State v. Evans
326 S.E.2d 303 (1985)
STATE of North Carolina v. Vanessa Ann EVANS.
Court of Appeals of North Carolina.
March 5, 1985.
*306 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Walter M. Smith, Raleigh, for the State.
Gulley, Eakes & Volland by Jane Elizabeth Volland, Durham, for defendant.
At trial defendant raised numerous constitutional objections to the loitering for prostitution statutes. N.C.Gen.Stat. §§ 14-204.1, -206 (1981 and Cum.Supp. 1983). These questions are therefore properly before this court. State v. Hunter, 305 N.C. 106, 286 S.E.2d 535 (1982). Defendant brings forward no other assignments.
As the party challenging the constitutionality of the statutes, defendant bears a heavy burden. We presume that the statutes are constitutional, and resolve all doubts in favor of their constitutionality. In re Housing Bonds, 307 N.C. 52, 296 S.E.2d 281 (1982); In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978). The applicable principles of construction are set out at length in Banks and need not be repeated here.
Defendant attacks G.S. § 14-204.1 as violative of due process on vagueness and overbreadth grounds. A criminal statute is void for vagueness if it fails to provide fair notice of the conduct prohibited. In re Banks, supra; State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981). No more than a reasonable degree of certainty is required, nor is it necessary that the statute describe exactly the point beyond which conduct becomes criminal. In re Banks, supra; see Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). None of the words in G.S. § 14-204.1 are difficult to understand. The key element is intent: that the loitering be "for the purpose of violating any subdivision of G.S. 14-204 or G.S. 14-177." G.S. § 14-204.1(b): (Engaging in prostitution or committing the crime against nature). The two other statutes referred to have been upheld against similar challenges and both proscribe conduct which has long been recognized as criminal. See State v. Demott, 26 N.C.App. 14, 214 S.E.2d 781 (1975); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843 (1979), appeal dismissed, 445 U.S. 947, 100 S.Ct. 1593, 63 L.Ed.2d 782 (1980). Persons of ordinary intelligence would readily understand what illegal conduct was prohibited by G.S. § 14-204.1; therefore it is not unconstitutionally vague. Id; Compare State v. Sanders, 37 N.C.App. 53, 245 S.E.2d 397 (1978) ("immoral purposes" too broad).
The real thrust of defendant's attack on the statute as written goes to its breadth. A statute may not control activity constitutionally subject to state regulation by sweeping unnecessarily broadly into areas of protected freedoms. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Mere presence in a public place cannot constitute a crime. See Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). It is equally clear that some of the statutorily *307 denounced acts, e.g., engaging passers-by in conversation, would not by themselves ordinarily be constitutionally punishable. Id. The statute, however, does not stop there. Instead, it requires proof of specific criminal intent, the missing element in unconstitutional "status" offenses such as simple loitering. See Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C.1969) (declaring vagrancy statute unconstitutional), vacated on procedural grounds, 401 U.S. 987, 91 S.Ct. 1219, 28 L.Ed.2d 524 (1971); see also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (dicta suggesting that intent element would save vagrancy ordinance); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (specific intent requirement makes otherwise overbroad statute constitutional).
American courts have overwhelmingly upheld enactments such as G.S. § 14-204.1 which include an element of criminal intent. See Annot., 77 A.L.R.3d 519, § 4 (1977); Annot., 25 A.L.R.3d 836, § 3 (Cum.Supp.1984). Two cases from the Washington Supreme Court illustrate precisely the rationale applied. In City of Seattle v. Drew, 70 Wash.2d 405, 423 P. 522 (1967), the court struck down an ordinance which criminalized "wandering abroad" without "satisfactory account." The City then amended the ordinance, adding the requirement that the loitering be "under circumstances manifesting" unlawful purpose. The court upheld the amended ordinance. City of Seattle v. Jones, 79 Wash.2d 626, 488 P.2d 750 (1971). The United States Supreme Court has approved a similar holding by dismissing for want of a substantial federal question. Matter of D., 27 Or.App. 861, 557 P.2d 687 (1976) ("under circumstances manifesting" unlawful purpose) appeal dismissed sub nom. D. v. Juvenile Dept. of Multnomah County, 434 U.S. 914, 98 S.Ct. 385, 54 L.Ed.2d 271 (1977); see Eaton v. Price, 360 U.S. 246, 79 S.Ct. 978, 3 L.Ed.2d 1200 (1959) (per curiam) (dismissal for want of substantial federal question is dismissal on merits). Our statute is functionally equivalent to these enactments, since intent or purpose ordinarily must be shown by circumstantial evidence. Accordingly, we hold that the statute is not void for overbreadth.
Defendant challenges the statute as applied, on the grounds that police arrested (1) only female prostitutes and not their male customers, and (2) only female prostitutes, as opposed to male, particularly male homosexual, prostitutes. We note that all the statutes in question are facially gender neutral. We also note that the loitering statute under attack does proscribe loitering for the purpose of violating the crime against nature statute, and therefore covers all possible sexual combinations. State v. Richardson, 307 N.C. 692, 300 S.E.2d 379 (1983), construed only the prostitution statutes, G.S. §§ 14-203, -204, and did not address crime against nature. It therefore does not affect our consideration of this question.
Again, defendant must make a strong showing to succeed on these grounds. She must demonstrate not only the existence of a pattern of discrimination in the exercise of police or prosecutional discretion, but that such discrimination was intentional and deliberate, not based on any justifiable standard. State v. Spicer, 299 N.C. 309, 261 S.E.2d 863 (1980); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
The first ground alleged is easily disposed of. Defendant was convicted of loitering for purposes of prostitution, not soliciting. She presented no evidence that customers did any of the repeated acts made punishable by the statute. Even if she had, it is well within the power of the legislature to punish the prostitute and provider of sexual services and not the customer. Our laws forbidding the dissemination, but not the possession, of pornographic material provide an apt analogy. N.C. Gen.Stat. § 14-190.1 et seq. (1981). It is the organized and repeated provision of such services, not their use by unorganized and casual individuals, that constitutes the most readily eradicable social evil. People v. Superior Court, County of Alameda, *308 56 Cal.App.3d 608, 128 Cal.Rptr. 519 (1976), on which defendant relies, was overruled on precisely the same logic by the Supreme Court of California in People v. Superior Court of Alameda County, 19 Cal.3d 338, 562 P.2d 1315, 138 Cal.Rptr. 66 (1977) (discussing "pyramid" nature of vice trade) (writ of prohibition issued to block mandate of Court of Appeals). We have found no case authority for a contrary view. See 63A Am.Jur.2d Prostitution § 5 (1984).
Defendant's second argument is that the enforcement unfairly discriminates in favor of male prostitutes, particularly male homosexuals. The police did arrest a group of males (seven to ten in number) at the time they arrested defendant. This group included at least one male homosexual, but the court dismissed charges against him. The record does not reflect the charges against the other males or their disposition. Nor does it indicate precisely why the charges against the one identified male were dismissed: it appears that the state proceeded against him on felony crime against nature charges but could not prove penetration.
Defendant has failed to carry her burden, since she has failed to make the necessary initial showing that there was any pattern of discrimination in charging and prosecuting these cases. See State v. Spicer, supra. At best, she has shown only that one person was unsuccessfully prosecuted on felony charges, which did not include misdemeanor loitering as a lesser included offense available when the state failed to prove penetration. On the other hand, the police indicated that they intended to continue arresting and charging violators regardless of sex or sexual orientation.
Finally, defendant contends that evidence introduced under G.S. § 14-206 deprived her of due process of law. That statute allows admission of testimony "of a prior conviction" or concerning the defendant's reputation in prostitution related cases. Six police officers testified for the state; each identified defendant as a "known prostitute" and several testified to her prior convictions for prostitution. This evidence, contends defendant, unfairly removed the presumption of innocence.
Defendant does not contend that the legislature lacked the power to prescribe rules of evidence, nor would such a contention have merit. State v. Barrett, 138 N.C. 630, 50 S.E. 506 (1905) (legislature may constitutionally make otherwise innocent act, possession of quart of liquor, prima facie evidence of intent). In evidentiary matters, due process only requires some rational connection between proof and the ultimate issue, and that a defendant have a reasonable opportunity to submit all relevant facts in defense to the jury. See Mobile, J & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910). While the United States Supreme Court has cautioned that courts must remain alert to attempts to dilute the presumption of innocence, Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 reh'g denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), it also has refused to disapprove admission of a twenty-seven year old conviction on different charges as evidence of reputation. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
Under North Carolina common law, evidence of other crimes is generally inadmissible, subject to certain well-defined exceptions. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Such evidence, if proffered, must be strictly scrutinized to ensure its relevance. Id. Similarly, reputation evidence must be allowed in with care to avoid confusion. See 1 H. Brandis, *309 N.C. Evidence § 110 (1982); Compare N.C. Gen.Stat. § 8C-1, Rule of Evidence 405, Commentary (Cum.Supp.1983). We believe that G.S. § 14-206 represents a legitimate legislative decision to broaden these rules somewhat. The statute does not of course relieve the state of its burden of coming forward and proving its case beyond a reasonable doubt. Nor does the statute provide an "open door" for any evidence of other crimes or reputation; we do not believe the legislature intended thereby to remove entirely the trial judge's discretion to exclude irrelevant evidence. Evidence proffered on the state's case in chief under G.S. § 14-206 must remain relevant to the issues at hand.
In the present case, the police fully and accurately documented the overt acts necessary to support a conviction. The evidence proffered under G.S. § 14-206 thus came in to prove criminal intent. Although defendant had other prior convictions for property crime, the state brought out only her prior convictions for prostitution in its case in chief. The reputation testimony was limited solely to defendant's reputation for prostitution. While the reputation evidence may have been unnecessarily cumulative, defendant does not so contend, nor would such a contention likely prevail. See State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975), death penalty vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1976). We conclude that the evidence offered under G.S. § 14-206 was properly limited to the purposes of the statute and thus properly admitted. See State v. Willis, 309 N.C. 451, 306 S.E.2d 779 (1983) (similar result in drug case). We further hold that defendant has shown no deprivation of due process.
Defendant has failed to demonstrate constitutional or other prejudicial error. Her conviction therefore must stand.
WHICHARD and BECTON, JJ., concur.NOTES
 G.S. § 14-204.1 reads in full:
§ 14-204.1. Loitering for the purpose of engaging in prostitution offense.
(a) For the purposes of this section, "public place" means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transportation facility, or the doorways and entrance ways to any building which fronts on any of those places, or a motor vehicle in or on any of those places.
(b) If a person remains or wanders about in a public place and (1) repeatedly beckons to, stops, or attempts to stop passers-by, or repeatedly attempts to engage passers-by in conversation; or (2) repeatedly stops or attempts to stop motor vehicles; or (3) repeatedly interferes with the free passage of other persons for the purpose of violating any subdivision of G.S. 14-204 or G.S. 14-177, that person is guilty of a misdemeanor and, upon conviction, shall be punished as for a violation of G.S. 14-204.
 Charges should not necessarily have been dismissed under G.S. § 14-204.1. As noted above, G.S. § 14-204.1 clearly empowers police to arrest persons loitering for purposes of violating G.S. § 14-177. The title of G.S. § 14-204.1 might suggest a conflict to be construed in favor of defendants, see State v. Richardson, supra, but the language of the statute is clear and controls over the title. State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980).