Opinion
No. C4-00-71.
Filed November 28, 2000.
Appeal from the District Court, Hennepin County, File No. 98101484.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Sr. Assistant County Attorney, (for respondent)
Randall D.B. Tigue, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Holtan, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges the jury's verdict that she was guilty of promoting prostitution and inducing prostitution, arguing that the evidence was insufficient and that the jury was improperly instructed. Because there was sufficient evidence to allow the jurors to reach the verdict they did, and because the district court properly instructed the jury, we affirm.
FACTS
In 1995, appellant Chong Sun Kerling hired Penny Knudsen to work at Sauna 27 in Minneapolis. For the first month, appellant instructed Knudsen only to perform massages on customers. Thereafter, appellant told Knudsen to perform various sex acts with customers for monetary consideration, instructing her on which sex acts certain customers preferred and how much to charge for those acts. Whenever Knudsen needed a condom, she was required to inform appellant, who then supplied her with one. When Knudsen first started working at Sauna 27, appellant collected money from the customers, but after Knudsen learned what to charge, she collected the money and gave it to appellant. Although Knudsen sometimes worked at Sauna 27 when appellant was not there, Knudsen testified that she turned over all the money she received for engaging in sex acts to appellant and that engaging in sex acts for money was a condition of her employment.
Knudsen was arrested on August 14, 1998, at Sauna 27 for offering to engage in prostitution with an undercover police officer. In exchange for her truthful testimony, she was granted immunity from prosecution. Based on information from Knudsen, appellant was charged with promoting the prostitution of an individual, in violation of Minn. Stat. § 609.322, subd. 1a(2) (1998), and with soliciting or inducing an individual to practice prostitution in violation of Minn. Stat. § 609.332, subd. 1a(1) (1998).
At the jury trial, Knudsen testified that throughout her employment at Sauna 27, appellant also engaged in acts of prostitution with customers. Appellant, however, testified that she never engaged in a sex act for money at Sauna 27. She also testified that she is the sole owner of Sauna 27 and that she employed Knudsen for $1,000 per month from 1995 through 1998.
The jury found appellant guilty of both counts. The district court denied appellant's motion for judgment of acquittal notwithstanding the verdict or a new trial. On appeal, she challenges the sufficiency of the evidence and the jury instructions.
DECISION I. Sufficiency of Evidence
Appellant challenges the sufficiency of the evidence supporting the jury's verdict on both counts.
On a challenge to the sufficiency of the evidence, the court's only inquiry is whether, on facts in the record and legitimate inferences drawn therefrom, a jury could reasonably conclude that the defendant was guilty. The court must view the evidence in the light most favorable to the prosecution and assume the jury believed the prosecution's witnesses and disbelieved any contrary evidence.State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citations omitted).
A. Promoting Prostitution
To find appellant guilty of promoting the prostitution of Knudsen, the jury had to determine that she promoted Knudsen's prostitution "while acting other than as a prostitute or patron." Minn. Stat. § 609.322, subd. 1a(2) (1998). Appellant argues that the jury could not reasonably have reached this conclusion because Knudsen testified that appellant engaged in acts of prostitution.
Appellant, however, testified that she never engaged in a sex act for money at Sauna 27; she explained that she performed a sex act with an undercover officer after accepting $60 for a massage because: "I feel like he's my kind of a boyfriend, relationship or something like that and I like him so much * * *." Therefore, appellant's own testimony supports a finding that she acted other than as a prostitute or patron.
Moreover, the statutory language is intended to prohibit the prosecution of a prostitute for promoting herself. It is not intended to immunize one who engages in separate acts of prostitution from prosecution for promoting the prostitution of another individual. One can be guilty of both crimes. See, e.g., State v. Montpetit, 445 N.W.2d 571, 572 (Minn.App. 1989) (defendant who met with two women posing as prostitutes, accompanied one to a hotel and arranged a "date" for the other with his friend, held to be a patron of the prostitute he hired for himself and a promoter of the prostitute he hired for his friend), review denied (Minn. Oct. 31, 1989). The jury could reasonably have found that appellant promoted the prostitution of Penny Knudsen.
B. Soliciting or Inducing Prostitution
Appellant contends that the evidence is insufficient to establish that she solicited or induced Knudsen to practice prostitution on August 14, 1998. Appellant argues there is no evidence that solicitation or inducement occurred on that date. But testimony indicated that on that date, appellant was employing Knudsen and paying her $1,000 per month, engaging in sexual acts for money was a condition of Knudsen's employment, Knudsen was required to turn over to appellant any money she received for engaging in sexual acts at Sauna 27, appellant had instructed Knudsen what to charge for various sexual acts, appellant's "regular" customers received requested sex acts in exchange for money, and Knudsen could use only condoms provided by appellant. All would support a finding that appellant solicited or induced Knudsen to practice prostitution on August 14, 1998.
Appellant also argues that her crime ended when she persuaded Knudsen to practice prostitution in the summer of 1995, so her prosecution was barred by the statute of limitations. See Minn. Stat. § 628.26(i) (1998). But appellant's solicitation or inducement of Knudsen was an ongoing violation; it continued as long as appellant provided Knudsen with customers and took the money Knudsen received for these acts. "Continuing violations can prevent the expiration of the statute of limitations." Kohn v. City of Minneapolis Fire Dep't, 583 N.W.2d 7, 11 (Minn.App. 1998) (citing Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn. 1989)) (holding that discriminatory acts that persist over a period of time may constitute "continuing violations," which can prevent the expiration of the statute of limitations on a discrimination claim), review denied (Minn. Oct. 20, 1998). The jury could reasonably have found solicitation or inducement in August 1998.
II. Jury Instructions
Trial courts are allowed "considerable latitude" in the selection of language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
A. Instruction Defining "While Acting Other Than as a Prostitute"
Appellant argues that the instruction defining "while acting other than as a prostitute" was wrong as a matter of law and, in the alternative, that if it had been substantively correct, its timing made appellant appear to have deliberately misrepresented the law to the jury.
The jury was instructed:
[T]he phrase "while not acting as a prostitute" refers to an activity or a course of conduct other than the defendant's own act of prostitution.
Although appellant had not objected before the definition was submitted to the jury, she moved for a mistrial. The district court denied the motion.
[The] failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal. * * * On appellate review, it is well settled that the court's charge to the jury must be read as a whole, and if, when that is done, it correctly states the law in language that can be understood by the jury there is no reversible error.
State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Appellant waived the right to raise this issue by failing to timely object.
B. Response to Jury's Question
The district court instructed the jury on the elements of solicitation or inducement:
[F]irst, that the defendant acted other than as a prostitute or a patron of a prostitute. Second, that Penny Knudsen had reached her 18th birthday. Third, that the defendant intentionally asked or persuaded Penny Knudsen to practice prostitution. Fourth, that the defendant's act or an element of the offense took place on or about August 14th, 1998 in Hennepin County Minnesota.
There was no objection to this instruction. After retiring for deliberation, the jury asked, "Does the third element of solicitation have to do with August 14th or could it refer to any day?" In response, the district court "refer[red] the jury back to the elements listed" in the solicitation instruction initially given. Again, by failing to object to the instruction before it was submitted to the jury, appellant waived her right to object. See id.
Appellant argues, without citing any authority, that her failure to object to the original instruction was cured by her request that the instruction be corrected in response to the jury's question. But appellant has waived her right to object unless there was "plain error affecting substantial rights or if the claim relates to error in fundamental law in the jury instructions." State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (quotation omitted). The district court's response to the jury's question does not constitute plain error affecting substantial rights.