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07/16/90 JOHN T. BLYTHER v. UNITED STATES

July 16, 1990

JOHN T. BLYTHER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Joseph M. Hannon, Trial Judge

Rogers, Chief Judge, Ferren, Associate Judge, and Reilly, Senior Judge.

The opinion of the court was delivered by: Rogers

Appellant John T. Blyther appeals from his conviction of sexual solicitation, D.C. Code § 22-2701 (1989 Repl.), on the principal ground that there was insufficient evidence that his conduct was prohibited by the statute. We hold that section 22-2701 applies to commercial solicitation in a private residence, and affirm.

I.

Appellant John Blyther was a resident at the Woodner, a private apartment building in the northwest section of the District of Columbia. On December 5, 1984, Robert Austin, a security guard at the Woodner, received an anonymous telephone call. Based on the telephone call, Austin obtained a copy of the newspaper, the Washington Blade, and read the classified section headed "Model/Escort," and in particular the following advertisement: "John, 387-1619, tall, black, handsome and well-endowed." Austin then called the Metropolitan Police Department and Officers Heath and Jones responded.

Officer Heath testified that after reading the advertisement, he telephoned "John" and using the assumed name "George," inquired about the newspaper ad. When "John" asked him what he would like to know, Heath said he would like to discuss the ad in person and arranged to meet "John" in his apartment. Before hanging up, Heath asked "Is there anything I should bring?" and appellant responded "$50 cash."

Around 7:00 P.M., dressed in casual clothes, Heath and four other police officers went to "John's" apartment. Heath knocked on the apartment door while the other officers stood close by. After a brief conversation with appellant at the door, Heath entered the apartment. Heath was nervous, and said he had never done anything like this before. When appellant asked him "What do you like to do?," Heath said he did not know and asked appellant what he liked to do. Appellant responded "I would suck your dick, and fuck with you for fifty dollars." Appellant, commenting on Heath's nervousness, then suggested that they have a drink and watch the news on television. As appellant began making the drink, Heath opened the apartment door, and the other officers entered, and appellant was arrested.

Officer Jones, who was with Heath the night that appellant was arrested, testified that he heard Heath make the telephone call and accompanied Heath to the apartment and waited outside. After appellant was arrested and read his rights, appellant stated that he was an "escort service," and when asked if sex was discussed admitted that it might have been.

Appellant testified that someone came to his apartment door shortly after he had received a telephone call from a person named George. Recognizing that his friend George was not the person at the door, appellant testified that he thought maybe the person at the door was someone he had met and forgotten. He let the man in and offered him a drink. Appellant claimed that there was virtually no conversation between himself and the man he let into his apartment. He denied mentioning money during the telephone conversation.

The trial Judge, sitting without a jury, found appellant guilty as charged and imposed a fine of $200.00 and sentenced appellant to thirty days in jail, suspended the execution of sentence, and placed him on unsupervised probation for six months.

II.

To convict a defendant of solicitation under D.C. Code § 22-2701, *fn1 the government must prove that: (1) the defendant invited, enticed or persuaded (2) a person age 16 or over (3) for the purposes of engaging, agreeing to engage, or offering to engage in sexual acts or contacts with that person (4) for a fee. Ford v. United States, 533 A.2d 617, 624 (D.C. 1987). The question remains whether section 22-2701 was intended to prohibit private commercial solicitations in a private residence or was limited to solicitations in public places. In Lutz v. United States, 434 A.2d 442 (D.C. 1981), the court concluded that the statute, on its face, is not limited to public solicitations and, therefore, does not protect sexual solicitations in private places. Id. at 444. In that case, two police officers checked into adjoining rooms in a hotel for the purpose of investigating complaints about "outcall massage services" operating in hotels. One police officer placed a telephone call to an outcall massage service, and after Lutz appeared in response, initiated a Discussion about the prices of various sexual services; Lutz was arrested and her conviction affirmed on appeal. The court in Lutz explicitly held that the statute, by its own terms, is not limited to public solicitations. Id. at 443-44. Accordingly, the statute provides no bar to its application to conduct that occurs in a private residence. Any bar will exist, therefore, only if there is a constitutional right to privacy against government intrusion which protects such conduct.

The court declined in Lutz to find a "fundamental right to privacy for commercial sexual solicitation." Id. at 445. Acknowledging the Supreme Court's recognition of a person's right under the First Amendment to possess -- without commercial intent -- obscene material in his or her home, see Stanley v. Georgia, 394 U.S. 557, 559, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), the Lutz court focused on the distinction between this non-commercial right and that of an entrepreneur to engage in "commercialized obscenity," which was denied constitutional protection in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973). Lutz, supra, 434 A.2d at 445. Similarly, the court concluded in Lutz that although the constitutional right to privacy protects certain intimate conduct in a hotel as well as in a private home, "this right does not extend to protection for commercial sexual solicitation." Id.

Unlike Lutz, appellant was charged with solicitation in his residence, not a hotel room. A Concurring opinion noted that Lutz had no reasonable expectation of privacy in the officer's hotel room. Id. at 446 (Newman, J., Concurring). Accordingly, the issue is whether appellant had such a reasonable expectation of privacy in his apartment that he could use it for commercial sexual solicitation and ...


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