State v. Bertolacci

CourtCourt of Appeals of Washington
Docket Number53320-1-II
Decision Date08 September 2021



No. 53320-1-II

Court of Appeals of Washington, Division 2

September 8, 2021


Veljacic, J.

Richard Bertolacci appeals his convictions for attempted rape of a child in the first degree and attempted rape of a child in the second degree following a jury trial. He argues that there was insufficient evidence to sustain the first degree conviction because he did not take a substantial step toward committing that crime, nor did he have the intent to commit that crime. Bertolacci further argues that the two convictions violate his right against double jeopardy because they were based on a single unit of prosecution. Finally, he argues that he received ineffective assistance of counsel based on his attorney's failure to argue at sentencing that the two crimes constituted same criminal conduct and his failure to request a jury instruction on entrapment.

We conclude that sufficient evidence supports the conviction for attempted rape of a child in the first degree and that the two convictions do not violate the prohibition against double jeopardy. We further conclude that Bertolacci did not receive ineffective assistance of counsel because the two crimes do not constitute same criminal conduct, and he was not entitled to an instruction on entrapment. Accordingly, we affirm.


On March 22, 2018, Bertolacci responded to a Craigslist ad placed by Washington State Patrol Detective Sergeant Carlos Rodriguez as part of an undercover operation called, "Net Nanny." 1 Report of Proceedings (RP) at 251. The ad, placed in the "woman looking for man" section, was titled "Daddy wanted for daughter FunFamilySecrets ddlg-w4m." Clerk's Papers (CP) at 4. The body of the ad said:

Mommy in need of Daddy for daughter. can you keep a secret We can. Discretion needed. Must be patient and no pain. If you think u [sic] are right for this then reply I am very selective reply with your name and favorite movie so I know you are real and not a bot. ddlg. taboo. generous a plus

CP at 4.

Bertolacci responded to the post
Hi I don't have a favorite movie but my name is Rich. If your [sic] still looking for a daddy, let me know and lets [sic] see if we're both on the same page. I have to agree with you I am not into any kind of pain, giving or receiving [sic]. I am WM looking to play with a steady woman. are you her? If your [sic] real I can give you more info. I would like the same from you.

CP at 5.

Detective Kristl Pohl, posing as the "mother" replied, "THis isn't for me this is for my daughters. I was raised this way by my dad and I'm looking for the same for my girls. This is very taboo. if this isn't for you, just don't judge please." CP at 5. The following exchange occurred:

[Bertolacci]: It is not for me to judge. The only thing I would ask is how old is your daughter?? And is she willing to do it.
[Mother]: my girls are 12 and 8 and they have experience with this that they loved. I'm very open with the girls and tell them everything.
[Bertolacci]: Ok. Is this for a full time daddy or one that comes and goes as you need him??
[Mother]: I would prefer full time but that is hard to find. I want them to have some consistency that they trust fully
[Bertolacci]: I understand the full time. It would be better if they had someone around that they could put their trust in. So basically your [sic] saying it would be like a foursome at times???
[Mother]: I wouldn't be involved except to make sure the girls are safe and having fun. I want them to have their own special man that's just about them.
[Bertolacci]: . . . Yes iam [sic] still interested but you will have to tell me how you want it to play out. would you tell me what county you [sic] in so I know if your [sic] near or far. Thanks.
[Mother]: we are staying at a place near Port Hadlock. if your [sic] interested in continueing [sic] this then please text me 360-209-7235
[Bertolacci]: Yes I am interested otherwise I would not have written to you again. We are somewhat close to one another. I am in the Bremerton area. I prefer not to text just yet. I would like to know you better then we could proceed with the texting. would you like to meet somewhere??
[Mother]: ok well CL personals got shut down by the Feds so I'm not sure how long the emails are going to work and it makes me nervous to keep using.

CP at 89-92.

Bertolacci gave her his e-mail address and the conversation continued:

[Bertolacci]: Well I think we have the formalities out of the way. Would you still to [sic] meet. We can meet in your area if you like.
[Mother]: I'm still not sure what your [sic] interest is in this yet? not ready to meet you if I don't know
[Bertolacci]: well you mentioned taboo stuff that you said you wanted to do You were brought up that way. and you wanted your siblings to experience the same thing. I am hoping I can help you with that. with out [sic] being to [sic] explicit.
[Mother]: this is for my girls they are 12 and 8. they have some experience with a man already but he moved and they really want that again
[Bertolacci]: Well that is why I am still in contact with you. But if we get together we will have to take is [sic] slow and easy.
[Mother]: yes of course. they love being taught and have responded well in the past to slow and gentle and fun
[Bertolacci]: will you be there to show them what to do??
[Mother]: yes of course. I will be there to make sure the girls are safe and having fun
[Bertolacci]: ok I think were [sic] both on the same page.
[Bertolacci]: It is up to you now if we meet or not. If you want to know more about me just ask the questions
[Mother]: . . . what would you want to do as their teacher?
[Bertolacci]: [. . .] What would I want to do as their teacher. First off I would like to get to know them a little bit. You said they have some experience at this. So first off I would like to get them comfortable with me. I would teach them nice feelings giving and receiving.
No pain at all. I don't think there should be any pain involved. they can try that when they are older. Also to take their time and enjoy what they are doing. I think it would help if you told me how much experience they have before hand [sic]. I am very gentle
[Mother]: that sounds nice
they have both given and received oral. they both play with toys and have their own vibrators. Mandy the 12 year old has been partially penetrated but he was a little to [sic] big and they didnt [sic] push it
[Bertolacci]: Ok so they do have some experience with it. That makes it a little easier as to what to expect. I think sex is great if it is done right.
[Mother]: i agree and thats [sic] what I really want them to learn. If only all first experiences could be good. . . .
They really enjoyed the time they spent leaning [sic] with my friend before he moved over the summer.
[Bertolacci]: Is Mandy old enough to have an orgasm
[Mother]: yes she can orgasm.
[Bertolacci]: ok Sounds like she is well on her way to being a young woman
[Bertolacci]: Well Kelly I think I am going to call it a night. I am going to hit my bed. Let me know what you would like to do one way or another. Good night
[Mother]: ok hun email me tomorrow if you want to have a visit
[Bertolacci]: good morning. are you up?? Yes I would like to have a visit
. . . .
[Mother]: I would like that but we need to discuss rules and expectations first hun
[Bertolacci]: Yes we need to discuss the rules. I will not overstep my boundaries You can take my word on that. You let me know what they are please
[Mother]: rules are no pain no anal and condoms are required and lube
I wont [sic] send you my address until we agree on a place for you to go close to my house and then when you send me a pic to prove your [sic] actually there i will give you my address.

CP at 94-99.

They then arranged a time for Bertolacci to drive to Port Haddock and continued:

[Mother]: [. . .] will you be bringing condoms and lube hun? I want the girls to know what to expect from you today
[Bertolacci]: Yes I will bring condoms and lube. Please remember I will be nervous the first time with them. But I want them to enjoy themselves I guess you told them you have a friend coming over??
[Mother]: yes of course they know. I tell them everything. they are excited
[Bertolacci]: Well I am a little worked up too. lol
[Bertolacci]: I don't want to sound like a whiner but good hygiene is a must. for all I will be freshly showered. also please send me the place you want to meet me so I can put it into the GPS.

CP at 100-01.

They agreed to meet at the QFC in Port Haddock to have Bertolacci follow up for additional directions. When Bertolacci arrived at the QFC, he sent a text message to the detective posing as the "mother" saying he had arrived. The detective asked again if he brought condoms and lube, Bertolacci replied affirmatively and she gave him the address. Bertolacci arrived at the given address and entered the house. After a brief conversation with the detective in the entryway, Bertolacci was arrested. He had condoms, lubricant gel, and pills for erectile dysfunction in his possession.

Bertolacci cooperated with law enforcement and consented to a complete search of his phone, truck, and computers. The State charged Bertolacci by amended information with attempted rape of a child in the first degree and attempted rape of a child in the second degree.

At trial, Rodriguez testified that ads placed in the "Casual Encounters" section of Craigslist were known for being used to arrange "no strings attached" sexual encounters. 1 RP at 255. He also testified that...

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