Promoting Prostitution Crime Survives First Amendment and Over-Breath Challenges

State v. Washington-Davis, Minn.Ct.App., 7/13/2015.  A jury convicted Mr. Washington-Davis of multiple counts of prostitution-related offenses. On appeal, Mr. Washington-Davis said that the statute that criminalizes the solicitation and promotion of prostitution violates the First Amendment and the state constitution counterpart; and that the statute is facially overbroad because it criminalizes protected activity and speech.

On the First Amendment claim, the court of appeals does agree with Mr. Washington-Davis that the statute, Minn.Stat. 609.332, subd. 1a(1)-(2), is content-based regulation of speech.  For instance, the statute prohibits soliciting or inducing an individual to practice prostitution.  The court hauls out the dictionary to see what "solicit" and "induce" mean and decide that the definitions "implicate speech."  Same thing for another prohibited act, "promoting the prostitution of an individual."  Not all content-based regulation of speech if protected by the First Amendment, however. Yelling "Fire!" in a crowded room for instance.  Another is "speech integral to criminal conduct."  The solicitation and inducing going on here is for the criminal enterprise of prostitution so it's outside the protection of the First Amendment.

Mr. Washington-Davis also said that the statute was facially overbroad. He said that the statute criminalizes protected activities like "non-obscene films and photographs that depict sexual penetration or sexual conduct by consenting adults."  The court said, no, that making a film in which actors act out a sex act is for the purpose of making a film and not for the immediate purpose of satisfying sexual impulses which is the kind of act that the statute prohibits. Mr. Washington-Davis also said that the statute criminalized otherwise protected lap dancing.  The court, though, again said, no, that lap dancing as Mr. Washington-Davis defined it, was "lewd" and "lascivious" that is therefore "obscene" conduct that is not protected by the First Amendment.  And, even if lap dancing were not obscene there is no "substantial overbreadth."

Mr. Washington-Davis challenged the sufficiency of the evidence that he intentionally aided his brother and codefendant, Otis Washington.  The court goes through the circumstantial evidence drill required under State v. Ortega, 813 N.W.2d 86 (Minn. 2012) and State v. Silvernail, 831 N.W.2d 594 (Minn. 2013), and concludes that the evidence was sufficient after all.  

The trial court did mess up the accomplice liability instruction by failing to include the Milton language that the jury must find both a defendant's knowledge and  intent in aiding the commission of the offense. However, because there was no objection to this omission review is under plain error. Mr. Washington-Davis could not persuade the court of appeals that the error affected his substantial rights.

The court of appeals affirmed the trial court's ruling on several "prior bad acts" pieces of evidence. The court also vacates a conspiracy count because the other counts of conviction and sentence all took place with the same time frame stated for the conspiracy.  And, the conspiracy and the other counts within the same time period were motivated by the same objective and thus were part of a single behavioral incident.