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
                                                               FILED
                                                            Sep 26 2012, 9:17 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                   GREGORY F. ZOELLER
Marion County Public Defender                   Attorney General of Indiana
Indianapolis, IN
                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana



                           IN THE
                 COURT OF APPEALS OF INDIANA

JOSHUA BANKS,                                      )
                                                   )
        Appellant,                                 )
                                                   )
                vs.                                )      No. 49A04-1203-CR-120
                                                   )
STATE OF INDIANA,                                  )
                                                   )
        Appellee.                                  )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Linda E. Brown, Judge
                        The Honorable Steven J. Rubick, Magistrate
                           Cause No. 49F10-1109-CM-067417


                                    September 26, 2012

             MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
                                                      Joshua Banks (“Banks”) was convicted in Marion Superior Court of Class

A misdemeanor patronizing a prostitute. He was sentenced to two days in the

Marion County Jail, with credit for one day served and one day of good time

credit, and he was fined court costs of $165. Banks appeals and argues there was

insufficient evidence supporting his conviction for patronizing a prostitute.

                                                      We affirm.

                                                                                                                                                                                                            Facts and Procedural History

                                                      On September 20, 2011, Indianapolis Detective Laura Spicer (“Detective

Spicer”) was posing as an undercover prostitute to investigate complaints of

prostitution in the area of 1900 East Prospect Street. She was on the sidewalk in

front of the Village Pantry when the driver of a vehicle parked in the lot called her

over to his vehicle. Banks was a passenger in the vehicle. Spicer approached and

spoke with the driver. He asked what she was doing, and as the conversation

progressed, she told him she would “do either head or f**k.”1 Tr. p. 8.

                                                      Detective Spicer walked a few feet away but then returned to the vehicle to

speak with the driver. With Banks still seated in the passenger seat, she again

spoke with the driver through the open driver’s side window about the details of

the sexual services she would perform and about payment. Appellant’s App. p.

16. Detective Spicer opened the rear driver-side car door and asked Banks, who




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
 “Head” is street terminology for fellatio, and “f**k” is street terminology for sexual intercourse.
Tr. p. 9.
	                                                                                                                                                                                                                                 2
was on his cell phone, “So are you good for head” for $20, too?2 Tr. p. 9. Banks

“turned around, looked at [the detective], made eye contact, nodded and said,

‘yeah, we’re good.’” Tr. p. 9. Detective Spicer then signaled for other officers to

approach, and they placed Banks and the driver, who had also agreed to pay $20

for fellatio, under arrest.

                                                      The State charged Banks with Class A misdemeanor patronizing a

prostitute. Following a bench trial on February 17, 2012, in Marion Superior

Court, Banks was convicted and sentenced to two days incarceration, with credit

for one day served and for one day of good time credit. Banks now appeals.

                                                                                                                                                                                                                                   Discussion and Decision

                                                      Banks argues that there is insufficient evidence to support his conviction

for patronizing a prostitute. In particular, Banks asserts that his response of

“yeah” to a “price quote” from the detective was insufficient evidence for the trial

court to reasonably conclude that Banks was agreeing to pay for fellatio.

Appellant’s Br. at 4-5.

                                                      In reviewing a claim regarding sufficiency of the evidence, we do not

reweigh the evidence or reassess the credibility of the witnesses. Shuger v. State,

859 N.E.2d 1226, 1236 (Ind. Ct. App. 2007) (citing Love v. State, 761 N.E.2d

806, 810 (Ind. 2002)). Rather, we respect the trier of fact’s “exclusive province to

weigh conflicting evidence” and look to the evidence most favorable to the

conviction and reasonable inferences drawn therefrom. Id. (citing McHenry v.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
  The court reporter incorrectly transcribed Detective Spicer’s testimony as stating $22.00, while
the probable cause affidavit makes it clear Detective Spicer actually stated “$20, too.” Ex. Vol.,
Def. Ex. A.
	                                                                                                                                                                                                                                           3
State, 820 N.E.2d 124, 126 (Ind. 2005)). If there is probative evidence from which

a reasonable trier of fact could have found the defendant guilt beyond a reasonable

doubt, we will affirm the conviction. Id.

                                                      Under Indiana Code section 35-45-4-3, Class A misdemeanor patronizing a

prostitute is:

                                                      A person who knowingly or intentionally pays, or offers or agrees to pay,
                                                      money or other property to another person:
                                                      (1) for having engaged in, or on the understanding that the other person
                                                          will engage in, sexual intercourse or deviate sexual conduct with the
                                                          person . . . .

The statute does not define what it means by “agrees to pay,” and our Court has

not previously considered the meaning of that phrase.

                                                      In Harwell v. State, a case involving Class D felony prostitution, this court

considered the meaning of “agrees to perform” in the context of the prostitution

statute:3

                                                      “Agreement” has a plain, and ordinary meaning: it is defined by Black's
                                                      law dictionary as “a mutual understanding between two or more persons
                                                      about their relative rights and duties regarding past or future performances;
                                                      a manifestation of mutual assent by two or more persons.”

821 N.E.2d 381, 383 (Ind. Ct. App. 2004) (quoting Black's Law Dictionary 74 (8th

ed. 2004)). A simple, contract analysis is appropriate for this case, as well. To

determine whether Banks “agree[d] to pay” for sexual services under the

patronizing a prostitute statute, we must determine whether the evidence is

sufficient to establish that he and Detective Spicer had a mutual understanding. In
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
  While the offense of prostitution is distinct from patronizing a prostitute, the offenses are
similar, and the language involving formation of an agreement is nearly identical (“agrees to
perform, sexual intercourse or deviate sexual conduct” as compared to “agrees to pay . . . another
person” for “sexual intercourse or deviate sexual conduct”). See Ind. Code § 35-45-4-2.
	                                                                                                                                                                                                                                 4
determining whether a mutual understanding has been reached, an offer does not

have to “be express and in precise statutory language.” Williams v. State, 254 Ind.

4, 6, 256 N.E.2d 913, 914 (1970). Rather, an offer can be implied through “words

and actions when taken in the context in which they occurred.” See id.

       In Andrews v. State, the appellant argued that a mere price quotation “does

not constitute an offer to commit sexual intercourse for hire.” 155 Ind. App. 599,

602, 293 N.E.2d 799, 800 (1973). This court found the argument “novel” but

“misplaced” because appellant did more than merely quote the charge for her

services; she also told him the place was up to him and suggested that he get a cab.

Id.

       On the other hand, accompanying actions can also show a lack of a mutual

understanding. In Ferge v. State, for example, the affirmative act of driving away

was considered as “evidence that [the defendant] did not intend to make a deal”

for sexual activity.	  	  764 N.E.2d 268, 272 (Ind. Ct. App. 2002).

       In this case, Banks did more than just respond affirmatively to a price

quote. His accompanying actions revealed his intent to enter an agreement with

Detective Spicer; they showed he had a mutual understanding. Banks was in the

passenger seat of the vehicle while the driver of the vehicle discussed Detective

Spicer’s sexual services with her through an open window. In addition, when

Detective Spicer made an explicit offer to Banks to perform fellatio for a defined

price, Banks made eye contact, nodded in agreement, and said “yeah.” Tr. p. 9.

Banks words and actions indicated his intent to enter an agreement with Detective


	                                           5
Spicer, and unlike in Ferge, there were no additional accompanying words or

actions indicating a contrary intent.

       For all these reasons, the trial court could reasonably infer that Banks and

Spicer had a mutual understanding that Banks had agreed to pay for deviant sexual

conduct. This evidence is sufficient to convict Banks of Class A misdemeanor

patronizing a prostitute.

       Affirmed.

VAIDIK, J., and BARNES, J., concur.




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