State v. Johnson

• Decision Date: 21 May 1992
• Docket Number: No. 58333-1,58333-1
• Citation: 829 P.2d 1082,119 Wn.2d 167
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Janice Ann JOHNSON, Petitioner.

Page 167

119 Wn.2d 167

829 P.2d 1082

The STATE of Washington, Respondent, v. Janice Ann JOHNSON, Petitioner.

No. 58333-1.

Supreme Court of Washington,

En Banc.

May 21, 1992.

Michael N. Rosen, Seattle, for petitioner.

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

DOLLIVER, Justice.

This case arises from a police sting operation at the Panama Hotel in Seattle, which is owned by defendant Janice Ann Johnson. Between June 15, 1988 and June 22, 1988, Detective Leanne Shirey visited the Panama Hotel on six separate occasions posing as a prostitute, accompanied each time by a different male police officer posing as a patron. Based upon information resulting from the sting operation, the State charged the defendant with one count of promoting prostitution in the second degree in violation of RCW 9A.88.080(1)(b) (count 1) and three counts of permitting prostitution in violation of RCW 9A.88.090 (counts 2 through 4).

In a pretrial motion, and at trial, the defendant moved to dismiss counts 2 through 4 because there was no evidence that, on the dates which formed the bases for the permitting prostitution charges (June 15, 1988, June 21, 1988 and June 22, 1988), prostitution had occurred, that is, there had been an offer or agreement to engage in sexual conduct for a fee. The defendant argued that the crime of permitting prostitution could not occur unless the premises were actually being used for prostitution. The State countered that RCW 9A.88.090 only requires that the defendant "know" the premises are being used for prostitution purposes, and under the definition of knowledge in RCW 9A.08.010(1)(b)(ii), one may have a reasonable belief or subjective "knowledge" that a fact exists even though it objectively does not.

The court denied defendant's motions to dismiss. The defendant appealed to the Court of Appeals which affirmed the trial court's denial of the motions to dismiss on the issue of knowledge, but reversed the convictions on counts 3 and 4 based on evidentiary grounds and remanded for a new trial. See State v. Johnson, 61 Wash.App. 235, 809 P.2d 764 (1991). The State did not appeal the reversals. The defendant petitioned for review to this court seeking a dismissal of all counts on the knowledge issue. We granted the petition for review.

The first issue is presented by the State's motion, filed after oral argument, seeking an order barring the defendant from raising a claim that the permitting prostitution statute is unconstitutionally vague because it uses the phrase, "without lawful excuse".

The defendant's opening and reply briefs did not indicate that the constitutional issue was being raised on appeal. In one sentence, amidst discussion of a separate issue, the defendant states that other Washington cases have held that the cited phrase has rendered other statutes void for vagueness. However, there was no discussion whether the permitting prostitution statute itself was unconstitutionally vague. During oral argument, the defendant did assert the statute was unconstitutionally vague, and the State objected to the presentation of the issue. The defendant replied that the question was properly raised because it presented a constitutional issue.

The motion was passed to the merits. We take this opportunity to clarify whether and in what circumstances a party may raise an issue not set forth in that party's brief(s).

The general rule in Washington on this issue is set forth in RAP 12.1, which provides:

(a) Except as provided in section (b), the appellate court will decide a case only on the basis of issues set forth by the parties in their briefs.

(b) If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court.

See Dearborn Foundry Co. v. Augustine, 5 Wash. 67, 72, 31 P. 327 (1892). In this case, the issue was not set forth as an issue in the defendant's briefs and was addressed for the first time at oral argument. While appellate courts may accept review of constitutional issues not raised in the trial court pursuant to RAP 2.5(a)(3), the defendant must raise the issue on appeal in accordance with the rules of appellate procedure. Issues not so raised, even constitutional issues, are not properly before this court.

If a party has a meritorious argument, which has not been briefed, that is believed to be necessary to the resolution of the case, the party may notify the court, and we may consider the issue pursuant to RAP 12.1(b). Here, the defendant, at oral argument, did not inform the court that the issue was not presented by the briefs nor did defendant give the court the opportunity to determine if the issue should be considered to decide the case.

Therefore, we grant the State's motion in that we decline to consider whether the statute is unconstitutionally vague. Parties wishing to raise constitutional issues on appeal must adhere to the rules of appellate procedure. Moreover, the defendant should be cognizant that this court's more recent cases, not cited by the defendant, have rejected the notion that a statute which uses the term "lawful" in different contexts is per se unconstitutionally vague. See, e.g., State v. Carver, 113 Wash.2d 591, 598-99, 781 P.2d 1308, 789 P.2d 306 (1989); State v. Smith, 111 Wash.2d 1, 6, 759 P.2d 372 (1988); State v. Worrell, 111 Wash.2d 537, 542, 761 P.2d 56 (1988). Parties raising constitutional issues must present considered arguments to this court. We reiterate our previous position: " 'naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.' " In re Rosier, 105 Wash.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir.1970)).

We now turn to the issue on appeal--whether a person may have knowledge that premises are being used for prostitution purposes when undercover police officers pose as both the prostitute and the male patrons.

RCW 9A.88.090(1) provides:

A person is guilty of permitting prostitution if, having possession or control of premises which he knows are being used for prostitution purposes, he fails without lawful excuse to make reasonable effort to halt or abate such use.

The Legislature defined knowledge in RCW 9A.08.010(1)(b):

Knowledge. A person knows or acts knowingly or with knowledge when:

(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or

(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.

The defendant argues RCW 9A.88.090 requires an act of prostitution as an element of the crime because one cannot "know" a fact which does not exist. The State asserts, and the trial and appellate court agreed, that RCW 9A.08.010(1)(b)(ii) provides that when a person has information which would lead a reasonable person to believe that a fact exists the person has knowledge of that fact regardless of its actual existence.

In construing a statute, the court's paramount duty is to give effect to the intent of the Legislature. Yakima v. International Ass'n of Fire Fighters, AFL-CIO, Local 469, 117 Wash.2d 655, 669, 818 P.2d 1076 (1991). When a statute is not ambiguous, the Legislature's intent must be determined by the language alone. Multicare Med. Ctr. v. Department of Social & Health Servs., 114 Wash.2d 572, 582, 790 P.2d 124 (1990). A statute is not ambiguous unless it is susceptible to more than one meaning. Yakima, 117 Wash.2d at 669, 818 P.2d 1076. Penal statutes are strictly construed so that only conduct which is clearly within the statutory terms is subject to punitive sanctions. State v. Cann, 92 Wash.2d 193, 197, 595 P.2d 912 (1979). However, the rule "does not require a forced, narrow, or overstrict construction which defeats the intent of the legislature." Cann, 92 Wash.2d at 197-98, 595 P.2d 912.

RCW 9A.88.090 is not ambiguous. The phrase "which he knows are being used for prostitution purposes" modifies the most recent antecedent, "premises". See Boeing Co. v. Department of Licensing, 103 Wash.2d 581, 587, 693 P.2d 104 (1985). There is no separate requirement that the premises are actually being used for prostitution purposes. The Legislature has clearly stated that persons permit prostitution if, with control of premises which they "know" are being used for prostitution purposes, they do not make a reasonable attempt to abate such use. The Legislature has defined knowledge to include one's reasonable, subjective belief. It is the subjective knowledge of the illegal use and the absence of conduct attempting to abate such use which brings the conduct within the statutory definition.

The ambiguity the defendant is attempting to assert results, not from the language of the permitting prostitution statute, but from an erroneous assumption that subjective knowledge must accord with objective reality. In State v. Scott, 110 Wash.2d 682, 757 P.2d 492 (1988), this court held the statutory definition of knowledge reiterates the ordinary meaning of that term and does not create a different technical meaning. Defendant contends that the ordinary meaning of "knowledge" cannot allow knowledge of a fact which does not exist.

At first blush, defendant's contention appears to have some merit. After more careful thought, however, one finds that this seemingly paradoxical phenomenon occurs with much frequency in our daily lives. For example, we reasonably believe that flicking a switch on the wall will result in the illumination of the room. Under the Legislature's definition of knowledge, we "know" that flicking the switch will turn the lights on. However, suppose, unbeknownst to us, there was a short or other fault in the...