State v. Peters

• Decision Date: 22 February 2021
• Docket Number: No. 79348-9-I,79348-9-I
• Citation: 481 P.3d 585
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Charles T. PETERS, Appellant.

481 P.3d 585

STATE of Washington, Respondent,

v.Charles T. PETERS, Appellant.

No. 79348-9-I

Court of Appeals of Washington, Division 1.

FILED February 22, 2021

Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Dwyer, J.

¶1 Charles Peters appeals from his nine convictions of promoting prostitution in the second degree. He raises numerous claims of error, asserting that: (1) the charging document was constitutionally inadequate, (2) insufficient evidence supported his conviction, (3) the prosecution violated his First Amendment rights, (4) the promoting prostitution statute is unconstitutionally vague as applied to him, and (5) prosecutorial misconduct denied him a fair trial. Because none of Peters’ contentions are meritorious, we affirm.

I

¶2 Charles Peters began purchasing sexual activity regularly in 2010 or 2011. Peters identified himself as a "hobbyist"—a sex buyer who sought an emotional experience as well as a sexual experience. Peters sought out female sex workers who provided "the girlfriend experience," a short-term simulation of a romantic relationship. He was primarily interested in Korean sex workers. Peters was a frequent sex buyer—he engaged sex workers once or twice a week while trying to "limit" his spending on these episodes to $2,400 per month.

¶3 Peters located information concerning which sex workers were available for hire and which services they offered on a review website called "The Review Board." Because he wanted to "give something back," Peters also wrote and posted reviews about his own experiences with various sex workers. Peters’ reviews included detailed and graphic narratives describing his encounters with the particular sex worker he was reviewing, as well as booking information and an Internet hyperlink to that sex worker's online advertisement.

¶4 Peters was also a founding member of another, smaller group of enthusiasts called "The League of Extraordinary Gentlemen." This group focused its collective attention specifically on Korean sex workers in the greater Seattle area. The League began as an e-mail chain but eventually grew into a private discussion board website. Peters served as a moderator to the online discussion board and was able to invite new members into the group. The members of the League also held occasional, informal, in-person meetings, which were often organized by Peters.

¶5 Peters regularly helped to connect various actors within the sex trade to one another. Peters introduced independent sex workers who wanted to work with agencies or bookers to pertinent agency representatives or bookers. He recommended specific sex workers and explained the screening process to would-be customers. He made appointments for other customers and "vouched" for new customers to help them pass through screening processes.

¶6 Peters was also one of several creators of an advertising website for Korean sex workers in the greater Seattle area, KGirlDelights.com. Peters paid the website hosting fee for KGirlDelights.com and also purchased the .net and .org versions of the same domain name. Agency owners and independent sex workers sent Peters advertisements, which he posted on the website.

¶7 In the spring of 2015, the King County Sheriff's Office and the Bellevue Police Department began a joint investigation into the Internet sex trade in the greater Seattle-Bellevue area. Detective Luke Hillman, working undercover as "LucasK1973," created an account on The Review Board and noticed that Peters, under the name "Peter Rabbit,"¹ was a frequent poster and appeared to be "kind of a leader." Eventually, Peters invited Detective Hillman to join the League of Extraordinary Gentlemen. This proved unwise.

¶8 Peters was ultimately charged with nine counts of promoting prostitution in the second degree. Prior to trial, Peters moved the court to dismiss the charges as unconstitutionally vague and brought in violation of his First Amendment rights. The trial court denied the motion. A jury convicted Peters on all counts. He now appeals.

II

¶9 Peters contends that the fourth amended information charging him with promoting prostitution, upon which he was tried, was constitutionally deficient because it did not adequately set forth the essential elements of the crime. But the language Peters avers was necessary is language that explains what an element means, not language that states what an element is. Thus, it is definitional. Because a charging document need not include definitions of essential elements, his contention fails.

¶10 Peters was charged with nine counts of promoting prostitution in the second degree. Each count alleged that Peters knowingly advanced prostitution, but did not include the statutory definition of the term, "advances prostitution," as set forth in RCW 9A.88.060.²

¶11 An accused has a right under both the state and federal constitutions to be informed of each criminal charge alleged so that the accused may adequately prepare a defense for trial. U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22 (amend. 10). The State must provide a charging document that sets forth every material element of each charge made, along with essential supporting facts. State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000).

¶12 "The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made." State v. Taylor, 140 Wash.2d 229, 237, 996 P.2d 571 (2000). When a defendant challenges the sufficiency of the charging document prior to a verdict, the charging language is strictly construed. Taylor, 140 Wash.2d at 237, 996 P.2d 571. If, however, the defendant challenges the sufficiency of the charging document following a verdict, then the charging language must be construed liberally in favor of validity. Taylor, 140 Wash.2d at 237, 996 P.2d 571.

¶13 Because a challenge to the sufficiency of a charging document involves a question of constitutional due process (notice), it may be raised for the first time on appeal. State v. Kjorsvik, 117 Wash.2d 93, 102, 812 P.2d 86 (1991). When an appellant raises such a challenge, the proper standard of review is the two-pronged test set forth in Kjorsvik: "(1) do the necessary elements appear in any form, or by fair construction can they be found, in the information, and if so, (2) can the defendant show he or she was actually prejudiced by the inartful language." McCarty, 140 Wash.2d at 425, 998 P.2d 296 (citing Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86 ).

¶14 The first prong of this test is satisfied when a charging document sets forth all of the essential elements of the crime charged. McCarty, 140 Wash.2d at 425, 998 P.2d 296. If the required elements are set forth, even if only in vague terms, then the charging document also satisfies the second prong of the test if the terms used did not result in any actual prejudice to the defendant. McCarty, 140 Wash.2d at 425, 998 P.2d 296.

¶15 However, if the required elements cannot be found, or even fairly implied, in the charging document, we do not reach the second prong of the test. Instead, when the charging document fails to meet the requisites of the first prong of the test, prejudice to the defendant is presumed and we must declare the charging document constitutionally deficient. McCarty, 140 Wash.2d at 425, 998 P.2d 296. The remedy for a constitutionally deficient charging document is reversal and dismissal of the charge without prejudice to the State's ability to refile the charge. State v. Quismundo, 164 Wash.2d 499, 504, 192 P.3d 342 (2008).

¶16 Here, Peters asserts that the information charging him with promoting prostitution in the second degree omitted essential elements of the crime set forth in RCW 9A.88.060. The State responds by asserting that RCW 9A.88.060 merely furnishes a definition of an element of the crime of "promoting prostitution in the second degree" as set forth in RCW 9A.88.080(1)(b), and that such definitional terms need not be alleged.

¶17 Because Peters raises his challenge for the first time on appeal, we apply the standard of review announced in Kjorsvik. Hence, to properly resolve the claim of error, we must first identify the essential elements of the crime of promoting prostitution in the second degree.

¶18 RCW 9A.88.080(1)(b) provides that "[a] person is guilty of promoting prostitution in the second degree if he or she knowingly ... [a]dvances prostitution."³

¶19 "Advances prostitution" is defined by RCW 9A.88.060(1) :

A person "advances prostitution" if, acting other than as a prostitute or as a customer thereof, he or she causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.

¶20 Peters asserts that (1) "aiding"⁴ and (2) while not acting as a customer are essential elements because they must be proved in order to obtain a conviction. Furthermore, he avers, the State was required to inform Peters that he was being charged with "knowingly not acting as a customer." In other words, Peters claims that the State was required to allege that Peters knew that he was not acting as a customer.

¶21 However, definitions of essential elements—which define and limit the scope of essential elements—are not additional essential elements that must be alleged in the charging document. State v. Porter, 186 Wash.2d 85, 91, 375 P.3d 664 (2016) ; State v. Johnson,...