Appeal from Circuit Court, Multnomah County. John J. Murchison, Judge. No. C-72-11-3586 Cr.
George A. Haslett, Jr., Portland, argued the cause and filed the brief for appellant.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Schwab, Chief Judge, and Langtry and Fort, Judges.
Defendant was convicted by a jury of the crime
of promoting prostitution, ORS 167.012 (1)(d). The indictment charged:
"The said defendant, on or about September 16, 1972, in the County of Multnomah, State of Oregon, did knowingly and unlawfully, with intent to promote prostitution, engage in conduct which instituted, aided, and facilitated an act of prostitution, in that the said defendant did offer one Michael Kelley money of the United States of America to engage in sexual conduct with one Tamara Gilmore, said act of sexual conduct occurring on or about September 16, 1972 * * *."
Defendant owned and managed a theater which he characterizes in his brief as providing "adult entertainment consisting of pornographic movies and live sex act performances." The defendant offered to and did pay one Michael Kelley to engage in sex acts with a Tamara Gilmore before an audience on the stage of the defendant's theater. Thereafter, as stated in defendant's brief, "* * * Miss Gilmore danced a couple of numbers, and then brought Mr. Kelley from the audience up onto the stage. Once Mr. Kelley was on the stage there was embracing, simulated sexual intercourse, and oral sodomy between the two of them."
Defendant's assignments of error are: (1) the indictment does not state facts sufficient to constitute a crime, (2) there was no evidence that the defendant intended to promote prostitution or engage in conduct that instituted, aided or facilitated an act of prostitution, and (3) the trial court erred in refusing to give certain of the defendant's requested instructions. Essentially, defendant's argument is that ORS 167.012 (1)(d) did not intend to apply to the
type of situation presented by this case. The statute reads:
"(1) A person commits the crime of promoting prostitution if, with intent to promote ...