                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          April 14, 2020




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 52142-3-II

                                Respondent,

          v.

    BRYAN EARLE GLANT,
                                                              UNPUBLISHED OPINION
                                Appellant.

         WORSWICK, J. — Bryan Earle Glant appeals his convictions for two counts of attempted

first degree rape of a child arising from an online sting operation.1 Before trial, Glant moved to

suppress his e-mail and text messages and moved to dismiss the case based on outrageous

government conduct. The trial court denied both motions. The trial court found Glant guilty of

both counts of attempted first degree rape of a child and sentenced Glant within the standard

range.

         On appeal, Glant argues that the trial court erred when it denied his motion to suppress

and motion to dismiss. Glant also argues that the trial court abused its discretion when it

imposed a standard range sentence.




1
    RCW 9A.44.073; RCW 9A.28.020.
No. 52142-3-II


       We hold that the trial court did not err when it denied Glant’s motion to suppress and

motion to dismiss. Further, we hold that Glant cannot appeal his standard range sentence. Thus,

we affirm.

                                            FACTS

       The Washington State Patrol Missing and Exploited Children Task Force (MECTF)

investigates sex crimes against children. RCW 13.60.110. Many MECTF investigations involve

the internet and are dubbed “Net Nanny” operations. Sergeant Carlos Rodriguez manages

MECTF and oversees its undercover operations.

       RCW 13.60.110(4) states, “The chief of the state patrol shall seek public and private

grants and gifts to support the work of the task force.” MECTF receives donations from private

citizens and organizations. One such donor is Operation Underground Railroad (O.U.R.).

O.U.R. has contributed tens of thousands of dollars to support various Net Nanny operations

across the State. Following each Net Nanny operation, the Washington State Patrol issues a

press release. Some of these press releases acknowledge O.U.R.’s support of the Net Nanny

operation. E-mails show that Sergeant Rodriguez coordinated the financial donations from

O.U.R. on behalf of MECTF. Sergeant Rodriguez collected overtime pay while conducting Net

Nanny operations.

       In September 2016, MECTF conducted a Net Nanny operation in Thurston County. As

part of the undercover operation, MECTF posted an advertisement on the Casual Encounters

section of Craigslist. “Family Play Time!?!?—w4m,” the advertisement stated,

“Mommy/daughter, Daddy/daughter, Daddy/son, Mommy/son. . . . you get the drift. If you

know what I’m talking about hit me up we’ll chat more about what I have to offer you.” Clerk’s

Papers (CP) at 772-73.



                                                2
No. 52142-3-II


         Glant responded to the advertisement by e-mail. Glant then began texting with a person

whom he believed was Hannah, a mother of three children. “Hannah”2 told Glant that her son

was 13 years old and her daughters were 6 and 11 years old. Glant stated he was “primarily

interested in the daughters.” CP at 773. Glant stated that he wanted to “use some toys with them

and introduce some touching and then work towards oral.” CP at 773. Hannah stated that her

rules were “no pain, no anal.” CP at 773. She asked Glant if he wanted to perform oral on the

daughters or if he wanted the daughters to perform oral on him. Glant agreed to the rules and

stated that he wanted both methods of oral. Glant asked, “What about like a finger in the bum

though?” CP at 773. Hannah responded that this was acceptable if Glant brought lubricant.3

         Glant drove from Mercer Island to Thurston County to meet Hannah and her daughters.

When Glant arrived at the apartment, he had a bottle of lubricant in his pocket. Law

enforcement officers arrested Glant, and the State charged him with two counts of attempted first

degree rape of a child. Glant was 20 years old.

         Glant made two pretrial motions. First, Glant moved to suppress his e-mails and text

messages based on the Washington Privacy Act (WPA), chapter 9.73 RCW, and article I, section

7 of the Washington Constitution. The trial court found that the e-mail and text message

communications between Glant and Hannah were private, that the messages were recorded on

the devices used to communicate the messages, and that Glant impliedly consented to the

recording because Glant knew that these messages would be preserved. The trial court also


2
    We use the law enforcement officer’s undercover persona for clarity.
3
  Glant’s and Hannah’s messages occurred over three days. Hannah reinitiated contact with
Glant the second day with a greeting of “hey hun . . . good afternoon . . . how are things?” CP at
454. After the pair arranged a time to meet on the second day, Hannah reinitiated contact on the
third day. Over the course of their conversations, Hannah expressed interest in Glant’s hobbies
and complimented his looks.

                                                  3
No. 52142-3-II


found that Glant voluntarily disclosed information to the intended recipient. Consequently, the

trial court ruled that law enforcement officers did not violate the WPA or article I, section 7 of

the Washington Constitution, and denied Glant’s motion to suppress.

         Second, Glant moved to dismiss his case based on outrageous government conduct.

Glant alleged financial wrongdoing in managing and funding MECTF’s Net Nanny operations.

Specifically, Glant argued that law enforcement officers’ conduct toward Glant in the sting,

along with this financial arrangement with O.U.R., amounted to outrageous government conduct

which violated Glant’s right to due process. Glant argued that the Net Nanny operations were

improperly funded through an alliance with O.U.R. Glant argued that this arrangement violated

the law because Sergeant Rodriguez solicited donations instead of the WSP chief. Glant alleged

that Sergeant Rodriguez solicited donations from O.U.R. for the purpose of funding officer

overtime pay that resulted from the Net Nanny operations. Glant argued that the relationship

between MECTF, WSP, and O.U.R. caused MECTF to generate more arrests and push the

individuals targeted by the stings into more severe crimes that MECTF then used to solicit higher

O.U.R. donations.

         The trial court entered detailed findings of fact and conclusions of law regarding the

motion to dismiss. The trial court concluded that the motion involved two issues: (1) the alleged

misconduct regarding MECTF’s acquisition of funds and how that acquisition was connected to

Glant’s charges, and (2) the nature of the interactions between Hannah and Glant. The trial court

examined these issues in the totality of the circumstances and weighed all Lively4 factors. The

trial court denied Glant’s motion to dismiss for outrageous government conduct.



4
    State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996).


                                                  4
No. 52142-3-II


         The case was tried to the bench based on stipulated facts. The trial court found Glant

guilty of both counts of attempted first degree rape of a child.

         At sentencing, Glant sought an exceptional downward sentence based on his youth. Dr.

Richard Packard, a certified sex offender treatment provider, testified regarding the impact of

Glant’s youth on his decision-making abilities and impulsivity. The trial court considered Dr.

Packard’s testimony “helpful.” Verbatim Report of Proceedings (VRP) (July 17, 2018) at 89.

However, the trial court stated, “I am explicitly noting that I am considering the request for an

exceptional sentence. I recognize that I have the discretion and judgment and authority to do that

in an appropriate case. I am not finding that it is appropriate in this case.” VRP (July 17, 2018)

at 89-90. The trial court imposed a sentence of 108 months to life, a sentence within the standard

range.

         Glant appeals his convictions and his sentence.

                                            ANALYSIS

                                       I MOTION TO SUPPRESS

         Glant argues that the trial court erred when it denied his motion to suppress his e-mail

and text messages because an interception or recording authorization was required prior to

intercepting Glant’s messages, and that the interception of these messages violated the WPA and

article I, section 7 of the Washington Constitution. We disagree.

         When reviewing a suppression order, we consider whether substantial evidence supports

the trial court’s findings of fact and whether those findings of fact support the conclusions of

law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence exists

when a fair-minded person is persuaded of the truth of the stated premise. Garvin, 166 Wn.2d at.

249. On a motion to suppress, we review a trial court’s conclusions of law de novo. State v.



                                                  5
No. 52142-3-II


Baird, 187 Wn.2d 210, 218, 386 P.3d 239 (2016). We review questions of law de novo. State v.

Kipp, 179 Wn.2d 718, 726, 317 P.3d 1029 (2014).

A.     Washington Privacy Act

       Glant argues that the trial court erred when it denied his motion to suppress because law

enforcement officers violated his right to privacy under the WPA. Specifically, he argues that an

interception or recording authorization was required before intercepting or recording his

messages to Hannah. Glant also argues that he did not impliedly consent to the recording of his

messages. We hold that law enforcement officers did not violate Glant’s right to privacy under

the WPA.

       The WPA prohibits a person or agency from obtaining communications between

individuals if (1) a private communication transmitted by a device was (2) recorded or

intercepted by (3) a recording or transmittal device (4) without the consent of all parties. RCW

9.73.030; State v. Townsend, 147 Wn.2d 666, 672-73, 57 P.3d 255 (2002). Private

communications include conversations transmitted through telephones, computers, and other

devices that are designed to record or transmit communication. RCW 9.73.030(1)(a); Townsend,

147 Wn.2d at 672. A person consents when they explicitly announce their intention to engage in

the communication. RCW 9.73.030(3). A person also consents by choosing to communicate

through a device in which the person knows the information will be recorded. State v. Racus, 7

Wn. App. 2d 287, 299-300, 433 P.3d 830, review denied, 193 Wn.2d 1014 (2019). When a

person sends e-mail or text messages they do so with the understanding that the messages would

be available to the receiving party for reading or printing. Racus, 7 Wn. App. 2d at 299.

       In State v. Racus, we recently held that a defendant provided implied consent regarding e-

mail and text conversations because he understood that these messages would be recorded. 7



                                                6
No. 52142-3-II


Wn. App. 2d at 299-300. Thus, law enforcement officers did not violate the WPA even though

the conversations were private and obtained without authorization. 7 Wn. App. 2d at 299-300.

       In Racus, a detective posted an advertisement on Craigslist, posing as a fictitious mother

seeking individuals to engage in sexual activities with her children. 7 Wn. App. 2d at 291. The

detective tracked any responses to the advertisement through Google Hangouts software. 7 Wn.

App. 2d at 291. Racus responded to the advertisement and engaged in a series of e-mails and

text messages with the fictitious mother, inquiring about sexual activities with her children. 7

Wn. App. 2d at 291. Although the detective did not have authorization during some of his

communication with the defendant, we reasoned that authorization was not required because the

defendant provided implied consent. 7 Wn. App. 2d at 299-300. The defendant chose to

communicate with the detective through e-mail and text messages, understanding that the

messages would be available to the receiving party for recording, and therefore, we held that the

defendant impliedly consented to his communications being recorded. 7 Wn. App. 2d at 300.

       Here, the trial court found that although the e-mail and text message communications

between Glant and Hannah were private, Glant impliedly consented to the recording because the

messages were recorded on the devices used to communicate the messages, and that Glant knew

that these messages would be preserved.5 See Racus, 7 Wn. App. 2d at 299. As a result, the trial

court ruled that no authorization was required, and that the law enforcement officers did not

violate the WPA.




5
  To the extent the State argues that the e-mail and text messages were not private, we note that
the trial court made a finding that the communications were private. The State did not file a
cross-appeal to challenge this finding. We treat unchallenged findings as verities on appeal.
State v. Kinzy, 141 Wn.2d 373, 382, 5 P.3d 668 (2000).


                                                 7
No. 52142-3-II


         Because Glant impliedly consented to the communications he had with Hannah, all

parties consented to the recording. Racus, 7 Wn. App. 2d at 300. Specifically, Glant had to

understand that computers and phones are message recording devices and that his e-mails and

text messages with Hannah would be preserved. Racus, 7 Wn. App. 2d at 300. As a result, law

enforcement officers did not violate Glant’s right to privacy under the WPA when it recorded

Glant’s e-mail and text messages. Thus, we hold that the trial court did not err when it denied

Glant’s motion to suppress on WPA grounds.

         Glant argues that implied consent does not apply here, or if it does, he did not impliedly

consent. Glant argues that RCW 9.73.230 requires either Glant’s consent, or an authorization to

retain the e-mail and text message conversations.6 Glant argues that RCW 9.73.230 applies to all

“child sex cases.” Br. of Appellant at 16. Specifically, Glant contends that the WPA presumes

that consent by all parties is required and that “[t]he concept of ‘implied consent’ does not

overcome this presumption.” Br. of Appellant at 16. He asserts that when the legislature




6
    In relevant part, RCW 9.73.230 states:

                 (1) As part of a bona fide criminal investigation, the chief law enforcement
         officer of a law enforcement agency . . . may authorize the interception,
         transmission, or recording of a conversation or communication by officers under
         the following circumstances:
                 (a) At least one party to the conversation or communication has consented
         to the interception, transmission, or recording;
                 (b) Probable cause exists to believe that the conversation or communication
         involves:
                 ....
                 (ii) A party engaging in the commercial sexual abuse of a minor under RCW
         9.68A.100, or promoting commercial sexual abuse of a minor under RCW
         9.68A.101, or promoting travel for commercial sexual abuse of a minor under RCW
         9.68A.102; and
                 (c) A written report has been completed . . . .

                                                  8
No. 52142-3-II


enacted the one-party consent exception for RCW 9.73.230, the legislature intended to entirely

replace the theory of implied consent.

       As a general rule, the WPA prohibits recording without the consent of all parties. RCW

9.73.030. Under the one-party consent exception in RCW 9.73.230, law enforcement agencies

may intercept or record conversations with authorization when a person is suspected of

committing or promoting commercial sexual abuse of a minor after obtaining consent from only

one party. RCW 9.73.230(1)(b)(ii). Commercial sexual abuse of a minor is defined as a person

who provides or agrees to provide something of value to the minor in exchange for sexual

conduct with the minor. RCW 9.68A.100(1)(a), (b).

       Here, Glant argues that his actions implicated RCW 9.73.230, but RCW 9.73.230 is not

applicable. RCW 9.73.230 is an exception to the general rule, allowing recording without the

consent of all parties if certain requirements are met. But all parties consented here. Therefore,

neither RCW 9.73.230 nor the general rule apply. Glant appears to argue that RCW 9.73.230

adds requirements to the general rule, but he is mistaken. When Glant sent messages to Hannah,

there were no interceptions or transmissions, rather, the messages were recorded and the parties

consented to this recording. Moreover, even if RCW 9.73.230 did apply, the record does not

support that commercial sexual abuse of a minor was at issue in this case.

B.     Article I, Section 7 of the Washington Constitution

       Glant also moved to suppress his e-mail and text messages based on his right to privacy

under article I, section 7 of the Washington Constitution. On appeal, Glant argues that the

recording of his e-mail and text messages was an unconstitutional warrantless search into his

private affairs. We disagree.




                                                 9
No. 52142-3-II


       Grounded in a broad right to privacy, article I, section 7 protects citizens from

governmental intrusion into their private affairs without legal authority. State v. Hinton, 179

Wn.2d 862, 868, 319 P.3d 9 (2014). We conduct a two-step inquiry: (1) was there a

governmental intrusion into one’s private affairs, and (2) if so, was that intrusion authorized by

law. State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007).

       E-mails and text messages are private communications. State v. Roden, 179 Wn.2d 893,

900, 321 P.3d 1183 (2014). However, when a person voluntarily communicates with a stranger,

that person assumes the risk that that the conversation will not be confidential. State v. Goucher,

124 Wn.2d 778, 786-87, 881 P.2d 210 (1994).

       In Goucher, Goucher called the house of his drug dealer while law enforcement officers

were searching the house pursuant to a warrant. 124 Wn.2d at 780-81. A detective answered,

and Goucher asked if he could come over to buy drugs. 124 Wn.2d at 781. Because Goucher

did not attempt to conceal his desire to buy drugs from a stranger, Goucher accepted the risk that

his drug purchase would not be confidential. 124 Wn.2d at 786-87. Our Supreme Court held,

“We do not see how the conversation between the Defendant and the detective constituted an

unreasonable intrusion into the Defendant’s private affairs and thus we find no violation of the

state constitution in this case.” 124 Wn.2d at 787.

       Here, Glant argues that his messages were private communications that were unlawfully

viewed by law enforcement officers. But, the trial court found that Glant voluntarily sent the

messages to Hannah as the intended receiver.

       Glant went on Craigslist and replied to a stranger’s advertisement. Glant exchanged

messages with a law enforcement officer, under the belief that he was communicating with

Hannah, a stranger to him. Glant did not have a reasonable expectation of privacy in the



                                                10
No. 52142-3-II


messages he sent to Hannah. Moreover, Glant assumed the risk that his conversations would not

be confidential. Goucher, 124 Wn.2d at 786-87. We hold that the trial court did not err when it

denied Glant’s motion to suppress.

                                     II. MOTION TO DISMISS

       Glant argues that the trial court erred when it denied his motion to dismiss for outrageous

government conduct. We hold that the trial court did not abuse its discretion when it denied

Glant’s motion.

A.     Outrageous Government Conduct Legal Principles

       The concept of outrageous conduct is founded on the principle that “the conduct of law

enforcement officers . . . may be ‘so outrageous that due process principles would absolutely bar

the government from invoking judicial processes to obtain a conviction.’” State v. Lively, 130

Wn.2d 1, 19, 921 P.2d 1035 (1996) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93

S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). We review whether the trial court erred in denying a

motion to dismiss based on outrageous government misconduct for an abuse of discretion.

Athan, 160 Wn.2d at 375-76. A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds or reasons. Athan, 160 Wn.2d at 375-76. When a

trial court adopts a view that no reasonable person would take, then it has abused its discretion.

State v. Solomon, 3 Wn. App. 2d 895, 910, 419 P.3d 436 (2018).

       To determine whether government conduct violated due process, a trial court must assess

the conduct based on the totality of the circumstances. Lively, 130 Wn.2d at 21. Government

conduct is outrageous and violates due process only when the conduct is so shocking that it

violates fundamental fairness and the universal sense of fairness. Lively, 130 Wn.2d at 19.

“Public policy allows for some deceitful conduct and violation of criminal laws by the police in



                                                11
No. 52142-3-II


order to detect and eliminate criminal activity.” Lively, 130 Wn.2d at 20. Proper law

enforcement objectives, preventing crime and apprehending violators, must drive law

enforcement officers’ conduct, not encouraging or participating in sheer lawlessness. Lively, 130

Wn.2d at 21. Dismissal based on outrageous government conduct is reserved for only the most

egregious circumstances. Lively, 130 Wn.2d at 20.

       In evaluating whether government conduct violated due process, courts consider several

factors, including: (1) “whether the police conduct instigated a crime or merely infiltrated

ongoing criminal activity”; (2) “whether the defendant’s reluctance to commit a crime was

overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation”; (3)

“whether the government controls the criminal activity or simply allows for the criminal activity

to occur”; (4) “whether the police motive was to prevent crime or protect the public”; and (5)

“whether the government conduct itself amounted to criminal activity or conduct ‘repugnant to a

sense of justice.’” Lively, 130 Wn.2d at 22 (citations omitted) (quoting People v. Isaacson, 44

N.Y.2d 511, 521, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978)).

B.     Glant’s Motion To Dismiss for Outrageous Government Conduct

       Glant moved to dismiss for outrageous government misconduct. In denying the motion,

the trial court made detailed findings and conclusions. The trial court concluded that the motion

was based on two issues: (1) the alleged misconduct regarding MECTF’s acquisition of funds

and how that acquisition was connected to Glant’s charges and (2) the nature of the interactions

between law enforcement and Glant. The trial court examined these issues in the totality of the

circumstances and weighed all Lively factors. On appeal, Glant contests the trial court’s

conclusions and examination of each Lively factor.




                                                12
No. 52142-3-II


        1. Private Involvement in Law Enforcement

        Glant cites a Kansas case, State v. Berg, 236 Kan. 562, 694 P.2d 427 (1985), to generally

argue the trial court failed to consider the “sui generis, improper nature of private involvement in

law enforcement.” Br. of Appellant at 23. We disagree.

        State v. Berg addressed a Kansas statute that allowed for a complaining witness to hire

private counsel as associate counsel to the prosecutor to assist in the criminal proceeding. 236

Kan. at 563. Jerry Berg, a complaining witness in a case against his ex-wife, hired private

counsel to assist in the prosecution. 236 Kan. at 563. But, after further investigation, the

prosecutor moved to dismiss the charges. 236 Kan. at 563. Over the objections of private

counsel, the trial court dismissed the case. Kan. at 563-64. The court held that private counsel

could not overrule the prosecutor’s decision to dismiss the charges, stating that a prosecutor must

be independent. 236 Kan. at 566-68. Here, Glant argues, without elaborating, that “[t]he same

must be true of police officers as well.” Br. of Appellant at 23. But, Berg does not support

Glant’s argument that private funding for certain law enforcement directives are improper by

their very nature. Berg holds that private associate counsel assisting in prosecution cannot

overrule the decisions of the prosecutor. 236 Kan. at 566-68. Here, nothing in the record shows

that O.U.R. was attempting to overrule or commandeer the Net Nanny operations over the

objections of MECTF. We hold that the trial court did not err in this regard.

        2. Direct Link to Glant’s Arrest

        Glant also argues that the trial court erred when it concluded that there was not a “direct

link” between the O.U.R funding and Glant’s arrest. Br. of Appellant at 24. We hold that the

trial court did not err.




                                                 13
No. 52142-3-II


       The trial court concluded, “There is no authority that approves the use of a dismissal

under the due process clause for governmental misconduct that is not related directly to the law

enforcement interactions with the defendants at issue.” CP at 715. It elaborated that funding that

supports law enforcement services “do[es] not create a direct enough link” to the law

enforcement actions specifically related to Glant’s arrest to support dismissal for outrageous

government conduct. CP at 715. Here, Glant argues that, but for O.U.R’s funding, the operation

leading to Glant’s arrest would not have occurred. But the funding of MECTF here is attenuated

from Glant’s arrest. O.U.R.’s funding, along with donations from individuals, generally

supported the Net Nanny operations. O.U.R. did not direct MECTF to target Glant or control the

details of MECTF’s operation. O.U.R. merely acted as a funding source. We hold that the trial

court did not err when determining that there was not a direct link between O.U.R.’s funding and

Glant’s arrest.

       3. Lively Factors

       Glant also argues that application of the Lively factors shows that there was outrageous

government misconduct. We disagree.

       Regarding the first Lively factor, whether police conduct instigated the crime or

infiltrated ongoing activity, the trial court concluded the factor was neutral because little

evidence in the record provided specific information about the “landscape of Craigslist” at the

time of the sting. CP at 715. Explaining the phrase “landscape of Craigslist,” the trial court

stated that Craigslist might be a meeting place for consenting adults, or Craigslist might be

“fraught with criminal misconduct.” VRP (March 26, 2018) at 63-64. Because the record lacked

sufficient evidence regarding this, the trial court found that the first factor was neutral. Here,

Glant argues that there was no ongoing criminal activity and that law enforcement officers



                                                  14
No. 52142-3-II


instigated the crime by posting the advertisement. But, the advertisement was not aimed at

Glant. Glant’s response was voluntary and spontaneous. Additionally, the record does not

provide information regarding the level of criminal activity on Craigslist at the time of this Net

Nanny operation. We hold that the trial court did not err when it concluded that the first factor

was neutral.

       The trial court concluded the second factor, whether Glant’s reluctance to commit a crime

was overcome by pleas or solicitation, favored the State. Although the trial court recognized that

Glant exhibited some reluctance in his messages, it found that the messages as a whole showed

that Glant was not reluctant to commit a crime and that his will was not overcome by persistent

pleas or solicitations. Here, Glant argues that he expressed reluctance during the conversations

and that law enforcement reinitiated conversations, flattered Glant with compliments, and

feigned interest in his personal activities. However, Glant initiated the conversation by

responding to the advertisement. Glant then steered the conversation toward sexual topics

regarding the daughters. Glant did not hesitate when expressing his sexual desires or agreeing to

Hannah’s rules. Glant drove from Mercer Island to Thurston County with lubricant to meet

Hannah and the daughters. We hold that the trial court did not err when it concluded that the

second factor favored the State.

       The trial court concluded the third factor, whether the government controls the criminal

activity or simply allows it to occur, was neutral because, like the first factor, the record lacked

information. Here, Glant argues that “MECTF controlled every detail of the ‘crime.’” Br. of

Appellant at 26. Specifically, Glant argues that Hannah “made sure to mention a child young

enough to trigger the first-degree rape of a child statute” and discussed multiple children so that

Glant’s crimes would be punished more severely. Br. of Appellant at 26. But Glant was told of



                                                 15
No. 52142-3-II


three children and only discussed sexual activity regarding the two daughters. Glant controlled

which children he made sexually explicit comments about. We hold that the trial court did not

err when it concluded that the third factor was neutral.

       For the fourth factor, whether or not the police motive was to prevent crime or protect the

public, the trial court concluded this factor strongly favored the State. The trial court examined

RCW 13.60.110, which specifically allows for the solicitation of private funds for the MECTF,

and RCW 9A.68.020, which prohibits public employees from requesting unlawful compensation.

The trial court concluded that neither statute was violated for this operation. Nonetheless, the

trial court stated that “even if there were technical violations of RCW 13.60.110 or RCW

9A.68.020, or another statute, the Court still finds that overall the police motive was to prevent

crime and protect the public.” CP at 716.

       Glant argues that as a result of Net Nanny arrests, Sergeant Rodriguez personally

collected over $16,000 of overtime in 2016, that most of those arrested were not criminals before

answering the advertisement, and few, if any, children have been rescued from exploitation. He

also argues that Sergeant Rodriguez violated RCW 13.60.110 because the delegation of funding

duties was improper. Additionally, Glant argues that MECTF’s relationship with O.U.R.

actually prevented law enforcement officers from protecting the public. But, RCW 13.60.110

specifically allows for private funding for MECTF’s goal of rooting out potential sexual abusers

of children. Simply because private supporters help to fund a program does not mean that that

program no longer aims to protect the public or prevent crime. We hold that the trial court did

not err when it concluded that the fourth factor favored the State.

       The trial court concluded the fifth factor, whether the government conduct itself

amounted to criminal activity or conduct that is repugnant to a sense of justice, favored the State.



                                                 16
No. 52142-3-II


The trial court concluded that no law enforcement officer violated the law or acted in a way that

was repugnant to justice. The trial court concluded, “Even if there were [sic] criminal activity in

this case, it is not sufficient to justify a dismissal given the standards that apply.” CP at 717.

Here, Glant argues that police conduct amounted to criminal activity because it “offered up

fictitious children for sexual assault,” violated the WPA, and violated RCW 13.60.110. Br. of

Appellant at 28. However, to the extent law enforcement officers violated the law with the

specific facts of the undercover operation, it was to protect the public and prevent crime against

actual children. Additionally, RCW 13.60.110 is not a criminal statute and law enforcement

officers did not violate the WPA. We hold that the trial court did not err when it concluded that

the fifth factor favored the State.

        The trial court concluded that regardless of any violation of the law or criminal activity

by police officers, Glant’s motion to dismiss was denied because he did not show that law

enforcement officers participated in outrageous conduct. The trial court did not adopt a view that

no reasonable judge would take. The record does not show whether law enforcement’s operation

instigated a crime or infiltrated ongoing criminal activity. Glant was not reluctant to commit a

crime and his will was not overcome by persistent pleas or solicitations. Government’s motive

was to protect the public and prevent crime, and law enforcement officers did not act in a manner

repugnant to a sense of justice. Because a reasonable judge could have adopted the view of the

trial court, we hold that the trial court did not abuse its discretion when denying Glant’s motion

to dismiss.

                                          III. SENTENCING

        Glant argues that “the trial court abused its discretion by rejecting the testimony of Dr.

Packard” regarding Glant’s impulsivity and immaturity. Br. of Appellant at 47. Glant argues



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that the trial court abused its discretion when it concluded that the span of time regarding Glant’s

actions “broke the chain” of Glant’s impulsivity. Br. of Appellant at 47. We hold that Glant

cannot appeal his standard range sentence.

       Although no defendant is entitled to an exceptional downward sentence, every defendant

is entitled to ask the sentencing court to consider such a sentence and to have it actually

considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). The SRA provides a

defendant an opportunity to raise his youth for the purpose of requesting an exceptional sentence

downward. In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 336, 422 P.3d 444 (2018).

Additionally, the SRA provides the trial court with the ability to exercise its discretion in

considering youth as a mitigating factor. Pers. Restraint of Light-Roth, 191 Wn.2d at 336.

However, “age is not a per se mitigating factor” that automatically entitles young defendants to

an exceptional sentence downward. State v. O’Dell, 183 Wn.2d 680, 695, 358 P.3d 359 (2015)

(plurality opinion).

       In general, a party cannot appeal a sentence within the standard range. State v. Brown,

145 Wn. App. 62, 77, 184 P.3d 1284 (2008); RCW 9.94A.585(1).7 The rationale is that a trial

court that imposes a sentence within the range set by the legislature cannot abuse its discretion as

to the length of the sentence as a matter of law. Brown, 145 Wn. App. at 78. However, a

defendant may appeal a standard range sentence when a trial court has refused to exercise its

discretion or relies on an impermissible basis for its refusal to impose an exceptional sentence

downward. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (plurality opinion). It




7
 RCW 9.94A.585 (1) provides, “A sentence within the standard sentence range, under RCW
9.94A.510 or 9.94A.517, for an offense shall not be appealed.”

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No. 52142-3-II


is error for a trial court to categorically refuse to impose an exceptional sentence downward or to

mistakenly believe that it does not have such discretion. McFarland, 189 Wn.2d at 56.

       Here, RCW 9.94A.585(1) prevents Glant from appealing his standard range sentence.

The trial court stated, “I am explicitly noting that I am considering the request for an exceptional

sentence. I recognize that I have the discretion and judgment and authority to do that in an

appropriate case. I am not finding that it is appropriate in this case.” VRP (July 17, 2018) at 89-

90. The trial court stated that Dr. Packard’s testimony was “helpful” and considered Glant’s

youthfulness before imposing the standard range sentence. VRP (July 17, 2018) at 89-91. The

trial court did not refuse to exercise its discretion or mistakenly believe it lacked discretion to

deviate from the standard range. Thus, we hold that Glant cannot appeal his standard range

sentence.

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                        Worswick, J.
 We concur:



 Lee, C.J.




 Melnick, J.




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