COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Cole and Overton 

Argued at Richmond, Virginia 

BRUCE IRVING FINE 

 OPINION BY 

v. Record No. 3009-98-2 JUDGE MARVIN F. COLE 

 FEBRUARY 29, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 Robert L. Lichtenstein (Elliott B. Bender, on 

brief), for appellant. 

 Thomas M. McKenna, Assistant Attorney General 

(Mark L. Earley, Attorney General; 

Virginia B. Theisen, Assistant Attorney 

General, on brief), for appellee. 

 Bruce Irving Fine, appellant, appeals his conviction for 

using a vehicle to promote prostitution or unlawful sexual 

intercourse in violation of Code § 18.2-349. Appellant argues 

that: (1) the evidence was insufficient to support the 

conviction; and (2) the trial court abused its discretion in 

refusing to dismiss the charge on the ground of collateral 

estoppel. We reverse the conviction, finding the evidence 

insufficient to prove that appellant violated Code § 18.2-349. 

FACTS

 On June 27, 1998, Detective Janice Calhoun worked as a decoy 

for the investigation of prostitution. At about 1:15 a.m., 

appellant, driving a Dodge conversion van, stopped in a travel 
lane near the corner where Calhoun stood. Appellant lowered the 

passenger side window. Appellant asked Calhoun what she was 

doing. Calhoun replied, "[H]anging out, what are you looking 

for?" Appellant asked if Calhoun was a "cop," and she replied, 

"No." Appellant then asked Calhoun if she "was working." 

Calhoun replied, "Well, what are you looking for?" Appellant 

said, "A blow job." Calhoun then asked appellant, "[W]hat are 

you going to do for me?" Appellant replied, "[W]hat do you 

want?" Calhoun asked, "[I]s $20 okay?" Appellant replied, 

"Yes." Calhoun then told appellant to meet her in a nearby 

alley. Appellant did not ask Calhoun to enter the van, and 

appellant did not drive into the alley. Instead, appellant 

drove out of the area. The police stopped and arrested him a 

short distance away. 

 Calhoun testified that when she told appellant to drive 

into the alley, she meant to "portray that [she] was going to 

get in his van in the alley." Calhoun also stated that there 

was no motel in the area where she directed appellant to meet 

her, stating, "[I]t was just an alley." On cross-examination, 

Calhoun testified that appellant did not show her any money and 

that he drove away in the midst of their conversation. 

 Appellant testified that he was driving north from North 

Carolina, traveling between Florida and Massachusetts on the 

morning of the incident. He stated that he needed to exit the 

highway in order to rest. Appellant testified that he had never 

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been to Richmond before. As he drove through the area, 

appellant did not see any place he wanted to stay. He then saw 

"this blond woman standing on the side of the road." He stopped 

and asked what she was doing. Appellant stated that the woman 

asked for money, and he replied, "Yeah, sure," and "just took 

off." 

 Appellant testified he had no intention of paying Calhoun 

for sex, and he did not drive to the alley because he "didn't 

want anything to do with it." However, appellant admitted on 

cross-examination that he asked Calhoun for a blow job. 

 Also, on cross-examination, the assistant Commonwealth's 

attorney asked appellant, "[Y]ou were in your vehicle at this 

time that you approached her, correct?" Appellant replied, 

"That's right." Furthermore, at the December 18, 1998 hearing 

on appellant's motion to reconsider, appellant's counsel stated, 

"We don't doubt that they've met the element that he owns the 

vehicle, and it's the vehicle involved." 

ANALYSIS

 Appellant argues that the evidence was insufficient to 

prove that he violated Code § 18.2-349. 

Code § 18.2-349 provides: 

It shall be unlawful for any owner or 

chauffeur of any vehicle, with knowledge or 

reason to believe the same is to be used for 

such purpose, to use the same or to allow 

the same to be used for the purpose of 

prostitution or unlawful sexual intercourse, 

or to aid or promote such prostitution or 

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unlawful sexual intercourse by the use of 

any such vehicle. 

 "[B]ecause the statute in question is penal in nature, it 

must be strictly construed against the state and limited in 

application to cases falling clearly within the language of the 

statute." Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 

337, 338 (1983). 

 Appellant argues that he did not intend to use the van for 

the purpose of prostitution or unlawful sexual intercourse. He 

contends that both he and Calhoun testified that when the issue 

of money for sex arose, appellant failed to do what Calhoun 

requested, and he left the area instead of driving into the 

alley. Therefore, he contends that he lacked the intention to 

use the van for prostitution. He also asserts that he did not 

aid or promote prostitution by use of a vehicle, and he did not 

engage in a substantial act in furtherance of using the van for 

prostitution. 

 Prostitution or being a prostitute is defined in Code 

§ 18.2-346 as follows: 

 A. Any person who, for money or its 

equivalent, commits adultery, fornication or 

any act in violation of § 18.2-361, or 

offers to commit adultery, fornication or 

any act in violation of § 18.2-361 and 

thereafter does any substantial act in 

furtherance thereof, shall be guilty of 

being a prostitute, or prostitution, which 

shall be punishable as a Class 1 

misdemeanor. 

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 B. Any person who offers money or its 

equivalent to another for the purpose of 

engaging in sexual acts as enumerated above 

and thereafter does any substantial act in 

furtherance thereof shall be guilty of 

solicitation of prostitution and shall be 

guilty of a Class 1 misdemeanor. 

(Emphasis added.) 

 We agree with appellant's arguments. Although appellant 

engaged in conversation concerning the exchange of money for a 

sexual act, there is no evidence of "any substantial act in 

furtherance thereof." No act of adultery, fornication or any 

act in violation of Code § 18.2-361 occurred. As in Adams v. 

Commonwealth, 215 Va. 257, 258-59, 208 S.E.2d 742, 744 (1974), 

the evidence shows at most "the required offer. Proof of the 

equally essential substantial act is completely lacking." 

 The evidence proved that appellant did not meet Calhoun in 

the alley as she requested. After conversing with Calhoun, 

appellant drove away. Appellant did not ask Calhoun to enter 

the van, and he did not show or give her any money. The 

Commonwealth's evidence merely showed that appellant had a 

conversation with Calhoun concerning a sexual act. Appellant 

made no substantial and overt act in furtherance of the crime. 

 Moreover, the evidence failed to prove that the van was 

used to "aid or promote" prostitution. Code § 18.2-348 defines 

the offense of "aiding prostitution" as follows: 

It shall be unlawful for any person or any 

officer, employee or agent of any firm, 

association or corporation, with knowledge 

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of, or good reason to believe, the immoral 

purpose of such visit, to take or transport 

or assist in taking or transporting, or 

offer to take or transport on foot or in any 

way, any person to a place, whether within 

or without any building or structure, used 

or to be used for the purpose of lewdness, 

assignation or prostitution within this 

Commonwealth; or procure or assist in 

procuring for the purpose of illicit sexual 

intercourse, or any act violative of 

§ 18.2-361, or to give any information or 

direction to any person with intent to 

enable such person to commit an act of 

prostitution. 

 No "substantial act in furtherance" of prostitution 

occurred after appellant and Calhoun conversed. Therefore, 

appellant did not use the vehicle to transport himself to a 

place "to be used for the purpose of . . . prostitution." 

Moreover, "procure" means "to take care of, bring about, obtain: 

achieve." Webster's Third New International Dictionary 1809 

(1981). Appellant did not obtain or bring about for the purpose 

of illicit sexual intercourse or any act violative of Code 

§ 18.2-361, or give "any information or direction to any person 

with intent to enable such person to commit an act of 

prostitution." 

 The Virginia Supreme Court found a violation of Code 

§ 18.2-348 where a business was "strictly a medium or conduit 

through which orders for prostitutes were received, processed 

and filled." Edwards v. Commonwealth, 218 Va. 994, 1000, 243 

S.E.2d 834, 838 (1978). In Edwards, "[t]he defendant provided 

the girls a base from which they could operate, advertised their 

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presence, described to prospective customers their physical 

characteristics, got them 'dates', and then dispatched them to 

designated hotel and motel rooms in automobiles with drivers 

supplied by [the defendant]." Id. Also, in Edwards, the Court 

found that "the operation or business carried on by defendant 

. . . was a venture by her, for financial gain, to aid and abet 

and to give information and direction to persons desiring the 

services of a prostitute, and to procure and assist persons who 

were willing to provide such services." Id.

 Clearly, no evidence in appellant's case supports a finding 

that appellant aided or promoted prostitution. He merely 

conversed with the detective while he sat in the van, then drove 

away from the area. He did not ask her to enter the van, and he 

did not drive into the alley as directed by the detective. 

Appellant and Calhoun performed no sexual act in the van, and no 

money exchanged hands in the van. Appellant committed none of 

the acts described in Edwards where the Court found the 

defendant aided or promoted prostitution. Therefore, 

appellant's actions did not fall within the proscription of Code 

§ 18.2-349. 

 Because we find the evidence insufficient to prove beyond a 

reasonable doubt that appellant violated Code § 18.2-349, we do 

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not address the collateral estoppel issue. Accordingly, we 

reverse the conviction and dismiss the charge. 

 Reversed and dismissed.

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