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Parrott v. Municipality of Anchorage (5/2/2003) ap-1871
Parrott v. Municipality of Anchorage (5/2/2003) ap-1871
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY PARROTT, )
) Court of Appeals
No. A-7829
Appellant, ) Trial
Court No. 3AN-00-5096 CR
)
)
v. ) O P I N
I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
[No. 1871 - May 2, 2003]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Sigurd E. Murphy,
Judge.
Appearances: Rex Lamont Butler, James Adam
Bartlett, Rex Lamont Butler & Associates,
Anchorage, for Appellant. John E.
McConnaughy III, Assistant Municipal
Prosecutor, William A. Greene, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Following a bench trial, Larry Parrott was convicted of
soliciting an undercover policewoman who was posing as a
prostitute. He argues that District Court Judge Sigurd E. Murphy
should have granted his motion for judgment of acquittal because
he did not solicit the police officer she solicited him. He
also argues that he was entrapped by the police and that his
arrest violated due process, equal protection, and the separation
of powers. Lastly, Parrott argues that the court was clearly
mistaken in refusing to impose a suspended imposition of sentence
and in ordering him to write an essay on the ills of
prostitution. We reject Parrotts claims and affirm the district
courts decision.
Facts and proceedings
At about midnight on May 27, 2000, Parrott drove his
pickup truck by the corner of 32nd Avenue and Spenard Road, where
Anchorage Police Officer Bianca Dodson was posing as a
prostitute. A short while later, Parrott returned to that
intersection and stopped at the stop sign. After Parrott had
lingered at the stop sign longer than necessary to make a turn,
Officer Dodson approached. Parrott asked Dodson how she was
doing, and she responded that she was just looking around.
Parrott asked Dodson several times if she was associated with the
police, and she said she was not. Dodson then told Parrott that
her prices were $20 for oral sex and $60 for sex. Parrott told
Dodson she could get in the truck. Dodson asked Parrott what
they were going to do, and he said he wanted oral sex. Dodson
asked Parrott if he had any money and he reached for something,
which Dodson assumed was his wallet. Dodson then signaled other
officers who were observing the sting operation and Parrott was
cited for soliciting prostitution.1
At the close of the Municipalitys case, Parrott moved
for a judgment of acquittal, which the court denied. Parrott
presented no evidence. Judge Murphy convicted Parrott of
soliciting prostitution and sentenced him to a $1,000 fine with
$500 suspended, 10 days of jail with 10 days suspended, and 24
hours of community work service. Judge Murphy placed Parrott on
probation for 1 year and directed him within 30 days to write an
essay on the ills of prostitution.
Parrott appeals his conviction and sentence.
Discussion
Did the court err by denying Parrotts motion for
judgment of acquittal?
Parrott argues that Judge Murphy should have granted
his motion for judgment of acquittal because he did not solicit
Officer Dodson for the purpose of prostitution. He argues that
he was a passive participant in the encounter and that Officer
Dodson solicited him by approaching his truck and telling him
what she charged for sex. He argues that even if he had invited
Officer Dodson into his truck for sex, he committed no crime
because he did not initiate the contact.
The first question raised by this appeal is whether
Parrott can be convicted under the municipal code for soliciting
an act of prostitution. As we acknowledged in State v. Burden,2
under the common law a person cannot be convicted as an
accomplice to an offense unless that person would face criminal
liability for the completed offense.3 If the Municipal Assembly
intended prostitutes, but not their customers, to be punished for
their part in a completed act of prostitution, then absent
indications to the contrary in the language or history of the
soliciting ordinance it is arguable that the common-law
presumption applies and that the ordinance does not prohibit a
prospective customers solicitation of a prostitute (only a
prostitutes or a procurers solicitation of a prospective
customer).
Anchorage Municipal Code (AMC) 8.65.020 makes it
unlawful for any person to knowingly engage in prostitution or
assignation. Prostitution is defined as the giving or receiving
of the body for sexual conduct for hire.4 The Municipality
argues that this definition plainly applies to both the
prostitute, who gives his or her body for hire, and the
prostitutes patron, who receives the body in return for
consideration.
While this is one reasonable interpretation of the
ordinance, the opposite conclusion is equally plausible.5 The
Alaska prostitution statute, as originally drafted, defined
prostitution as the giving or receiving of the body by a female
for sexual intercourse for hire.6 (In 1979, the Alaska Supreme
Court struck the by a female language because it discriminated
against female prostitutes by excluding the conduct of male
prostitutes.7) This parallel language in the former Alaska
statute, which plainly encompassed only the prostitutes conduct,
effectively refutes the Municipalitys claim that the Anchorage
ordinance unambiguously refers to both prostitutes and their
customers.
Even assuming that the customer of a prostitute is not
criminally liable for prostitution under the municipal code, the
Assembly may have intended to depart from the common-law rule and
encompass the conduct of potential patrons when it drafted the
soliciting ordinance. The parties have advanced no legislative
history that sheds light on the Assemblys original intent, and we
have found none. However, the enforcement history of the
soliciting ordinance resolves any ambiguity in the ordinances
language.8 The Municipality has long prosecuted the prospective
customers of prostitutes for soliciting prostitution.
Twenty years ago, in Anchorage v. Afualo,9 the
Municipality appealed two district court decisions holding that
the Municipality could not charge men who had approached
undercover policewomen for sex with soliciting prostitution
because the Alaska soliciting statute made only the conduct of
prostitutes illegal. This court reversed the district court,
holding that the Municipality could apply its soliciting
ordinance to customers because Anchorage was a home rule city
with broad powers of legislation and because the state
legislature had not sought statewide uniformity in regulating
commercial sexual relations.10 After Afualo, the Municipal
Assembly reenacted and renumbered the soliciting ordinance,
adding the knowingly mental state but making no other changes.11
The Assembly kept the same definition of prostitution.12 In
retaining this language, the Assembly impliedly adopted the
interpretation of the ordinance discussed in Afualo.13 We
therefore conclude that regardless of the Assemblys original
intent in drafting the soliciting ordinance, it has since
ratified the Municipalitys practice of prosecuting the
prospective customers of prostitutes.
The question remains whether Parrotts conduct amounted
to soliciting for the purpose of prostitution under AMC
8.65.030(A). That ordinance makes it unlawful for any person to
knowingly solicit, induce, entice, invite, or procure another for
the purpose of prostitution[.] Neither the Anchorage Municipal
Code nor the Alaska Statutes define these terms. Unless words
have acquired a peculiar meaning, by virtue of statutory
definition or judicial construction, they are to be construed in
accordance with their common usage.14 The predominant meaning of
these terms, taken together, is to tempt or entice;15 however,
solicit and invite can also mean simply to ask.16 Presumably the
Assembly included all these terms in the ordinance because it
meant to encompass this broad range of meaning. Furthermore,
Parrott has pointed to nothing in the language of AMC 8.65.030(A)
to indicate that only the person who initiates the dialogue that
leads to a solicitation for sexual services can commit the
offense of soliciting for the purpose of prostitution.
The district court found that Parrott committed the
offense of soliciting when he invited Officer Dodson into his
truck for the purpose of oral sex. As the court explained:
After being told the price of the goods, so
to speak, he then invited her into his
vehicle. Then she said what are we doing, he
said were having oral sex. And whether he
used a euphemism for that or not, that was
the statement. At that juncture with all the
other evidence, he did not need to pull out
money and hand it to her in order to reach
the level of what the law requires as a
knowing solicitation, inducement, enticement,
invite, or procurement. He had invited her
into his vehicle for the purpose of having
oral sex contrary to the law.
Parrott challenges the district courts factual finding
that he told Officer Dodson he wanted oral sex. But Officer
Dodson testified that Parrott, after telling Dodson to get in the
truck, indicated we were going to do oral sex, he said that.
Later, Dodson testified that Parrott had said either a blow job
or oral sex. During cross examination, Parrotts attorney asked
Dodson: So, Mr. Parrott says something that you associate with
oral sex, could have been oral sex, could have [been] blow job,
but whatever it was, it was something associated with oral sex?
Officer Dodson responded: Thats correct.
There was no ambiguity in Officer Dodsons testimony
that Parrott asked her for oral sex. Indeed, Parrott did not
suggest in closing argument that there was ambiguity in Officer
Dodsons testimony on this issue. Given this evidence and
argument, we conclude that there was substantial evidence to
support the district courts finding that Parrott had invited
Dodson into his truck for oral sex.
Parrott also complains that Officer Dodsons police
report defined the crime of soliciting differently than the
Anchorage ordinance. The police report used the phrase
suggesting and agreeing in lieu of the terms solicit, induce,
entice, invite, or procure. Parrott argues that under this
misstatement of law in the police report it makes no difference
who actively solicits whom. Parrott advances this argument to
support his claim that Officer Dodson, operating under a
misconception of the law, arrested him for non-criminal conduct.
But Judge Murphy convicted Parrott under AMC 8.65.030(A).
Consequently, the wording of the police report and Officer
Dodsons understanding of the ordinance are irrelevant.
After reviewing the evidence, as we must, in the light
most favorable to upholding the verdict, we conclude that there
was adequate relevant evidence to support a conclusion by a
reasonable mind that there was no reasonable doubt as to Parrotts
guilt.17 The court thus properly held that Parrott had solicited
prostitution under AMC 8.65.030(A) when he invited Officer Dodson
into his truck for the purpose of oral sex. We therefore affirm
the courts decision to deny Parrotts motion for judgment of
acquittal.
Did the court abuse its discretion by refusing to
dismiss the case on the ground of entrapment? Did
the police conduct violate due process, equal
protection, and the separation of powers doctrine?
Parrott next argues that the district court abused its
discretion by not dismissing the case based on his claim that
Officer Dodsons conduct amounted to entrapment. Parrott also
argues that the district court failed to properly address the due
process concerns implicit in his entrapment defense.
During closing argument, Parrott stated that he was not
arguing entrapment for the simple reason that the case law wants
extreme and outrageous conduct. But Parrott went on to urge the
court to look at the situation and make a determination about
whether, under these circumstances, there is entrapment. Judge
Murphy declined to address the entrapment issue, noting that
Parrott had not filed the required pre-trial notice and ruling
that it was not appropriate for Parrott to raise that defense for
the first time in closing argument.18 The court did note that
the entrapment argument if you want to call it that ... does go
along with his other argument.
We conclude that Parrott waived his entrapment claim
because he did not raise it below.19 Even if he did attempt to
raise the defense for the first time in closing argument, Judge
Murphy acted within his discretion by refusing to consider the
claim.20
Parrott also argues that the police denied him due
process and equal protection by arresting him based on a standard
police form that included an erroneous interpretation of AMC
8.65.030(A). He argues that the Anchorage Police Departments use
of that form violated the separation of powers doctrine by
vesting legislative authority in the executive branch. Because
none of these claims were raised below, we treat them as
waived.21 In any event, as the district court found, Parrotts
citation put him on notice that he was charged with soliciting
prostitution under AMC 8.65.030(A). Given that Parrott was
properly convicted for violating this ordinance, we find no
infringement of his constitutional rights.
Was the court clearly mistaken in refusing to impose a
suspended
imposition of sentence and in requiring Parrott to
write an essay?
Parrott argues that Judge Murphy was clearly mistaken
in refusing to impose a suspended imposition of sentence. He
argues that his rehabilitation is a foregone conclusion because
he is remorseful, aware of the stigma carried by his offense, and
a forty-eight-year-old first-time offender. By statute,
sentencing courts have discretion whether to impose a suspended
imposition of sentence in a given case.22
At trial, Parrott asked the court to impose a suspended
imposition of sentence because he had no criminal history and his
offense was not aggravated. Parrotts counsel told the court that
Parrott was embarrassed by the criminal case but not that he was
remorseful. Nor did Parrott express remorse in his statement to
the court. Judge Murphy concluded that a suspended imposition of
sentence was not appropriate given that Parrott was close to
fifty years old and should have known better. And although Judge
Murphy focused his remarks on deterrence and rehabilitation, he
did not find that Parrotts rehabilitation was a foregone
conclusion. Rather, he stated that he was concerned about
deterring Parrott and others, and about what we can do in a
rehabilitative sense to make sure that you dont come back here
again. Given this record, we conclude that Judge Murphy was not
clearly mistaken in deciding that a suspended imposition of
sentence would not satisfy the sentencing goals of deterrence and
rehabilitation in Parrotts case.
Parrott also argues that the court was clearly mistaken
in requiring him to write an essay on the ills of prostitution.
Parrott does not claim that Judge Murphy had no authority to
order him to write an essay;23 instead, he argues that the essay
requirement violates his right against self-incrimination. We
find no merit in this argument. As the Municipality points out,
Judge Murphy did not order Parrott to admit his crime; he ordered
Parrott to write an essay on the harm to society of prostitution.
A probationer cannot validly invoke the privilege against self-
incrimination when there is no real or substantial hazard of
incrimination.24 The burden of establishing a hazard of
incrimination is on the claimant. Parrott has not established
that he has a valid claim of privilege with regard to the
mandated essay.25 We therefore reject Parrotts claim that the
essay requirement violates his right to silence.
Conclusion
The judgment of the district court is AFFIRMED.
_______________________________
1 Anchorage Municipal Code (AMC) 8.65.030(A).
2 948 P.2d 991 (Alaska App. 1997).
3 Id. at 992; see also Howard v. State, 496 P.2d 657, 660
(Alaska 1972).
4 AMC 8.65.010.
5 The interpretation of a statute or ordinance is a question
of law we review de novo. Sosa v. State, 4 P.3d 951, 953 (Alaska
2000).
6 Ch. 104, 1, SLA 1955 (emphasis added).
7 Plas v. State, 598 P.2d 966 (Alaska 1979).
8 See Norman J. Singer, Sutherland Statutory Construction,
49.03, at 14-15 (6th ed. 2000).
9 657 P.2d 407 (Alaska App. 1983).
10 Id. at 408-09.
11 Anchorage Ordinance (AO) 98-59(S), at 56 (comparing
former AMC 8.14.030 with AMC 8.65.030(A)).
12 Anchorage Ordinance (AO) 98-59(S), at 55-56 (comparing
former AMC 8.14.010 with 8.65.010).
13 See Singer, Sutherland Statutory Construction, 49:09,
at 108-09 (Legislative adoption is presumed conclusive when
repeated reenactments follow a notorious practical
interpretation.).
14 State, Dept of Revenue v. Debenham Elec. Supply Co.,
612 P.2d 1001, 1001 (Alaska 1980).
15 See Websters New World College Dictionary (3d ed. 1997)
(definitions for solicit, induce, entice, invite).
16 See id. (definitions for solicit, invite).
17 See Ross v. State, 586 P.2d 616, 617-18 (Alaska 1978).
18 See Alaska R. Crim. P. 16(c)(5), which provides:
Notice of Defenses. Unless a different date is
set by the court, no later than 10 days prior to
trial, the defendant shall inform the prosecutor
of the defendants intention to rely upon a defense
of alibi, justification, duress, entrapment, or
other statutory or affirmative defense. Failure
to provide timely notice under this rule shall
entitle the prosecutor to a continuance. If the
court finds that a continuance is not an adequate
remedy under the circumstances of the case, the
court may impose other sanctions, including
prohibiting the defendant from asserting the
designated defense. The defendant shall give
notice of an insanity defense or a defense of
diminished capacity due to mental disease or
defect in compliance with AS 12.47.
19 See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)
(holding that arguments not raised below are considered waived on
appeal absent plain error).
20 See Alaska R. Crim. P. 16(c)(5).
21 See Wettanen, 749 P.2d at 364.
22 Nattrass v. State, 554 P.2d 399, 401 (Alaska 1976)
(citing AS 12.55.085(a)).
23 See AS 12.55.015 (listing authorized sentences).
24 Gyles v. State, 901 P.2d 1143, 1148 (Alaska App. 1995)
(quoting State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993)).
25 See id. at 1149.
