State v. Homan

• Decision Date: 15 December 2015
• Docket Number: No. 42529–7–II.,42529–7–II.
• Citation: 364 P.3d 839,191 Wash.App. 759
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Russell David HOMAN, Appellant.

191 Wash.App. 759

364 P.3d 839

STATE of Washington, Respondent,

v.Russell David HOMAN, Appellant.

No. 42529–7–II.

Court of Appeals of Washington, Division 2.

Dec. 15, 2015.

As Corrected Feb. 11, 2016.

Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.

MAXA, J.

¶ 1 Russell Homan appeals his conviction for luring under RCW 9A.40.090. He argues that RCW 9A.40.090 is unconstitutionally overbroad both facially and as applied to the facts of his case. We hold that the luring statute as written is facially overbroad. However, pursuant to our obligation to adopt a limiting construction that will render the statute constitutional, we imply a criminal intent element for the crime of luring under RCW 9A.40.090. Because the trial court was not aware that it was required to find criminal intent in order to convict Homan, we reverse Homan's conviction and remand for a new trial.

FACTS

¶ 2 In August 2010, Homan rode past nine-year-old CCN on his bicycle and said "[D]o you want some candy? I've got some at my house." Clerk's Papers (CP) 3–4. CCN said nothing in response, but reported the incident to his mother and the police. Homan was charged and convicted of luring under RCW 9A.40.090 in a bench trial.

¶ 3 Homan appealed his conviction, arguing that there was insufficient evidence to support his conviction and that RCW 9A.40.090 was unconstitutionally overbroad. This court held that there was insufficient evidence to support Homan's luring conviction, and therefore did not reach Homan's overbreadth argument. State v. Homan, 172 Wash.App. 488, 492–93, 290 P.3d 1041 (2012), rev'd, 181 Wash.2d 102, 330 P.3d 182 (2014). The State appealed to the Supreme Court. The Supreme Court held that there was sufficient evidence to support Homan's luring conviction, and remanded the case to this court to determine whether RCW 9A.40.090 is unconstitutionally overbroad. Homan, 181 Wash.2d at 110–11, 330 P.3d 182.

ANALYSIS

A. STATUTORY LANGUAGE

¶ 4 RCW 9A.40.090 provides in part, that 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.

(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.

For purposes of this statute, "minor" refers to a person under the age of 16 and a "person with a developmental disability" means a person with a developmental disability as defined in RCW 71A.10.020(5). RCW 9A.40.090(3)(a)–(b).

¶ 5 The legislature has not defined the terms "lure" and "luring." State v. McReynolds, 142 Wash.App. 941, 947, 176 P.3d 616 (2008). However, case law defines "lure" as an invitation accompanied by an enticement. Homan, 181 Wash.2d at 107, 330 P.3d 182 ; State v. Dana, 84 Wash.App. 166, 176, 926 P.2d 344 (1996).

¶ 6 RCW 9A.40.090 does not require a defendant to engage in any conduct to commit the crime of luring. Homan, 181 Wash.2d at 108, 330 P.3d 182. Luring may be committed with words alone. Id. In addition, RCW 9A.40.090 as written contains no criminal intent requirement. Dana, 84 Wash.App. at 175, 926 P.2d 344.

B. FACIAL OVERBREADTH CHALLENGE

¶ 7 Homan argues that RCW 9A.40.090 is facially overbroad under the First Amendment because it criminalizes a substantial amount of constitutionally protected speech.¹ The State argues that although RCW 9A.40.090 does apply to some constitutionally protected speech, it does not prohibit a substantial amount of such speech. The State also argues that the affirmative defense in RCW 9A.40.090(2) cures any overbreadth problems. We hold that the statute as written is facially overbroad and that the affirmative defense in RCW 9A.40.090(2) does not cure the statute's overbreadth.

1. Burden of Proof

¶ 8 A facial challenge to a law on First Amendment grounds does not require us to address the specific facts of the case—whether the defendant's actual speech was constitutionally protected. State v. Immelt, 173 Wash.2d 1, 7, 267 P.3d 305 (2011). The question is whether the law improperly infringes on protected speech in general. Id.

¶ 9 We presume that statutes are constitutional, and the party challenging the statute generally bears the burden of proving its unconstitutionality. Id. at 6, 267 P.3d 305. However, the Supreme Court in Immelt stated that the burden shifts when a statute is challenged in the free speech context, and the State usually bears the burden of justifying a statute that restricts free speech. 173 Wash.2d at 6, 267 P.3d 305 ; see also Voters Educ. Comm. v. Pub. Disclosure Comm'n,

161 Wash.2d 470, 482, 166 P.3d 1174 (2007). The Supreme Court in this case addressed this issue in a footnote in this case when responding to the dissent's suggestion that Homan had the burden of proof:

[W]e 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 113. However, in the free speech context, " ‘the State usually bears the burden of justifying a restriction on speech.’ "

Homan, 181 Wash.2d at 111 n. 7, 330 P.3d 182 (quoting Immelt, 173 Wash.2d at 6, 267 P.3d 305 ).

¶ 10 Because Homan is challenging RCW 9A.40.090 as an infringement on free speech, the State bears the burden of justifying the statute's restriction on protected speech.

2. Legal Principles

¶ 11 The First Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment's due process clause, provides in relevant part that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST . amend. I ; amend. XIV, § 1 ; Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).² Whether a statute is unconstitutionally overbroad under the First Amendment presents a question of law, which we review de novo. Immelt, 173 Wash.2d at 6, 267 P.3d 305.

¶ 12 A law is unconstitutionally overbroad under the First Amendment if two requirements are satisfied. First, the law must actually implicate constitutionally protected speech. Id. at 7, 267 P.3d 305. A defendant may invoke the First Amendment only if a law places some burden on free speech. Id.

The First Amendment does not extend to "unprotected speech." See State v. Allen, 176 Wash.2d 611, 626, 294 P.3d 679 (2013) ("true threats" are unprotected speech).

¶ 13 Second, the law must prohibit a substantial amount of constitutionally protected speech. Immelt, 173 Wash.2d at 6, 11, 267 P.3d 305. " ‘[W]e have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep.’ " Id. at 11, 267 P.3d 305 (quoting United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ). The mere fact that some impermissible applications of a law are conceivable does not render that law unconstitutionally overbroad. Immelt, 173 Wash.2d at 11, 267 P.3d 305. There must be a realistic danger that the challenged law will significantly compromise recognized First Amendment protections. Id.

¶ 14 Determining whether a law prohibits a substantial amount of protected speech involves striking a balance between competing social interests. Id. "[W]e must weigh the amount of protected speech proscribed by the [law] against the amount of unprotected speech that the [law] legitimately prohibits." Id. The policy concern is that the threat of enforcement of a law prohibiting some amount of constitutionally protected speech will deter or chill such speech. Id. at 8, 267 P.3d 305.

3. Overbreadth Analysis

¶ 15 We engage in a four-part analysis to determine whether a law is facially overbroad under the First Amendment. First, we must determine whether the challenged law actually prohibits speech. See Immelt, 173 Wash.2d at 7, 267 P.3d 305 (holding that horn honking may rise to the level of speech). Here, RCW 9A.40.090 clearly prohibits certain types of speech. The Supreme Court recognized in this case that the crime of luring may be committed with words alone. Homan, 181 Wash.2d at 108, 330 P.3d 182.

¶ 16 Second, we must determine the legitimate sweep of the challenged law—whether the law legitimately prohibits certain speech. The First Amendment does not protect certain types of speech, including "libelous speech, fighting words, incitement to riot, obscenity, and child pornography," and true threats. State v. Kilburn, 151 Wash.2d 36, 43, 84 P.3d 1215 (2004). A law that prohibits such unprotected speech does not violate the First Amendment. See id. at 43, 84 P.3d 1215.

¶ 17 Another type of unprotected speech is speech made with the intent to facilitate criminal conduct. See State v. Coleman, 155 Wash.App. 951, 960–61, 231 P.3d 212 (2010) (accomplice liability statute's requirement that the defendant intend his or her speech to aid a crime avoids prohibiting protected speech); see also City of Seattle v. Slack, 113 Wash.2d 850, 855, 784 P.2d 494 (1989) (loitering in a public place with intent to commit prostitution-related crimes is not constitutionally protected). The United States Supreme Court has listed "speech integral to criminal conduct" as one of the traditional categories of unprotected speech.³ United...