Opinion
No. 56383-5 II
02-07-2023
IN RE the Matter of the Personal Restraint of Bryan Earle GLANT, Petitioner.
David L. Donnan, David Donnan, Attorney At Law, P.O. Box 55026, Shoreline, WA, 98155-0026, for Petitioner. Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw Bldg. 2, Olympia, WA, 98502-6045, for Respondent.
David L. Donnan, David Donnan, Attorney At Law, P.O. Box 55026, Shoreline, WA, 98155-0026, for Petitioner.
Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw Bldg. 2, Olympia, WA, 98502-6045, for Respondent.
PART PUBLISHED OPINION
Glasgow, C.J.
¶1 Law enforcement made a post on Craigslist suggesting the person posting could arrange sexual contact with children. Bryan Earle Glant responded to the post and texted with an undercover detective about sexual intercourse with her two fictional daughters, ages 11 and 6. He then drove to an apartment with personal lubricant in his pocket to meet "Hannah" and the children, where he was arrested. The State charged him with two counts of attempted first degree rape of a child. Glant was 20 years old at the time.
¶2 Glant waived his right to a jury trial and the parties proceeded to a bench trial on stipulated facts. The trial court found Glant guilty of both charges and found that he was not entrapped by law enforcement. At sentencing, the trial court ruled that youthful impulsivity did not contribute to Glant's offenses, and it imposed an indeterminate sentence with a minimum sentence within the standard range and a maximum of life.
¶3 Glant appealed and this court affirmed. Glant then filed this timely personal restraint petition (PRP). He argues the State withheld impeachment evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). He contends that his trial counsel provided ineffective assistance by inadequately investigating his case, advising him to waive a jury trial, and failing to raise a same criminal conduct argument at sentencing. He further argues that the trial court misapplied the law of entrapment, that his convictions violate double jeopardy, that his convictions constituted the same criminal conduct, and that the trial court abused its discretion by declining to impose a determinate sentence based on youth.
¶4 We deny the PRP. In the published portion of this opinion, we conclude that Glant's conduct supported two convictions for attempted first degree rape of a child and did not violate double jeopardy. We resolve the remainder of the issues Glant raises in the unpublished portion of this opinion.
FACTS
¶5 The Washington State Patrol's Missing and Exploited Children Task Force (MECTF), headed by Sergeant Carlos Rodriguez, conducted undercover stings, known as Net Nanny operations. State v. Glant , 13 Wash. App. 2d 356, 360, 465 P.3d 382 (2020). In 2016, as part of a Net Nanny operation, a detective made a post on Craigslist titled, " ‘Family Play Time!?!?—w4m,’ " which advertised, " ‘Mommy/daughter, Daddy/daughter, Daddy/son, Mommy/son ... you get the drift. If you know what I'm talking about hit me up [and] we'll chat more about what I have to offer you.’ " Clerk's Papers (CP) at 772. Glant responded, writing, "I'm interested in what you say you have to offer, let's talk more about it?" PRP, App. B.
¶6 Glant, a 20-year-old, began e-mailing and then texting with the fictional Hannah, a mother with three children. Glant asked, "What're your rules?" and was told, "[M]y rules depend on what you are looking to do with the kids and which ones, this is where your honesty comes into play." PRP, App. D at 1. Hannah then told Glant she had a teenaged son and two daughters ages 11 and 6. Glant stated, "I'm primarily interested in the daughters," and that he would like to "[p]robably use toys with them and introduce some touching and then work towards oral." PRP, App. D at 1. When Hannah instructed Glant that her rules were "no pain, no anal," Glant asked, "What about like a finger in the bum though?" PRP, App. D at 2. Hannah responded, "[I]f you promise to bring lube and put lube on your finger, yes you can put one to two fingers in their bum." PRP, App. D at 2. Glant agreed, "Ok no problem." PRP, App. D at 2.
¶7 When Hannah asked if he had "any other questions on what you want to try or do," Glant responded, "No I'm fine, but to be frank I'm new to this and don[’]t know how to approach this." PRP, App. D at 2. When Hannah suggested they exchange pictures "so we know each[ ]other is real," he agreed. PRP, App. D at 2. Hannah then told Glant that she lived in Tumwater, causing him to reschedule because, "Tumwater is pretty far away." PRP, App. D at 6. He tried to reschedule for the next morning then, at Hannah's suggestion, agreed to meet the following afternoon.
¶8 Overall, Glant exchanged messages with Hannah for two days before driving from Mercer Island to an apartment in Thurston County to meet her and the fictional children. He was arrested after entering the apartment. Glant had a bottle of personal lubricant in his pocket when he was arrested. The State charged Glant with two counts of attempted first degree rape of a child.
¶9 Glant waived his right to a jury trial and agreed to a bench trial on stipulated facts. The trial court found the elements of two counts of attempted first degree rape of a child were met based on the acts Glant described in texts to Hannah. It found that Glant "took at least one substantial step" toward committing rape of a child "when he drove from Mercer Island to Thurston County and had in his pocket lubricant, which was needed to engage in sexual activity with the daughters, as referenced in the text messages." CP at 773. The trial court found Glant guilty of both counts of attempted first degree rape of a child.
ANALYSIS
¶10 To receive relief, a personal restraint petitioner who has filed a timely petition must demonstrate "either a constitutional error that resulted in actual and substantial prejudice" or a nonconstitutional error that is "a fundamental defect which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Swagerty , 186 Wash.2d 801, 807, 383 P.3d 454 (2016) (quoting In re Pers. Restraint of Cook , 114 Wash.2d 802, 811, 792 P.2d 506 (1990) (internal quotation marks omitted)).
¶11 Glant contends that he was convicted twice for a single unit of prosecution, violating double jeopardy. He compares attempt to solicitation, where the unit of prosecution is "the act of promoting or facilitating a crime rather than the specific crimes the defendant was soliciting," and conspiracy, where the unit of prosecution is "an agreement to engage in a criminal enterprise," not the individual crimes therein. PRP at 23-24. Because an attempt conviction requires a defendant to take a substantial step with the intent to commit a specific crime, Glant reasons that he "engaged in a single and unified course of conduct in his attempt to have sex" with fictional victims. PRP at 25. We disagree.
¶12 When there are multiple alleged violations of a single statute, we inquire what unit of prosecution the legislature intended under the statute. State v. Bobic , 140 Wash.2d 250, 261, 996 P.2d 610 (2000). " ‘When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.’ " Id . (quoting State v. Adel , 136 Wash.2d 629, 634, 965 P.2d 1072 (1998) ). We will construe any ambiguity in favor of lenity for the defendant. Id . at 261-62, 996 P.2d 610.
¶13 "A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime," they do any act that is "a substantial step toward the commission of that crime." RCW 9A.28.020(1). "Mere preparation to commit a crime is not an attempt." State v. Wilson , 1 Wash. App. 2d 73, 83, 404 P.3d 76 (2017). A substantial step requires conduct that is strongly corroborative of the defendant's criminal purpose. State v. Aumick , 126 Wash.2d 422, 427, 894 P.2d 1325 (1995). This court has recognized that where there were two separate attempts involving the same victim and the same crime, the unit of prosecution was "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). For example, in Boswell, an attempt to kill by poisoning and an attempt to kill the same victim by shooting were two separate units of prosecution. Id. at 332, 340 P.3d 971.
¶14 The State argues that we should follow a recent Division One case with similar facts, State v. Canter , 17 Wash. App. 2d 728, 487 P.3d 916, review denied , 198 Wash.2d 1019, 497 P.3d 375 (2021). 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. Id. at 739, 487 P.3d 916. The Canter court held that the facts established two units of prosecution because Canter took substantial steps to have sexual contact with two different, albeit fictional, children. Id. We agree that Canter is similar and follow Division One's reasoning in that case.
¶15 In Canter, the defendant relied on Boswell ’s reasoning that for attempt, the unit of prosecution was the act necessary to support the inchoate offense, not the underlying crime. Id . at 738, 487 P.3d 916. Canter asserted that the unit of prosecution for his attempted child molestation was "the single substantial step he took toward molesting two children." Id.
¶16 Division One instead looked to cases involving more than one victim. Division One explained that in State v. Diaz-Flores , 148 Wash. App. 911, 914, 201 P.3d 1073 (2009), the court found no double jeopardy violation where the defendant was convicted of two counts of voyeurism for peeking into a bedroom window to watch two people having sex. Canter , 17 Wash. App. 2d at 739, 487 P.3d 916. Diaz-Flores argued the unit of prosecution was his single act of viewing, regardless of the number of victims. Diaz-Flores , 148 Wash. App. at 916, 201 P.3d 1073. The Diaz-Flores court examined the statutory language prohibiting the viewing of "another person" and concluded that the legislature intended to protect each individual the voyeur viewed. Id. at 917, 201 P.3d 1073. Thus, the unit of prosecution was the viewing of each victim. Id. at 918, 201 P.3d 1073.
¶17 Turning to the child molestation statute, the Canter court relied on the language establishing that a person is guilty of first degree child molestation when they have sexual contact with "another person" who is less than 12 years old. 17 Wash. App. 2d at 739, 487 P.3d 916. Thus, the "child molestation statute unambiguously protects each child from sexual contact." Id. Even though Canter had been charged with attempt, the facts supported two units of prosecution because Canter "took steps to have sexual contact with two separate children." Id.
¶18 In response to Canter's argument that he only took a single substantial step amounting to only one unit of prosecution, the Canter court discussed State v. Price , 103 Wash. App. 845, 14 P.3d 841 (2000). 17 Wash. App. 2d at 740, 487 P.3d 916. In Price , the defendant fired one gunshot into a car with two people inside and was convicted of attempted murder for both victims. 103 Wash. App. at 850, 14 P.3d 841. On appeal, Price argued that "his actions did not constitute attempted murder toward each separate victim because firing one shot into the vehicle could not constitute a substantial step toward the commission of first degree murder for both [victims]." Id . at 851, 14 P.3d 841. The court concluded that there was sufficient evidence to support two convictions even though there was only a single shot. Id. Although Price was not a double jeopardy case, Division One found its reasoning helpful. Canter , 17 Wash. App. 2d at 740, 487 P.3d 916.
¶19 The Canter court then explained that Canter had communicated to a fictitious mother that he intended to have sexual contact with her 8-year-old daughter, he purchased items she told him to bring to his encounter with the child, and he drove to a location where he thought they lived. Id. "Canter took those same substantial steps toward having sexual contact with an 11-year-old girl." Id. Because the text exchanges involved two separate children, double jeopardy did not bar Canter's convictions for two counts of attempted child molestation, even where the child victims were fictitious. See id. at 740-41, 487 P.3d 916.
¶20 Finally, the Canter court explained that cases addressing the units of prosecution for solicitation and conspiracy did not justify a different result. Id. The unit of prosecution for solicitation "is centered on each solicitation regardless of the number of crimes or objects of the solicitation." State v. Varnell , 162 Wash.2d 165, 170, 170 P.3d 24 (2007). In Varnell , the Supreme Court reversed and vacated three of a defendant's convictions when he solicited the murder of four people in a single conversation. Id . at 172, 170 P.3d 24. And in Bobic , the Supreme Court held that two defendants were each guilty of only one count of conspiracy when their "single agreement to commit a series of crimes" included stealing, stripping, and reselling stolen vehicles. 140 Wash.2d at 266, 996 P.2d 610. But unlike in these cases, the prohibition on attempted child molestation "aims to punish a substantial step toward molesting each child." Canter , 17 Wash. App. 2d at 740-41, 487 P.3d 916.
¶21 Like the statute criminalizing child molestation addressed in Canter , the statute criminalizing rape of a child at issue in this case focuses on intercourse with each child. A defendant "is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old ... and the perpetrator is at least twenty-four months older than the victim." Former RCW 9A.44.073(1) (1988) (emphasis added). Thus, applying the reasoning that Division One adopted in Canter , the child rape statute also unambiguously protects each child from rape.
¶22 Here, like in Canter , when Hannah told Glant she had a son and two daughters, he expressed interest in sexual contact with two children when he responded, "I'm primarily interested in the daughters." PRP, App. D at 1. When asked about his intentions, Glant stated that he would "[p]robably use toys with them and introduce some touching and then work towards oral." PRP, App. D at 1. When he asked about anal penetration with fingers, Hannah responded, "[I]f you promise to bring lube and put lube on your finger, yes you can put one to two fingers in their bum." PRP, App. D at 2. Glant agreed. The text conversations addressed performing these acts with two children.
¶23 The trial court found that Glant "took at least one substantial step ... when he drove from Mercer Island to Thurston County and had in his pocket lubricant, which was needed to engage in sexual activity with the daughters, as referenced in the text messages." CP at 773. These are the same substantial steps—texting about specific acts with two children, purchasing necessary items, and driving to a location where he thought the children would be—that Canter took. Thus, applying the Canter court's analysis, we conclude that Glant's convictions do not violate double jeopardy.
¶24 Glant contends that we should depart from Canter and hold instead that where victims are fictitious, the fact that a defendant has expressed an intent to commit the rape of two separate victims is not enough to support two separate convictions under a double jeopardy analysis. Glant emphasizes that the cases the Canter court relied upon involved real victims, rather than fake ones, or they involved crimes of general, rather than specific, intent. But factual impossibility is not a defense to an attempt crime, RCW 9A.28.020(2), so it is unclear why the fictitious nature of the children should be determinative. And even though Price involved attempted murder, which does not require specific intent to kill the particular victim, Glant does not explain how this distinction is relevant here where Glant expressed clear, specific intent to have oral sex with and anally penetrate two specific children. Glant's argument that we should depart from Canter is unconvincing. We follow Canter and find no double jeopardy violation occurred here.
CONCLUSION
¶25 We deny Glant's PRP on double jeopardy grounds. We address Glant's remaining claims in the unpublished portion of this opinion.
¶26 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
Maxa, J.
Veljacic, J.