Ringold, J.
Defendants Patrick Putnam and Calvin Hiatt appeal the judgments and sentences entered upon their convictions by a jury of the crimes of promoting prostitution in the second degree and criminal conspiracy. We reverse the criminal conspiracy convictions and affirm the convictions for promoting prostitution in the second degree.
As the result of a King County Police investigation of two businesses suspected of being fronts for prostitution, the Kinky Korner (Korner) and the American Sexuality Society (Society), Putnam and Hiatt were arrested and charged by second amended information with the crimes of promoting prostitution in the second degree and criminal conspiracy.
The investigation began in early 1979 but was impeded by the elaborate customer screening procedures at the Korner. The police found it necessary to employ unorthodox investigatory methods, planting an undercover civilian agent, "Ms. A", as an employee at the Korner and later at the Society. "Ms. A" was told by the police to "do what was necessary" to gather evidence of prostitution. She was specifically authorized to "turn tricks", and engaged in 20 to 25 acts of prostitution over a 3-week period. She also supervised other women at the Society and took part in recruitment activities with the knowledge of the police, who had told her to "go ahead."
At the pretrial hearing the defendants moved for dismissal or suppression of "Ms. A's" testimony at trial because of the police investigatory methods. The court denied the motions. The trials of the four defendants were severed. Hiatt and Putnam were tried together before a jury and found guilty on all counts. Each received a prison sentence of 5 years for promoting prostitution in the second degree and 1 year for criminal conspiracy, to be served concurrently. Thirteen assignments of error are made which present three issues for our consideration.
Conspiracy Charge
Defendants contend that it was improper to charge and convict under both RCW 9A.28.040,*
the general conspiracy statute, and RCW 9A.88.080,
promoting prostitution in
the second degree. They argue that the words "or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution", used in defining the crime under RCW 9A.88.080, encompass any and all conspiratorial acts committed. They contend that the existence of the specific prostitution statute excludes application of the general conspiracy statute, and view
State v. Cann,
92 Wn.2d 193, 595 P.2d 912 (1979), as controlling. The State responds that
Cann
is based on specific statutory language dealing with soliciting, and is inapplicable to the offense of conspiracy.
In
Cann
the defendant invited two police agents posing as prostitutes to join his prostitution enterprise. He was convicted under RCW 9A.88.080 of promoting prostitution in the second degree, and argued on appeal that the statutory scheme was unconstitutional since it gave the prosecutor the option of charging either a misdemeanor (criminal solicitation, RCW 9A.28.030) or a felony (promoting prostitution in the second degree, RCW 9A.88.080) for the same conduct. The court held that RCW 9A.88.080 was a special statute intended to punish conduct relating to prostitution activity, including solicitation for such purposes.
Cann,
at 197: Applying the rule of statutory construction that where general and special laws are concurrent, the special law applies to the exclusion of the general, the court held that Cann could not have been charged under RCW 9A.28.030 for solicitation of prostitutes, and affirmed the conviction.
Id.
We disagree with the State's contention that the
Cann
court did not rely on the "any other conduct" clause of
9A.88.060, but on the express statutory language dealing with "soliciting." That clause reads "solicits customers for prostitution". RCW 9A.88.060(1). Cann did not solicit customers, he solicited prostitutes. The court held that application of the general solicitation statute to prostitution was precluded by the language of RCW 9A.88.060, proscribing "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution."
We hold that
Cann
likewise precludes the charging of a general conspiracy to promote prostitution under RCW 9A.28.040. Any agreement to engage in or cause the performance of prostitution activity constitutes "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution." Under the rule of
Cann,
the specific statute excludes the general and "the prosecutor ... is not at liberty to charge under the general statute a person whose conduct brings his offense within the special statute."
Cann,
at 197. The conspiracy convictions must be reversed.
Entrapment and Due Process
Putnam and Hiatt argue that the police conduct was so outrageous as to constitute either entrapment as a matter of law or a violation of due process.
The entrapment defense has been codified in Washington.
The statute articulates the "subjective" theory of entrapment, requiring proof of mental state; if a defendant was otherwise disposed to commit the crime, the defense is not available.
State v. Swain,
10 Wn. App. 885, 520 P.2d 950 (1974). Neither appellant has urged that the police misconduct in this investigation induced them to commit
the crimes charged; thus no entrapment defense is available.
Putnam and Hiatt claim, however, that "Ms.
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Ringold, J.
Defendants Patrick Putnam and Calvin Hiatt appeal the judgments and sentences entered upon their convictions by a jury of the crimes of promoting prostitution in the second degree and criminal conspiracy. We reverse the criminal conspiracy convictions and affirm the convictions for promoting prostitution in the second degree.
As the result of a King County Police investigation of two businesses suspected of being fronts for prostitution, the Kinky Korner (Korner) and the American Sexuality Society (Society), Putnam and Hiatt were arrested and charged by second amended information with the crimes of promoting prostitution in the second degree and criminal conspiracy.
The investigation began in early 1979 but was impeded by the elaborate customer screening procedures at the Korner. The police found it necessary to employ unorthodox investigatory methods, planting an undercover civilian agent, "Ms. A", as an employee at the Korner and later at the Society. "Ms. A" was told by the police to "do what was necessary" to gather evidence of prostitution. She was specifically authorized to "turn tricks", and engaged in 20 to 25 acts of prostitution over a 3-week period. She also supervised other women at the Society and took part in recruitment activities with the knowledge of the police, who had told her to "go ahead."
At the pretrial hearing the defendants moved for dismissal or suppression of "Ms. A's" testimony at trial because of the police investigatory methods. The court denied the motions. The trials of the four defendants were severed. Hiatt and Putnam were tried together before a jury and found guilty on all counts. Each received a prison sentence of 5 years for promoting prostitution in the second degree and 1 year for criminal conspiracy, to be served concurrently. Thirteen assignments of error are made which present three issues for our consideration.
Conspiracy Charge
Defendants contend that it was improper to charge and convict under both RCW 9A.28.040,*
the general conspiracy statute, and RCW 9A.88.080,
promoting prostitution in
the second degree. They argue that the words "or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution", used in defining the crime under RCW 9A.88.080, encompass any and all conspiratorial acts committed. They contend that the existence of the specific prostitution statute excludes application of the general conspiracy statute, and view
State v. Cann,
92 Wn.2d 193, 595 P.2d 912 (1979), as controlling. The State responds that
Cann
is based on specific statutory language dealing with soliciting, and is inapplicable to the offense of conspiracy.
In
Cann
the defendant invited two police agents posing as prostitutes to join his prostitution enterprise. He was convicted under RCW 9A.88.080 of promoting prostitution in the second degree, and argued on appeal that the statutory scheme was unconstitutional since it gave the prosecutor the option of charging either a misdemeanor (criminal solicitation, RCW 9A.28.030) or a felony (promoting prostitution in the second degree, RCW 9A.88.080) for the same conduct. The court held that RCW 9A.88.080 was a special statute intended to punish conduct relating to prostitution activity, including solicitation for such purposes.
Cann,
at 197: Applying the rule of statutory construction that where general and special laws are concurrent, the special law applies to the exclusion of the general, the court held that Cann could not have been charged under RCW 9A.28.030 for solicitation of prostitutes, and affirmed the conviction.
Id.
We disagree with the State's contention that the
Cann
court did not rely on the "any other conduct" clause of
9A.88.060, but on the express statutory language dealing with "soliciting." That clause reads "solicits customers for prostitution". RCW 9A.88.060(1). Cann did not solicit customers, he solicited prostitutes. The court held that application of the general solicitation statute to prostitution was precluded by the language of RCW 9A.88.060, proscribing "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution."
We hold that
Cann
likewise precludes the charging of a general conspiracy to promote prostitution under RCW 9A.28.040. Any agreement to engage in or cause the performance of prostitution activity constitutes "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution." Under the rule of
Cann,
the specific statute excludes the general and "the prosecutor ... is not at liberty to charge under the general statute a person whose conduct brings his offense within the special statute."
Cann,
at 197. The conspiracy convictions must be reversed.
Entrapment and Due Process
Putnam and Hiatt argue that the police conduct was so outrageous as to constitute either entrapment as a matter of law or a violation of due process.
The entrapment defense has been codified in Washington.
The statute articulates the "subjective" theory of entrapment, requiring proof of mental state; if a defendant was otherwise disposed to commit the crime, the defense is not available.
State v. Swain,
10 Wn. App. 885, 520 P.2d 950 (1974). Neither appellant has urged that the police misconduct in this investigation induced them to commit
the crimes charged; thus no entrapment defense is available.
Putnam and Hiatt claim, however, that "Ms. A's" acts of prostitution and the police approval and encouragement thereof were so shocking to the universal sense of justice as to violate the due process standard of fundamental fairness, requiring dismissal under
United States v. Russell,
411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973) and
State v. Emerson,
10 Wn. App. 235, 517 P.2d 245 (1973).
In general, illegal conduct by the police or police agents is not sufficient by itself to justify dismissal on due process grounds. Police investigatory misconduct, however, may reach such a level of outrageousness that dismissal of the resulting criminal charges is required. The United States Supreme Court recognized the existence of such a defense in
Russell,
at pages 431-32:
we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, . . . [but t]he law enforcement conduct here stops far short of violating that "fundamental fairness, shocking to the universal sense of justice," mandated by the Due Process Clause of the Fifth Amendment.
(Citation omitted.)
In
Emerson,
this court rejected a defense based on public policy considerations and examined the due process standard set out in
Russell.
It characterized the
Russell
standard as being "at least implicitly the product of reconciliation of competing public policies,"
Emerson,
at 241-42, and set out the proper methodology for application of the standard:
Concepts of public policy and due process utilized by the proponents of each of the views described call for the balancing of the public policies involved and a choice of a public policy to be enforced. Public policy requires that crime be detected and itp perpetrators punished. Public policy also requires that a defendant be fairly treated. Practical considerations require that, in the performance by police of crime detection duties, at least some deceitful practices and "a limited participation" in unlawful
practices be tolerated and recognized as lawful.
Emerson,
at 240.
The trial court in the present case applied this approach in making its determination that the police methods were not so outrageous as to require dismissal or suppression. The conscientious and careful trial judge balanced the defendants' misconduct with that of the police and ruled that the societal interests involved justified the police investigatory methods.
Although he specifically stated for the record that his decision was based on personal standards "because I cannot speak for society at large", his reasoning demonstrates that due regard was given to the standard set by
Russell
and
Emerson.
It was not error to
deny the motion to dismiss.
Permitting Prostitution as a Lesser Included Offense
Putnam contends that the trial court erred in failing to give his proffered instruction on permitting prostitution
as a lesser included offense of promoting prostitution in the second degree.
A lesser included offense instruction is proper only where each element of the "lesser" offense is a necessary element of the "greater" offense, and the evidence supports an inference that only the "lesser" offense was committed.
State v. Workman,
90 Wn.2d 443, 584 P.2d 382 (1978);
State v. Bower,
28 Wn. App. 704, 626 P.2d 39 (1981). The first prong of this test must be strictly applied to ensure that a defendant is not convicted of a crime with which he has not been charged. Const. art. 1, § 22;
see State v. Miller,
30 Wn. App. 443, 635 P.2d 160 (1981). An equivalent form of this test is that if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime.
State v. Roybal,
82 Wn.2d 577, 512 P.2d 718 (1973).
The offense of permitting prostitution requires that the perpetrator have "possession or control of premises which he knows are being used for prostitution purposes". RCW 9A.88.090. If a person violates RCW 9A.88.080, promoting prostitution in the second degree, without possessing or controlling the premises, the greater offense has been committed without committing the lesser. Permitting prostitution is not a lesser included offense of promoting prostitution in the second degree. The trial court properly refused the instruction.
Other Issues
The defendants next contend that the trial judge improperly commented on the evidence in his instruction to the jury setting forth the elements of conspiracy. Because the allegedly improper statements related solely to the conspiracy charges, which we have concluded must be reversed, we need not reach this issue.
The appellants finally object to various rulings made by the trial court concerning the order of proof and probative value of certain evidence. These rulings were within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. No such showing has been made. As this court stated in
State v. Johnson,
12 Wn. App. 548, 550-51, 530 P.2d 662 (1975):
A trial judge, in conducting a trial, is more than a mere umpire. He must oversee and direct the trial to the end that the merits of the case be reached with reasonable dispatch and with fairness to the parties litigant. . . . the trial judge during trial may exercise discretion concerning such matters as the order of proof, the use of leading or impeaching questions, the qualifications of a witness to testify, the admissibility of evidence in passing on objections, claiming the evidence is irrelevant or remote, the scope of direct, cross, redirect, or subsequent examination of witnesses, the phrasing of instructions, the order in which the instructions are given, and the statement of reasons for rulings made.
We reverse Putnam's and Hiatt's convictions under RCW 9A.28.040, and remand with instructions to dismiss the conspiracy charges. We affirm the convictions under RCW 9A.88.080, vacate the judgments and sentences entered thereon, and remand for resentencing on that offense alone.
Andersen, C.J., and James, J., concur.
Reconsideration denied February 23 and March 2, 1982.
Review denied by Supreme Court May 21, 1982.