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WPIC 47.06 Communication with a Minor For Immoral Purposes—Elements

11 WAPRAC WPIC 47.06Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 47.06 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VII. Sex Crimes
WPIC CHAPTER 47. Indecent Exposure—Communication with a Minor for Immoral Purposes
WPIC 47.06 Communication with a Minor For Immoral Purposes—Elements
To convict the defendant of the crime of communicating with a minor for immoral purposes, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant communicated with [(name of person)] [another person] for immoral purposes of a sexual nature;
[(2)] [That [(name of person)] [the other person] was a minor;] [That the defendant believed [(name of person)] [the other person] was a minor;] [and]
[(3)] That this act occurred in the [State of Washington] [City of ] [County of ] [; and]
[(4)] [That the defendant has previously been convicted [under RCW 9.68A.090] [of a felony sexual offense in this or any other state] [or] [the defendant sent (name of person) an electronic communication for immoral purposes]].
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use WPIC 47.09 (Minor—Definition) with this instruction. Use WPIC 19.04.03 (Communication with a Minor for Immoral Purposes—Sexual Exploitation of a Minor—Commercial Sexual Abuse of a Minor—Promoting Commercial Sexual Abuse of a Minor—Defense) if the statutory defense is asserted. See Comment below.
For a discussion of prior convictions that elevate the crime from a gross misdemeanor to a felony, see the Comment below. Use WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”) if applicable.
In the jurisdictional element, choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction) (also addressing the general use of bracketed phrases). Use WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)) if applicable when using prior convictions that elevate the crime from a misdemeanor to a gross misdemeanor or a felony. See the Comment below.
For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9.68A.090.
The format of this instruction is based on State v. Chambers, 157 Wn.App. 465, 473–74, 237 P.3d 352 (2010). It is a threshold determination to be decided by the trial court whether a prior conviction meets and qualifies within the statutory definition of an admissible predicate offense. State v. Chambers, 157 Wn.App. at 479. However, when a prior conviction elevates a crime from a gross misdemeanor to a felony, the prior conviction functions as an element of the felony offense that must be proved beyond a reasonable doubt. State v. Chambers, 157 Wn.App. 465, 237 P.3d 352 (2010); State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). Also see discussion in Comments to WPIC 36.51.02 (Violation of a Court Order—Felony—Elements) and WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Elements). The Sixth Amendment right to a jury guarantees the right to have a jury find every fact essential to punishment beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The State must prove each essential element of the crime. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Stipulations. For a discussion of Old Chief stipulations, see State v. Ortega, 134 Wn.App. 617, 142 P.3d 175 (2006); see also State v. Roswell, 165 Wn.2d 186, 195–98, 196 P.3d 705 (2008). Further discussion is contained in the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).
Generally, enhancing elements that elevate a gross misdemeanor to a felony offense are included in the “to convict” instruction and this is constitutionally permissible. State v. Mills, 154 Wn.2d 1, 11, n.6, 109 P.3d 415 (2005); State v. Chapman, 140 Wn.2d 436, 998 P.2d 282 (2000).
A defendant is not entitled to have a bifurcated trial for the element of prior convictions. State v. Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). If requested by the defendant, the trial court judge may consider the approach outlined in Roswell's footnote 6, under which the instruction can be drafted referring to a statutory citation instead of the name of the crime. Roswell, 165 Wn.2d at 198 n.2. This approach involves a stipulation, a colloquy with the defendant, and an additional instruction.
“Immoral purposes”—Vagueness issues. This statute has been the subject of vagueness and overbreadth attacks since its enactment. In State v. Schimmelpfennig, 92 Wn.2d 95, 594 P.2d 442 (1979), the Washington Supreme Court upheld an earlier version of RCW 9.68A.090 against a challenge that it was unconstitutionally vague on its face because the words “immoral purposes” did not provide an ascertainable standard to guide conduct. The court stated:
The statute attacked here is the first provision in a chapter which prohibits conduct relating to exposure of the person, prostitution, and certain indecent liberties. Thus, structure of this chapter gives ample notice of the Legislature's intent to prohibit sexual misconduct. This commonplace understanding of the intent of the statute is reinforced by the language of RCW 9A.88.020 [the predecessor to RCW 9.68A.090] itself, which escalates the misdemeanor to a felony where the defendant has previously been convicted of a felony sexual offense. The scope of the statutory prohibition is thus limited by its context and wording to communication for purposes of sexual misconduct.
State v. Schimmelpfennig, 92 Wn.2d at 102.
In State v. Danforth, 56 Wn.App. 133, 782 P.2d 1091 (1989), overruled by State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993), the court held that RCW 9.68A.090 was unconstitutionally vague as applied to the conduct of a defendant asking a 16-year-old and a 17-year-old to participate in group sexual activity. The court described the constitutional “core” of conduct prohibited by RCW 9.68A.090 as “communication for purposes of sexual exploitation and abuse of children as provided for in chapter 9.68A RCW” and stated that the individual sections of Chapter 9.68A “define the ‘immoral purposes’ for which communication with minors is legislatively prohibited.” State v. Danforth, 56 Wn.App. at 136, 782 P.2d 1091. The court concluded that there was no law that prohibited 16 and 17-year-olds from engaging in consensual sexual activity with adults and that, therefore, the communication made by the defendant to the two minors was not prohibited by RCW 9.68A.090.
Subsequently in State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993), the Supreme Court overruled Danforth “insofar as it requires reference to the individual sections of chapter 9.68A RCW to define the ‘immoral purposes’ for which communication with minors is legislatively prohibited.” State v. McNallie, 120 Wn.2d at 933. The McNallie court cited the “immoral purposes of a sexual nature” language set forth in WPIC 47.05 through WPIC 47.08 with approval and stated:
We hold that the communication statute, as written and currently located in the code, does not only contemplate participation by minors in sexual acts for a fee, or appearance on film or in live performance while engaged in sexually explicit conduct. Rather, the statute prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct. McNallie was engaged in just such proscribed promotion when he accosted the three girls in this case. The instruction which told the jury that “immoral purposes” could be defined as “immoral purposes of a sexual nature” was adequate. There was no instructional error in McNallie's trial. The analysis in Schimmelpfennig satisfies vagueness protections notwithstanding the current location of the statute.
State v. McNallie, 120 Wn.2d at 933. In State v. Pietrzak, 100 Wn.App. 291, 997 P.2d 947 (2000), this same analysis was applied to affirm the conviction of a defendant communicating with his 16-year-old niece to pose nude for photographs.
Factual issues. The term “communicate” requires both transmission and reception of a message to the minor but does not require the minor understand the communication. State v. Hosier, 157 Wn.2d 1, 133 P.3d 936 (2006). In Hosier, the defendant left a child's underpants on a fence at a day care center with a message fantasizing about sex with a 7-year-old written in black marker. Children ages 3 to 5 found the underpants but could not read much less understand the message. Requiring proof of understanding the message would omit from the reach of the statute the young children it is designed to protect. State v. Hosier, 157 Wn.2d at 13.
RCW 9.68A.090 does not require a defendant to have made an express offer of payment to a minor in exchange for the minor engaging in sexual conduct. It is sufficient under the statute that a defendant indicates to a minor that the defendant would pay anyone for engaging in specific sexual conduct. Moreover, it is unnecessary under the statute for a defendant to have actually communicated a valid contractual “offer” to a minor. An invitation or inducement to engage in behavior constituting indecent liberties with or without consideration, for example, would also satisfy the statute. State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358. A defendant instant messaging for sexual purposes with a police officer posing as a 13-year-old is within the reach of the statute. State v. Aljutily, 149 Wn.App. 286, 202 P.3d 1004 (2009). But see State v. Solomon, 3 Wn.App.2d 895, 419 P.3d 436 (2018), where charges were dismissed due to outrageous government conduct while posing online as a minor.
Lesser included issues. Communication with a minor for immoral purposes is not a lesser included offense of attempted statutory rape. State v. Falco, 59 Wn.App. 354, 796 P.2d 796 (1990). Similarly, communication with a minor for immoral purposes is not a lesser included offense of sexual exploitation of a minor. State v. Bohannon, 62 Wn.App. 462, 814 P.2d 694 (1991).
Defense. RCW 9.68A.110(3) states that it is not a defense that the defendant did not know the alleged victim's age. However, it is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense the defendant reasonably believed the alleged victim to be at least sixteen years of age based on declarations by the alleged victim. For further discussion see the Comment to WPIC 19.04.03 (Communication with a Minor for Immoral Purposes—Defense).
Revisions. With regard to potential constitutional issues, see generally the Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements) (discussing cases on the constitutionality of the knowledge requirement in child pornography statutes).
[Current as of March 2020.]
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