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People v. Russell

OPINION FILED FEBRUARY 28, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALBERT RUSSELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. STEVEN J. COVEY, Judge, presiding.

MR. PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The defendant, Albert Russell, was charged in a four-count indictment by a Peoria County grand jury with two counts of pandering, one count of contributing to the sexual delinquency of a minor, and one count of pimping. The factual basis from which the charges against defendant arose involve the chief prosecution witness Denise Leininger, a minor, who was arrested by the Peoria police for prostitution. Her statements following her arrest implicated the defendant, Albert Russell. Defendant allegedly committed two acts of pandering, one for the period from September 27, 1976, to December 20, 1976, and one for the period from January 1, 1977, to February 3, 1977, and allegedly acted as a pimp for Ms. Leininger during the latter period. Following a jury trial, the defendant was convicted of both counts of pandering, and the one count of pimping, but was found not guilty of the charge of contributing to the sexual delinquency of a minor. Defendant was sentenced to three concurrent terms of imprisonment, 1- to 3-year terms on both pandering convictions and a 364-day term for pimping. On appeal defendant has challenged only the conviction for pandering in 1977 and the conviction for pimping.

Defendant phrases the one issue raised on appeal as follows: Whether the trial court erred in entering judgment for two separate offenses, pandering and pimping, where both offenses arose from the same acts.

The trial testimony of the chief prosecution witness, Denise Leininger, indicated that the defendant arranged a situation in which Leininger could practice prostitution. The defendant provided her with food, clothing and shelter. The defendant's girlfriend and two other women who lived with the defendant worked with and instructed Leininger on the practice of prostitution. The defendant determined when the weather was too bad for her to work as a prostitute, and the defendant or his girlfriend drove Leininger to and from the work areas in the defendant's car. Leininger also testified that she gave all the money she earned from prostitution to the defendant.

Defendant readily concedes in his brief that the State successfully established beyond a reasonable doubt that the necessary elements of the offense of pandering were committed by him during 1977. Defendant's argument is that he was convicted and sentenced for both pandering and pimping which arose from the same physical act, that of receiving money from a prostitute. Both parties also concede the applicability of a new revised standard for determining the permissibility of multiple convictions and sentences. (People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.) Pursuant to the King precedent, to which we gave extended analysis in People v. Jackson (3d Dist. 1978), 64 Ill. App.3d 159, prejudice to a defendant with regard to multiple acts and convictions exists in two instances, (1) where more than one offense is carved from the same physical act, and (2) where the defendant is convicted of more than one offense, one or more of which is by definition a lesser included offense.

• 1, 2 The indictment charging the defendant with pandering alleged that the defendant, "for U.S. currency arrange[d] a situation in which Denise Leininger, a female, could practice prostitution" in violation of section 11-16 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-16), which provides:

"(a) Any person who performs any of the following acts for money commits pandering:

(1) Compels a female to become a prostitute; or

(2) Arranges or offers to arrange a situation in which a female may practice prostitution.

(b) Sentence.

Pandering by compulsion is a Class 4 felony. Pandering other than by compulsion is a Class 4 felony." (Emphasis added.)

Obviously the pandering statute requires that the panderer performs with the anticipation of receiving money. (People v. Taylor, (4th Dist. 1978), 64 Ill. App.3d 279, 381 N.E.2d 303.) However this defendant claims this same act of receiving money from Denise Leininger formed the factual basis of his conviction for pimping. We disagree. The pandering statute is clearly aimed at prohibiting the act of arranging a situation for prostitution, as opposed to receiving money from or living off a prostitute, which is set out as a separate offense under section 11-19 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-19), as pimping. The intent of the legislature to establish different and distinct offenses of pandering and pimping is evidenced by the Committee Comments to section 11-16 of the Criminal Code of 1961, where it is stated:

"In reshaping the cluster of statutes formerly dealing with prostitution, some arbitrary distinctions in terminology were made. `Pander', `procure', and `pimp' are three commonly used terms which have been employed to describe various types of activities connected with prostitution. An effort has been made here to use only one term to describe one general kind of function. Thus, pander has been used to denominate the activities of one who recruits prostitutes; pimp has been used as the label for one who lives off the earning of the prostitute; procure is not used at all. So far as dictionary accuracy goes, the use of the words could be reversed. The distinctions were made here to provide convenient references by giving a more specific functional meaning to the terms. Comparisons with statutory provisions of other states becomes unprofitable too, since there is no consistent pattern that is of much assistance.

Section 11-16 describes the activity here labeled `pandering,' which involves the recruiting of persons into the practice of prostitution and with keeping practicing prostitutes in that line of endeavor. This functional classification then makes a distinction between the `recruiter-business manager' and the runner or contact man (dealt with under the preceding section) [Ill. Rev. Stat. 1975, ch. 38, par. 11-15 (soliciting for a prostitute)] and the individual who is the prostitute's consort — the pimp. ...


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