       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 71821-5-1
                     Respondent,
                                                  DIVISION ONE
              v.



MICHAEL LEE PHILLIPS,                             UNPUBLISHED OPINION


                     Appellant.                   FILED: August 31, 2015


       Becker, J. — A statute is void for vagueness if it does not provide

sufficiently specific standards to prevent arbitrary enforcement. The predatory

offense statute challenged in this litigation, RCW 9.94A.836, adequately defines

the conduct to which it applies and sets forth detailed charging predicates that

guide a prosecutor's discretion. The exceptional sentence imposed upon the

appellant, Michael Phillips, is affirmed.

       In this case, a child was forcibly taken into a store restroom and sexually

assaulted by a man she did not know. The assailant was identified as Michael

Phillips. Phillips was charged and found guilty of rape of a child in the first

degree. Included in the information was a special allegation that the offense was

predatory. A jury convicted Phillips as charged and found that his offense was

predatory.
No. 71821-5-1/2



       Phillips had an offender score of 3. The standard range for his offense

was 10 to 13.3 years in prison. Phillips was sentenced to an exceptional

sentence of 25 years based on the jury's predatory offense finding.

      On appeal, Phillips contends that the predatory offense statute, RCW

9.94A.836, is unconstitutionally vague because it fails to provide ascertainable

standards to protect against arbitrary enforcement.

      We review determinations regarding the constitutionality of a statute de

novo. State v. Watson. 160 Wn.2d 1, 5, 154 P.3d 909 (2007).

      RCW 9.94A.836 provides:

      (1) In a prosecution for rape of a child in the first degree, rape of a
      child in the second degree, or child molestation in the first degree,
      the prosecuting attorney shall file a special allegation that the
      offense was predatory whenever sufficient admissible evidence
      exists, which, when considered with the most plausible, reasonably
      foreseeable defense that could be raised under the evidence,
      would justify a finding by a reasonable and objective fact finder that
      the offense was predatory, unless the prosecuting attorney
      determines, after consulting with a victim, that filing a special
      allegation under this section is likely to interfere with the ability to
      obtain a conviction.
                (2) Once a special allegation has been made under this
      section, the state has the burden to prove beyond a reasonable
      doubt that the offense was predatory. If a jury is had, the jury shall,
      if it finds the defendant guilty, also find a special verdict as to
      whether the offense was predatory. If no jury is had, the court shall
      make a finding of fact as to whether the offense was predatory.
                (3) The prosecuting attorney shall not withdraw a special
      allegation filed under this section without the approval of the court
      through an order of dismissal of the allegation. The court may not
      dismiss the special allegation unless it finds that the order is
      necessary to correct an error in the initial charging decision or that
      there are evidentiary problems that make proving the special
      allegation doubtful.

RCW 9.94A.836.
No. 71821-5-1/3



      The term "predatory" means:

      (a) The perpetrator of the crime was a stranger to the victim, as
      defined in this section; (b) the perpetrator established or promoted
      a relationship with the victim prior to the offense and the
      victimization of the victim was a significant reason the perpetrator
      established or promoted the relationship; or (c) the perpetrator was:
      (i) A teacher, counselor, volunteer, or other person in authority in
      any public or private school and the victim was a student of the
      school under his or her authority or supervision. For purposes of
      this subsection, "school" does not include home-based instruction
      as defined in RCW28A.225.010; (ii) a coach, trainer, volunteer, or
      other person in authority in any recreational activity and the victim
      was a participant in the activity under his or her authority or
      supervision; (iii) a pastor, elder, volunteer, or other person in
      authority in any church or religious organization, and the victim was
      a member or participant of the organization under his or her
      authority; or (iv) a teacher, counselor, volunteer, or other person in
      authority providing home-based instruction and the victim was a
      student receiving home-based instruction while under his or her
      authority or supervision. For purposes of this subsection: (A)
      "Home-based instruction" has the same meaning as defined in
      RCW 28A.225.010; and (B) "teacher, counselor, volunteer, or other
      person in authority" does not include the parent or legal guardian of
      the victim.

RCW 9.94A.030(39). The term "stranger" means "the victim did not know the

offender twenty-four hours before the offense." RCW 9.94A.030(51).

      A vagueness challenge to a statute not involving the First Amendment is

evaluated as applied to the challenger, using the facts of the particular case, in

re Detention of Danforth, 173 Wn.2d 59, 72, 264 P.3d 783 (2011). The predatory

offense statute does not involve the First Amendment. Therefore, Phillips may

not challenge the statute in all of its applications. Rather, he bears the heavy

burden of proving beyond a reasonable doubt that the statute is

unconstitutionally vague as applied to him. City of Spokane v. Douglass, 115

Wn.2d 171, 177, 182-83, 795 P.2d 693 (1990). Because Phillips challenges the
No. 71821-5-1/4



statute in the abstract rather than as applied to his own conduct, it is doubtful that

he is entitled to review, but we will briefly address his arguments.

       A statute is unconstitutionally vague if it (1) fails to define the offense with

sufficient precision so a person of ordinary intelligence can understand it or

(2) does not provide standards sufficiently specific to prevent arbitrary

enforcement. State v. Eckblad. 152 Wn.2d 515, 518, 98 P.3d 1184 (2004).

       Phillips focuses solely on the second prong of the test for vagueness—

whether the statute provides sufficient guidelines for enforcement. "The very

rarity of filing the special allegation," Phillips claims, "demonstrates the arbitrary

and ad hoc exercise of prosecutorial discretion."

       Guidelines nearly identical to those in RCW 9.94A.836 are contained in

the juvenile sexual motivation statute:

       (1) The prosecuting attorney shall file a special allegation of sexual
       motivation in every juvenile offense other than sex offenses as
       defined in RCW 9.94A.030(29) (a) or (c) when sufficient admissible
       evidence exists, which, when considered with the most plausible,
       reasonably consistent defense that could be raised under the
       evidence, would justify a finding of sexual motivation by a
       reasonable and objective fact-finder.
               (2) In a juvenile case wherein there has been a special
       allegation the state shall prove beyond a reasonable doubt that the
       juvenile committed the offense with a sexual motivation. The court
       shall make a finding of fact of whether or not the sexual motivation
       was present at the time of the commission of the offense. This
       finding shall not be applied to sex offenses as defined in RCW
       9.94A.030(29) (a) or (c).
               (3) The prosecuting attorney shall not withdraw the special
       allegation of "sexual motivation" without approval of the court
       through an order of dismissal. The court shall not dismiss the
       special allegation unless it finds that such an order is necessary to
       correct an error in the initial charging decision or unless there are
       evidentiary problems which make proving the special allegation
       doubtful.
No. 71821-5-1/5



Former RCW 13.40.135(1 )-(3) (1990). These guidelines were held sufficient to

prevent arbitrary enforcement in State v. Halstien. 122 Wn.2d 109, 117-21, 857

P.2d 270 (1993), a case that did involve the First Amendment. In Halstien, the

court discussed the second prong of the vagueness test in the following

paragraph:

               The statute also meets the second part of the vagueness
      test: it contains ascertainable standards of guilt which prevent
      arbitrary enforcement. As noted above, the State must present
      evidence of some conduct during the course of the offense as proof
      of the defendant's sexual purpose. The State carries this burden of
      proof and must establish the sexual motivation allegation beyond a
      reasonable doubt. RCW 13.40.135(2). In addition, the prosecutor's
      charging discretion is guided and limited by the statute. The
      prosecutor may not file the allegation unless "sufficient admissible
      evidence exists" which would justify a finding of sexual motivation
      by a "reasonable and objective fact-finder", and the prosecutor
      must weigh that evidence against the most plausible defense.
      RCW 13.40.135(1). The trial court must also enter a finding of fact
      whether or not the sexual motivation was present. RCW
      13.40.135(2). These standards protect against arbitrary, ad hoc, or
      discriminatory enforcement.

Halstien. 122 Wn.2d at 121.

       Phillips describes this aspect of the analysis in Halstien as "relatively

cursory" and attempts to distinguish it by citing State v. Rice. 174 Wn.2d 884, 279

P.3d 849 (2012).

       Phillips' argument misapplies Rice. In that case, a former public school

teacher was convicted of molesting a 10-year-old student. Her conduct was

found to be predatory as charged under RCW 9.94A.836. Rice attacked the

statute on appeal, arguing that RCW 9.94A.836 made charging the special

allegation mandatory in violation of the constitutional separation of powers
No. 71821-5-1/6



doctrine. The Supreme Court held that RCW 9.94A.836 was "directory," not

"mandatory." Rice. 174 Wn.2d at 889.

       Although the statutes authorize special allegations and direct
       prosecuting attorneys to file them, the statutes do not attach any
       legal consequences to a prosecutor's noncompliance, and the
       legislature elsewhere in the same chapter has acknowledged that
       prosecuting attorneys retain broad charging discretion
       notwithstanding statutory language directing them to file particular
       charges.

Rice. 174Wn.2dat889.

       Phillips argues that by ruling "shall" means "may" in the context of the

predatory offense statute, the court "eliminated the legislative directive and

opened the door to arbitrary, ad hoc, or discriminatory filing of the special

allegation." This argument lacks merit. Rice does not suggest that the predatory

offense statute is unconstitutionally vague, nor does it undermine the holding in

Halstien that the similarly worded juvenile sexual motivation statute contains

ascertainable standards of guilt. The use of seemingly mandatory language in

the context of RCW 9.94A.836 "can be seen as a legislative expression of

priority, meant to guide prosecuting attorneys but always subject to the

prosecutor's underlying charging discretion." Rice, 174 Wn.2d at 899. The fact

that prosecutors have broad charging discretion does not render a statute

unconstitutionally vague. Broad prosecutorial charging discretion is "part of the

inherent authority granted to prosecuting attorneys as executive officers under

the Washington State Constitution." Rice. 174 Wn.2d at 903-04.
No. 71821-5-1/7



       Phillips presents no other analysis to show how the predatory offense

statute is vague, nor does he argue that the prosecutor failed to exercise

discretion in charging him. We conclude RCW 9.94A.836 contains ascertainable

standards of guilt which prevent arbitrary enforcement. Phillips' due process

challenge to the statute is rejected.

       Phillips also attacks the statute on equal protection grounds. He claims it

violates equal protection "by inviting grossly disparate sentences for similarly

situated defendants." The possibility that sentences might be disparate, he

argues, is the result of the absence of guidelines or limitations to inform the

exercise of prosecutorial discretion. But we have already held, as noted above,

that the statute does have adequate guidelines and limitations to inform the

exercise of prosecutorial discretion.

       Washington's predatory offense statute, Phillips contends, also violates his

right to equal protection because it allows trial courts to dismiss the allegation

only in limited circumstances thereby encouraging arbitrary charging. Phillips

cites no case law supporting this argument nor does he concretely explain how

the plain text of the predatory offense statute led to arbitrary or capricious

charging in this matter.

       In short, Phillips provides no basis for striking down the statute on either

vagueness or equal protection grounds.

       Affirmed.
No. 71821-5-1/8




WE CONCUR:




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