Summary
In Canter, a Net Nanny case with two fictitious victims, Division One rejected the same double jeopardy argument, concluding instead that the legislature intended for the child molestation statute to protect each child from sexual contact.
Summary of this case from In re GlantOpinion
No. 80409-0-I
06-01-2021
STATE of Washington, Respondent, v. CANTER, Stephen Wayne, DOB: 01/10/1971, Appellant.
Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant(s). Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Seth Aaron Fine, Snohomish Co. Pros Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent(s).
Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant(s).
Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Seth Aaron Fine, Snohomish Co. Pros Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent(s).
PUBLISHED IN PART OPINION
Bowman, J. ¶ 1 Stephen Wayne Canter appeals his convictions for two counts of attempted first degree child molestation, arguing that double jeopardy bars the convictions. He also appeals his sentence, alleging that his crimes amount to the same criminal conduct in calculating his offender score. Because Canter intended to molest two separate children and took substantial steps toward accomplishing those criminal objectives, we reject his arguments. In the unpublished part of this opinion, we decline to address Canter's argument raised for the first time on appeal that police unlawfully impounded his vehicle. We also reject Canter's claims that police exceeded the scope of a search warrant, destroyed potentially useful evidence in bad faith, and violated his right to privacy under the Washington privacy act (WPA), chapter 9.73 RCW. Finally, we conclude sufficient evidence supports the trial court's determination that Canter took substantial steps to commit each count of attempted child molestation and that the arguments Canter raises in his statement of additional grounds for review lack merit. We affirm his convictions and sentence.
FACTS
¶ 2 The Washington State Patrol (WSP) Missing and Exploited Children Task Force partners with other law enforcement agencies to conduct undercover sex-crime operations. WSP Detective Carlos Rodriguez is the sergeant of the task force and began one such undercover operation by placing an advertisement in the "Casual Encounters" section of Craigslist. He posed as a mother with two young daughters seeking a "daddy." Identifying himself as "Ben," Canter responded to the ad and began e-mailing with Detective Rodriguez online.
Detective Rodriguez described the Casual Encounters section as "specifically for no-strings-attached sex."
Craigslist generates an automated anonymous e-mail address that allows direct communication between the one who placed the advertisement and the responder.
¶ 3 The two eventually began texting. Detective Rodriguez told Canter that the daughters were ages 11 and 8. Canter described specific sex acts he desired with the girls. They also discussed "needs" for the "family," including a gift card with prepaid Tracfone minutes; and "rules" for sex, including using condoms. They did not specifically discuss exchanging money for sex, but Canter promised, "As Daddy, I would of course buy things for them from time to time. They need things also and you should have some relief if money is tight right now."
Tracfone provides prepaid cell phone services without requiring the user to enter into a service plan contract.
¶ 4 Eventually, Canter spoke by telephone with a female undercover detective posing as the mother. During this conversation, Canter talked about bringing the girls candy so they "will like him." Canter learned that the 11-year-old "likes Skittles" and that the 8-year-old "likes Butterfingers." Detective Rodriguez obtained warrant authorization to intercept and record the call, but the trial court later ruled the authorization was invalid.
¶ 5 Canter arranged to meet the girls in person. He discussed in graphic detail the sex acts he intended to engage in with the girls. Detective Rodriguez told Canter to drive to an "am/pm" convenience store and wait there for a text message with the girls’ home address. Canter responded that he would be driving a "black SUV."
For example, Canter described how at their first meeting, he would "set the stage" by giving the girls a hug and at the same time, "run my hands over their butts and give them kisses on the lips." He would then escalate the touching to showering with them and digitally penetrating them while they all watched cartoons together. Once the girls had "a sense of safety" with him, Canter said he would tell them "how good they are" when they have oral and vaginal sex with him.
Sport utility vehicle.
¶ 6 Canter drove a black Land Rover SUV to the am/pm at the agreed-on date and time. Surveillance officers watched Canter enter the am/pm and then drive across the street to a parking lot with an Albertsons grocery store and a McDonald's restaurant. Canter simultaneously e-mailed Detective Rodriguez that he was "driving to the McDonald[’]s." Detective Rodriguez texted Canter the address of a "target house" where detectives waited to arrest him.
After Canter's arrest, officers confirmed that he visited the Albertsons and bought the girls’ favorite candy, Tracfone minutes, and condoms.
¶ 7 Surveillance officers saw Canter drive back and forth in front of the target house as though he was lost. At the same time, Detective Rodriguez received an e-mail from Canter that he had parked outside in "a white truck" and wanted the mother and girls to come out. When no one came out of the target house, Canter drove away. Officer Andy Illyn and Deputy Jeff Ross followed Canter and activated the emergency lights on their unmarked patrol car. Deputy Ross conducted a "slow speed pinning" maneuver to prevent Canter from fleeing. Canter stopped his SUV in an empty parking lot.
One officer said the Land Rover "had driven past [the target house] a few times, stopped, and then would drive past slowly as if, similar to as if someone was trying to find an address on a mailbox."
¶ 8 Officers arrested Canter and seized his SUV. Canter had a white cell phone, his wallet, and cash on him at the time. Detective Rodriguez directed officers to bring Canter and the Land Rover to the target house to interview Canter and conduct an inventory search of the SUV before impounding it. Officer Illyn gave Canter a choice to allow Officer Illyn to drive the SUV back to the house or he would have it towed there. Canter agreed to let Officer Illyn drive the SUV to the target house. While inventorying the SUV, officers noticed a backpack of the type commonly used to transport laptops. They stopped the inventory, locked the vehicle, and applied for a search warrant. While waiting for the search warrant, officers impounded the SUV at the WSP "bullpen."
¶ 9 Detective John Garden applied for a warrant to search the cell phone found on Canter during his arrest and Canter's Land Rover, including any "digital media," "digital storage devices," "cell phones," and documents found inside the SUV. He included in his affidavit copies of Canter's text and e-mail conversations with the mother as well as a description of the phone call between Canter and the female officer posing as the mother. A judge approved the warrant, authorizing police to search Canter's SUV and seize any electronics found in the SUV, as well as search the contents of the white cell phone and any electronics found in the Land Rover. Officers executing the search of the SUV found a laptop, two black cell phones, two thumb drives, and a plastic Albertsons bag with an unopened box of condoms, a Tracfone gift card for 60 minutes, and unopened bags of Skittles and Butterfingers inside.
¶ 10 Canter had secured several devices by passcodes and encryption software, so officers were unable to recover the text or e-mail conversations from them. But officers did recover fragments of data referencing the e-mail address Canter used to communicate with Detective Rodriguez from the laptop. They also found evidence that Canter had used the laptop to search the Internet for how to set up a "Google Voice" telephone number. Canter's laptop Internet searches listed the Google Voice number he gave to the female officer posing as the mother to call him. And a manual search of the white cell phone taken from Canter's person during his arrest showed the Google Voice number in the phone's "call logs." Finally, a "test" text message Detective Rodriguez sent from the phone number he had been using for the mother to communicate with Canter "was received by the phone [Canter] possessed" the night of his arrest. ¶ 11 The State charged Canter with one count of attempted first degree rape of a child and one count of commercial sex abuse of a minor. Pretrial, Canter moved to suppress evidence he claimed officers obtained following an unlawful arrest or under a search warrant unsupported by probable cause. Canter did not challenge the police impound or inventory search of his SUV. Instead, he claimed that the search exceeded the warrant's scope. Specifically, the plastic grocery bag with the Tracfone gift card, candy, and condoms that officers found in the SUV. The court scheduled a suppression hearing.
¶ 12 During the two-day suppression hearing, Officer Illyn testified about setting up surveillance at the am/pm store. He said that the task force "command center" at the target house "sent Deputy Ross a picture" of a person it believed was the person communicating with Detective Rodriguez. "[B]ut it turned out not to be the defendant." Officer Illyn admitted that he did not mention the photograph in his report or during his defense interview. But he believed he saw the photograph on Deputy Ross’ cell phone. None of the task force members mentioned the picture in their testimony or reports.
¶ 13 The trial court denied Canter's motions, ruling probable cause supported Canter's arrest and the grocery bag of items fell "under the plain view exception" to the warrant. The court suppressed the content of the phone conversation between Canter and the female detective posing as the mother because of "all the problems" with the affidavit to intercept the call. The court entered extensive findings of fact and conclusions of law in support of its rulings. Canter then moved to compel discovery of the suspect photograph Officer Illyn testified to and any information associated with it.
¶ 14 On June 30, 2017, the prosecutor notified Detective Rodriguez of the motion to compel. In early August, while the defense motion was pending but before the trial court issued a subpoena duces tecum, the WSP collected all of the task force's Blackberry devices and replaced them with Apple iPhones. The Blackberry devices were "wiped" and recycled by an outside company. All copies of the suspect photograph sent to Deputy Ross were destroyed in the process.
Following a hearing, the court issued the subpoena on August 15, 2017.
¶ 15 Canter moved to dismiss his charges, arguing the police destroyed material exculpatory evidence. In the alternative, he asserted police destroyed potentially useful evidence in bad faith. The trial court held a hearing. It concluded the photograph and any associated information were not materially exculpatory because "this prosecution is not going to rise or fall on the identity of the individual [in] that photograph." Instead, it will "rise and fall on the connection between the electronic communication and then the — the facts on the ground on the night in question." The court also determined that the "nature of this evidence does not leave the defendant unable to speak about what was sent and what the value of that may or may not have been and potentially other leads." The court then concluded that even if the photograph were potentially useful, "I can't find, based on what's in front of me here," that the police destroyed it in bad faith. The court denied Canter's motion to dismiss.
¶ 16 The parties stipulated to a bench trial on agreed documentary evidence on the amended charges of two identical counts of attempted first degree child molestation. At trial, the court determined that Canter took "substantial steps" to commit the crimes by driving to the am/pm, buying specified items, and driving back and forth in front of the target house. The court also found that the "car going back and forth is consistent with" Canter's contemporaneous request for the mother and her daughters to come outside.
¶ 17 The court convicted Canter of both counts and entered findings of fact and conclusions law. Because the crimes involved two victims, the court rejected Canter's claim that they constituted the "same criminal conduct" for calculating his offender score at sentencing. The court imposed concurrent standard-range 60-month sentences on each count. Canter appeals.
ANALYSIS
Double Jeopardy
¶ 18 Canter claims double jeopardy bars his conviction for two counts of attempted child molestation because he "took only a single substantial step" toward committing the crimes. The State argues that Canter's convictions do not violate double jeopardy because he tried to commit crimes against two separate victims. We agree with the State.
¶ 19 Double jeopardy protects a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002) (citing State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998) ). The United States Constitution and the Washington State Constitution protect against double jeopardy equally. In re Pers. Restraint Petition of Davis, 142 Wash.2d 165, 171, 12 P.3d 603 (2000) ; see U.S. CONST. amend. V ; WASH. CONST. art. I, § 9.
¶ 20 Here, the State charged Canter with two identical counts in violation of RCW 9A.44.083 (child molestation in the first degree) and RCW 9A.28.020 (criminal attempt). When a defendant is convicted of multiple violations of the same statute, the double jeopardy question focuses on "what ‘unit of prosecution’ ... the Legislature intended as the punishable act under the specific criminal statute." Adel, 136 Wash.2d at 633-34, 965 P.2d 1072 (citing Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955) ; State v. Mason, 31 Wash. App. 680, 685-87, 644 P.2d 710 (1982) ). Statutory interpretation and legislative intent governs how we determine the unit of prosecution. In re Pers. Restraint Petition of France, 199 Wash. App. 822, 833, 401 P.3d 336 (2017) ; State v. Barbee, 187 Wash.2d 375, 382, 386 P.3d 729 (2017). Statutory interpretation is a question of law that we review de novo. State v. Womac, 160 Wash.2d 643, 649, 160 P.3d 40 (2007) ; State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010).
¶ 21 State v. Bobic, 140 Wash.2d 250, 996 P.2d 610 (2000), sets forth our three-step inquiry. "[T]he first step is to analyze the statute in question." Bobic, 140 Wash.2d at 263, 996 P.2d 610. Next, we review the statute's history. Bobic, 140 Wash.2d at 263, 996 P.2d 610. Finally, we perform "a factual analysis as to the unit of prosecution" because "even where the Legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal [that] more than one ‘unit of prosecution’ is present." Bobic, 140 Wash.2d at 266, 996 P.2d 610. If the legislature fails to define the unit of prosecution or its intent is unclear, the "rule of lenity" applies and we "resolve any uncertainty against turning a single transaction into multiple offenses." State v. Gaworski, 138 Wash. App. 141, 149, 156 P.3d 288 (2007).
¶ 22 For inchoate offenses such as the attempt to commit a crime, the unit of prosecution "is the act necessary to support the inchoate offense, not the underlying crime." State v. Boswell, 185 Wash. App. 321, 329, 340 P.3d 971 (2014). Citing Boswell, Canter argues that the unit of prosecution for his inchoate attempt crime is the single substantial step he took toward molesting two children.
¶ 23 In Boswell, the defendant tried to kill his girlfriend twice and a jury convicted him of two counts of attempted murder. Boswell, 185 Wash. App. at 324-25, 340 P.3d 971. Boswell argued double jeopardy barred the two convictions because he only intended to kill one person. Boswell, 185 Wash. App. at 326, 340 P.3d 971. Division Two of our court concluded the unit of prosecution for an attempt charge is the "substantial step" toward the commission of the underlying crime. Boswell, 185 Wash. App. at 329-330, 340 P.3d 971. Recognizing that defendants could take multiple steps toward committing a crime, the court applied a "course of conduct" analysis to determine the unit of prosecution and whether multiple steps toward a single crime were distinguishable enough in time and method to warrant charges as separate acts. Boswell, 185 Wash. App. at 332, 340 P.3d 971. Division Two concluded that because Boswell engaged in two separate and distinct courses of conduct (first, poisoning; then, shooting) in his attempts to kill his girlfriend, his convictions did not violate double jeopardy. Boswell, 185 Wash. App. at 332, 340 P.3d 971.
¶ 24 This case differs from Boswell. In Boswell, the defendant took multiple steps toward murdering a single victim; while here, Canter took steps to molest two separate young girls.
¶ 25 In State v. Diaz-Flores, 148 Wash. App. 911, 914, 201 P.3d 1073 (2009), a jury convicted the defendant of two counts of voyeurism for peeking into a bedroom window to observe two people having sex. Diaz-Flores argued the court should vacate one of his convictions because he committed only a single act of viewing, even though he observed two people. Diaz-Flores, 148 Wash. App. at 916, 201 P.3d 1073. We disagreed. Because the statute prohibited viewing "another person," we concluded that the legislature intended to protect the privacy of all individuals and held that the unit of prosecution was "each person the voyeur views." Diaz-Flores, 148 Wash. App. at 917, 201 P.3d 1073 ; RCW 9A.44.115(2).
¶ 26 Under RCW 9A.44.083(1), a person is guilty of first degree child molestation when he has "sexual contact with another" person who is less than 12 years old. Like the voyeurism statute in Diaz-Flores, the child molestation statute unambiguously protects each child from sexual contact. A person attempts to commit a crime when that person, "with intent to commit a specific crime, ... does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). The facts here clearly establish two units of prosecution because Canter took steps to have sexual contact with two separate children.
¶ 27 As much as Canter suggests a single substantial step cannot support convictions for two separate attempt crimes, he is mistaken. While not a double jeopardy case, State v. Price, 103 Wash. App. 845, 14 P.3d 841 (2000), is instructive here. In that case, Price shot his gun into a passing car with two people inside and a jury convicted him of two counts of attempted first degree murder. Price, 103 Wash. App. at 849-50, 14 P.3d 841. Price argued that "firing one shot into the vehicle could not constitute a substantial step toward the commission of first degree murder for both [victims]." Price, 103 Wash. App. at 851, 14 P.3d 841. Division Two concluded that "a reasonable jury could have found that the act of firing a single bullet into a vehicle occupied by two people sufficiently corroborated that Price took a substantial step toward commission of first degree murder for both victims." Price, 103 Wash. App. at 852, 14 P.3d 841.
Canter acknowledges he took several steps toward molesting the children but contends that the steps were so similar in time and purpose that they should be considered only one step under a course of conduct analysis.
¶ 28 Here, Canter took substantial steps toward sexual contact with an 8-year-old girl by communicating with her fictitious mother and setting up a meeting. He bought a Tracfone gift card that the mother asked for, the girl's favorite candy, and the condoms the mother required if Canter wanted sexual contact with the girl. He then drove to the child's house. Canter took those same substantial steps toward having sexual contact with an 11-year-old girl.
¶ 29 Canter's citations to State v. Varnell, 162 Wash.2d 165, 170 P.3d 24 (2007) (one unit of prosecution for soliciting a person to commit multiple crimes), and Bobic (one unit of prosecution for conspiring to commit multiple crimes) do not compel a different result. Unlike the crime of solicitation in Varnell, 162 Wash.2d at 169, 170 P.3d 24, where the "number of victims is secondary to the statutory aim, which centers on the agreement on solicitation of a criminal act"; or the crime of conspiracy in Bobic, 140 Wash.2d at 265-66, 996 P.2d 610, where the focus is on "an agreement and an overt act rather than the specific criminal objects of the conspiracy," attempted child molestation aims to punish a substantial step toward molesting each child. We conclude that double jeopardy does not bar Canter's convictions for two counts of attempted first degree child molestation.
Same Criminal Conduct
¶ 30 Canter argues the trial court erred when it failed to treat his two convictions as the "same criminal conduct" during sentencing. The State claims Canter's offenses cannot be the same criminal conduct because Canter intended to have sexual contact with two separate victims. We agree with the State.
¶ 31 While similar, "double jeopardy" and "same criminal conduct" analyses are distinct and separate inquiries. State v. French, 157 Wash.2d 593, 611, 141 P.3d 54 (2006). As discussed, under a double jeopardy analysis, we determine whether one act can constitute two convictions. Under a "same criminal conduct" analysis, we determine whether two convictions warrant separate punishments. State v. Chenoweth, 185 Wash.2d 218, 222, 370 P.3d 6 (2016).
¶ 32 Multiple current offenses that encompass the same criminal conduct are counted as a single offense when calculating a defendant's offender score. RCW 9.94A.589(1)(a). Two or more current crimes constitute the "same criminal conduct" when those crimes "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). The defendant bears the burden to establish that his convictions amount to the same criminal conduct, and if any element is missing, the sentencing court must count the offenses separately. State v. Aldana Graciano, 176 Wash.2d 531, 540, 295 P.3d 219 (2013) ; State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994). We construe RCW 9.94A.589(1)(a) narrowly to reject most assertions of same criminal conduct. Aldana Graciano, 176 Wash.2d at 540, 295 P.3d 219.
¶ 33 We review a trial court's ruling on whether multiple offenses constitute the same criminal conduct for an abuse of discretion or misapplication of the law. State v. Latham, 3 Wash. App. 2d 468, 479, 416 P.3d 725 (2018) (citing State v. Walden, 69 Wash. App. 183, 188, 847 P.2d 956 (1993). A court abuses its discretion when the record supports only one conclusion on whether crimes constitute the same criminal conduct. Latham, 3 Wash. App. 2d at 479, 416 P.3d 725 (citing Aldana Graciano, 176 Wash.2d at 537-38, 295 P.3d 219 ). When the record adequately supports either conclusion, the matter lies in the court's discretion. Latham, 3 Wash. App. 2d at 479, 416 P.3d 725.
¶ 34 The parties do not dispute that Canter committed his crimes at the same time and place. But Canter claims that his crimes involved the "same victim" because a "fictitious" victim is "no victim" under RCW 9.94A.030(55) (defining "victim" as "any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged"). According to Canter, his victimless crimes are "analogous to various drug crimes for which the victim is the public at large."
¶ 35 Our Supreme Court has recognized that some specific crimes victimize only the public at large. Specifically, it concluded unlawful possession of a firearm is analogous to possession of a controlled substance, which "victimizes the general public." State v. Haddock, 141 Wash.2d 103, 110-11, 3 P.3d 733 (2000). But the court also contrasted these crimes with those that directly inflict "specific injury on individuals." Haddock, 141 Wash.2d at 111, 3 P.3d 733. Child molestation is a crime that inflicts specific injury on each individual. See RCW 9A.44.083(1). And attempted child molestation involves taking substantial steps toward accomplishing that criminal objective. RCW 9A.28.020(1).
¶ 36 Canter's argument that his attempt to molest an 8- and 11-year-old girl can only be a crime against the public at large because his victims were fictitious is not persuasive. An attempt conviction stems from "the defendant's ‘bad intent’ to commit the crime and the fact that had things been as the defendant believed them to be, he or she would have completed the offense." State v. Luther, 157 Wash.2d 63, 73, 134 P.3d 205 (2006). Had the situation been as Canter believed it to be, he would have had sexual contact with an 8-year-old girl and an 11-year-old girl. Crimes affecting more than one victim cannot encompass the same criminal conduct. State v. Lessley, 118 Wash.2d 773, 777, 827 P.2d 996 (1992) (citing State v. Dunaway, 109 Wash.2d 207, 215, 743 P.2d 1237 (1987) ). Because Canter intended to inflict specific injury on two different victims, his crimes do not encompass the same criminal conduct.
¶ 37 The panel has determined that the rest of this opinion has no precedential value and should not be published in accordance with RCW 2.06.040.
WE CONCUR:
Hazelrigg, J.
Verellen, J.