State v. Billups, 25042-6-I

• Decision Date: 29 July 1991
• Docket Number: No. 25042-6-I,25042-6-I
• Citation: 813 P.2d 149,62 Wn.App. 122
• Parties: STATE of Washington, Respondent, v. Leon Dale BILLUPS, Appellant.
• Court: Washington Court of Appeals

Page 122

62 Wn.App. 122

813 P.2d 149

STATE of Washington, Respondent, v. Leon Dale BILLUPS, Appellant.

No. 25042-6-I.

Court of Appeals of Washington Division 1.

July 29, 1991.

Washington Appellate Defender Philip Lynch, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Craig Peterson, Deputy, Seattle, for respondent.

BAKER, Judge.

Leon Dale Billups appeals his conviction on two counts of attempted kidnapping in the second degree. We affirm.

At approximately 1 p.m. on July 7, 1989, two girls, ages 10 and 11, were walking toward the Ballard locks, where they planned to picnic. As they approached the intersection of 58th and 32nd Streets, one of the girls noticed an orange Volkswagen van. The van stopped at the intersection as the girls prepared to cross the street in front of it. The driver of the van, Billups, leaned out of the window and said, "Hi girls. I'll pay you a dollar if you'll come down to Shilshole with me." Frightened, the girls ran across the street to a nearby house where they were allowed to use the telephone to call one of their mothers. The incident was promptly reported to the police, who responded to the call and obtained a description of the vehicle and its driver from the two girls. The officers drove to Golden Gardens Park, located at the northern end of Shilshole Bay, where they found a vehicle matching the description given by the girls. Billups was sitting alone in the vehicle, and as one of the officers approached, he lay down on the floor of the vehicle in an apparent effort to avoid detection. After Billups exited the van, one of the officers noticed a small homemade knife taped to the driver's side door and a large hunting-type knife on the floor next to the passenger door.

After his arrest, Billups initially denied any contact with the girls. He later acknowledged that he had lied because he was scared, and that he had in fact spoken to the girls. He claimed he told the girls, "I'd give you a dollar if you tell me where Woodland Park is."

At trial, 11-year-old A.H. was permitted to testify over objection that in June 1989, she saw an orange Volkswagen van parked within one or two blocks of the incident herein. After she exited her school bus, the van pulled up and stopped near her. The driver stepped part of the way out of the van and began to ask her questions. He said " 'Hi. How are you?' ... 'Where are you going and what are you doing?' " This alarmed her and she went directly home. Although A.H. was unable to identify Billups from a photo montage shortly after the incident, she was able to identify him as the driver of the van at trial.

I. SUFFICIENCY OF EVIDENCE

Billups first contends that the evidence is insufficient, arguing that it showed neither the requisite criminal intent nor that he made a substantial step toward the commission of the crime. He asserts that although the evidence may have shown an intent to entice the girls into the van, it fell short of showing an intent to abduct them.

The elements of kidnapping in the second degree are set forth in RCW 9A.40.030 as follows:

(1) A person is guilty of kidnapping in the second degree if he intentionally abducts another person under circumstances not amounting to kidnapping in the first degree.

"Abduct" is defined in RCW 9A.40.010:

(2) "Abduct" means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force[.]

"Restrain" is also defined in RCW 9A.40.010:

(1) "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, or (b) any means including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and if the parent, guardian, or other person or institution having lawful control or custody of him has not acquiesced.

The elements of criminal attempt are set forth in RCW 9A.28.020:

(1) A person is guilty of an attempt to commit [a] crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.

The State bears the burden of proving each and every element of the crime charged beyond a reasonable doubt. State v. Aver, 109 Wash.2d 303, 310, 745 P.2d 479 (1987). The applicable standard of review is " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) Aver, 109 Wash.2d at 310-11, 745 P.2d 479 (quoting State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980)). Criminal intent may be inferred from circumstantial evidence, State v. Caliguri, 99 Wash.2d 501, 506, 664 P.2d 466 (1983) or from conduct, where the intent is plainly indicated as a matter of logical probability. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

Whether conduct constitutes a "substantial step" toward the commission of a crime is a question of fact. State v. Workman, 90 Wash.2d 443, 449, 584 P.2d 382 (1978). In Workman, the court adopted the Model Penal Code approach to the definition of a substantial step. "Under the code, conduct is not a substantial step 'unless it is strongly corroborative of the actor's criminal purpose.' " Workman, 90 Wash.2d at 451, 584 P.2d 382 (quoting Model Penal Code § 5.01(2) (Proposed Official Draft, 1962)). ¹ The Model Penal Code provides that "enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission" may constitute a substantial step toward the commission of an offense. Workman, 90 Wash.2d at 451-52 n. 2, 584 P.2d 382 (quoting Model Penal Code § 5.01(2)(b)).

Based upon these principles, we hold that the trier of fact could properly have found Billups' actions sufficient to demonstrate both that he took a substantial step toward the commission of second degree kidnapping and that he had an intent to abduct. By offering the girls a dollar if they would go to Shilshole with him, Billups sought to entice the girls into his van. If the girls had complied, their movements would have been restrained by their presence in the van, and the restraint would have been "without consent" as they were both under age 16 and no parental consent had been given. See RCW 9A.40.010. Once they were restrained in the van, Billups would have been secreting or holding the girls in a place where they were not likely to be found. See RCW 9A.40.010(2). Thus, Billups' efforts to entice them into the van constituted a substantial step. ²

Furthermore, Billups' conduct was strongly corroborative of a criminal intent to kidnap the girls. He suggested a location a child might find appealing, he offered the girls a bribe to accompany him there, and when the police arrived, he attempted to avoid detection. This conduct plainly indicates the requisite criminal intent as a matter of logical probability. Viewing the evidence in a light most favorable to the prosecution, therefore, a rational trier of fact could have found the essential elements of attempted second degree kidnapping beyond a reasonable doubt.

II. OVERBREADTH

Billups next contends that the criminal attempt statute and the second degree kidnapping statute cannot be construed so as to criminalize his conduct without rendering the statutes unconstitutionally overbroad. He argues that such a construction would criminalize the act of any adult offering a ride to a juvenile, regardless of the adult's lack of criminal intent. We disagree.

Our Supreme Court recently outlined the overbreadth doctrine in Seattle v. Webster, 115 Wash.2d 635, 802 P.2d 1333 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 1690, 114 L.Ed.2d 85 (1991):

A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. The First Amendment overbreadth doctrine may invalidate a law on its face only if the law is "substantially overbroad." In determining overbreadth, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Criminal statutes require particular scrutiny and may be facially invalid if they "make unlawful a substantial amount of constitutionally protected conduct ... even if they also have legitimate application."

Webster, 115 Wash.2d at 641, 802 P.2d 1333 (quoting Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989)).

The Webster court went on to hold that language requiring a specific criminal intent saved a criminal ordinance from unconstitutional overbreadth. Webster, 115 Wash.2d at 642, 802 P.2d 1333. Billups' overbreadth challenge must similarly fail. RCW 9A.40.030 requires that a person act with intent to abduct. This criminal intent element sufficiently narrows the scope of the challenged statutes so as to save them from claims of unconstitutional overbreadth.

III. VAGUENESS

Billups next argues that a person of ordinary intelligence would not reasonably conclude that a non-threatening verbal attempt to get two children inside a vehicle is an act that goes beyond mere solicitation. Therefore, he asserts, the term "substantial step" in the criminal attempt statute, as applied herein, is unconstitutionally vague. Again, we disagree.

The "void for vagueness" doctrine was recently set forth in Seattle v. Huff, 111 Wash.2d 923, 928-29, 767 P.2d 572 (1989), quoted in Seattle v. Webster, 115 Wash.2d at 643, 802 P.2d 1333 Under this analysis, the factual setting of this case is irrelevant and we look only to whether " ' ... any conviction under the statute could be constitutionally upheld.' " An ordinance is presumed constitutional and the party challenging the constitutionality of the law has the burden of proving it is...