Opinion
Record No. 1822-92-4
March 29, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY THOMAS A. FORTKORT, JUDGE.
Michael F. Devine, Assistant Public Defender (Steven T. Webster, Deputy Public Defender, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Haitham Shurbaji (appellant) was convicted by a jury of pandering in violation of Code § 18.2-356. On appeal, he argues that the trial court failed to instruct the jury properly on the elements of pandering and that the evidence was insufficient to sustain his conviction. Finding no error, we affirm.
The parties are familiar with the facts; therefore, we recite only those necessary to explain our decision. In January, 1992, the Fairfax County Police were investigating local escort services for possible organized prostitution. This case arises out of an undercover investigation of one such business, Amanda's Escort Service (AES).
On January 17, 1992, Judith Duff, an undercover Fairfax County police officer posing as "Judy," met with appellant in a motel room to discuss possible employment and procedures as an escort. Two prostitutes, acting as police informants, were present at this meeting, which the police recorded. During the meeting, appellant explained the three types of escort services AES offered and the respective fees charged. An "in-call," where the client comes to the escort, was $175. An "out-call," where the escort goes to the client, was $200. A "fantasy-call," where a client wants something "special" beyond a regular session, required a fee of $250 or more. Credit card transactions had a service charge of $25. AES paid the escorts one-half of the agency's fee.
Appellant hired "Judy" and instructed her not to discuss sex or money either in person or over the telephone. At trial, Officer Duff summarized the agreement that appellant had with his escorts as follows:
[Appellant] stated that he shared fifty/fifty with the girls. He got fifty, we got fifty of whatever was collected. He said he was the one to set the price and that we did not talk about sex or money over the phone. He said that . . . was what he did. He took care of that ahead of time. . . .
He did say — I would ask him, how am I supposed to know what this man wants when he comes to my room, you know, what type of sex does he want. He said basically he would take care of that and he would call me and let me know ahead of time, before the man ever came to the room; that I was never to discuss sex over the phone because that was illegal. I was never to quote a price. I was never to talk about money or sex in the same conversation because it was illegal to quote a price for sex. I said, "so you take care of that before anyone calls me?" And he said yes, he took care of that. He said that I was to collect the money before the man ever got undressed, so that I knew that I had the money, you know, beforehand, instead of waiting after the sex.
* * * * * * *
He'd say, if someone wants a fantasy, if they ask for dominant or they ask questions or they want more, then you could charge them three hundred dollars, if they want a whole lot more. So, I took fantasy to mean a whole lot more than just a regular session. Again, I asked him, "I will know what sex the man wants before he gets here?" And he said, "Always you will know."
Appellant also instructed "Judy" on techniques to identify police officers posing as clients.
On January 28, 1992, Fairfax County Police Officer William Rowley, posing as a client named "Bill," called AES and requested "Judy" as his escort for a black tie dinner. When Officer Duff called the escort service to tell them she was ready to work, the receptionist told her about Bill's call. A woman spoke with her about how to conduct the particular escort. When "Judy" asked about what sexual acts she would be expected to perform and how much to charge, she was told that they could not discuss sex over the phone because the conversation could be monitored. The woman told "Judy" that she should charge $200 per hour. She instructed her to telephone the service at the beginning of the session and each hour thereafter.
The second time Officer Duff called the agency during the escort she was told to call back when she checked out. At 1:00 a.m. on January 29, 1992, she called to report that she had completed the escort. She spoke with appellant, who asked how much money she had collected from Bill. He told her he would meet her to collect his money immediately.
At approximately 1:30 a.m., appellant arrived at the hotel parking lot. After confirming to "Judy" that $200 per hour was a sufficient fee for an escort which included "having sex," appellant took $500 from her and left.
INSTRUCTION OF THE JURY
Appellant argues that the trial court erred by giving Commonwealth's instruction number one, because it misstated the elements of pandering by reducing the requisite intent from "purpose" to "mere knowledge" that sexual intercourse had occurred and by broadening the scope of the offense to include "sexual acts" not specifically proscribed by Code § 18.2-356.
"A reviewing court's responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)); see also Kil v. Commonwealth, 12 Va. App. 802, 809, 407 S.E.2d 674, 678 (1991). "When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its discretion in refusing another instruction relating to the same legal principle."Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384,cert. denied, 469 U.S. 873 (1984).
Code § 18.2-356 provides:
Any person who shall receive any money or other valuable thing for or on account of procuring for or placing in a house of prostitution or elsewhere any person for the purpose of causing such person to engage in unlawful sexual intercourse or any act in violation of § 18.2-361 shall be guilty of a Class 4 felony.
Code § 18.2-361(A), provides, in part:
If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony.
Commonwealth's instruction number one provided, in pertinent part:
The Court instructs the jury that the defendant is charged with the crime of pandering. The Commonwealth must prove each of the following elements of that crime:
(1) That the defendant received money or other valuable property; and
(2) That the money was received for or on account of procuring for another to engage in unlawful sexual intercourse.
(3) That the defendant knew that the person was receiving money for sexual acts.
The statute prohibits the receipt of money "for or on account of procuring for . . . any person for the purpose of causing such person to engage in unlawful sexual intercourse or any act in violation of [Code] § 18.2-361." Code § 18.2-356 (emphasis added). Instruction number one required the jury to find "[t]hat the money was received for or on account of procuring for another to engage in unlawful sexual intercourse." We find that instruction number one paraphrased the statute and was an accurate statement of the "knowledge" element of the crime of pandering. See Edwards v. Commonwealth, 218 Va. 994, 1002, 243 S.E.2d 834, 839 (1978).
Appellant's second argument, regarding the erroneous use of the term "sexual acts" instead of "unlawful sexual intercourse" or one of the acts specified in Code § 18.2-361, is barred from appellate review because it was never raised in the trial court. Rule 5A:18. To preserve a claim for appellate review, an objection must first be made in the trial court and the grounds for the objection on appeal must be the same grounds asserted in the trial court. O'Dell v. Commonwealth, 234 Va. 672, 679, 364 S.E.2d 491, 494, cert. denied, 488 U.S. 871 (1988) (citations omitted).
An objection to an instruction on one ground does not preserve an objection on an unstated ground. At trial, appellant objected to instruction number one because it allowed the jury to convict him of pandering based on "mere knowledge" that sexual intercourse occurred. Appellant did not object to the instruction as being over-broad because of the term "sexual acts;" therefore, appellant is barred from so arguing on appeal.
In addition, we find no error by instructing the jury with Commonwealth's instruction number two. It is neither cumulative nor obscure. When the instructions are considered in their entirety, we find that the jury was properly instructed. At trial, appellant did not argue that instruction number two "recast" elements of the offense or was incomplete. Accordingly, appellant's additional ground for objection to these instructions is also procedurally barred from consideration on appeal. See Rule 5A:18.
SUFFICIENCY OF THE EVIDENCE
Appellant argues that the Commonwealth's evidence was insufficient to establish that the object of the meeting between "Judy" and "Bill" for which money was exchanged was unlawful sexual intercourse or sodomy. On appeal, we must view the evidence in the light most favorable to the Commonwealth and give that evidence all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "Where an offense consists of an act combined with a particular intent, proof of the intent is essential to the conviction. Because direct proof of intent is often impossible, it must be shown by circumstantial evidence."Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988) (citations omitted).
Code § 18.2-356 and the other related sections of Article 3:
are all designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of [another]. It is immaterial whether the act be called pandering or pimping. Pander means "to pimp, to cater to the gratification of the lust of another." It includes the procuring of one person by another for illicit sexual intercourse [or crimes against nature as defined in Code § 18.2-361]. . . . It reaches the person who receives money for procuring [another] to engage in unlawful sexual intercourse, [sodomy or bestiality].
Edwards, 218 Va. at 1001-02, 243 S.E.2d at 838-89 (citations omitted).
To sustain a conviction for pandering, "the Commonwealth was required to prove that [appellant] received money for the purpose of causing a person to engage in prostitution. Knowledge of the illegal activity was a prerequisite to conviction." Collins v. Commonwealth, 226 Va. 223, 229, 307 S.E.2d 884, 888 (1983). The evidence established that prostitutes received their "referrals" from appellant. Appellant's conversations with Officer Duff included a description of the "call" services and prices, instructions not to discuss sex or money with clients, "tips" on identifying police officers, and admissions. In addition, the Commonwealth's witnesses described the meeting between "Judy" and "Bill" and appellant's collection of his $500 fee immediately after this meeting, following confirmation of the $200 per hour fee for an escort including sex.
As in Collins, "[t]he evidence, viewed in the light most favorable to the Commonwealth, is sufficient to show that the business conducted by [appellant], euphemistically referred to as an escort service, was call-girl prostitution,"Collins, 226 Va. at 232, 307 S.E.2d at 890, and was sufficient to convict appellant of violating Code § 18.2-356. See Edwards, 218 Va. at 1002, 243 S.E.2d at 839.
For the reasons set forth above, we affirm appellant's conviction.
Affirmed.