State v. Duffy

171 P.3d 988, 216 Or. App. 179
Court of Appeals of Oregon·Decided November 7, 2007·No. 040849952 A127244·Published·Cited by 2 cases

Opinion

171 P.3d 988 (2007)
216 Or. App. 179

STATE of Oregon, Plaintiff-Respondent,
v.
Misty Lynn DUFFY, Defendant-Appellant.

040849952; A127244.

Court of Appeals of Oregon.

Submitted on Record and Briefs July 20, 2007.
Decided November 7, 2007.

Garrett A. Richardson filed the brief for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE, Judges.

EDMONDS, P.J.

Defendant appeals a judgment of conviction for engaging in unlawful prostitution procurement activities, a misdemeanor, in violation of Portland City Code (PCC) section 14A.40.050. Defendant raises two assignments of error. First, she assigns error to the trial court's denial of her demurrer to the charging instrument. Second, she assigns error to the trial court's refusal to give her requested jury instructions that would have informed the jury that, in order to convict her of the charged offense, all six of its members were required to agree on the particular activity that she had engaged in that constituted a substantial step in furtherance of an act of prostitution. We affirm.

This court reviews a trial court's ruling on a demurrer to the charging instrument for errors of law. State ex rel Juv. Dept. v. Aragorn, 189 Or.App. 65, 72, 73 P.3d 939, rev. den., 336 Or. 192, 82 P.3d 626 (2003). The Portland City Code makes it illegal to engage in "Unlawful Prostitution Procurement Activities":

"A. As used in this Section, `prostitution' means that unlawful conduct defined in Section 14.A40.040 of this Code. As used in this Section, `prostitution procurement activity' means any conduct by any person that constitutes a substantial step in furtherance of an act of prostitution. *990 Such activity includes, but is not limited to, lingering in or near any street or public place, repeatedly circling an area in a motor vehicle, or repeatedly beckoning to, contacting, or attempting to stop pedestrians or motor vehicle operators.
"B. It is unlawful for any person to engage in any prostitution procurement activity with an intent to induce, entice, solicit, procure, locate, or contact another person to commit an act of prostitution."

PCC 14A.40.050 (emphasis added). The complaint served on defendant alleges that she "intentional[ly]" or "knowing[ly]" committed unlawful prostitution procurement activities in violation of "PCC 14A.40.050" without further specifying the activities alleged. Before trial, defendant demurred to the complaint on the ground that it failed to give her sufficient notice of the factual allegations that would allow her to prepare her defense. The state responded that, even if the contents of the complaint were inadequate to provide sufficient notice, the pretrial discovery furnished to defendant adequately supplemented the complaint and provided the notice required for her to defend against the charge. The discovery provided to defendant informed her that the state would seek to prove at trial that she was observed walking up and down a street while wearing a short dress, looking at passing motorists and attempting to make eye contact with them, and checking the side streets to see if any cars had stopped. Also, the provided discovery informed defendant that she was carrying condoms and money; that when a police officer asked defendant whether she was a prostitute, she responded in the affirmative; and that when the officer asked her how much money she had made, she said, "[N]one yet." The discovery also notified defendant that the state would offer testimony that, based on the police officer's training and experience, he would opine at trial that defendant's conduct was consistent with prostitution activities.

Generally, pretrial discovery is "sufficient to cure imprecision in charging instruments." State v. Wright, 167 Or.App. 297, 307, 999 P.2d 1220, modified on recons., 169 Or.App. 78, 7 P.3d 738, rev. den., 331 Or. 334, 23 P.3d 986 (2000) (citing State v. Shadley/Spencer/Rowe, 16 Or.App. 113, 123, 517 P.2d 324 (1973)). However, greater specificity in the charging instrument is required when, due to the charge's complexity or the large volume of potential discovery, it is impractical for the discovery that is furnished to remedy the charging instrument's imprecision. Wright, 167 Or.App. at 307, 999 P.2d 1220.

Defendant relies on our opinion in State v. Cooper, 78 Or.App. 237, 715 P.2d 504 (1986), in arguing that the discovery provided to her was insufficient to enable her to defend against the charge. The defendant in Cooper was charged with promoting gambling under ORS 167.122. Id. at 239, 715 P.2d 504. The complaint alleged the crime in the language of the statute but did not set out the factual details that gave rise to the charge. Id. at 240-41, 715 P.2d 504. The trial court sustained the defendant's demurrer, and the state appealed. Id. at 239, 715 P.2d 504. On appeal, we affirmed, observing that the statute under which the charge was made not only defined what activities constituted the promotion of gambling but also provided that the activities enumerated were not exclusive. Id. at 241, 715 P.2d 504. We explained,

"[b]ecause the conduct listed in [the statute] is not exclusive, we are unable to say that this is a situation where discovery could remedy the deficiency of the accusatory instrument. Defendant should not be required to undertake a fishing expedition to determine precisely what it is that she did wrong."

Id.

Defendant compares the ordinance in this case to the statute in Cooper and argues that, because the list of activities that violate the ordinance is not exclusive, the discovery provided to her does not remedy the complaint's deficiency. But there is a significant difference between the facts in this case and the facts in Cooper. In Cooper, the state appealed the trial court's grant of defendant's demurrer before any discovery occurred. Thus, we were unable to say "whether discovery could remedy the deficiency of the accusatory instrument." 78 Or.App. at 241, *991 715 P.2d 504 (emphasis added). Here, in contrast, defendant appeals after the state provided discovery. Although the ordinance in this case is not exclusive, the discovery furnished to defendant operated to inform her of the precise activities on which the charge was based. Therefore, unlike in C

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State v. Duffy, 171 P.3d 988, 216 Or. App. 179 (Or. Ct. App. 2007).

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