         FILE
         IN CLERKS OFFICE
                                                                     This opinion was flied for record
                                                                     at 1S •. <.:10 tOt 11"'1 on .J"'
                                                                                                    u.J . 1 I 2.0 I L/
11J1N!ME COURT, STATE OF W.<u!H!NGTON
       DATE    JUL 3 1 20?-14
                            .
)??_cL~sJij C._.                                                             Supfame 'ourt Clerk
                                                                                                 81

          CHIEF JU     'ICE


       IN THE SUPREME COURT OF THE STATE OF WASHINGTON


    STATE OF WASHINGTON,                             )
                                                     )
                          Petitioner,                )                       No. 88339-4
                                                     )
    v.                                               )                          En Bane
                                                     )
    RUSSELL DAVID HOMAN,                             )
                                                     )       Filed         JUL 3 1 2014
                         Respondent.                 )
                                                     )




              WIGGINS, J.-Russell David Homan was convicted of child luring under

   Washington's luring statute, RCW 9A.40.090.           On appeal, Homan argued that his

   conviction violated his Fourteenth Amendment 1 right to due process because the

   evidence was insufficient for conviction and that RCW 9A.40.090 is unconstitutionally

   overbroad in violation of the First Amendment. 2 The Court of Appeals reversed the

   conviction due to insufficiency of evidence.

              The State timely appealed the reversal, and we granted review on the sufficiency

   of evidence issue. We decline to rule on the overbreadth issue because it would benefit




   1   U.S. CaNST. amend XIV.
   2   U.S. CoNST. amend. I.
No. 88339-4


from additional briefing and argumenP We hold that there was sufficient evidence to

find that Homan lured a minor and remand the case to the Court of Appeals to decide

the overbreadth issue.

                                          FACTS

      Early one summer evening in the small rural community of Doty, Washington, 9-

year-old C.C.N. was sent by his mother to the nearby store to buy milk. As he was

walking along the road toward the general store, Homan, a 37-year-old man, rode past

on a child's Superman BMX bicycle. As Homan rode by, he said, "Do you want some

candy?   I've got some at my house." C.C.N. said nothing and continued walking.

Homan rode on without slowing, stopping, or looking back. There were two other

children nearby, but Homan was closest to C.C.N. when he spoke.

      C.C.N. did not know Homan and told his mother about the incident when he

returned home. She drove him back into town where they saw Homan on his Superman

BMX bicycle. C.C.N.'s mother called the sheriff's office, and Sergeant Robert Snaza

spoke with Homan, who admitted riding his bicycle in the general store's vicinity.




3 On December 26, 2013, we asked parties for additional briefing on the overbreadth issue,
giving parties just two weeks over the holiday season to submit supplemental briefs. To make
an informed decision on this complex First Amendment issue, we believe more briefing is
necessary. Indeed, as the State points out, had we accepted review of the overbreadth issue
initially, there might have been significant interest from several potential amici, such as
Washington Defenders Association, Washington Association of Criminal Defense Attorneys,
American Civil Liberties Union of Washington, Washington Association of Prosecuting
Attorneys, and victim advocacy groups. Thus, the proper course of action here is to remand
the issue because it was raised but not decided in the Court of Appeals. See State v. Hudlow,
99 Wn.2d 1, 659 P.2d 514 (1983) (since Allen Hudlow properly preserved the issue of his
habitual criminal status for appeal, the issue deserves appellate court consideration;
remanding the issue to Court of Appeals); Courtright Cattle Co. v. Do/sen Co., 94 Wn.2d 645,
619 P.2d 344 (1980). Once the Court of Appeals issues its decision, if adverse to Homan,
Homan is free to petition this court for review.

                                              2
No. 88339-4


      The State charged Homan with one count of luring.            During his bench trial,

Homan moved for dismissal based on insufficiency of evidence. The trial court denied

his motion and found Homan guilty as charged. After denying Homan's motion for

reconsideration, again based on a sufficiency challenge, the trial court imposed a

standard range sentence of 120 days.

         Homan timely appealed his conviction, arguing that the State produced

insufficient evidence to support his conviction and that the luring statute, RCW

9A.40.090, is unconstitutionally overbroad. The Court of Appeals found the evidence

insufficient to support Homan's conviction and reversed and remanded for dismissal

with prejudice.    State v. Homan, 172 Wn. App. 488, 493, 290 P.3d 1041 (2012).

Accordingly, the appellate court did not reach the overbreadth issue. /d. The State

timely appealed the reversal, and we granted review. State   v.   Homan, 177 Wn.2d 1022,

303 P.3d 1064 (2013).

                                         ANALYSIS

         To determine whether sufficient evidence supports a conviction, we view the

evidence in the light most favorable to the prosecution and determine whether any

rational fact finder could have found the elements of the crime beyond a reasonable

doubt.     State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).          Specifically,

following a bench trial, appellate review is limited to determining whether substantial

evidence supports the findings of fact and, if so, whether the findings support the

conclusions of law. State   v.   Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005).

"Substantial evidence" is evidence sufficient to persuade a fair-minded person of the

truth of the asserted premise. /d. We treat unchallenged findings of facts and findings


                                              3
No. 88339-4


of fact supported by substantial evidence as verities on appeal. Schmidt v. Cornerstone

lnvs., Inc., 115 Wn.2d 148, 169, 795 P.2d 1143 (1990). We review challenges to a trial

court's conclusions of law de novo. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d

426 (2008).

      In claiming insufficient evidence, the defendant necessarily admits the truth of

the State's evidence and all reasonable inferences that can be drawn from it. State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Drum, 168 Wn.2d 23, 35,

225 P.3d 237 (201 0).    These inferences "must be drawn in favor of the State and

interpreted most strongly against the defendant." Salinas, 119 Wn.2d at 201; accord

State v. Kilburn, 151 Wn.2d 36, 57-58, 84 P.3d 1215 (2004) (Owens, J., dissenting).

Further, we must defer to the trier of fact for purposes of resolving conflicting testimony

and evaluating the persuasiveness of the evidence. State v. Jackson, 129 Wn. App.

95, 109, 117 P.3d 1182 (2005).

      We hold that there was sufficient evidence that Homan lured a child under RCW

9A.40.090. The State has met its burden by proving all the necessary elements of luring

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362-65, 90 S. Ct. 1068,

25 L. Ed. 2d 368 (1970).

       A person commits the crime of luring if the person:

              (1 )(a) Orders, lures, or attempts to lure a minor or a person with a
       developmental disability into any area or structure that is obscured from
       or inaccessible to the public, or away from any area or structure
       constituting a bus terminal, airport terminal, or other transportation
       terminal, or into a motor vehicle;

              (b) Does not have the consent of the minor's parent or guardian or
       of the guardian of the person with a developmental disability; and

              (c) Is unknown to the child or developmentally disabled person.

                                             4
No. 88339-4


               (2) It is a defense to luring, which the defendant must prove by a
       preponderance of the evidence, that the defendant's actions were
       reasonable under the circumstances and the defendant did not have any
       intent to harm the health, safety, or welfare of the minor or the person with
       the developmental disability.

RCW 9A.40.090.       Case law defines "lure" as an invitation accompanied by an

enticement. State v. Dana, 84 Wn. App. 166, 176, 926 P.2d 344 (1996).

       The parties do not dispute that Homan was a stranger to C.C.N. and that Homan

did not have C.C.N.'s mother's consent to speak to C.C.N. Thus, the only issue is

whether Homan attempted to lure C.C.N. into an area or structure obscured from or

inaccessible to the public. The Court of Appeals held that the evidence failed to prove

both an invitation and an enticement. We disagree and reverse the appellate court.

  I.   Sufficient Evidence of Invitation and Enticement

       We hold that Homan's statement "[d]o you want some candy? I've got some at

my house" is an invitation and an enticement, proof of which is sufficient to sustain a

luring conviction. RCW 9A.40.090 does not require proof of unlawful purpose or intent.

       The Court of Appeals incorrectly held that Homan's statements did not constitute

an invitation because his words were only an offer of candy and a statement regarding

its location. Homan, 172 Wn. App. at 492-93. But considering Homan's statements in

context, a rational trier of fact could find beyond a reasonable doubt that Homan invited

C.C.N. to his house to receive the offered candy. RCW 9A.40.090 does not require

that a particular form of statement or address be used to lure. Homan's statements can

easily be interpreted as an implied enticement and invitation, even though they are

phrased as a question and an assertion of fact. Accord id. (Hunt, J., dissenting).




                                             5
No. 88339-4


       The Court of Appeals also reasoned that the statements were neither an

invitation nor an enticement because Homan did not slow down or stop, or even look

backward when he spoke. /d. at 492. But the statute does not require that there be

conduct. A person commits the crime of luring if the person "[o]rders, lures, or attempts

to lure .... " RCW 9A.40.090(1 )(a). These acts may be committed with words alone.

See, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1347, 1588 (2002)

("lure" means to "ENTICE"; "order" means to "cOMMAND" or "to give orders"). With his

words, Homan attempted to lure C.C.N. when he told C.C.N. he had candy at his house

and asked if C.C.N. wanted some. Accord Homan, 172 Wn. App. at 494-95 (Hunt, J.,

dissenting).

 II.   Sufficient Evidence That Homan Attempted To Lure a Minor "into" an Area
       Inaccessible to the Public

       Homan also argues that the brief communication he had with C.C.N. does not

prove an attempt to lure C.C.N. inside a house. At most, the evidence shows an

invitation to a house, which does not prove luring, unless the house is on property

obscured from or inaccessible to the public. We reject this argument.

       RCW 9A.40.090 makes it unlawful for any person to invite a child "into any area

or structure" away from the public. Thus, the statute does not require that the invitation

be into an enclosed structure. Rather, it recognizes that some open-air "areas" are

obscured from public access.        Indeed, the provision was amended in 1995 to

specifically address the act of luring minors into a secluded area, whether or not the

area is a structure. H.B. REP. on S.B. 5039, 54th Leg., Reg. Sess. (Wash. 1995). And

because there is no way to go "into" an area without going "to" that area and vice versa,

we reject this distinction. By adding "area" to the statute, the legislature intended to

                                            6
No. 88339-4


make criminal invitations to or into places inaccessible to the public. Requiring that

Homan explicitly invite C.C.N. into his home ignores the plain purpose of the statute.

           In any case, we hold that there was substantial evidence that Homan attempted

to lure C.C.N. "into" a "structure" away from the public. RCW 9A.40.090(1 )(a). A

reasonable trier of fact could have found that an invitation "to a house" implied an

invitation to enter the house to receive the offered candy. See State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992) (all reasonable inferences found from evidence

must be drawn in favor of state). This is unlike State   v.   McReynolds, 142 Wn. App. 941,

176 P.3d 616 (2008), where the defendant signaled for a minor to approach a truck.

The Court of Appeals found that the gesture was "insufficient in and of itself to prove

that Mr. McReynolds was trying to get L.S. into his truck" because McReynolds never

said anything or made any gestures beyond the initial signaling. /d. at 948. By contrast,

Homan, with his words, impliedly invited C.C.N. to his home. Homan told C.C.N. that

he had candy at his house and asked C.C.N. if he wanted some. Thus, we should find

that there was substantial evidence to find that Homan lured C.C.N. into an area or

structure obscured from public view when he asked C.C.N. if he wanted candy located

at Homan's house. 4

    Ill.   Sufficient Evidence That Homan Was Speaking to C.C.N.

           Homan argues that the prosecution failed to prove that Homan's words were

directed at C.C.N. rather than the other two children. We reject this argument because



4 Alternatively, there is sufficient evidence that Homan attempted to lure C.C.N. "into" a
secluded area given that Homan's mobile home is in a rural residential area with few
surrounding homes.



                                              7
No. 88339-4


a reasonable trier of fact could have found that based on the evidence, Homan was

speaking to C.C.N. 5

       Homan rode a bicycle past C.C.N. while traveling in the same direction as C.C.N.

While riding past C.C.N., Homan asked, "do you want some candy? I've got some at

my house." C.C.N. told police that there were two other children in the vicinity when

Homan rode by on his bicycle, but testified that he believed Homan was talking to him

when Homan made the remarks about the candy. 6

       Homan does not offer any evidence that he knew the other children, or that he

was speaking to them. The fact that he did not slow down when he made his remarks

is not evidence that he was addressing the two unidentified children rather than C.C.N.

Thus, we should accept the trial court's finding that Homan was speaking to C.C.N.

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (reviewing court may not

reweigh credibility of witnesses); see also State v. Goodman, 150 Wn.2d 77 4, 781, 83

P.2d 410 (2004) (on sufficiency of evidence challenge, reviewing court must draw

reasonable inferences in favor of state).




5The dissent finds that there is insufficient evidence of an invitation, focusing on the fact that
Homan rode past C.C.N. and never slowed or looked back. This reasoning fails to give proper
deference to the trier of fact-in this case, the trial judge. The trial judge heard the testimony
and found that Homan was, in fact, talking to C.C.N. That is a reasonable inference from the
evidence, and we should not disturb it.

6In his original statement to Sergeant Snaza, C.C.N. indicated that the two children were about
10 feet behind him and it appeared as if Homan was "looking toward the middle" (between
C.C.N. and the other children) when he spoke. At trial, C.C.N. clarified that it was probably
more than 10 feet and that he believed Homan was talking to him. C.C.N. explained that he
did not really understand how far 10 feet was when he made his original statement.



                                                8
No. 88339-4


                                         CONCLUSION

       We hold there was sufficient evidence to support Homan's luring conviction. We

reverse the Court of Appeals and remand for a determination of whether RCW

9A.40.090 is unconstitutionally overbroad in violation of the First Amendment and for

further proceedings consistent with this opinion. 7




7 We agree with the dissent that RCW 9A.40.090 has a broad legitimate sweep; the State has
a substantial interest in protecting children and developmentally disabled persons and may
validly proscribe luring or attempted luring of such persons into vehicles, areas, and structures
for criminal purposes, although that attempt may involve speech. However, we take issue with
portions of the dissent's First Amendment analysis. First, it is true that we generally presume
that legislative enactments are constitutional and the party challenging a statute bears the
burden of proving its unconstitutionality. Dissent at 3. However, in the free speech context,
"'the State usually bears the burden of justifying a restriction on speech."' State v. lmmelt, 173
Wn.2d 1, 6, 267 P.3d 305 (2011) (internal quotation marks omitted) (quoting Voters Educ.
Comm. v. Pub. Disclosure Comm'n, 161 Wn.2d 470,482, 166 P.3d 1174 (2007)). Second, the
dissent dismisses concerns that the statute will be applied against protected speech, finding
that there is little possibility that innocent parties (a student inviting peers to his or her house,
a good Samaritan offering a ride, a bus driver, etc.) will be prosecuted. Dissent at 5. But
selective enforcement does not cure overbreadth. Indeed, a danger inherent in overbroad
statutes is that such statutes provide unbridled administrative and prosecutorial discretion that
may result in selective prosecution based on certain views deemed objectionable by law
enforcement. Little v. City of Greenfield, 575 F. Supp. 656, 662 (E.D. Wis.1983); see Richard
H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 868 n.94 (1991) (rationale
underlying overbreadth doctrine advances two goals: to prevent a "chilling effect[)" on free
speech and to prevent selective enforcement of a statute, which would target and discriminate
against certain classes of people). Last, we question whether the affirmative defense protects
the statute from an overbreadth challenge (dissent at 6) because it applies only after
prosecution has begun. Accordingly, it alleviates neither the risk that protected speech will be
"chilled" nor the danger of selective enforcement. See also Ashcroft v. Free Speech Coal., 535
 U.S. 234, 255, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002) (explaining that an affirmative defense
does not cure overbreadth because the "speaker must himself prove, on pain of a felony
 conviction, that his conduct falls within the affirmative defense").

                                                  9
No. 88339-4




      WE CONCUR.




                   10
State v. Homan




                                      No. 88339-4



      OWENS, J. (dissenting) -       It is a crime to order or lure a child into a secluded

area. This case hinges on what comments or conduct constitute "luring." As the

majority indicates, luring requires an invitation and an enticement. In this case,

Russell David Homan made an extremely inappropriate remark to a child as he rode

by on his bicycle. But given that Homan did not slow down, stop, or even look back

at the child after making the comment, his actions did not constitute an invitation. I

disagree with the majority's conclusion that sufficient evidence supported Homan's

conviction. I also disagree with the majority's decision to avoid Homan's

constitutional challenge. This significant constitutional question has been fully

briefed, and the court should take this opportunity to rule that the statute is not

overbroad. I respectfully dissent.
State v. Homan
88339-4
Owens, J., Dissenting


                                      ANALYSIS

   1. Homan's Conviction Is Not Supported by Sufficient Evidence

       As the majority notes, a "lure" requires an invitation accompanied by an

enticement. Majority at 5 (citing State v. Dana, 84 Wn. App. 166, 176, 926 P.2d 344

(1996). When viewed as a whole, Homan's actions did not constitute an invitation

into a nonpublic structure or area. His words, when viewed in isolation, could be

construed as an offer of candy. However, he spoke those words while riding past

C.C.N. on his bicycle-never slowing, stopping, or even looking back to indicate that

his words were an invitation to follow him to his house. Thus, the evidence is

insufficient to show that he attempted to lure C.C.N. because it does not show an

actual invitation.

       The majority is correct that the statute does not require conduct to elevate

words to the level of an invitation. Majority at 6. But it does require an invitation.

Thus, if a defendant's conduct indicates that the words are not an invitation, then there

is insufficient evidence to support a luring conviction. Homan's actions indicate that

his words did not mean that he was inviting C.C.N. to his house when Homan spoke

while riding past C.C.N and never slowed down or looked back. The interaction must

be viewed as a whole, and the majority improperly focuses on his words in isolation to

find sufficient evidence. Given all the circumstances, there was insufficient evidence

to support a luring conviction and therefore I dissent on this issue.


                                            2
State v. Homan
88339-4
Owens, J., Dissenting


   2. We Should Consider the Constitutional Challenge and Hold That the Luring
      Statute Is Not Unconstitutionally Overbroad

       The majority chooses to remand this case to the Court of Appeals to determine

whether the luring statute violates the constitutional protection against overbroad

criminal statutes. It chooses this option even though both parties have fully briefed

this significant question of law. Though I would hold that Homan's conviction is not

supported by sufficient evidence, I separately disagree with the majority's choice to

remand this important constitutional issue. I would hold that the luring statute is

constitutional.

       Statutes are presumed constitutional, and the party challenging a particular

statute has the burden to prove that it is unconstitutional. City ofBellevue v. Lee, 166

Wn.2d 581, 585, 210 P.3d 1011 (2009). The United States Supreme Court has

articulated the rule for overbreadth challenges as follows:

       The First Amendment doctrine of overbreadth is an exception to [the]
       normal rule regarding the standards for facial challenges. The showing
       that a law punishes a "substantial" amount of protected free speech,
       "judged in relation to the statute's plainly legitimate sweep," suffices to
       invalidate all enforcement of that law, "until and unless a limiting
       construction or partial invalidation so narrows it as to remove the
       seeming threat or deterrence to constitutionally protected expression."

Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003)

(citations omitted) (quotingBroadrickv. Oklahoma, 413 U.S. 601,613,615,93 S. Ct.




                                             3
State v. Homan
88339-4
Owens, J., Dissenting


2908, 37 L. Ed. 2d 830 (1973)). I Finding a statute to be overbroad is "strong

medicine" and should be used "sparingly and only as a last resort." Broadrick, 413

U.S. at 613.

       The concern is "chilling" otherwise constitutionally protected speech,

"especially when the overbroad statute imposes criminal sanctions." Hicks, 539 U.S.

at 119. "[H]owever, there comes a point at which the chilling effect of an overbroad

law, significant though it may be, cannot justify prohibiting all enforcement of that

law." !d. That is particularly true for laws that reflect '"legitimate state interests in

maintaining comprehensive controls over harmful, constitutionally unprotected

conduct.'" !d. (quoting Broadrick, 413 U.S. at 615). That is why the amount of

potentially protected speech affected by the law must be "'judged in relation to the

statute's plainly legitimate sweep."' !d. at 118-19 (quoting Broadrick, 413 U.S. at

615). "The overbreadth claimant bears the burden of demonstrating, 'from the text of

[the law] and from actual fact,' that substantial overbreadth exists." !d. at 122

(alteration in original) (quoting NY. State Club Ass'n v. City ofNew York, 487 U.S. 1,

14, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988)). Importantly, "there must be a realistic

danger that the statute itself will significantly compromise recognized" free speech.



I Whether challenged under the federal or state constitution, the analysis is the same. As
this court has said, "[I]n deciding whether [a law] suffers from overbreadth under article
I, section 5, our analytical approach aligns with the approach taken under the First
Amendment." Bradburn v. N. Cent. Reg'! Library Dist., 168 Wn.2d 789, 801, 231 P.3d
166 (2010) (citing WASH. CONST. art. I,§ 5; U.S. CONST. amend. I).
                                              4
State v. Homan
88339-4
Owens, J., Dissenting


Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S. Ct.

2118, 80 L. Ed. 2d 772 (1984).

       The plainly legitimate sweep ofRCW 9A.40.090(1) outweighs the concern that

legitimate speech may be encroached by its enforcement. Children and the

developmentally disabled are the most vulnerable members of our society, and the

luring statute protects them from some of the most evil types of criminal activity, such

as child abduction. The State has a very strong interest in protecting its most

vulnerable from such attacks. That strong interest must be balanced against the

concern that protected speech will be punished or chilled under the law.

       Homan does not meaningfully engage in this necessary balancing. Rather, he

offers several absurd examples of potentially affected speech while ignoring the

requirement that there must be a "realistic danger" that the statute will curtail

protected speech. !d. For example, students will not fear a luring prosecution when

inviting other students over to talk about school. See Resp't's Second Suppl. Br. at 8.

Similarly, an adult would likely drive a critically injured child to the hospital without

concern of a luring prosecution. See id. And school bus drivers need not worry that

prosecutors will bring luring charges when the driver tells students to "hop in" at a

bus stop. See id. The statute is not designed to target these innocent interactions.

These unrealistic concerns are outweighed by the State's strong interest in protecting

its most vulnerable citizens.


                                             5
State v. Homan
88339-4
Owens, J., Dissenting


       Additionally, the affirmative defense portion of the statute protects individuals

from prosecution for innocent communications with children and the developmentally

disabled. It is an affirmative defense to luring if the defendant shows that his or her

"actions were reasonable under the circumstances and the defendant did not have any

intent to harm the health, safety, or welfare of the minor or the person with the

developmental disability." RCW 9A.40.090(2). Whether or not this section protects

the statute from an overbreadth challenge on its own, it weighs on the side of validity

because it significantly limits the realistic danger that the luring statute will

significantly compromise recognized free speech. Members of City Council, 466 U.S.

at 801. Realistically, it is doubtful that the statute significantly compromises free

speech. The realities of its application in innocent contexts taken with the affirmative

defense clause sufficiently protects free speech.

                                      CONCLUSION

       I would hold that sufficient evidence does not support Homan's conviction for

luring because his conduct indicated that he did not invite C.C.N. into a nonpublic

area or structure. I also disagree with the majority's decision to remand an important

question of constitutional law that has been fully briefed to this court. We should

consider the overbreadth challenge to the luring statute and hold that the statute is

constitutional. I respectfully dissent.




                                              6
State v. Homan
88339-4
Owens, J., Dissenting




                        7
