State v. Hosier

• Decision Date: 11 May 2006
• Docket Number: No. 76785-8.,76785-8.
• Citation: 157 Wn.2d 1,133 P.3d 936
• Parties: STATE of Washington, Respondent, v. Richard Leon HOSIER, Petitioner.
• Court: Washington Supreme Court

133 P.3d 936

157 Wn.2d 1

STATE of Washington, Respondent, v. Richard Leon HOSIER, Petitioner.

No. 76785-8.

Supreme Court of Washington, En Banc.

Argued January 24, 2006.

Decided May 11, 2006.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, for Petitioner/Appellant.

Thomas Marshal Curtis, Seth Aaron Fine, Snohomish County Prosecutors Office, Everett, for Appellee/Respondent.

MADSEN, J.

¶ 1 Petitioner Richard Leon Hosier challenges the Court of Appeals decision in this case affirming his conviction on two counts of communication with a minor for immoral purposes. He contends that there was insufficient evidence to support these convictions. Additionally, he claims that the Court of Appeals' "foreseeability analysis" rewrites former RCW 9.68A.090 (1989), unconstitutionally adding an element not included by the legislature and chilling possession of protected materials. We affirm the Court of Appeals.

FACTS

¶ 2 On May 2, 2002, at approximately 8:15 a.m., Shari Engberg, an employee of Kids `N Us Child Care & Learning Center located in Marysville, Washington, saw a pair of hot pink, young girl's underpants placed in a chain link fence in the children's playground area. Findings of Fact (FOF) 3, 9, count 2.¹ The underpants were a girl's size seven. FOF 9, count 2. Written on the front, crotch, and back of the underpants with a dark marker was a message fantasizing about sexual contact with a 7-year-old girl. FOF 10, count 2. The underpants were placed in the fence at the eye level of the children who commonly use the playground area. FOF 5, 6, count 2. Engberg saw the underpants while she was in the process of moving the day care center's vans. FOF 4, count 2. She testified that she noticed that the underpants had been written on with a black marker, but she did not approach or inspect the underpants. She thought that it odd that the underpants was placed in the fence and thought that it might have been a teenage prank using clothing from a Goodwill store nearby. Id. She proceeded to move the vans around the building and to transport the older children to school and did not have a chance to mention the underpants to anyone at the day care center.

¶ 3 Later that morning, seven to eight children playing in the area found the little girl's underpants in the fence. FOF 7, count 2. The children poked the underpants through the fence with a stick, knocking it to the ground. FOF 8, count 2. The children reported their find to Jodie Kaullen, a teacher at the day care center, and led her to the fence. Kaullen put on latex gloves and picked up the underpants and read the message. She then brought them to her supervisor who called the police. FOF 14, count 2. The children who found the underpants were between the ages of 3 and 5 and could not read because of their ages. FOF 12, count 2.

¶ 4 On June 23, 2002, Michael Smith found two handwritten paper notes in his yard while mowing the lawn. FOF 9, count 1.² The two notes were close together on the grass, dry and in good condition near the family's vehicles. FOF 10, count 1. The notes referred to having sex with a young girl matching the age and description of Smith's daughter.

¶ 5 M.S., Smith's 13 year old daughter, who frequently played in the front yard, had been playing in the front yard earlier that day. Shortly after finding the two notes, Smith told his daughter M.S. that he had found two sexually explicit notes in the front yard. FOF 11, count 1. He did not show or read the notes to her, but he told her that:

I found some notes that were very sexual and they were seemingly threatening and that I didn't know who had written them, but to be extra careful and don't be alone on the street and that I was going to take the notes to the police.

Verbatim Report of Proceeding (VRP) at 59 (Feb. 3-4, 2003).³ He also told her that the notes "kind of described her." VRP at 59. He thought the contents of the notes might be about her due to the physical description in one of the notes. FOF 11, count 1. In telling her to be careful, he said to "especially stay away from the house across the street, I don't know if he [Hosier] wrote them or not, but be careful anyway." VRP at 64. In June 2002, Hosier, a 54-year-old adult male, lived directly across the street from the Smiths. FOF 1, count 1. Various windows in Hosier's house provide a direct view of M.S.'s front yard and her bedroom. FOF 3, count 1. Smith made copies of the notes, took the copies across the street, and confronted Hosier, FOF 11, count 1. Smith knew that Hosier was a Level III sexual offender. Hosier denied authoring or leaving the notes. FOF 11, count 1. On June 24, 2002, Smith turned the notes over to the police. FOF 13, count 1.

¶ 6 On August 1, 2002, the police arrested Hosier. FOF 14, count 1. The police interviewed Hosier, who admitted that he wrote the notes and placed them on M.S.'s lawn. FOF 14, count 1.⁴ During the interview, Hosier described M.S. as a girl that "lives across the street" and is "heavy set, probably 12, 13, maybe younger I don't know for sure." Ex. 61, at 5. While Hosier could describe M.S., he did not know her name. Id. He said that a few days before leaving the notes, he had observed M.S. in her bedroom undressing. FOF 3, count 1. At the time, Hosier said to a friend, "I can't watch this anymore or I will be in trouble in a second." FOF 4, count 1. Hosier told police that he constantly fought "the battle" against the urges he had to commit sexually related crimes. FOF 15, count 1. Hosier said that he had sexual fantasies about a girl with M.S.'s physical characteristics. FOF 16, count 1. Pursuant to a search warrant, the police searched Hosier's residence. Evidence collected included child pornography, pens, paper and writing samples, and children's underpants.

¶ 7 Following a bench trial, Hosier was convicted of two counts of communication with a minor for immoral purposes, one count of attempted communication with a minor for immoral purposes, and two counts of harassment. Hosier appealed, claiming that there was insufficient evidence to support all five of the convictions. He also challenged the trial court's denial of his motion to suppress evidence found during a search of his residence pursuant to a search warrant. In a unanimous published opinion, the Court of Appeals affirmed the trial court on all issues. See State v. Hosier, 124 Wash.App. 696, 103 P.3d 217 (2004). Hosier petitioned this court for review, challenging only his two convictions for communication with a minor for immoral purposes, counts 1 and 2.⁵

ANALYSIS

¶ 8 Hosier contends that there is insufficient evidence to support his two convictions for communication with a minor for immoral purposes under former RCW 9.68A.090.⁶

¶ 9 When reviewing a challenge to the sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Myles, 127 Wash.2d 807, 816, 903 P.2d 979 (1995); State v. Joy, 121 Wash.2d 333, 338, 851 P.2d 654 (1993); State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Myles, 127 Wash.2d at 816, 903 P.2d 979; Joy, 121 Wash.2d at 339, 851 P.2d 654 (quoting State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992)). Hosier has not challenged any of the trial courts factual findings and, therefore, the trial court's findings of fact are a verity on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994); State v. Alvarez, 105 Wash.App. 215, 220, 19 P.3d 485 (2001).

¶ 10 Hosier first asks this court to define the term "communicate" in former RCW 9.68A.090 to mean both "transmission" and "reception" of a message to a minor for immoral purposes. Hosier points to the various dictionary definitions that define "communicate" as "to make known: inform a person of," quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1993) and as "the expression or exchange of information by speech, writing, or gestures," citing BLACK'S. LAW DICTIONARY 273 (defining "communication") (7th ed.1999). Suppl. Br. of Pet'r at 8. On review, the State does not disagree with this definition. See Suppl. Br. of Resp't at 8 ("The State does not take issue with the proposition that a communication requires both transmission and receipt."). Hosier claims if "communicate" is defined to only mean "transmission" of an inappropriate message to a minor, rather than transmission and receipt, a person could be found guilty of the crime when only an "attempt" to communicate with a child was undertaken. We agree.

¶ 11 As this court has made clear, RCW 9.68A.090 is designed to prohibit "communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct." State v. McNallie, 120 Wash.2d 925, 933, 846 P.2d 1358 (1993) (emphasis added). Unless a person's message is both transmitted by the person and received by the minor, the person has not communicated "with children," the act the statute is designed to prohibit and punish. Requiring both transmittal and receipt is consistent with our prior case law and supported by common sense.

¶ 12 Applying the definition discussed above, Hosier contends that the Court of Appeals erred in affirming his conviction in count 1 because he only transmitted his message. He claims that there was insufficient evidence supporting the court's finding that M.S. received his message. Hosier claims that M.S. did not receive the message because M.S. did not "read or even see" the two notes he left for her in her front yard. At worst, Hosier claims he only attempted to communicate with M.S.

¶ 13 The State claims that Hosier is asking this court to add an element, the exposure of the victim to the exact wording of the obscene notes, to the crime...