from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
J. Hammes, City Attorney, Bismarck, North Dakota, for
plaintiff and appellee; on brief.
J. Schaffner, self-represented, Benton, Wisconsin, defendant
and appellant; on brief.
1] Paul Schaffner appeals a district court order finding him
guilty of prostitution/solicitation under City of Bismarck,
N.D., Code of Ordinances § 6-05-08(1)(b). Because there
was sufficient evidence of prostitution/solicitation and
because any potential argument concerning a conflict between
the city ordinance and state law is waived, we affirm.
2] In May 2017, the Bismarck Police Department conducted a
sting operation to find and apprehend individuals seeking to
exchange money for sexual acts. Law enforcement placed
sexually suggestive advertisements on backpage.com, which
according to Detective Lance Allerdings is a well-known
website in which men solicit prostitutes. The advertisements
were placed in the "women seeking men" category and
included sexually suggestive language and images.
3] Schaffner called the phone number listed in one of the
advertisements. Although law enforcement did not answer, they
determined through their computer records that the caller was
Schaffner. Schaffner conversed via text message, including
stating, "Room... 225 to hang out works." Detective
Scott Betz testified that "hang out" is a common,
ambiguous term used to avoid discussing specific sexual
activities because individuals are worried that they're
communicating with law enforcement. Detective April McCarthy
testified that she called Schaffner, identifying herself as
the individual in the advertisement. During this
conversation, Detective McCarthy, posing as the individual
from the advertisement, referenced "specials,"
which she testified is sexual contact "outside the realm
of normal protected vaginal intercourse."
4] Schaffner also contacted the phone number in a second
advertisement placed on backpage.com by law enforcement.
Detective Allerdings, posing as the individual from the
advertisement, asked Schaffner via text message if he was
"interested," to which Schaffner responded,
"Yes if you are over 18." Detective Allerdings then
stated, "My suggested donations are 120 hhr 200
fh," which he testified meant that the prostitute's
rates were $120 for a half hour and $200 for a full hour.
Detective Allerdings testified that "these are terms
specifically use[d] in the commercial sex industry to
illustrate a rate for sexual service." Later in the
conversation, Detective Allerdings asked, "How long are
you looking to hang?" Schaffner replied,
"Half." Schaffner also asked, "What's on
your menu," which Detective Allerdings testified is a
way of asking which sexual activities the prostitute will
5] Schaffner arrived at room 225 of the Expressway Suites
Hotel. Law enforcement on scene arrested him for solicitation
of prostitution. They inspected his phone and discovered the
text message conversation they had with him. His phone number
matched the one that contacted them. Schaffner had $276 in
cash on him, which Detective Jeremy Seeklander testified was
significant because individuals generally pay for sexual
activities with cash. After Schaffner was arrested and was
read his Fifth Amendment rights, he stated, "I knew
6] Schaffner argues there was insufficient evidence to find
him guilty of prostitution/solicitation.
In reviewing sufficiency of the evidence challenges, we
review the record to determine whether there is sufficient
evidence that could allow a jury to draw a reasonable
inference in favor of the conviction. State v.
Kinsella, 2011 ND 88, ¶ 7, 796 N.W.2d 678 (quoting
State v. Wanner, 2010 ND 121, ¶ 9, 784 N.W.2d
143). "The defendant bears the burden of showing the
evidence reveals no reasonable inference of guilt when viewed
in the light most favorable to the verdict."
Id. We do not reweigh conflicting evidence or judge
the credibility of witnesses. Id. State v.
Truelove, 2017 ND 283, ¶ 7, 904 N.W.2d 342. Section
6-05-08(1)(b), City of Bismarck, N.D., Code of Ordinances
provides, "A person is guilty of the offense of
prostitution if that person... [s]olicits another person with
the intention of being hired or hiring another to engage in
7] Schaffner responded to multiple ads on backpage.com, which
is an Internet site commonly associated with the solicitation
of prostitution. The ads were placed in the "women
seeking men" category and included language and images
that were sexually suggestive. Schaffner contacted the phone
numbers listed in the ads, inquiring about sexual activities.
Schaffner was provided the rates for sexual activities and
indicated he wanted the half-hour rate. He arrived at the
stated hotel room. He had enough ...