartman’s conviction for promoting prostitution a Class B felony under IC 35-45-4-4(5) was reversed because Hartman was the prostitute, not a pimp. He was guilty of prostitution an A misdemeanor, not promoting a B felony. The statute says promoting prostitution means, “[a] person who knowingly or intentionally conducts or directs another person to a place for the purpose of prostitution commits promoting prostitution.” The words seem to fit, but Hartman was the prostitute not the pimp and subsection (5) is aimed at pimps.
FACTS:
In December of 2005, thirty-six year old defendant met fifteen year old BW in a hotel room to take nude photos of her in exchange for $250. The defendant purchased lingerie and rented a room. BW brought her boyfriend.
In March of 2006, CPS learned of the meeting and got the state police involved. The police had BW call the defendant to set him up with her friend “Sarah”, an undercover officer. BW told the defendant her friend was sixteen or seventeen. The defendant said he would pay $250 to take photos of Sarah, and would pay the girls $ for having sex with him.
The defendant met Sarah at a gas station. She was wearing a recording device. He asked Sarah her age and she said seventeen. He replied that it was scary she wasn’t eighteen. He explained how he took pictures of girls and sold them to a club for money. The amount he paid the girl depended on how far she was willing to go. Possibilities ranged from pictures in lingerie to hard-core pornography. He also suggested making a girl–girl video with BW and Sarah. When Sarah expressed concern about the photos being posted on the Internet, the defendant suggested she could wear a mask or make money by having an evening of sex with him. He asked her to expose herself and after she refused, offered her $50 for meeting him.
After this meeting, a date and time was arranged for BW, Sarah, and the defendant to meet at a hotel. The defendant was arrested when he showed up. A search of his car yielded a DVD titled, “Triple X American Teens,” 3 vibrators, a bottle of lubricant and marijuana.
On March 22, 2006, the defendant was charged & about a year later, pled guilty open to:
- Promoting Prostitution (fB)
- Attempted Sexual Misconduct with a Minor -BW(fB)
- Child Exploitation (fC)
- Possession of Marijuana (A misd).
At sentencing, the trial court found aggravators of criminal history, and that the defendant posed a danger to children as evidenced by conduct during the sentencing hearing, which included a lack of remorse, and minimization of the crime, and his criminal history. His guilty plea was a mitigator. The aggravators outweighed the one mitigator. The sentence was:
- 20 yrs
- no sentence because the court found merger with ct one
- 8 year with 4 suspended to probation
- 1 year.
The trial court ran the sentences consecutive for a total executed sentence of 25 yrs, followed by four years probation.
FURTHER DISCUSSION:
Because the defendant was a customer seeking a prostitute, he should not have been charged or convicted under the pimp statute. The sentence on count I, Promoting Prostitution fB, was ordered vacated by the appellate court. Merger of cts I and II doesn’t solve the double jeopardy problem, that old way of dealing with it does not work in today’s world. (And neither will running the sentences concurrently)! But because ct I was vacated, the double jeopardy issue with ct II was resolved, so the appellate court remanded for sentencing on the B felony for attempted sexual misconduct with a minor.
The nature of the offense is obvious and aggravating.
A review of the character of the offender led the appellate court to run cts III and IV concurrently, rather than consecutively, since the history of drug use was minimal and somewhat remote, despite the defendant’s minimization of his prior history and current crime. The appellate court noted the guilty plea was a minimal mitigator since there was substantial evidence against the defendant including covert recordings of the attempted crime. (Surely the year delay before pleading, factored in as well). Neither the defendant’s backpedaling, nor his lack of remorse, helped him undo the maximum 8 year sentence on ct III. As the appellate court stated:
“[His] criminal history includes owi, minor in possession of alcohol, conversion, abduction, public indecency and possession of marijuana. The prior conviction for possession of marijuana is ten years old and his only drug conviction (but not his only substance abuse conviction). However, his current sex offenses seem to be an escalation of his past offense for public indecency that involved him masturbating in public. Although it has been over a decade since his last offense, the repetition of a sex-related offense and the increase in the seriousness of the crime are significant.”