Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                   Sep 30 2014, 9:09 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR                               GREGORY F. ZOELLER
O’Connor & Auersch                                Attorney General of Indiana
Indianapolis, Indiana
                                                  IAN MCLEAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BREANNE H. RICE,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )        No. 49A02-1401-CR-12
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Grant W. Hawkins, Judge
                            Cause No. 49G05-1304-FC-27930



                                      September 30, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

        Breanne Rice appeals her conviction for promoting prostitution, as a Class C

felony, following a bench trial. Rice presents two issues for our review:

        1.      Whether the State presented sufficient evidence to support her
                conviction.

        2.      Whether her conviction is contrary to the legislature’s intent to
                punish pimps more harshly than prostitutes.

        We affirm.1

                           FACTS AND PROCEDURAL HISTORY

        In April 2013, Rice contacted an escort agency via email regarding possible work

as a prostitute. The recipient of Rice’s email was not an actual escort agency, but an

account set up by Indianapolis Metropolitan Police Department (“IMPD”) Detective

Joshua Shaughnessy. Detective Shaughnessy replied to Rice’s inquiry using the name

“Jenna,”2 and the two exchanged telephone numbers. Rice and Jenna proceeded to

communicate via text message. Jenna told Rice that she could procure prostitution clients

for Rice and that Jenna would charge Rice fifty percent of the fees those clients paid to

Rice.

        During one text exchange, Jenna told Rice about a possible client with whom Rice

could meet. Rice responded that she could use her own apartment for such meetings.

Rice also stated to Jenna, “if u ever just have a slow day you can use my apartment so u

        1
          We note, as we have in a prior memorandum decision, that the transcript in this case emits an
unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent.
We kindly remind all those who handle the record on appeal to avoid such contamination.
        2
          For ease of discussion, we will refer to Rice’s communications and interactions with “Jenna,”
even though Rice was actually communicating with Detective Shaughnessy by email and text and with
Detective Tabitha Mclemore over the telephone and in person.
                                                     2
don’t have to pay that big money for a hotel and I’m a clean freak and the building stays

locked or if u just need a place in greenwood in general u can[.]” State’s Ex. 1 (errors in

original). Sometime after that, IMPD Detective Tabitha Mclemore, posing as Jenna in a

telephone call, asked Rice if she could use Rice’s apartment to meet a client who wanted

to pay Jenna $300 for sexual intercourse. Rice agreed.

      On April 29, when Jenna (Detective Mclemore) arrived at Rice’s apartment, Rice

had set out lingerie for Jenna to wear for Jenna’s client, and Rice told Jenna where

additional lingerie was located in case she wanted to use it. Rice also helped Jenna give

her client (Detective Shaughnessy) directions to Rice’s apartment.        When Detective

Shaughnessy arrived, he and Detective Mclemore arrested Rice.           After hearing her

Miranda rights, Rice agreed to talk to the detectives. Rice admitted that she knew that

“Jenna” intended to use her apartment for prostitution.         Rice acknowledged that

prostitution is illegal, but Rice believed that it was not illegal to provide a place for

someone else to engage in prostitution.

      The State charged Rice with promoting prostitution, as a Class C felony.

Following a bench trial, the trial court found her guilty as charged. The trial court

entered judgment and sentenced her to two years, which the court suspended to

probation. This appeal ensued.

                            DISCUSSION AND DECISION

                        Issue One: Sufficiency of the Evidence

      Rice first contends that the State presented insufficient evidence to support her

conviction.   When considering whether the evidence is sufficient to support an


                                            3
appellant’s conviction, we neither reassess witness credibility nor reweigh the evidence,

as those tasks are reserved to the fact-finder. Delagrange v. State, 5 N.E.3d 354, 356

(Ind. 2014). Rather, we consider only the evidence most favorable to the conviction, and

we will affirm unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id.

       To prove promoting prostitution, as a Class C felony, the State was required to

show that Rice, having control over the use of an apartment, did knowingly permit

Detectives Mclemore and Shaughnessy to use the apartment for prostitution. Ind. Code §

35-45-4-4. Rice’s sole contention on appeal is that the State was required to prove that

the detectives committed prostitution after Rice had provided them with access to her

apartment. Rice directs us to Indiana Code Section 35-45-4-2, which defines prostitution

as being committed when a person, for money or other property, knowingly or

intentionally performs, or offers or agrees to perform, sexual intercourse or deviate sexual

conduct; or fondles, or offers or agrees to fondle, the genitals of another person. Rice

maintains that, because there is no evidence that the detectives committed prostitution as

defined by statute, Rice cannot be convicted of promoting prostitution.

       In support of her contention, Rice asserts that the circumstances here “are akin to

the case of Huber v. State, 805 N.E.2d 887 (Ind. Ct. App. 2004).” Appellant’s Br. at 6.

In Huber, we reversed the defendant’s conviction for invasion of privacy where he had

unsuccessfully attempted to get a third party to convey a message to his wife, who had

three protective orders against him.     Huber, 805 N.E.2d at 889.        We held that the

evidence was insufficient to support the conviction because Huber’s attempt to contact


                                             4
his wife was incomplete. Rice maintains that this court’s analysis in Huber applies here

and that her conviction should be reversed because the detectives did not engage in

prostitution, but only pretended to do so.

       Rice’s contention on appeal is similar to that asserted by the defendant in Gibson

v. State, 514 N.E.2d 318 (Ind. Ct. App. 1987), trans. denied. In Gibson, an undercover

police officer visited “a house of prostitution” run by Gibson and ostensibly “hired” a

prostitute working for Gibson. Id. at 319. The police officer gave fifty dollars to the

prostitute, who was cooperating with the police. The prostitute then gave Gibson the fifty

dollars, and police arrested Gibson for promoting prostitution under Indiana Code Section

35-45-4-4(4), which prohibits receiving money or other property from a prostitute,

without lawful consideration, knowing it was earned in whole or in part from prostitution.

       On appeal, Gibson claimed

       that she could not be guilty under Ind. Code Sec. 35-45-4-4(4) because an
       act of prostitution did not occur between [the prostitute working for her]
       and the police decoy[.] Gibson’s claim is based on the proposition that she
       could not have received money knowing it was “earned” from prostitution
       when there was no prostitution. Thus Gibson concludes there was
       insufficient evidence to support the jury’s verdict on Count IV.

Id. at 324. We rejected Gibson’s argument and held as follows:

       The word “earned” must be read in the context of the phrase “knowing it
       was earned in whole or in part from prostitution. . . .” Thus Gibson’s claim
       is actually that in order for a person to know of an event, the event must
       have occurred.

              Gibson’s claim is philosophically astute, but legally incorrect. A
       philosophically adequate definition of “knowledge” may indeed exclude the
       possibility of a person knowing of an event that never occurred. But this
       lends no support to Gibson’s conclusion that she could not be guilty
       because the relevant sense of “know,” in the context of the statute is “a
       mental state and the trier of fact may examine the circumstances to
                                             5
       reasonably infer its existence.” Whorton v. State, 412 N.E.2d 1219, 1223
       (Ind. Ct. App. 1980). Thus, for purposes of promoting prostitution,
       knowing is a state of mind which can occur even when what is “known” did
       not occur. In other words whether [the prostitute employed by Gibson]
       committed an act of prostitution with [the undercover police officer] is
       irrelevant to Gibson’s conviction on Count IV because the evidence
       reasonably supports the fact finder’s determination Gibson believed an act
       of prostitution had occurred. Her state of mind, therefore, was one of
       knowledge.

Id. (emphasis added).

       Likewise, here, the State presented the detectives’ testimony that Rice had agreed

to let them use her apartment knowing that “Jenna” intended to be paid to engage in

sexual intercourse with her client. That the detectives did not have an actual agreement

to engage in sex for money has no bearing on Rice’s “knowledge” that prostitution would

occur in her apartment for purposes of the promoting prostitution statute. See id. The

State presented sufficient evidence to support Rice’s conviction.

                             Issue Two: Legislative Intent

       Rice next contends that her conviction is invalid because it violates the

legislature’s intent to punish pimps more harshly than prostitutes. Rice maintains that she

is merely a prostitute and should not have been charged or convicted for promoting

prostitution. In support of this contention, Rice cites our supreme court’s opinion in State

v. Hartman, 602 N.E.2d 1011, 1012 (Ind. 1992). In Hartman,

       [t]he State charged Hartman under subsection (5) of the statute on
       promoting prostitution. The information alleged that Hartman “did
       knowingly and unlawfully conduct or direct Richard Truog to a place . . .
       for the purpose of prostitution.” In granting Hartman’s motion to dismiss,
       the trial court held that the promoting statute was intended to reach the
       conduct of a third party, and not the immediate parties to the act of
       prostitution. The Court of Appeals reversed, declaring that the plain
       meaning of “directing another person to a place for prostitution”
                                             6
       encompassed Hartman’s alleged act of calling Truog and giving him
       directions to his house.

Id. at 1013. Our supreme court agreed with the trial court that Hartman’s charge should

be dismissed and observed that “it seems that the legislature has rationally concluded that

the business manager of a prostitution enterprise typically imposes a greater harm on

society than the sole practitioner.” Id.

       Here, Rice suggests that, based upon the legislative intent as declared by our

supreme court in Hartman, we read into the promoting prostitution statute a requirement

that only a “business manager” can be convicted under the statute. And Rice contends

that there is no evidence that she was a “business manager.” Rice maintains that the

evidence shows the opposite, namely, that she was attempting to work as a prostitute for

“Jenna,” who was the real business manager.

       But Rice ignores the plain language of the statute and the fact that she was not the

prostitute in the Jenna-client relationship. Indiana Code Section 35-45-4-4(3) requires

only that “a person” have control over the use of a place and knowingly or intentionally

permits another person to use the place for prostitution. The State presented ample

evidence that, in addition to expressing an interest in working as a prostitute for “Jenna,”

Rice had control over her apartment and knowingly and intentionally permitted the

detectives to use it for prostitution.

       Indeed, in Hartman, our supreme court rejected an argument similar to that

advanced by Rice here. The court examined this court’s opinion in Benjamin v. State,

508 N.E.2d 1360 (Ind. Ct. App. 1987), where we affirmed the defendant’s conviction for



                                             7
promoting prostitution. In Benjamin, we explained the defendant’s “sole argument on

appeal” as follows:

             [Benjamin contends that] the statute under which she was convicted,
      I.C. [§] 35-45-4-4, was designed to criminalize activities of third persons
      promoting prostitution, not that of the prostitute or the patron. Based upon
      this assumed legislative intent, Benjamin argues that “profiteering” by a
      non-participating third person must be shown so that promotion is
      distinguished from simple prostitution. She contends that the evidence did
      not show that she was “an intended target of the statute.” Appellant’s Brief
      at 8.

Id. at 1361. In affirming the defendant’s conviction, we explained:

             However, the [Criminal Law Study] Commission Comments with
      respect to subsection (3), the subsection under which Benjamin was
      convicted, state:

             “The proposed clause does not attempt to specify different
             kinds of places, but employs the term ‘any place,’ connoting
             thereby any and every kind of place, be it a house, or
             apartment, or motel, hotel, rooming house, lodging house, or
             even a bus. . . . This covers the conduct of keeping a place of
             prostitution, as well as allowing a place to be used for the
             purpose of prostitution. . . . This fixes the liability on any
             person who exercises the control over the place, regardless of
             the source of his power. He may be an owner, or the
             manager, or anybody, as long as he has the control over the
             place.”

      [Indiana Penal Code, Proposed Final Draft, p. 129 (Criminal Law Study
      Commission 1974)] (emphasis supplied).

             Thus, in drafting subsection (3), the Commission did not seek to
      impose the requirements of a third-party promoter, plus profit resulting
      from the prostitution. Rather, a broader scope was intended, one which
      would encompass all activities which promote prostitution via having
      control over, and permitting use of, the place where prostitution occurs.

             The language of subsection (3) itself supports this conclusion. The
      key elements under subsection (3) are control of a place, and knowing or
      intentional consent in its use for prostitution. The subsection does not
      exclude non-profitable grants of permission, nor does it exclude permission
                                            8
      granted by one also engaged in prostitution. Nothing in the statute, either
      by express statement or implication, supports the construction Benjamin
      posits.

Id.

      And in Hartman, our supreme court observed that the defendant in Benjamin

“made much the same argument” as the defendant in Hartman, and the court stated:

             To the extent that Benjamin was convicted of permitting another
      person, i.e., her fellow prostitute, to use her home for prostitution, the
      holding in Benjamin is correct. To the extent the court’s dicta in Benjamin
      suggests that a lone prostitute could be charged with a class C felony under
      such circumstances, however, it is error. . . .

602 N.E.2d at 1014 (emphasis added). Here, because the evidence shows that Rice

permitted the detectives to use her apartment for prostitution, her conviction for

promoting prostitution is consistent with the legislature’s intent with respect to Indiana

Code Section 35-45-4-4(3).

      Affirmed.

BAILEY, J., and PYLE, J., concur.




                                            9
