737
Submitted March 31; convictions on Counts 1 and 2 reversed and remanded
for entry of a judgment of conviction for two counts of attempted promoting
prostitution, remanded for resentencing, otherwise affirmed April 29, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARQUIS VONSHAY MADISON,
Defendant-Appellant.
Lane County Circuit Court
18CR18370; A168226
466 P3d 92
In this criminal case, defendant appeals a judgment of conviction of two
counts of promoting prostitution and one count of resisting arrest. Defendant
raises two assignments of error and two pro se supplemental assignments of
error, challenging the trial court’s denial of his motions for judgment of acquittal
on all counts. Defendant argues that, although the state proceeded under the
theory that he engaged in conduct that instituted, aided, or facilitated an act of
prostitution, the state did not present any evidence that an act of prostitution
occurred. The state concedes the error, but argues that the evidence was sufficient to support two counts of attempted promoting prostitution. Held: The evidence supported a judgment of conviction for two counts of attempted promoting
prostitution. Attempted promoting prostitution is a lesser included offense in the
crime of promoting prostitution.
Convictions on Counts 1 and 2 reversed and remanded for entry of a judgment of conviction for two counts of attempted promoting prostitution; remanded
for resentencing; otherwise affirmed.
Mustafa T. Kasubhai, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
filed the briefs for appellant. Marquis Vonshay Madison
filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
738 State v. Madison
JAMES, J.
Convictions on Counts 1 and 2 reversed and remanded for
entry of a judgment of conviction for two counts of attempted
promoting prostitution; remanded for resentencing; otherwise affirmed.
Cite as 303 Or App 737 (2020) 739
JAMES, J.
In this criminal case defendant appeals a judgment
of conviction of promoting prostitution, ORS 167.012 (Counts
1 and 2) and resisting arrest, ORS 162.315 (Count 3). At
trial defendant waived a jury and the case was tried to the
bench. On appeal, defendant challenges the trial court’s
denial of his motion for judgment of acquittal as to Counts 1
and 2, arguing that although the state proceeded under the
theory that he engaged in conduct that instituted, aided, or
facilitated an act of prostitution, but the state did not present any evidence that an act of prostitution occurred or that
a prostitution enterprise existed.1 The state concedes the
error, but argues that the evidence was sufficient to support
two counts of attempted promoting prostitution, and that
we should reverse the judgment, in part, and remand for
entry of two counts of attempt, followed by a resentencing.
As we briefly discuss below, we have remanded for entry of
an attempt in other cases. And here, defendant offers no
authority or argument as to why such a remedy would be
improper on the facts of this case. Accordingly, we accept
the state’s concession and reverse the judgment as to Counts
1 and 2, remand for entry of a judgment of conviction on
attempted promoting prostitution on Counts 1 and 2, followed by resentencing; otherwise affirmed.
We review the denial of a motion for judgment of
acquittal by “view[ing] the evidence in the light most favorable to the state, accepting reasonable inferences and reasonable credibility choices that the factfinder could have
made.” State v. Derry, 200 Or App 587, 589,
116 P3d 248
(2005), rev den,
340 Or 34 (2006). The standard is “whether
a rational trier of fact could have found the elements of the
crime beyond a reasonable doubt.” Id. We state the facts
briefly in light of that standard.
Detective Newell set up a sting operation to try
and catch potential “pimps” by posting an advertisement
on Backpage.com under the assumed identity of a young
woman. The advertisement featured a telephone number
1
We reject defendant’s pro se assignments of error without discussion.
740 State v. Madison
and three photographs. Newell assumed the fictitious name
“Rachel” in this sting operation.
Defendant responded to the ad via text message
stating “come build with the real,” and followed up with
another message offering to help “Rachel” exercise her “full
potential.” He then sent three links to video files that sought
to demonstrate that he enjoyed a lavish lifestyle, such as one
in which he posed in front of a Mercedes. Defendant sent
another text suggesting he could be of service to “Rachel.”
Newell responded and asked for defendant’s name,
and defendant said it was “Prosper.” After some further back- and forth between the man who called himself “Prosper”
and “Rachel,” Newell texted defendant that “Rachel” already
had a “daddy,” but that said “daddy” was “lame.”
The texting continued between defendant and
“Rachel” and delved into vernacular associated with prostitution such as “304s” (prostitutes), “bottom” (the highestranking prostitute working for a pimp), etc. At one point
in the text exchange, they discussed handing over money
after a call, and defendant texted, “Well, you making money
doesn’t prove anything. You handing it does. That’s the bitch
that’s valuable to me, the one that wants to see me with and
trust me. Give me all. I’m going to give you my all. I expect
the same.” The two engaged in further similar conversation. At one point, defendant protested “Rachel” calling him
“baby,” and said “daddy only.” At trial, Newell testified that
“daddy” is a nickname for a pimp.
Newell eventually learned that defendant was
also corresponding with another potential new prostitute.
This other woman was also fictitious, played by Detective
Burroughs in a separate and independent sting operation.
Burroughs had posted a Backpage.com ad using the name
“Isabella.” Defendant contacted “Isabella” with a message
simply reading “come home.”
Burroughs responded with his purported “rates”
and schedule, attempting, he testified, to make obvious her
status as a prostitute. Defendant responded with messages
similar to those sent to “Rachel,” including the same video
clips. After a similar back and forth discussion, the parties
Cite as 303 Or App 737 (2020) 741
agreed to meet. Defendant was ultimately arrested at that
meeting, then subsequently charged with two counts of promoting prostitution—one count for “Rachel,” and another for
“Isabella.”
Following defendant’s waiver of a jury, the case was
tried to the bench. Following close of the state’s evidence,
defendant moved for a judgment of acquittal on Counts 1
and 2, arguing that because “Rachel” and “Isabella” were
both detectives, there was no actual prostitution, nor a prostitution enterprise. The trial court denied the motion, and
this appeal followed.
On appeal, defendant renews the arguments he
made before the trial court arguing that in this case there
were no prostitutes, no act of prostitution, place of prostitution, or prostitution enterprise. As defendant argues on
appeal, he “took no action that instituted, aided, or facilitated an act or enterprise of prostitution because there was
no such act or enterprise in this case.” The state concedes
the error.
ORS 167.012 provides:
“(1) A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person
knowingly:
“(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution
enterprise;
“(b) Induces or causes a person to engage in prostitution or to remain in a place of prostitution;
“(c) Receives or agrees to receive money, goods, property, services or something else of value, other than as a
prostitute being compensated for personally rendered prostitution services, pursuant to an agreement or understanding that the money, goods, property, services or something
else of value is derived from a prostitution activity; or
“(d) Engages in any conduct that institutes, aids or
facilitates an act or enterprise of prostitution.”
Here, the state charged defendant under ORS
167.012(1)(d), alleging in Count 1, in relevant part, that
742 State v. Madison
he “did unlawfully and knowingly, with intent to promote
prostitution, engage in conduct thereby instituting, aiding,
or facilitating an act of prostitution or enterprise of prostitution via transactions with a perceived female known as
‘Rachel.’ ” The operative language for Count 2 was identical
other than the substitution of “Isabella” for “Rachel.”
As charged, defendant would violate the statute by
engaging “in any conduct that institutes, aids or facilitates
an act or enterprise of prostitution.” On this record, defendant did not institute an act or enterprise of prostitution
because no such act ever occurred, and no such enterprise
existed. Accordingly, we accept the state’s concession of
error.
However, the state argues that while the evidentiary record was insufficient to support completed counts
promoting prostitution, it was nevertheless sufficient to support attempted promoting prostitution. As the state argues,
in finding defendant guilty of promoting prostitution, the
trial court necessarily found that defendant attempted to
commit that crime, and the record supports that finding.
Therefore, the state asks that we remand to the trial court
for an entry of judgment convicting defendant of two counts
of attempted promoting prostitution and for resentencing.
In State v. Lopez, 151 Or App 138,
949 P2d 1237
(1997), rev den,
326 Or 465 (1998), we found that the trial
court had erred in denying the motion for judgment of acquittal on the charge of telephonic harassment but remanded for
entry of judgment of conviction as to the attempt.
“The state argues in the alternative that, if there is
insufficient evidence to convict defendant of telephonic
harassment, the appropriate remedy is a remand for entry
of a judgment of attempted telephonic harassment. We
agree. ‘A person is guilty of an attempt to commit a crime
when the person intentionally engages in conduct which
constitutes a substantial step towards commission of the
crime.’ ORS 161.405. Attempted telephonic harassment is
necessarily a lesser included offense of telephonic harassment. Because the jury convicted defendant of telephonic
harassment, it necessarily determined that defendant had
the requisite intent. His attempt failed only because the victim refused to answer. Thus, under Article VII (Amended),
Cite as 303 Or App 737 (2020) 743
section 3, of the Oregon Constitution, we remand for entry
of a judgment of attempted telephone harassment.”
Id. at 142 (footnote omitted).
As we have noted, “[w]e have authority under the
Oregon Constitution to direct entry of a lesser-included
offense that we determine should have been entered by the
trial court.” State v. Pittman, 276 Or App 491, 495,
369 P3d
99 (2016). A crime is a lesser-included offense of another
crime if either of two circumstances exist: “(1) the elements
of the lesser offense necessarily are included in the greater
offense because the elements of the former are subsumed in
the latter; or (2) all of the elements of the lesser offense are
expressly set forth in the accusatory instrument.” State v.
Lee,
174 Or App 119, 125,
23 P3d 999 (2001), rev den,
332 Or
559 (2001). An attempted crime is a lesser included offense
of a completed crime. See, e.g., State v. Odnorozhenko,
224 Or
App 288, 295,
197 P3d 562 (2008) (“Further, attempted kidnapping is a lesser-included offense of kidnapping because
the elements of the lesser offense necessarily are included in
the greater.”).
We are unpersuaded that those cases do not apply
here, or that the disposition we reached in Lopez is not
equally applicable to this case. Accordingly, we reverse the
judgment as to Counts 1 and 2, remand for entry of a judgment of conviction of attempted prostitution procurement,
ORS 167.012 on those counts, and resentencing.
Convictions on Counts 1 and 2 reversed and
remanded for entry of a judgment of conviction for two
counts of attempted promoting prostitution; remanded for
resentencing; otherwise affirmed.
