                     COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia


BRUCE IRVING FINE
                                                  OPINION BY
v.      Record No. 3009-98-2                 JUDGE MARVIN F. COLE
                                               FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Margaret P. Spencer, Judge

             Robert L. Lichtenstein (Elliott B. Bender, on
             brief), for appellant.

             Thomas M. McKenna, Assistant Attorney General
             (Mark L. Earley, Attorney General;
             Virginia B. Theisen, Assistant Attorney
             General, on brief), for appellee.


        Bruce Irving Fine, appellant, appeals his conviction for

using a vehicle to promote prostitution or unlawful sexual

intercourse in violation of Code § 18.2-349.    Appellant argues

that:    (1) the evidence was insufficient to support the

conviction; and (2) the trial court abused its discretion in

refusing to dismiss the charge on the ground of collateral

estoppel.    We reverse the conviction, finding the evidence

insufficient to prove that appellant violated Code § 18.2-349.

                                 FACTS

        On June 27, 1998, Detective Janice Calhoun worked as a decoy

for the investigation of prostitution.     At about 1:15 a.m.,

appellant, driving a Dodge conversion van, stopped in a travel
lane near the corner where Calhoun stood.    Appellant lowered the

passenger side window.    Appellant asked Calhoun what she was

doing.    Calhoun replied, "[H]anging out, what are you looking

for?"    Appellant asked if Calhoun was a "cop," and she replied,

"No."    Appellant then asked Calhoun if she "was working."

Calhoun replied, "Well, what are you looking for?"    Appellant

said, "A blow job."    Calhoun then asked appellant, "[W]hat are

you going to do for me?"    Appellant replied, "[W]hat do you

want?"    Calhoun asked, "[I]s $20 okay?"   Appellant replied,

"Yes."    Calhoun then told appellant to meet her in a nearby

alley.    Appellant did not ask Calhoun to enter the van, and

appellant did not drive into the alley.     Instead, appellant

drove out of the area.    The police stopped and arrested him a

short distance away.

        Calhoun testified that when she told appellant to drive

into the alley, she meant to "portray that [she] was going to

get in his van in the alley."    Calhoun also stated that there

was no motel in the area where she directed appellant to meet

her, stating, "[I]t was just an alley."     On cross-examination,

Calhoun testified that appellant did not show her any money and

that he drove away in the midst of their conversation.

        Appellant testified that he was driving north from North

Carolina, traveling between Florida and Massachusetts on the

morning of the incident.    He stated that he needed to exit the

highway in order to rest.    Appellant testified that he had never

                                 - 2 -
been to Richmond before.    As he drove through the area,

appellant did not see any place he wanted to stay.    He then saw

"this blond woman standing on the side of the road."    He stopped

and asked what she was doing.    Appellant stated that the woman

asked for money, and he replied, "Yeah, sure," and "just took

off."

        Appellant testified he had no intention of paying Calhoun

for sex, and he did not drive to the alley because he "didn't

want anything to do with it."    However, appellant admitted on

cross-examination that he asked Calhoun for a blow job.

        Also, on cross-examination, the assistant Commonwealth's

attorney asked appellant, "[Y]ou were in your vehicle at this

time that you approached her, correct?"    Appellant replied,

"That's right."    Furthermore, at the December 18, 1998 hearing

on appellant's motion to reconsider, appellant's counsel stated,

"We don't doubt that they've met the element that he owns the

vehicle, and it's the vehicle involved."

                               ANALYSIS

        Appellant argues that the evidence was insufficient to

prove that he violated Code § 18.2-349.

             Code § 18.2-349 provides:

             It shall be unlawful for any owner or
             chauffeur of any vehicle, with knowledge or
             reason to believe the same is to be used for
             such purpose, to use the same or to allow
             the same to be used for the purpose of
             prostitution or unlawful sexual intercourse,
             or to aid or promote such prostitution or

                                 - 3 -
            unlawful sexual intercourse by the use of
            any such vehicle.

     "[B]ecause the statute in question is penal in nature, it

must be strictly construed against the state and limited in

application to cases falling clearly within the language of the

statute."    Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d

337, 338 (1983).

     Appellant argues that he did not intend to use the van for

the purpose of prostitution or unlawful sexual intercourse.   He

contends that both he and Calhoun testified that when the issue

of money for sex arose, appellant failed to do what Calhoun

requested, and he left the area instead of driving into the

alley.   Therefore, he contends that he lacked the intention to

use the van for prostitution.   He also asserts that he did not

aid or promote prostitution by use of a vehicle, and he did not

engage in a substantial act in furtherance of using the van for

prostitution.

     Prostitution or being a prostitute is defined in Code

§ 18.2-346 as follows:

                 A. Any person who, for money or its
            equivalent, commits adultery, fornication or
            any act in violation of § 18.2-361, or
            offers to commit adultery, fornication or
            any act in violation of § 18.2-361 and
            thereafter does any substantial act in
            furtherance thereof, shall be guilty of
            being a prostitute, or prostitution, which
            shall be punishable as a Class 1
            misdemeanor.



                                - 4 -
               B. Any person who offers money or its
          equivalent to another for the purpose of
          engaging in sexual acts as enumerated above
          and thereafter does any substantial act in
          furtherance thereof shall be guilty of
          solicitation of prostitution and shall be
          guilty of a Class 1 misdemeanor.

(Emphasis added.)

     We agree with appellant's arguments.   Although appellant

engaged in conversation concerning the exchange of money for a

sexual act, there is no evidence of "any substantial act in

furtherance thereof."   No act of adultery, fornication or any

act in violation of Code § 18.2-361 occurred.   As in Adams v.

Commonwealth, 215 Va. 257, 258-59, 208 S.E.2d 742, 744 (1974),

the evidence shows at most "the required offer.    Proof of the

equally essential substantial act is completely lacking."

     The evidence proved that appellant did not meet Calhoun in

the alley as she requested.   After conversing with Calhoun,

appellant drove away.   Appellant did not ask Calhoun to enter

the van, and he did not show or give her any money.    The

Commonwealth's evidence merely showed that appellant had a

conversation with Calhoun concerning a sexual act.    Appellant

made no substantial and overt act in furtherance of the crime.

     Moreover, the evidence failed to prove that the van was

used to "aid or promote" prostitution.   Code § 18.2-348 defines

the offense of "aiding prostitution" as follows:

          It shall be unlawful for any person or any
          officer, employee or agent of any firm,
          association or corporation, with knowledge

                               - 5 -
            of, or good reason to believe, the immoral
            purpose of such visit, to take or transport
            or assist in taking or transporting, or
            offer to take or transport on foot or in any
            way, any person to a place, whether within
            or without any building or structure, used
            or to be used for the purpose of lewdness,
            assignation or prostitution within this
            Commonwealth; or procure or assist in
            procuring for the purpose of illicit sexual
            intercourse, or any act violative of
            § 18.2-361, or to give any information or
            direction to any person with intent to
            enable such person to commit an act of
            prostitution.

     No "substantial act in furtherance" of prostitution

occurred after appellant and Calhoun conversed.    Therefore,

appellant did not use the vehicle to transport himself to a

place "to be used for the purpose of . . . prostitution."

Moreover, "procure" means "to take care of, bring about, obtain:

achieve."    Webster's Third New International Dictionary 1809

(1981).   Appellant did not obtain or bring about for the purpose

of illicit sexual intercourse or any act violative of Code

§ 18.2-361, or give "any information or direction to any person

with intent to enable such person to commit an act of

prostitution."

     The Virginia Supreme Court found a violation of Code

§ 18.2-348 where a business was "strictly a medium or conduit

through which orders for prostitutes were received, processed

and filled."     Edwards v. Commonwealth, 218 Va. 994, 1000, 243

S.E.2d 834, 838 (1978).    In Edwards, "[t]he defendant provided

the girls a base from which they could operate, advertised their

                                 - 6 -
presence, described to prospective customers their physical

characteristics, got them 'dates', and then dispatched them to

designated hotel and motel rooms in automobiles with drivers

supplied by [the defendant]."    Id.    Also, in Edwards, the Court

found that "the operation or business carried on by defendant

. . . was a venture by her, for financial gain, to aid and abet

and to give information and direction to persons desiring the

services of a prostitute, and to procure and assist persons who

were willing to provide such services."      Id.

     Clearly, no evidence in appellant's case supports a finding

that appellant aided or promoted prostitution.     He merely

conversed with the detective while he sat in the van, then drove

away from the area.   He did not ask her to enter the van, and he

did not drive into the alley as directed by the detective.

Appellant and Calhoun performed no sexual act in the van, and no

money exchanged hands in the van.      Appellant committed none of

the acts described in Edwards where the Court found the

defendant aided or promoted prostitution.     Therefore,

appellant's actions did not fall within the proscription of Code

§ 18.2-349.

     Because we find the evidence insufficient to prove beyond a

reasonable doubt that appellant violated Code § 18.2-349, we do




                                - 7 -
not address the collateral estoppel issue.   Accordingly, we

reverse the conviction and dismiss the charge.

                                        Reversed and dismissed.




                              - 8 -
