APPEAL from the Circuit Court of Cook County; the Hon. DAVID
CERDA, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Althea Johnson, was charged with prostitution for agreeing to perform an act of deviate sexual conduct for money. (Ill. Rev. Stat. 1975, ch. 38, par. 11-14(a)(2).) The statute provides:
"Section 11-14. Prostitution.) (a) Any person who performs, offers or agrees to perform any of the following acts for money commits the act of prostitution:
1. Any act of sexual intercourse; or
2. Any act of deviate sexual conduct.
Prostitution is a Class A misdemeanor." Ill. Rev. Stat. 1975, ch. 38, 11-14.
After a bench trial she was found guilty, fined $100, and sentenced to serve 8 days in the Cook County House of Correction. The appellate court reversed the conviction (People v. Johnson (1975), 34 Ill. App.3d 38, 339 N.E.2d 325), concluding that there was a fatal variance between the charge in the complaint and the proof adduced at trial. The supreme court reversed the appellate court's decision (People v. Johnson (1976), 65 Ill.2d 332, 357 N.E.2d 1166), and remanded the case to this court to consider the other issues the defendant raised in her appeal.
The defendant now contends: (1) the prostitution statute is unconstitutional, either on its face or as applied to her case, (2) she was not proved guilty beyond a reasonable doubt, and (3) the trial court erred in denying her motion for a new trial in view of new evidence which she discovered after the trial. We reject these contentions and affirm the defendant's conviction.
The complaint against the defendant, made out by Chicago Police Department vice investigator Andrew Murcia, charged that she "committed the offense of prostitution (deviate sexual conduct) in that she agreed to perform an act of deviate sexual conduct, namely oral copulation with Andrew Murcia, for the sum of $50.00 U.S.C." (Emphasis added.)
At trial, Investigator Murcia, the State's sole witness, testified that at about 7 p.m., dressed in civilian clothes, he was leaving his private car at 1300 North Clark Street, on his way to a part-time job at the Ambassador East Hotel. The defendant approached him and offered to perform an act of oral copulation for $50, using a word which the witness testified was street slang for an act of oral copulation. He stated that he declined the offer, but did not arrest the defendant at that time because he was alone, and it is not considered good police policy for a lone officer to arrest a woman. He said that after he watched the defendant enter a car driven by a man, he followed them in his own car to approximately 3153 North Broadway. At this point, Investigator Murcia asked a squad car to stop the car in which the defendant was riding, and the defendant and her companion, William Kraus, were arrested and taken to police headquarters. Investigator Murcia testified that although the defendant began to talk about a lawsuit after her arrest, he did not initiate the conversation or ask her if she wanted to talk about a lawsuit.
The testimony of the defendant and Kraus established that Kraus had known the defendant for 6 years and owned a company which employed the defendant. Their testimony was that on the night in question Kraus picked her up at her apartment and the two of them drove to a restaurant in the 3100 block of North Broadway. The two then were stopped by two policemen, ordered out of their car, and arrested by Investigator Murcia.
The defendant denied that the incident Investigator Murcia described ever took place, or that she had walked at 1300 North Clark at any time that day, or that she ever had seen Investigator Murcia before her arrest at 3100 North Broadway. She also testified that after her arrest, Investigator Murcia said to her, "I understand you are involved in a lawsuit. You want to talk about it?"
Kraus testified that on the evening in question, he was on a date with the defendant. He agreed with her version of what happened that evening, and said that she did not have a ...