Man committed ‘substantial act’ furthering prostitution

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Where appellant was convicted for the felony of soliciting prostitution from a minor, the trial court correctly determined that he “completed the required element of ‘a substantial act in furtherance’ of an offer for prostitution[.]”

Background

Appellant Thorton responded to an online advertisement for escort services placed by “Emma.” The advertisement stated she was 19 years old. “Emma” was, in fact, a police decoy.

Thorton interacted with “Emma,” who, at one point, stated that she was “almost” 18 years old. Thorton said “‘I don’t do under 18.’” Yet, later in the conversation, he made arrangements to meet “Emma.”

On the way he obtained “condoms, … cigarettes, … beer and carr[ied] over $160 in cash to pay for the sexual encounter.”

Police were waiting at the address “Emma” provided Thorton. He was arrested and “appeals his felony conviction for soliciting prostitution from a minor.”

At issue on appeal is whether “he (i) completed the required element of ‘a substantial act in furtherance’ of an offer for prostitution and (ii) solicited prostitution from a minor.”

Significant role

“We hold that an act plays a significant role in furthering or advancing an offer for prostitution — and constitutes a substantial act in furtherance thereof — when the act is more than mere preparation and is strongly corroborative of a defendant’s intent to complete the proposed sexual transaction.

“Whether an act is a substantial act in furtherance of an offer for prostitution is a question to be determined by the trier of fact upon consideration of the totality of the specific facts and circumstances of each case.”

Application

“We further hold that the trial court’s finding that Thornton committed a substantial act in furtherance of his offer for prostitution is supported by the evidence and not plainly wrong.

“After Thornton arranged to meet ‘Emma’ to exchange money for sex, he prepared for the meeting by equipping himself with condoms, obtaining marijuana and cigarettes to get a discounted price, buying the beer that ‘Emma’ couldn’t buy for herself, and carrying over $160 in cash to pay for the sexual encounter.

“Then Thornton drove for about 25 minutes to the arranged meeting place and arrived at the agreed time. Upon his arrival, Thornton notified ‘Emma’ by text message: ‘Here.’

“A rational fact-finder could find that Thornton’s 25-minute drive to ‘Emma’s’ address carrying the condoms, marijuana, cigarettes, beer, and cash went beyond mere preparation and was strongly corroborative of an intent to complete the proposed sexual transaction.

“Therefore, considering the totality of the facts and circumstances, a rational fact-finder could conclude that Thornton’s drive to the arranged meeting place was a substantial act in furtherance of his offer of money for sex.

‘Beyond mere preparation’

“Thornton argues that he committed no act in furtherance of his offer for prostitution because he did not give anyone money and he did not engage in sexual touching with anyone. Thornton contends that his conduct was no more than preparation. We disagree.

“Although evidence of an exchange of money or of sexual touching may be sufficient to prove the requisite substantial act in furtherance of an offer for prostitution, such conduct is not necessary. …

“A rational fact-finder could find that the only plausible explanation for Thornton’s act of driving for miles to ‘Emma’s’ address with condoms and cash was to complete the proposed sexual transaction.

“A rational fact-finder could also find that if ‘Emma’ had not been a decoy in a sting operation, Thornton would have been dangerously close to paying for and having sex with a minor when he parked at the arranged meeting place and notified ‘Emma’ of his arrival.

“Thus, the evidence supports a finding that Thornton’s drive to the arranged meeting place went beyond mere preparation and was strongly corroborative of an intent to complete the proposed sexual transaction.

“Therefore, the evidence supports a finding that Thornton’s drive to the arranged meeting place was a substantial act in furtherance of his offer for prostitution.”

Solicitation of minor

“Thornton contends that the trial court erred in finding that he solicited prostitution from a minor because his only communications about exchanging money for sex occurred when ‘Emma’ claimed to be a 19-year-old adult. Thornton argues that since there was no offer to exchange money for sex after ‘Emma’ texted that she was ‘almost 18,’ the evidence failed to prove that he solicited prostitution from a minor. We disagree.

“A rational fact-finder could find that Thornton was engaged in an ongoing negotiation about the terms of the proposed prostitution until he and ‘Emma’ agreed upon a place and time for the sexual transaction.

“After ‘Emma’ claimed that she was a minor, Thornton replied, ‘I don’t do under 18.’ Seconds later, ‘Emma’ texted that she would keep their sexual transaction ‘just between us.’

“At that point, there was no expressed agreement to engage in sexual activity for money. Five minutes later, ‘Emma’ texted that she was free and asked whether Thornton was coming. Then Thornton agreed anew to meet with ‘Emma’ and ‘check [her] out.’

“Subsequently, ‘Emma’ required Thornton to affirm that he was really coming before she would provide her address. Thornton replied, ‘I am coming.’ Then ‘Emma’ inquired whether Thornton wanted to have sex without using a condom—one of ‘Emma’s’ advertised services.

“Thornton replied that he would bring condoms. Then ‘Emma’ provided her address, and they agreed to meet around 5:30 p.m.

“Because a rational fact-finder could find that (i) Thornton agreed anew to meet for paid sex after ‘Emma’ texted that she was a minor and (ii) thereafter Thornton did a substantial act in furtherance of the offer for prostitution, the trial court did not err in finding that Thornton solicited prostitution from a minor.”

Affirmed.

Thorton v. Commonwealth, Record No. 0652-22-2, Aug. 22, 2023. CAV (published opinion) (Chaney) From the Circuit Court of Chesterfield County. (Johnson) Susan E. Allen for appellant. Mason D. Williams, Jason S. Miyares for appellee. VLW 023-7-331, 10 pp.