Defendant charged with “loitering for the purpose of soliciting or engaging in prostitution or other lewd, lascivious or indecent act.” Police observed defendant sitting in a parked car dressed in a shirt tied above his navel, carrying a tan purse. Police observed him wave at passing vehicles, where one turned around and defendant got in the car and spoke with the driver for three minutes. He got out of the car, without any apparent engagement in prostitution. He repeated this act multiple times. Defendant had been there for a half an hour. When detained by police he said he was just resting and had been doing nothing. The officers testified that he hid in shadows when police cars drove by.
Guilty at trial for loitering for the purpose of prostitution.
Must meet two elements: (1) to loiter, lurk, remain, or wander about in a public place or any place within view of the public or open to the public; (2) for the purpose of engaging in prostitution, or of patronizing a prostitute, or of soliciting for or engaging in any act which is lewd, lascivious or indecent.
Prosecution must prove both the act and mental state of this crime.
Whether the state must prove a mental state of specific intent to commit the crime of loitering for purpose of prostitution.
Yes, conviction overturned. It is common to prove specific intent through circumstantial evidence. The state must prove beyond the mere suspicion of guilt. “…the city’s evidence must be consistent with guilt and exclude every reasonable hypothesis that the accused is innocent of the charged offense.”
On appeal, the court must view the facts in light most favorable to the city. The jury at trial was given several circumstances that are consistent with “a suspicion of guilt.” The facts suggest he hid from police as they drove by. And the defendant’s appearance “leads to what common sense tells you, that people that are soliciting for the purpose of this would dress differently than normal people.” Moreover, the defendant was standing at the corner late at night. He also had exclusive interest in occupants of male vehicles. However, the city did not prove at trial that defendant was specifically acting for the purpose of prostitution. They did not show this through defendant’s own “direct statements, indirect suggestions, and salacious innuendoes,” as are made in other cases.