State v. Johnson
| Decision Date | 28 January 2020 |
| Docket Number | No. 51923-2-II,51923-2-II |
| Citation | 460 P.3d 1091,12 Wash.App.2d 201 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Christopher R. JOHNSON, Appellant. |
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
John L. Cross, Kitsap County Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4681, for Respondent.
Worswick, J. ¶1 Following an online sting operation, a jury found Johnson guilty of attempted second degree rape of a child,1 attempted commercial sexual abuse of a minor,2 and communication with a minor for immoral purposes.3 On appeal, Johnson argues that (1) the trial court erred by declining to give an entrapment jury instruction, (2) his trial counsel provided ineffective assistance by failing to argue same criminal conduct at sentencing, and (3) a community custody condition restricting his access to and use of the internet is unconstitutional.
¶2 We hold that (1) the trial court did not err when it did not include an entrapment jury instruction, (2) Johnson was not deprived of effective assistance of counsel, and (3) the community custody condition is constitutional. Accordingly, we affirm.
FACTS
¶3 Law enforcement created a posting in the Craigslist casual encounters section. The posting was titled, and stated, 4 6 Verbatim Report of Proceedings (VRP) at 552.
¶4 Johnson responded to the ad, 6 VRP at 555. Law enforcement replied with an e-mail address under the name "Brandi," asking, "Do you want to teach me to [be] a grown up?" and attached a photograph of a female. 6 VRP at 555-56.5 Johnson responded affirmatively and asked how old she was, where she was located, and if they could "use" her place. 6 VRP at 556. "Brandi" stated, "I’m 13 and on my own." 6 VRP at 556. She said she was staying with a friend in Bremerton whose mother was gone for a few days, so Johnson could come over.
¶5 Johnson replied, 6 VRP at 557. Johnson suggested the two meet in public, and they arranged to meet at a minimart near "Brandi’s" location. 6 VRP at 558. "Brandi" asked what Johnson would teach her. Johnson replied, 6 VRP at 558. ¶6 "Brandi" responded affirmatively and asked if Johnson could "help out with" money. 6 VRP at 558. Johnson said, 6 VRP at 559. Johnson said that he had to make sure work would not conflict with their meet up. When "Brandi" asked if later would be better, Johnson replied, 6 VRP at 561. Johnson drove to the designated minimart. "Brandi" then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.
¶7 The State charged Johnson with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During the trial, witnesses testified to the above facts.
¶8 Johnson testified on his own behalf. He stated that he believed the Craigslist posting was an "age-role-play fetish." 6 VRP at 672. Johnson testified that he wanted to meet the person and was "playing detective" to discern who this person was because he did not believe the person was a thirteen-year-old girl. 6 VRP at 682. He also acknowledged that no one forced him to respond to the posting.
¶9 The trial court denied Johnson’s request to include a jury instruction on the affirmative defense of entrapment. The jury found Johnson guilty as charged.
¶10 At sentencing, Johnson’s counsel did not argue that Johnson’s three crimes constituted the same criminal conduct. The trial court placed community custody restrictions on Johnson, including, "Do not use or access the World Wide Web unless specifically authorized by CCO [ (community corrections officer) ] through approved filters." Clerk’s Papers (CP) at 99. Johnson appeals his judgement and sentence.
ANALYSIS
¶11 Johnson argues that the trial court erred by not including an entrapment jury instruction. We disagree.
¶12 To obtain a jury instruction regarding a party’s theory of the case, there must be substantial evidence in the record supporting the requested instruction. State v. O'Dell , 183 Wash.2d 680, 687, 358 P.3d 359 (2015). To prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. State v. Lively , 130 Wash.2d 1, 9, 921 P.2d 1035 (1996) ; RCW 9A.16.070. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. State v. Fisher , 185 Wash.2d 836, 850-51, 374 P.3d 1185 (2016).
¶13 Entrapment is not a defense if law enforcement "merely afforded the actor an opportunity to commit a crime." RCW 9A.16.070(2). We review a trial court’s factual determination of whether a jury instruction should be given for an abuse of discretion. State v. Condon , 182 Wash.2d 307, 315-16, 343 P.3d 357 (2015).
¶14 As an initial matter, Johnson appears to argue that an instruction on an affirmative defense is required when there is any evidence that, if believed by the jury, would support that defense. Johnson cites only State v. Harvill , 169 Wash.2d 254, 257 n.1, 234 P.3d 1166 (2010) to support his argument.
¶15 But Harvill is distinguishable on its facts. Harvill’s testimony, if believed by the jury, would have established the duress defense. Harvill , 169 Wash.2d at 257 n.1, 234 P.3d 1166. The trial court refused to instruct the jury on the affirmative defense despite there being contradictory evidence of duress, and our Supreme Court reversed. Harvill , 169 Wash.2d at 256, 234 P.3d 1166.
¶16 Here, Johnson points to no evidence to support an entrapment instruction. Law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because "Brandi" was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When "Brandi" suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.
¶17 Johnson argues that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children. But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense. Fisher , 185 Wash.2d at 850-51, 374 P.3d 1185. Instead, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations. Because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, we hold that the trial court did not err by refusing to instruct the jury on entrapment.
¶18 Johnson argues that he was deprived of effective assistance of counsel during sentencing when counsel failed to argue that Johnson’s convictions were the same criminal conduct. Specifically, he argues that his intent for all three crimes was to "have sex with the person who posted the ad." Br. of Appellant at 14. We disagree.
¶19 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee effective assistance of counsel. State v. Grier , 171 Wash.2d 17, 32, 246 P.3d 1260 (2011). Defense counsel’s obligation to provide effective assistance applies to sentencing. State v. Rattana Keo Phuong , 174 Wash. App. 494, 547, 299 P.3d 37 (2013). To demonstrate that he received ineffective assistance of counsel, Johnson must show both (1) that defense counsel’s performance was deficient and (2) that the deficient performance resulted in prejudice. State v. Linville , 191 Wash.2d 513, 524, 423 P.3d 842 (2018). Defense counsel’s performance is deficient if it falls below an objective standard of reasonableness.
State v. Estes , 188 Wash.2d 450, 458, 395 P.3d 1045 (2017). Prejudice ensues if the result of the proceeding would have been different had defense counsel not performed deficiently. Estes , 188 Wash.2d at 458, 395 P.3d 1045. Because both prongs of the ineffective assistance of counsel test must be met, the failure to demonstrate either prong will end our inquiry. State v. Classen , 4 Wash. App. 2d 520, 535, 422 P.3d 489 (2018). We strongly presume that defense...
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