State v. George

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 88-491



 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Raymond R. George                            Unit No. 2, Chittenden Circuit

                                              October Term, 1991


 Michael S. Kupersmith, J.

 Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
   General, and Gayle Middleton, Law Clerk (On the Brief), Montpelier, for
   plaintiff-appellee

 Walter M. Morris, Jr., Defender General, and Kerry B. DeWolfe, Appellate
   Attorney, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   After trial by jury, defendant was convicted in district
 court of soliciting a female person for the purpose of prostitution, in
 violation of 13 V.S.A. { 2632(a)(6).  Defendant appeals, claiming (1) the
 court erred in failing to find police entrapment as a matter of law, and (2)
 the statute under which he was convicted violates the equal protection
 guarantees of the United States and Vermont constitutions.  We affirm.
      Neither party disputes the facts.  An informant, Edward Chaloux, re-
 ported to a Burlington police detective on February 8, 1988, that defendant
 had approached him and offered $50 if the informant would find a woman with
 whom defendant could have sexual intercourse.  The detective made arrange-
 ments for an undercover operation in which a female police officer would
 wear an electronic surveillance transmitter while approaching defendant.
 Sergeant Lianne Tuomey agreed to pose as the woman supplied by the informant
 and wear a transmitter, and the informant agreed to introduce her to
 defendant.
      That afternoon, the informant brought the sergeant to a place where
 defendant was waiting and introduced them.  Under her clothing, the sergeant
 wore a microphone that transmitted to a receiving device in a police car
 some distance away where two detectives visually monitored the interaction
 between defendant and the sergeant, and listened to and recorded their
 conversation.
      In the discussion that ensued, the sergeant repeatedly asked defendant
 variations of the question, "What's the deal?"  Defendant did not immedi-
 ately declare that he wanted sex in return for money.  When questioned by
 the sergeant, he said he wanted "good lay, . . . companionship, a little
 loving."  There was quite a bit of further questioning before he said he
 was prepared to pay for sex -- that is, he would give in return "a lot of
 loving and money."  At one point in the conversation, which lasted just over
 ten minutes, defendant asked the undercover officer, "[y]ou aren't a cop or
 anything are you?"  Ultimately, defendant and the sergeant agreed that they
 would meet the following morning and defendant would pay "a hundred bucks
 for the day."       
      Defendant was arrested at the scene.  At the police station, he waived
 his Miranda right to remain silent.  During questioning, he admitted that he
 had been prepared to give money to the undercover police sergeant as payment
 for sexual intercourse.
      At trial, the detective to whom the informant reported and Sergeant
 Tuomey testified, but the informant, who could not be located by the State,
 did not.  Defendant unsuccessfully moved to dismiss, arguing entrapment and
 the unconstitutionality of the solicitation statute.  The jury heard the
 evidence, including the tape recordings of the conversation between defend-
 ant and the sergeant, as transmitted from the microphone hidden under the
 sergeant's clothing, and the detective's questioning of defendant at the
 police station after the arrest.  After instruction by the court on the
 elements of the crime charged, the standard of proof, and the issue of
 entrapment, the jury found defendant guilty.
      The first issue presented for our review is whether the trial court
 erred when it failed to find entrapment as a matter of law, instead sub-
 mitting the question to the jury.  Entrapment is an affirmative defense.
 State v Wilkins, 144 Vt. 22, 25, 473 A.2d 295, 296 (1983).  Defendant has
 the burden of establishing it by a preponderance of the evidence.  Id.  In
 Wilkins, we adopted an objective approach for determining whether a defend-
 ant has been entrapped.  A person involved in law enforcement
         'perpetrates an entrapment if for the purpose of obtain-
         ing evidence of the commission of an offense, [he or
         she] induces or encourages another person to engage in
         conduct constituting such offense by . . . employing
         methods of persuasion or inducement [that] create a
         substantial risk that such an offense will be committed
         by persons other than those who are ready to commit it.'

 Id. at 29, 473 A.2d  at 299 (quoting Model Penal Code { 2.13(1)(b) (Proposed
 Official Draft 1962)); see also State v. Zaccaro, 154 Vt. 83, 94, 574 A.2d 1256, 1263 (1990) (reaffirming objective test of Wilkins).  Better than the
 subjective test, which focuses on the defendant's predisposition to commit
 the crime, the objective standard serves the purpose of the entrapment
 defense, which is to deter improper governmental activity in law
 enforcement.  Wilkins, 144 Vt. at 29, 473 A.2d  at 298.  Given that
 rationale, our approach focuses on the actions of the government.  See
 Sebesta v. State, 783 S.W.2d 811, 814 (Tex. Ct. App. 1990) (following
 similar objective test).
      The question of entrapment is ordinarily for the jury.  Wilkins, 144
 Vt. at 30, 473 A.2d  at 299.  However, the court must determine it as a
 matter of law when there is no dispute as to the facts.  Id.; State v.
 Merritt, 149 Vt. 529, 533, 546 A.2d 791, 793 (1988).
      Focusing entirely on the transcript of the conversation between him and
 Sergeant Tuomey, defendant argues that the facts are undisputed and show
 entrapment to commit the crime charged.  Although there was no dispute as to
 the content of the conversation, or the events that led to it, there was
 still a dispute as to the facts within the holding of Wilkins.  The question
 of entrapment is ordinarily left to the jury because "[t]he test involves
 judgments concerning the motivations of people who may not be 'ready to
 commit' such crimes, and juries have 'particular claim[s] to competence' in
 making such judgments."  Wilkins, 144 Vt. at 30, 473 A.2d  at 299.  Our rule
 that the court should determine whether entrapment exists when there is no
 dispute as to the facts was taken from State v. Mullen, 216 N.W.2d 375, 382
 (Iowa 1974).  The court made clear in Mullen that the entrapment issue must
 go to the jury even in the case of undisputed facts if there is a dispute as
 to the inferences to be drawn from them.  Id.
      There was a dispute here over the inferences to be drawn from the
 undisputed facts.  The police did not create a trap for the random citizen.
 Rather, they responded to information they received from an informant that
 defendant was seeking to commit the crime.  Although the sergeant was
 persistent in her questioning of defendant to elicit the statements later
 used to prove his guilt, a reasonable juror could find that what she sought
 was in fact only clarification of the relationship defendant was seeking to
 establish.  Indeed, defendant first made reference to sex, and he raised the
 subject of money.  While the jury was free to find otherwise, the State had
 a strong case that defendant was not induced by the conduct of the police
 officers to solicit for prostitution.
      The second issue before us is whether defendant's prosecution violates
 one or both of the Vermont and federal constitutions.  The relevant statute
 reads, in part:
         (a) A person shall not:

               . . . .

               (6) Procure or solicit or offer to procure or solicit
           a female person for the purpose of prostitution . . . .


 13 V.S.A. { 2632(a)(6).  The term "prostitution" is defined to include "the
 offering or receiving of the body for sexual intercourse for hire."  13
 V.S.A { 2631.
      Under the Fourteenth Amendment to the United States Constitution,
 legislation that, without a rational purpose, treats differently classes of
 persons otherwise similarly situated is unconstitutional.  Smith v. Town of
 St. Johnsbury, 150 Vt. 351, 357, 554 A.3d 233, 238 (1988).  Where the
 alleged discrimination is based on gender, courts scrutinize the legislative
 classification by the higher standard of whether it is "substantially
 related" to an important and legitimate state interest.  See Craig v. Boren,
 429 U.S. 190, 197 (1976).  In order to trigger equal protection analysis at
 all, however, a defendant must show that he was treated differently as a
 member of one class from treatment of members of another class similarly
 situated.  See State v. Handley, 115 Wash. 2d 275, 289-90, 796 P.2d 1266,
 1274 (1990) (equal protection scrutiny invoked in looking at defendant's
 sentencing in comparison with co-defendant's sentencing only if defendant
 and co-defendant were similarly situated yet treated differently because of
 membership in a class).
      Defendant argues that the statute discriminates against heterosexual
 males, because it proscribes solicitation only of a female for prostitution
 by a male.  He asserts that it cannot be used to prosecute females or homo-
 sexual males for solicitation of males, nor females for soliciting females
 since the statutory definition of prostitution denotes intercourse and not
 other sexual acts.
      Some of the force of defendant's argument is eliminated by a proper
 construction of the statute.  In construing a statute, we look first to the
 plain meaning of the words used.  In re Graziani, ___ Vt. ___, ___, 591 A.2d 91, 94 (1991).  The prohibition of { 2632(a)(6) extends to any "person"
 without regard to gender.  Thus, "any person," either male or female, can be
 prosecuted for what defendant is alleged to have done:  soliciting a female
 for prostitution.  In view of the plain meaning of the statute, we do not
 accept defendant's argument that only a male can be prosecuted under {
 2632(a)(6).  See State v. Stevens, 510 A.2d 1070, 1071 (Me. 1986).  On its
 face, the statute treats all potential offenders alike irrespective of
 gender.
      We realize that there are gaps in the statutory prohibition of {
 2632(a)(6).  The statute cannot be used to prosecute defendants of either
 gender who solicit a male for the purpose of prostitution.  Nor can a female
 be prosecuted for soliciting a female for prostitution for herself, although
 she can be prosecuted for soliciting a female for prostitution with another.
      The gaps in the statutory scheme may be more apparent than real.
 Prostitution itself is defined in a gender neutral fashion.  13 V.S.A. {
 2631.  As a result, prostitution by any person, male or female, is
 prohibited by { 2632(a)(8) and aiding or abetting prostitution, irrespective
 of the gender of the aider or abetter or the person who engages in prosti-
 tution, is prohibited by { 2632(a)(9).  Thus, the exact conduct that
 occurred here appears to violate {{ 2632(a)(8) and (a)(9) if the person who
 engages in prostitution is a male.
      In any event, the discrimination, if it exists at all, involves only
 the class of persons being protected by the statute.  While prostitution by
 anybody is prohibited, solicitation of a female is directly and specifically
 prohibited, while solicitation of a male is not.
      Thus, defendant is left with the  argument that because the statute
 fails to proscribe solicitation of males for prostitution, it cannot con-
 stitutionally be applied to defendant for solicitation of a female.  We
 have held, however, that "a criminal statute enacted for the protection of a
 particular class is not unconstitutional simply because the specified class
 is not all-inclusive or might have been so enlarged as to include others
 equally meriting the same protection."  State v. Shady, 100 Vt. 404, 405,
 138 A. 777, 777 (1927); see also Agency of Environmental Conservation v.
 Casella, 142 Vt. 503, 506, 457 A.2d 633, 635 (1983) (determinations of whom
 to prosecute are discretionary).  If there is a class discriminated against
 here, it is males who engage in prostitution.  As applied to defendant, the
 statute violates neither the federal nor the Vermont constitution because he
 is treated under the statute the same as any similarly situated offender.
 He will not be insulated from prosecution for perpetration of one type of
 crime involving a particular protected class, simply because the Legislature
 has not extended the criminal prohibition to similar conduct directed at
 another class.
      Other courts have addressed analogous issues.  Some hold that a statute
 which prohibits only members of one gender from sex-related conduct that
 could be committed by either gender is unconstitutional on equal protection
 grounds.  Rather than reversing conviction under the statute, however, they
 read the statute without the unconstitutional discriminatory language and
 apply it in a gender-neutral fashion.  See, e.g., Plas v. State, 598 P.2d 966, 968-69 (Alaska 1979) (clause "by a female" rendered prostitution
 prohibition statute unconstitutional but could be severed by the court,
 leaving a gender neutral law); see also People v. Liberta, 64 N.Y.2d 152,
 171-72, 485 N.Y.S.2d 207, 218-19, 474 N.E.2d 567, 578-79 (1984) (statute
 proscribing forcible rape of females by males was unconstitutional on equal
 protection grounds, but court would extend coverage to rape of males by
 females, thus making statute gender neutral).  We decline to follow this
 approach, preferring to leave to the Legislature the task of reforming a
 statute to criminalize conduct not presently prohibited.  We note, however,
 that if this statute were gender neutral, as defendant argues it is
 constitutionally required to be, he could still have been prosecuted.
      Yet other courts have held that the perpetrator of a crime against a
 member of one victim class has no standing to assert what is actually the
 constitutional right of members of an unprotected victim class.  See, e.g.,
 United States v. Bankston, 603 F.2d 528, 534 (5th Cir. 1979) (defendant had
 no standing to assert unconstitutionality of federal Mann Act, proscribing
 transportation of females for purposes of prostitution, because "he [was]
 not an unprotected male victim of an interstate transportation . . . .");
 People v. Rocha, 110 Mich. App. 1, 16-18, 312 N.W.2d 657, 664-65 (1981)
 (defendant alleged to have pandered a female lacked standing to assert, on
 the ground that it provided greater protection to women,
 unconstitutionality of statute prohibiting pandering only of females).  The
 problem with the standing rationale is that if the person prosecuted under
 the allegedly discriminatory statute has no standing, it is unclear who
 would have standing, if, indeed, the statute is unconstitutional.  A
 criminal defendant should generally have standing to assert the
 unconstitutionality of a statute that, if applied to his conduct, would
 result in his conviction and punishment.
      Defendant also asserts that { 2632(a)(6) violates Chapter I, Article 7
 of the Vermont Constitution.  We have held that the standard applicable to
 Article 7 is similar to that used under the Equal Protection Clause of the
 Fourteenth Amendment to the United States Constitution.  Thus, unless a
 "fundamental right or suspect class is involved," a statute comports with
 Article 7 if it is reasonably related to a legitimate public purpose.
 Choquette v. Perrault, 153 Vt. 45, 52, 569 A.2d 455, 458 (1989).  We need
 not decide here whether gender discrimination cases will be treated the same
 under Article 7 as the United States Supreme Court has treated them under
 the Equal Protection clause.  We see no reason to deviate in Article 7 cases
 from the rule that an offender cannot challenge the Legislature's choice of
 a protected class on the basis that it discriminates against him.  There is
 no violation of Article 7 as to this defendant.
      We hold, then, that 13 V.S.A. { 2632(a)(6) is not unconstitutional as
 applied to this defendant, since his "equal protection" under the law is not
 being violated.  We leave for another day whether the statute is unconstitu-
 tional because it is under-inclusive, and whether there is a party who can
 make such a claim, because those issues are not before us.
      Affirmed.

                                              FOR THE COURT:



                                              ____________________________
                                              Associate Justice