State v. Halstien

• Citation: 857 P.2d 270,122 Wn.2d 109
• Decision Date: 19 August 1993
• Docket Number: No. 59491-1,59491-1
• Parties: , 62 USLW 2167 STATE of Washington, Respondent, v. Steve HALSTIEN, a/k/a Steven Marcus Halstine, Petitioner. En Banc
• Court: United States State Supreme Court of Washington

Page 109

122 Wn.2d 109

857 P.2d 270, 62 USLW 2167

STATE of Washington, Respondent, v. Steve HALSTIEN, a/k/a Steven Marcus Halstine, Petitioner.

No. 59491-1.

Supreme Court of Washington,

En Banc.

Aug. 19, 1993.

Mary Jane Ferguson, Washington Appellate Defender Ass'n, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Theresa Fricke, Sr. Pros. Atty., Teri Luken, Deputy, Seattle, for respondent.

JOHNSON, Justice.

Steve Halstien seeks review of a Court of Appeals decision affirming his second degree burglary conviction with a finding of sexual motivation. At issue is whether the juvenile sexual motivation statute is unconstitutionally vague and overbroad, and whether the evidence is sufficient to support the court's finding that a motive for the burglary was sexual gratification. We affirm.

I

Halstien, a juvenile, was accused of burglarizing the house of C.B., a female customer on his newspaper route. In addition to charging Halstien with second degree burglary, the prosecutor alleged the crime was sexually motivated within the meaning of RCW 13.40.135, the juvenile sexual motivation statute. At a fact-finding hearing, the parties agreed Halstien burglarized C.B.'s house; thus, the only issue was whether the burglary was sexually motivated.

Halstien delivered newspapers to C.B. from June 1989 to the date of the burglary, November 3, 1990. He collected payment for the newspaper at her house every couple of months, and C.B. saw him in the neighborhood on his bicycle or skateboard about three times a week. According to C.B., Halstien acted overly familiar when collecting payment and asked inappropriate questions about her clothes, stereo, car, and house. Halstien occasionally hung around while C.B. was in her yard, watching her and asking questions about the value of various personal items.

In April 1990, C.B. asked her secretary to call the newspaper and cancel her subscription in part because Halstien "gave [her] the creeps when he came to the door and collected". Despite her requests, Halstien continued to deliver the newspaper. Beginning in March 1990, C.B. began hearing noises outside after midnight and, in the morning, would find her fence gate open. She also began to notice window screens missing and would find burn holes in the screens near the latches.

On the Friday night prior to the burglary, Halstien came to collect for the paper between 9:30 and 10 p.m. Halstien asked C.B. if he had woken her and if she had to get dressed to come to the door. She responded, "no". C.B. testified the questions were inappropriate and made her feel very uncomfortable. Nevertheless, she did not find it odd for Halstien to collect so late because she was rarely home in the evening and Halstien had been unable to collect for 2 months.

On the night of the burglary, C.B. left her house at about 7 p.m. and returned around 1 a.m. She saw nothing out of place before she went to bed. About 7:30 in the morning, she awoke to a noise upstairs, called out, and heard a window open. While on the telephone to the police, she noticed the bathroom window was broken. While going through the house with the police, C.B. found that a box of photographs, which she had previously organized, had been removed from the shelf in the loft area upstairs. Some of the pictures had been dropped on the floor, and others were "in a chair across the room in specific little piles". Report of Proceedings, at 24. All of the pictures were of C.B., either alone or with other people. Muddy footprints were found in the bathroom, the family room, and in C.B.'s bedroom around both sides of the bed where she had been sleeping. C.B.'s four televisions, three VCR's, two stereos, paintings, artwork, jewelry, and purse had not been touched, including over $200 in her wallet. The only items taken from the house were a box of condoms and a vibrator, both of which had been in one of the nightstands next to C.B.'s bed. The vibrator was found, broken, in a park located behind C.B.'s house. The condom box was found, empty, in a trash can.

At the hearing, Officer Shawn Riley testified he found a framed picture of C.B. and her sister, which had been moved from the kitchen to the family room sofa. As he dusted the frame for fingerprints, he "noticed a funny substance on it that [he] ... knew [ ] wasn't something that was normal". Riley said that, based on his "training and experience [he believed] ... the substance was either semen or some type of bodily fluid". Report of Proceedings, at 90. Detective John Haslip testified he had looked at the frame and noticed "some type of liquified substance that had been deposited on the frame" and had run down the front of the glass. Report of Proceedings, at 149. Because some of the fingerprint powder had gotten on the frame, the frame could not be tested accurately to determine if the substance was semen.

Halstien first denied but then admitted he had burglarized the house. He claimed he broke in looking for money because he was mad at C.B. who owed him money for the papers. At first, he stated he did not find any money or take anything; later he admitted taking the condoms and vibrator from the nightstand, but did not know why he took them. Halstien stated he threw the vibrator against a tree, kept the condoms, and threw the box away. He also admitted looking at the photographs and admitted burning holes in the window screens during the burglary. Halstien claimed the burglary occurred the evening before between 8 and 10 p.m. when C.B. was not home. According to C.B., however, when she left the house that evening, she activated her burglar alarm, including motion detectors, that would have been tripped had Halstien committed the burglary that evening.

The trial court found the burglary had occurred during the morning when C.B. was home, and that a primary motive for the burglary was Halstien's sexual gratification. The court concluded Halstien committed second degree burglary with sexual motivation. At the disposition hearing, the court found that sentencing Halstien in the standard range would result in manifest injustice, based on three factors: (1) Halstien's actions both before and during the burglary demonstrated predatory, obsessive behavior toward the victim, C.B.; (2) Halstien was again arrested for second degree burglary, this time armed with knives, while awaiting trial for the first offense; and (3) a sex offender therapist found Halstien to be at a high risk to reoffend. Clerk's Papers, at 31. The court sentenced him to 104 weeks at the department of juvenile rehabilitation and provided him with written notice pursuant to RCW 10.01.200 of the requirement that he register as a sex offender under RCW 9A.44.130 upon his release.

The Court of Appeals affirmed Halstien's conviction and held the juvenile sexual motivation statute is not unconstitutionally vague or overbroad. State v. Halstien, 65 Wash.App. 845, 829 P.2d 1145 (1992). This court granted Halstien's petition for review under RAP 13.4(b)(3), as well as Halstien's motion to supplement his petition to add the issue of whether Halstien is required to register as a sex offender.

II

In 1990, the Legislature enacted the Community Protection Act, which includes a provision whereby a prosecutor may add a special allegation of sexual motivation in criminal cases other than sex offenses. Laws of 1990, ch. 3, §§ 601, 604 (codified at RCW 13.40.135; RCW 9.94A.127). The Legislature provided separate sexual motivation statutes for both juveniles and adults. ¹ RCW 13.40.135; RCW 9.94A.127. The juvenile statute states:

(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.

RCW 13.40.135(1)-(3). A finding of sexual motivation may be considered as an aggravating factor in sentencing determinations. RCW 13.40.150(3)(i)(v); RCW 9.94A.390(2)(e). ² Halstien challenges the juvenile sexual motivation statute as both unconstitutionally vague and overbroad. We first address his vagueness claim.

A

The due process vagueness doctrine under U.S. Const. amend. 14, § 1 and Const. art. 1, § 3 ³ serves two important purposes: first, to provide citizens with fair warning of what conduct they must avoid; and second, to protect them from arbitrary, ad hoc, or discriminatory law enforcement. Tacoma v. Luvene, 118 Wash.2d 826, 844, 827 P.2d 1374 (1992); Seattle v. Eze, 111 Wash.2d 22, 26, 759 P.2d 366, 78 A.L.R.4th 1115 (1988); State v. Richmond, 102 Wash.2d 242, 243-44, 683 P.2d 1093 (1984).

Halstien argues the juvenile sexual motivation statute is unconstitutionally vague both on its face and as applied to him. A criminal defendant may bring a facial vagueness challenge if the statute implicates First Amendment rights such as free speech or free association. State v. Sigman, 118 Wash.2d 442, 445-46, 826...