Opinion
No. 59744-2-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-00717-9, Michael T. Downes, J., entered February 28, 2007.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Leach, JJ.
Rape of a child in the second degree is a strict liability crime and the State has no burden to prove that a defendant knew or should have known the victim's age. To convict a defendant of attempted rape of a child in the second degree, the State must prove the intent to have sexual intercourse and that the defendant took a substantial step toward the commission of the crime. Lee Alphonse LaPalm appeals his conviction of attempted rape of a child in the second degree. LaPalm argues that, if the victim is a fictitious child, he cannot be convicted of the crime of attempted rape of a child in the second degree without proving that he knew the victim was an underage child. LaPalm also contends that the jury instruction defining the crime of attempted rape of a child in the second degree was confusing and ambiguous. Because LaPalm intended to have sexual intercourse with an individual identifying herself as a 13-year-old girl and took a substantial step toward doing so, it makes no difference that the girl did not exist. We also reject LaPalm's challenge to the jury instruction, and affirm.
FACTS
The facts are undisputed. Detective Brian Vanderwerff of the Snohomish County Sheriff's Office is a member of the interjurisdictional Internet Crime Against Children Task Force. Detective Vanderwerff created the user name "ronnie13everett" on Yahoo chat to investigate internet crimes against children. Vanderwerff did not initiate conversations, but responded to anyone contacting him by pretending to be a 13-year-old girl named "Ronnie."
On September 28, 2005, Lee Alphonse LaPalm initiated a conversation with Ronnie on Yahoo chat. LaPalm's user name was "xman98271." LaPalm also posted a profile with a picture of himself. The profile states he was 39 years old and living in Everett. LaPalm asked Ronnie how old she was and, she responded, "I'm 13." LaPalm said he was 39. LaPalm asked Ronnie where she lived and she told him that she lived in Everett near Howarth Park. When LaPlam started asking about going to the park, Ronnie said she had to go, but agreed to chat the next day.
Between September 30 and October 13, 2005, LaPalm and Ronnie had several more online conversations. In the second conversation, LaPalm asked Ronnie if they could meet and "cuddle." He also asked Ronnie what her bra size was and whether he could touch her breasts. LaPalm said that he would be gentle and would not hurt her. Before ending that conversation, LaPalm asked Ronnie, "will I see pussy." Ronnie responded, "I guess."
On October 4, LaPalm asked Ronnie whether he could meet her at Howarth Park. LaPalm said that he wanted to kiss and asked her how far she would go. In response, Ronnie said that she was worried about it hurting and did not want to get pregnant.
On October 5, LaPalm asked Ronnie if she wanted to meet at the park, to kiss, and whether he could touch her chest, "touch pussy," and "slip my cock inside you." He also asked Ronnie, "will you suck me[?]" In response, Ronnie repeated that she did not want to get pregnant. When LaPalm asked if she was a virgin, Ronnie said, "yes. . . . I'm only 13." LaPalm asked if he could take her "virginity," and told her that she would not get pregnant because he would "pull out."
In the next online conversation, LaPalm again discussed meeting at the park. LaPalm told Ronnie to not wear a bra so he could "play with breast." He asked Ronnie if she wanted to "touch my cock" and whether he could "slip it in you."
On October 13, LaPalm and Ronnie confirmed their plan to meet that day at 3:30 p.m. at the park. LaPalm asked Ronnie if he could "suck your breasts" and "stick cock inside you." LaPalm also asked if he could take photographs and suggested that she wear shorts and to lift her sweatshirt up when he walked up to her. Ronnie agreed to LaPalm's request to take photographs.
LaPalm arrived at the park driving his black Dodge Dakota at 3:30 p.m. and started walking down a pathway. Detective James Haley recognized LaPalm from the photograph that Vanderwerff obtained from LaPalm's online profile and placed LaPalm under arrest. LaPalm had a digital camera with him when he was arrested. The police then obtained a warrant to search LaPalm's house and seize his computers.
When the policy executed the warrant, the user name for "ronnie13everett" was on LaPalm's computer screen. The police confiscated three computers from LaPalm's house. The police conducted a forensic search of the computers and found the chats between LaPalm and Ronnie. In addition, there was a sexually explicit chat on October 12 between LaPalm and a 14-year-old girl, discussing a planned meeting for October 14 at a park in Edmonds.
The State charged LaPalm with one count of attempted rape of a child in the second degree of "Ronnie," a fictional 13-year-old girl, and one count of communication with a minor for immoral purposes related to the sexually explicit communication with "ala11222000," a fictional 14-year-old girl. At trial, Detective Vanderwerff testified at length about the online conversations between LaPalm and Ronnie, and Detective Matt Trafford testified about the content of LaPalm's computers. Detective Janet Lee Malkow testified about the online conversations she had with LaPalm while posing as a 14-year-old girl with the user name of ala11222000. The court admitted copies of the online conversations found on LaPalm's computers between "xman980271" and "ronnie13everett" between September 28 and October 13, 2005 and an online conversation between "xman998271" and "a1a11222000" as exhibits.
The jury found LaPalm guilty as charged of attempted rape of a child in the second degree and of communication with a minor for immoral purposes. LaPalm appeals his conviction for attempted rape of a child in the second degree.
ANALYSIS
Attempted Rape of a Fictitious Child
LaPalm asserts that to convict a defendant of attempted rape of a child in the second degree where the victim is fictitious, the State must prove intent to have sexual intercourse with an actual child. LaPalm also asserts it is impossible to prove the age of a fictitious child without adding mens rea element to attempted rape of a child in the second degree.
To convict a defendant of attempted rape of a child in the second degree, the State must prove beyond a reasonable doubt (1) the intent to commit rape of a child and a substantial step toward the commission of that crime. RCW 9A.28.020(2);State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995). It is well established that rape of a child is a strict liability crime and the State has no burden to prove the defendant knew or should have known the victim's age. State v. Chhom, 128 Wn.2d 739, 911 P.2d 1014 (1996); State v. Ciskie, 110 Wn.2d 263; 751 P.2d 1165 (1988); State v. Abbott, 45 Wn. App. 330, 332, 726 P.2d 988 (1986). It is also well established that neither factual nor legal impossibility is a defense to a charge of attempt to commit a crime. RCW 9A.28.020(2).
In Chhom, the court addressed the relationship between the intent requirement of the attempt statute and the crime of rape of a child in the second degree. Because rape of a child does not require proof of intent, the court concluded the crime was not inconsistent with the attempt statute's "?intent to commit a specific crime' element." Chhom, 128 Wn.2d at 741. The court held that "the intent required for attempted rape of a child is the intent to accomplish the criminal result: to have sexual intercourse." Chhom, at 743. Thus, attempted rape of a child in the second degree only requires proof of the intent to have sexual intercourse and a substantial step toward the commission of that crime.
LaPalm relies on the court's statement in Chhom that its holding "does not add anything to the remaining strict liability requirements (perpetrator and victim not married, and the ages of the victim and perpetrator). As to these elements, attempted rape of a child is still a strict liability offense." Based on this language, LaPalm argues that the victim must be an actual child in order for the State to establish the age requirement of attempted rape of a child in the second degree or the State is impermissibly adding a mens rea element. LaPalm's reliance on the court's statement Chhom is misplaced. There is no dispute that rape of a child is a strict liability crime, and the State does not have to prove criminal mens rea. Consequently, the State has no burden to prove the defendant knew or should have known the victim was underage. State v. Abbott, 45 Wn. App. 330, 332, 726 P.2d 988 (1986). Because proof of the defendant's knowledge of the victim's age is not necessary to convict a defendant of rape of a child in the second degree, it is not logical to conclude that knowledge of the intended victim's age is a requirement of attempted rape of a child, regardless of whether the child is fictional.
The recent supreme court decisions in State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002), and State v. Luther, 157 Wn.2d 63, 74, 134 P.3d 205, writ denied, 127 S. Ct. 440, 166 L. Ed. 2d 312 (2006), support our conclusion. In Townsend, the court rejected the defendant's argument that he could not take a "substantial step" toward committing the crime of rape of a child in the second degree because the child was fictional. Townsend, 147 Wn.2d at 679. In Townsend, as here, a detective was posing as a child on the internet. The Court held that the attempt statute focuses on the actor's criminal intent rather than the impossibility of committing the crime, and concluded that "?[i]t thus makes no difference that Mr. Townsend could not have completed the crime because `Amber' did not exist. He is guilty if he intended to have sexual intercourse with her." Townsend, 147 Wn.2d at 679 (quoting State v. Townsend, 105 Wn. App. 622, 631, 20 P.3d 1027 (2001)). And in Luther, the supreme court reiterated that under the attempt statute, "the critical focus is on the defendant's criminal intent and not on the fact that no minors were actually subjected to sexual exploitation or abuse." The required intent is intent to have sexual intercourse, and it is irrelevant whether the child actually exists.
LaPalm's reliance on the Maryland Court of Appeals decision inMoore v. State, 388 Md. 623, 882 A.2d 256 (2005), is unpersuasive. In Moore, the court held that because rape of a child has no mens rea, there can be no crime of attempted rape of a child. Moore, at 645-646. But as LaPalm concedes, the decision is based on the Maryland common law principle that the crime of attempt is not applicable to crimes that do not require at least a general criminal intent. Moore, at 645.
In contrast to Moore, many other jurisdictions allow a defendant to be charged with attempted rape of a child where the intended victim was fictitious. See, e.g., State v. Thurston, 04-937 (La.App. 5 Cir. 3/1/05); 900 So.2d 846,writ denied, 918 So. 2d 1041 (2006); State v. Robins, 253 Wis. 2d 298, 646 N.W.2d 287 (2002); State v. Peterman, 280 Kan. 56, 118 P.3d 1267 (2005).
Here, there is no dispute that LaPalm identified himself as 39 years old and initiated a conversation with Ronnie, who unequivocally stated that she was 13 years old. Over the course of a number of online conversations, LaPalm asked Ronnie whether he could touch her breasts, if she would perform oral sex on him, and whether he could have sexual intercourse with her. In the final conversation, LaPalm arranged to meet Ronnie at a local park to have sexual intercourse. The undisputed evidence admitted at trial supports the jury's finding that LaPalm intended to have sexual intercourse with Ronnie, a 13-year-old girl, and took a substantial step toward doing so. As inTownsend, the fact that LaPalm could not commit the crime because Ronnie did not exist makes no difference.
Jury Instruction
For the first time on appeal, LaPalm argues that the jury instruction defining attempted rape of a child in the second degree was misleading. Instruction No. 6 states: "[a] person commits the crime of Attempted Rape of a Child in the Second Degree when, with intent to commit that crime, he or she does any act which is a substantial step toward the commission of Rape of a Child in the Second Degree." LaPalm asserts that because "Attempted" is capitalized and "that crime" appears to refer to "Attempted Rape of a Child in the Second Degree," the instruction is confusing and ambiguous.
Because "Rape of a Child in the Second Degree" is capitalized in the instruction, capitalizing "Attempted" has no significance.
We review a challenged jury instruction de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). Jury instructions are sufficient if, when read as a whole, the instructions properly inform the jury of the applicable law, permit each party to argue its theory of the case, and are not misleading. State v. Pesta, 87 Wn. App. 515, 524, 942 P.2d 1013 (1997). The trial court has considerable discretion in selecting the wording of a jury instruction. State v. Rosul, 95 Wn. App. 175, 187, 974 P.2d 916 (1999). Under RAP 2.5(a)(3), we may consider "manifest error affecting a constitutional right" for the first time on appeal. "An error is manifest when it has practical and identifiable consequences in the trial of the case." State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001), rev. denied, 163 Wn.2d 1045 (2008).
In State v. Pittman, 134 Wn. App. 376, 166 P.3d 720 (2006), we addressed the same argument LaPalm makes. InPittman, the court instructed the jury, "[a] person commits the crime of attempted residential burglary when, with intent to commit that crime, he or she does any act which is a substantial step toward the commission of that crime."Pittman, at 381. The defendant argued that this instruction was in error because it "allowed the jury to convict him if it found he took a substantial step towards the commission of attempted residential burglary, rather than a substantial step toward residential burglary." Pittman, at 382. Rejecting the defendant's argument, we held, "[r]eading the instruction in a straightforward, commonsense manner, the average juror would interpret `that crime' to mean residential burglary as the parties intended."Pittman, at 382-83.
We also distinguished the case LaPalm relies on, In reSmith, 131 Wn.2d"258, 930 P.2d 917 (1997), inPittman. Pittman, 134 Wn. App. at 382-83.
Here, LaPalm does not dispute that the "to convict" instruction accurately states the essential elements of attempted rape of a child in the second degree, that the jury instructions accurately define the crime of rape of a child in the second degree, and the instructions as a whole accurately inform the jury of the applicable law. As in Pittman, we conclude that reading the jury instruction in a straightforward, commonsense manner, the jury would interpret "that crime" to mean rape of a child in the second degree as the parties intended.
Because we conclude Pittman controls, we need not address the State's argument that LaPalm is precluded from challenging the instruction based on invited error.
We affirm.
WE CONCUR: