County attorney files appeal in prostitution case

Talk about it

County Attorney Thom Pertler filed a notice of appeal Monday in the prostitution solicitation case of Ronald D. Scinocca Jr., 56, of Duluth.

The appeal comes in response to an omnibus order issued by Judge Dale Wolf on Dec. 21, 2011, granting Scinocca’s motion to have the case dismissed based on the argument that a hotel room does not qualify as a “public place.”

Pertler stated Tuesday that he disagrees with the ruling.

“That’s just wrong, to say a hotel is not a public place, and I’m taking it up,” Pertler stated.

Scinocca was one of nine men accused of hiring, offering or agreeing to hire to engage in prostitution in a public place, a gross misdemeanor, following a year-long, multi-agency investigation and sting operation in Cloquet. Authorities received information that individuals had been seeking prostitution for hire via the Internet. All of the men were arrested at a Cloquet hotel on June 29, 2011, after police observed them offering money to women posing as prostitutes in return for sexual services.

The issue of whether a hotel room should be considered a public or private place became the focal point of arguments last August during a contested omnibus hearing. Scinocca’s attorney, Andrew Pierce, submitted a brief contending that although a hotel or motel may be considered a public place, the individual rooms should be considered private. According to state statute, solicitation of prostitution in a public place is punishable as a gross misdemeanor, while prostitution in a private place is prosecuted as a misdemeanor.

Pierce cited a State Court of Appeals case from 2005 (State v. White) wherein an undercover policeman driving a vehicle on a public roadway pulled up to a “streetwalker” and she entered his car, where she then offered him sexual services for money. She was subsequently charged with soliciting prostitution in a public place, a gross misdemeanor, and the decision ended up in the court of appeals.

The majority opinion in that case determined that the interior of a car should be considered a private place and therefore the prostitution case should be prosecuted as a misdemeanor.

Pierce argued that the decision in the State v. White case points strongly to the fact that a hotel room should be considered a private place as well.

Assistant County Attorney Dennis Genereau, who was prosecuting Scinocca’s case at that time, interpreted it differently. He pointed out to Judge Dale Wolf that, following the decision in the State v. White case, the state legislature became concerned enough about the possible implications of the ruling that it amended state statute regarding prostitution to specifically state that any solicitation that takes place in a private vehicle while on a public roadway should be considered a gross misdemeanor. He argued the legislature obviously did not feel it necessary to include the issue of whether prostitution in a hotel room should be considered public or private “because the statute already clearly states that a hotel is considered a public place,” said Genereau.

The attorneys and Judge Wolf debated the point that while a hotel might have public spaces such as the lobby, restaurant and bar/lounge, the rooms themselves may or may not be considered private, according to interpretation.

No final judgments were reached and both attorneys were given the opportunity to file briefs in the argument. Judge Wolf then took the matter under advisement.

In Wolf’s subsequent memorandum accompanying his decision in the case, he made several points to substantiate his conclusion. He said Scinocca and his attorney asserted that the word “hotel,” as it is included in the definition of a public place, is ambiguous because it could simply mean the areas of the building that are open to the public or it could mean the entire building, including individual rooms occupied by lodgers.

“When the language of a criminal law is ambiguous,” wrote Wolf, “the court must construe it narrowly in favor of the defendant.”

Given the existence of such ambiguity, Wolf stated, the court must examine the intent of the legislature in establishing the statute. He referred to the State v. White case in pointing out that the purpose of the gross misdemeanor statute was to reduce the amount of prostitution visible to the public by making public prostitution a gross misdemeanor rather than a misdemeanor and imposing stiffer sentencing accordingly. Wolf reasoned that a closed door hotel room is not visible to the public. He further stated that the record does not support a conclusion that any part of the defendant’s crime occurred in any of the hotel’s public areas.

Finally, Wolf pointed out that since the conclusions of the State v. White case, the definition of a public place has been amended twice, once in 2005 to clarify “a motor vehicle on a public street” and once in 2009 to expand the definition of a “public place” to include steam rooms, massage parlors, shopping malls and other public shopping areas. Wolf said since the court did not include the term “hotel room” in those clarifications, it is not up to the court to make that assumption.

Based on these arguments and case studies, Wolf concluded that there was insufficient evidence to show that the crime occurred in a public place as required in the gross misdemeanor provision of the statute, and he ruled that Scinocca’s charge be dismissed.

Pertler said he patently disagrees with Wolf’s conclusions, and he now has 30 days to file his brief in the appeal on behalf of the county attorney’s office.

“I don’t want this to set a precedent for the entire state of Minnesota, and I’m prepared to go to the mat on this,” said Pertler. “I am confident that the court of appeals will agree with us.”

All of the other defendants in the prostitution arrests have reached plea agreements in their cases and have been sentenced accordingly.

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