State v. Barbee
| Citation | 187 Wash.2d 375,386 P.3d 729 |
| Decision Date | 05 January 2017 |
| Docket Number | No. 92771-5,92771-5 |
| Court | United States State Supreme Court of Washington |
| Parties | STATE of Washington, Respondent, v. Shacon Fontane BARBEE, Petitioner. |
David L. Donnan, Meryhew Law Group, 600 1st Ave., Ste. 512, Seattle, WA, 98104-2253, Maureen Marie Cyr, Washington Appellate Project, 1511 Third Avenue, Suite 701, Seattle, WA, 98101-3647, for Petitioner.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.
¶1 At issue in this case is whether a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved. We have not previously considered the unit of prosecution for second degree promoting prostitution. In light of the statute's plain language and prior decisions of this court, we affirm the Court of Appeals and hold that the legislature expressed its clear intent to authorize multiple convictions when one pimp exploits multiple individuals.
¶2 Additionally, after the court accepted review of this case, the parties discovered that the defendant's exceptional sentence for one of his other convictions exceeded the statutory maximum. The defendant requests resentencing, and the State concedes that resentencing is appropriate. We remand for resentencing on that count.
¶3 Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee "supervised" during 2010 were SE, BK, and CW.
¶4 SE met Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work "the track" (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She testified at trial that she was expected to make $1,000 a day or stay up at night until she met that quota. All of her earnings went to Barbee.
¶5 Barbee required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in "escorting." During 2010, two of the women she recruited on Barbee's behalf were two 18-year-olds, BK and CW.
¶6 SE recruited 18-year-old BK to work for Barbee in April 2010. While BK was living with her aunt in Seattle, SE found BK's Facebook page. The two started to communicate and comment on each other's photos. SE convinced BK to meet her at a room in the Sutton Suites hotel in SeaTac where they could "hang out and chill." Verbatim Report of Proceedings (VRP) (Aug. 22, 2013) at 107.
¶7 BK met SE at the motel room, where SE introduced her to Barbee. He told BK that she would be working for him as an escort, that all the money she earned would go to him, and that he would provide her with everything she needed to make her life and her daughter's life better. BK soon began working as a prostitute for Barbee, initially working out of a motel room and later moving to "the track."
¶8 On March 25, 2010, police received a complaint of potentially juvenile prostitutes working out of a room at the Sutton Suites. Police responded and found SE and BK inside the hotel room, along with prostitution and "pimping" paraphernalia. After BK was arrested and then released from jail, she went to her parents' house, intending to stop working for Barbee.
¶9 A few months later, Barbee texted BK and convinced her to come to his apartment in Seattle, BK soon began living in the apartment and working for Barbee again. She testified at trial that Barbee took the keys to her car and refused to return them, would not allow her to leave the apartment during the day, and allowed her to go shopping or visit her daughter only if he accompanied her.
¶10 At some point in late 2010, BK left and stopped working for Barbee permanently.
¶11 Eighteen-year-old CW also worked for Barbee during 2010, but for a comparatively short time. She was living in Bellingham and working at a nursing home when SE began communicating with her via MySpace in early May. Excited about the idea of becoming more independent, CW packed her bags, borrowed a friend's car, and moved to Seattle to meet SE at a Motel 6 on Pacific Highway South. Once she arrived, CW was told that she would be working for Barbee as an escort, that all of her money would go to him, and that he would provide her with clothes, jewelry, and a place to live.
¶12 The next day, CW began working for Barbee as a prostitute. CW would host "dates" out of a motel room, and Barbee would drive her to "out-calls." Barbee took photos of CW and set up online advertisements for her on Backpage.com. Again, any money she earned went to Barbee.
¶13 A few weeks later, CW became disillusioned and texted Barbee that she was quitting. While Barbee was driving SE to a dentist's appointment, CW packed her bags and asked her grandmother to pick her up. She left and never had contact with Barbee again.
¶14 That December, SE arranged online to meet a client for an out-call at the Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she went inside. The client she had arranged to meet turned out to be an undercover officer. When SE arrived and agreed to have sex with the detective, she was arrested. After a short car chase, police officers arrested Barbee as well.
¶15 After arresting Barbee, police seized his iPhone as evidence and secured a warrant to search its contents. The detectives recovered approximately 12,000 text messages from between May and December 2010, many of which were exchanged between Barbee and SE, CW, and BIC. The police also obtained Backpage.com records that showed Barbee had paid for numerous prostitution-related ads. They searched storage units rented to Barbee and found more pimping- and prostitution-related items, as well as financial records and a safe containing large amounts of cash.
¶16 The State charged Barbee with two counts of promoting sexual abuse of a minor (SE), one count of first degree promoting prostitution (BK), one count of second degree promoting prostitution (CW), one count of leading organized crime, two counts of first degree theft from the Social Security Administration, and one count of second degree theft from the Department of Social and Health Services (DSHS).1 The jury found Barbee guilty on all counts, except that they found him guilty of the lesser included offense of second degree promoting prostitution of BK. The jury made a special finding that promoting commercial sexual abuse of SE was part of a pattern of abuse over a "prolonged period of time," and the court imposed exceptional sentences of 420 months for the first two promoting commercial sexual abuse of a minor (PCSAM) convictions. Clerk's Papers (CP) at 308, 332. The Court of Appeals affirmed all of Barbee's convictions. State v. Barbee , 192 Wash.App. 1001, 2015 WL 9462041.
¶17 Barbee petitioned for review on several issues. This court granted review only as to the unit of prosecution issue in relation to the two promoting prostitution charges and the issue of the exceptional sentence imposed for the first count of PCSAM. State v. Barbee , 185 Wash.2d 1025, 377 P.3d 714 (2016).
¶18 Barbee claims that the two counts of promoting prostitution of BK and CW constitute a single unit of prosecution, or that he committed a single "enterprise" of promoting prostitution that involved two prostitutes. He contends that his two convictions for promoting prostitution of "different women as part of the same enterprise over the same period of time" encompassed a single unit of prosecution in violation of the double jeopardy prohibition clauses of our federal and state constitutions. See U.S. CONST. amend. V ; WASH. CONST. art. I, § 9. We review double jeopardy claims de novo. State v. Hughes , 166 Wash.2d 675, 681, 212 P.3d 558 (2009).
¶19 Double jeopardy is violated when a person is convicted multiple times for the same offense. State v. Adel , 136 Wash.2d 629, 632, 965 P.2d 1072 (1998). When the convictions are under the same statute, the court must ask what " ‘unit of prosecution’ " the legislature intended as the punishable act under the specific criminal statute. Id. Both constitutions protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. State v. Tvedt , 153 Wash.2d 705, 710, 107 P.3d 728 (2005) (quoting State v. Westling , 145 Wash.2d 607, 610, 40 P.3d 669 (2002) ), Thus, while a unit of prosecution inquiry is "one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent." Adel , 136 Wash.2d at 634, 965 P.2d 1072.
¶20 When engaging in statutory interpretation, our goal is to ascertain and carry out the intent of the legislature. In re Marriage of Schneider , 173 Wash.2d 353, 363, 268 P.3d 215 (2011).
To determine legislative intent and thus define the proper unit of prosecution, we first look to the statute's plain meaning. State v. Varnell , 162 Wash.2d 165, 168, 170 P.3d 24 (2007) ; Adel , 136 Wash.2d at 635, 965 P.2d 1072. If the plain meaning of the statute is ambiguous, we may also determine legislative intent by reviewing legislative history. Hughes , 166 Wash.2d at 684, 212 P.3d 558.
¶21 Once we have defined the proper unit of prosecution, we perform a factual analysis to ascertain whether the facts in a particular...
To continue reading
Request your trial
-
State v. Waller
...When engaging in rule interpretation, we avoid constructions that yield unlikely, absurd, or strained consequences. State v. Barbee, 187 Wash.2d 375, 389, 386 P.3d 729 (2017). If the plain meaning of a rule is unambiguous, our inquiry is at an end. State v. Gonzalez, 168 Wash.2d 256, 263, 2......
-
In re Pers. Restraint of Williams
...and relevant case law to discern legislative intent. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010); State v. Barbee, 187 Wn.2d 375, 383, 386 P.3d 729 (2017). Only if the statute remains ambiguous after we apply the traditional canons of construction do we apply the rule of lenity ......
-
In re Pers. Restraint Petition France
...unit of prosecution " 'ultimately revolves around a question of statutory interpretation and legislative intent.' " State v. Barbee, 187 Wash.2d 375, 382, 386 P.3d 729 (2017) (quoting Adel, 136 Wash.2d at 634, 965 P.2d 1072 ). The goal of statutory interpretation is to ascertain and carry o......
-
State v. Canter
...the unit of prosecution. In re Pers. Restraint Petition of France, 199 Wash. App. 822, 833, 401 P.3d 336 (2017) ; State v. Barbee, 187 Wash.2d 375, 382, 386 P.3d 729 (2017). Statutory interpretation is a question of law that we review de novo. State v. Womac, 160 Wash.2d 643, 649, 160 P.3d ......