 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE
STATE OF WASHINGTON,                         )     No. 77587-1-I

                         Respondent,

           v.
                                             )     UNPUBLISHED OPINION
JOSEPH DINO BUFFALINO,                       )
                                             )     FILED: April 22, 2019
                         Appellant.          )

        VERELLEN,   J.   —   Because RCW 9A.88.060 does not implicate free

speech and because Joseph Buffalino fails to argue .060 is unconstitutional as

applied to his conduct, his appeal fails.

        Therefore, we affirm.

                                         FACTS

       The State charged Buffalino with several charges, including one count of

first degree promoting prostitution. The jury found Buffalino guilty of second

degree promoting prostitution, the lesser included of first degree promoting

prostitution.1




       1  Buffalino appeals only his conviction of second degree promoting
prostitution.
No. 77587-1 -112



                                          ANALYSIS

       Buffalino contends his conviction for second degree promoting

prostitution should be reversed because RCW 9A.88.060(1), defining

“advancing prostitution,” is unconstitutionally vague.

       Under the Fourteenth Amendment to the United States Constitution and

article I of the Washington Constitution, the due process vagueness doctrine

requires statutes “provide citizens with fair warning of what conduct they must

avoid” and “protect them from arbitrary, ad hoc, or discriminatory law

enforcement.”2 “[A] statute is void for vagueness if either: (1) the statute does

not define the criminal offense with sufficient definiteness that ordinary people

can understand what conduct is proscribed; or (2) the statute does not provide

ascertainable standards of guilt to protect against arbitrary enforcement.”3 The

party challenging a statute has the burden of proving it is unconstitutionally

vague.4

       “A person is guilty of promoting prostitution in the second degree if he or

she knowingly.     .   .   [a]dvances prostitution.”5 Under RCW 9A.88.060(1),

      A person “advances prostitution” if, acting other than as a
      prostitute or as a customer thereof, he or she causes or aids a
      person to commit or engage in prostitution, procures or solicits
      customers for prostitution, provides persons or premises for

      2   State v. Halstien, 122 Wn.2d 109, 116-17, 857 P.2d 270 (1993)
        j~ at 117 (internal quotation marks omitted) (quoting City of Spokane v.
Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
      4ki.at 118.
      ~ RCW 9A.88.080 (emphasis added).




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No. 77587-1 -1/3



       prostitution purposes, operates or assists in the operation of a
       house of prostitution or a prostitution enterprise, or engages in
       any other conduct designed to institute, aid, or facilitate an act or
       enterprise of prostitution.[6]

       When a challenged statute does not involve First Amendment interests,

an appellant may challenge the statute only as it applies to their own conduct.7

As a threshold matter, the State argues Buffalino cannot make a facial

challenge to .060 because the statute does not implicate the First Amendment.

       Buffalino argues .060 implicates protected speech. But in State v. Cann,

the appellant challenged the last clause of RCW 9A.88.060(1) as

unconstitutionally vague because “it could be construed to forbid innocent

conduct which might incidentally advance prostitution.”8 Our Supreme Court

acknowledged “[s]peech directed toward the persuasion of another to enter into

an illegal arrangement does not enjoy constitutional protection” under the First

Amendment.9 And the court determined “[t]hat is the only kind of speech

punished under this statute.”1°

      In his reply brief, Buffalino argues section .060 does implicate the First

Amendment because it “prohibits all aid, not only aid provided for the purpose

of furthering prostitution.”11 But this argument ignores the express language of

      6 RCW 9A.88.060(1) (emphasis added).
      ~ Douglass, 115 Wn.2d at 182.
      892 Wn.2d 193, 195, 595 P.2d 912 (1979).
      ~Id.at 195-96.
      1° Id. at 196.
      11 Reply Br. of App. at 8.




                                         3
No. 77587-1-114



the challenged clause. Section .060 provides a person advances prostitution if,

“acting other than as a prostitute or as a customer thereof, he or she causes or

aids a person to commit or engage in prostitution.”12 The statute does not

prohibit general aid to a known prostitute. Rather, the statute prohibits an

individual from aiding a person to commit prostitution. Buffalino fails to provide

any authority that the First Amendment protections extend to conduct that “aids

a person to commit or engage in prostitution.”

       Although Buffalino challenges a different portion of .060 than at issue in

Cann, the analysis in Cann extends to the entire statute: “Speech directed

toward the persuasion of another to enter into an illegal arrangement does not

enjoy constitutional protection,” and “[t]hat is the only kind of speech punished

under this statute.” RCW 9A.88.060 does not implicate the First Amendment.

Buffalino cannot challenge .060 as unconstitutionally vague on its face.

       And Buffalino fails to provide any argument as to how RCW 9A.88.060 is

unconstitutionally vague as applied to his own conduct. Rather, he relies on

hypothetical scenarios to illustrate that .060 is unconstitutionally vague.

“Therefore, a person who gives food or drink to another whom he or she knows

to engage in prostitution would ‘aid’ in its commission by helping him or her




       12   RCW 9A.88.060(1).




                                         4
No. 77587-1-115



survive, thereby advancing prostitution.”13 Buffalino does not suggest that his

own conduct was of an equally innocent nature.14

       Because RCW 9A.88.060 does not implicate First Amendment issues

and because Buffalino fails to argue .060 is unconstitutional as applied to his

conduct, his appeal fails.

       Therefore, we affirm.




WE CONCUR:


  ___                ____                                          I


        13Appellant’s Br. at 15.
        14 See Cann, 92 Wn.2d at 195 (“The second contention is that the last
clause of RCW 9A.88.060(1), defining ‘advances prostitution,’ is
unconstitutionally vague in that it could be construed to forbid innocent conduct
which might incidentally advance prostitution. A neighbor gratuitously shoveling
snow from the sidewalks of a house of prostitution, or a taxicab driver taking a
prostitute to meet a client are cited as examples. This is the only clause, the
appellant says, into which his conduct can reasonably be fitted. He does not
suggest, however, that his own conduct was of an equally innocent nature.”).
