State Of Washington v. Marc Vincent Archer ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 78619-9-1
V.
UNPUBLISHED OPINION
MARC VINCENT ARCHER,
Appellant. FILED: November 12, 2019
DWYER, J. — Marc Vincent Archer was charged with communicating with a
minor for immoral purposes and with the attempted rape of a child in the second
degree. After a jury trial, he was convicted on both counts. On appeal, he avers
that the language of the information charging him with communicating with a
minor for immoral purposes was constitutionally deficient, and that the trial court
abused its discretion in finding the offenses of which he was convicted did not
constitute the same criminal conduct. We affirm.
I
In December 2017, the Washington State Patrol (WSP)'s Missing and
Exploited Children Task Force conducted an Internet-based sting operation in
Whatcom County with the purpose of identifying people seeking to engage in
sexual activities with minors. As part of this effort, WSP Detective Kristal Pohl
posted an advertisement in the "casual encounters" section of Craigslist, titled
"Yung boi needs teacher," and stating the following:
No. 78619-9-1/2
Im yung and I wanna learn, my friends cant no so im lookin for
someone nice to help teach me. ive only done a little and wanna
do more. i work out all [the] time so im pretty cut. I really just want
to play. never done this before so kinda nervous.
About an hour later, Archer responded to the advertisement by electronic
mail from an anonymized Craigslist address. In relevant part, his missive stated:
hi my name is Marc. I Am . .. 55 yrs old. I Would love to get
together with you for some awesome sex! I Am very interested in
teaching you everything. Hit Me up if you're still looking and
interested?
After Pohl replied, "dude im s000 down" from the address
"litrooster420@gmail.com," the following exchange occurred:
[ARCHER]: Terrific, I'm glad we found each other. I will enjoy
teaching you everything you want to know. We could satisfy all our
carnal desires! Lol I am going to get a room Sat afternoon to play
in. I'd love to have you cum over around 7. Are you available?
[POHL]: that's cool my mom will be gone all weeked so you could
cum here to if u want. im 13, 5'6, 145 wanna text and trade pics?
Archer responded with a nude photograph of himself, to which Pohl
responded with a telephone number at which she could be reached, along with a
photograph of a fully clothed teenage boy—in fact a dated photograph of a fellow
WSP trooper. The two began communicating via text messaging, during which
time Pohl identified herself as "Jake." After Archer stated, "I love being fucked,"
Pohl replied, "I would really really like that, my mom is gone a lot so it wont be
hard to sneak you in lol." Archer's reply was,"Me, too! I've never had sex with
someone as young as you, it's awesome."
The following evening, Pohl stated that her mom was not home and
invited Archer to meet at a park in Bellingham, where Archer was arrested. A
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search incident to his arrest revealed a cellular telephone, a condom, and
lubricant on Archer's person. Subsequently, Archer was charged with
communication with a minor for immoral purposes and with the attempted rape of
a child in the second degree.
At trial, Archer testified in his own defense, denying his knowledge that
"Jake" was a child of 13, and claiming that he would have ended the contact
when he discovered this. A jury found Archer guilty on both counts. The trial
court determined that the two convictions did not encompass the same criminal
conduct and imposed sentences of 9 months for the first count and 76.5 months
for the second, to be served concurrently. Archer appeals.
II
Archer's first contention is that the information charging him with
communication with a minor for immoral purposes was constitutionally
insufficient. This is so, he asserts—for the first time on appeal—because the
information did not specifically allege that he intended for his communications to
reach a minor person. Archer is wrong, as the information, liberally construed,
clearly alleges such intent.
Pursuant to both the Constitution of the United States and the Washington
Constitution, an accused has a right to be informed of the criminal charges
against him or her to enable adequate preparation of a defense. U.S. CONST.
amend. VI; WASH. CONST. art. I, § 22(amend. X). To ensure the protection of
this right, a defendant must be provided a charging document setting forth every
material element of the charge or charges against the defendant, along with all
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essential supporting facts. State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296(2000).
"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 Wn.2d 229, 237, 996 P.2d 571 (2000).
When a defendant challenges the sufficiency of the charging document before a
verdict is rendered, the charging language must be strictly construed. Taylor,
140 Wn.2d at 237. If the defendant challenges the sufficiency after the verdict is
rendered, the charging document must be construed liberally in favor of validity.
Taylor, 140 Wn.2d at 237.
A challenge to the sufficiency of a charging document involves a question
of constitutional due process and may be raised for the first time on appeal.
State v. Leach, 113 Wn.2d 679, 691, 782 P.2d 552(1989)("An appellant may at
any time claim an error which was not raised in the trial court if the error affects a
constitutional right"); RAP 2.5(a)(3). When an appellant raises such a challenge
for the first time on appeal, as here, the appropriate standard of review is the
two-prong test set forth in State v. Kjorsvik, 117 Wn.2d 93, 106, 812 P.2d 86(1991)("The standard of review we here adopt will require at least some
language in the information giving notice of the allegedly missing element(s) and
if the language is vague, an inquiry may be required into whether there was
actual prejudice to the defendant.").
To satisfy the first prong, a reviewing court must liberally construe the
language of the charging document to determine if it contains the necessary
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elements of the crime charged. McCarty, 140 Wn.2d at 425. If the charging
document can be construed as containing the required elements, even if only in
vague terms, a reviewing court must then determine if the language resulted in
any actual prejudice to the defendant (the second prong of the test). McCarty,
140 Wn.2d at 425. However, if the necessary elements cannot be found in or
even fairly inferred from the charging document, a reviewing court presumes
prejudice without reaching the second prong of the test. McCarty, 140 Wn.2d at
425. The remedy for an insufficient charging document is reversal and dismissal
of the charges without prejudice to the State's ability to refile. State v.
Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008).
The information herein alleged Archer committed the crime of
communication with a minor for immoral purposes in violation of RCW
9.68A.090(2). That statute states, in pertinent part:
A person who communicates with a minor for immoral purposes is
guilty of a class C felony. . . if the person communicates with a
minor or with someone the person believes to be a minor for
immoral purposes, including the purchase or sale of commercial
sex acts and sex trafficking, through the sending of an electronic
communication.
RCW 9.68A.090(2). The information stated:
That on or about the 13th day of December, 2017, the said
defendant, MARC VINCENT ARCHER,then and there being in
said county and state, did communicate with a person under the
age of 18 years or a person the Defendant believed to be under the
age of 18 years, for immoral purposes of a sexual nature, through
the sending of an electronic communication; contrary to Revised
Code of Washington 9.68A.090, which violation is a class C felony.
Archer contends that the language of the information does not include the
nonstatutory element of intent to communicate with a minor—specifically, that the
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information did not allege that he intended the communication to reach "Jake."
Archer cites to State v. Hosier, 157 Wn.2d 1, 133 P.3d 936 (2006), to argue that
intent for the communication to reach the minor is an essential element of the
crime. In Hosier, the Supreme Court held that "Woreseeability is not an element
of the crime of communicating with a minor for immoral purposes. Rather, the
State must prove that the defendant intended that the communication reach the
child." 157 Wn.2d at 15.
Archer's challenge turns on the question of whether all of the words used
in the information charging him with communication with a minor for immoral
purposes would reasonably apprise him of the elements of the crime charged.
Korsvik, 117 Wn.2d at 109. "Words in a charging document are read as a
whole, construed according to common sense, and include facts which are
necessarily implied." Korsvik 117 Wn.2d at 109. Liberally construed, the
language of the information fairly implies that Archer intended for the
communication to reach "Jake." The information alleged that Archer
communicated with "Jake," who he believed to be a minor, for immoral purposes
of a sexual nature by sending "Jake" an electronic communication. The
language "through the sending of an electronic communication" to "a person
under the age of 18 years" for immoral purposes of a sexual nature fairly implies
that Archer intended the communication to reach the minor.
K'orsvik is analogous. In Korsvik, a defendant challenged his robbery
conviction because the charging document omitted the implied essential element
of "intent to steal." 117 Wn.2d at 96, 98. The Supreme Court stated that it would
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be "hard to perceive how the defendant" could have forcefully taken money from
a shopkeeper while brandishing a weapon without intending to steal the money.
K'orsvik, 117 Wn.2d at 110. Likewise, here, because the information alleges
Archer sent electronic communication to "Jake," a person he believed to be a
minor, it is readily inferred that through this volitional act, he intended for his
messages to reach the minor.
Thus, liberally construed, the language of the information contained all of
the necessary facts to apprise Archer of the elements of communication with a
minor for immoral purposes in violation of RCW 9.68A.090(2).1
Ill
Archer's second contention is that the trial court erred when it ruled that
the two offenses of which he was convicted did not constitute the same criminal
conduct for sentencing purposes. This is so, he avers, because the
communication with a minor for immoral purposes was part and parcel of his
attempted rape of a child. As the offenses occurred at separate times and places
and did not require the same intent, Archer is, again, wrong.
A determination of "same criminal conduct" at sentencing affects the
standard range sentence by altering the offender score. RCW 9.94A.589(1)(a).
IT the court enters a finding that some or all of the current offenses encompass
the same criminal conduct then those current offenses shall be counted as one
crime." RCW 9.94A.589(1)(a). With respect to prior convictions, even when the
I We note that Archer does not argue that he was actually prejudiced by the charging
language. Thus, his claim of constitutional deficiency also fails on the second Kjorsvik prong.
See State v. Nonob, 169 Wn.2d 220, 231, 237 P.3d 250(2010)(citing Korsvik, 117 Wn.2d at
106).
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No. 78619-9-1/8
prior sentencing court did not explicitly make a finding of same criminal conduct,
if the court ordered that the sentences be served concurrently, the current
sentencing court must independently determine whether the prior convictions
"encompass the same criminal conduct" and, if they do, must count them as one
offense. RCW 9.94A.525(5)(a)(i); State v. Torncren, 147 Wn. App. 556, 563, 196
P.3d 742 (2008).
Crimes constitute the "same criminal conduct" when they "require the
same criminal intent, are committed at the same time and place, and involve the
same victim." RCW 9.94A.589(1). The legislature intended for the phrase "same
criminal conduct" to be construed narrowly. State v. Flake, 76 Wn. App. 174,
180, 883 P.2d 341 (1994). Thus, if any one of the factors is missing, the multiple
offenses do not constitute the same criminal conduct. State v. Lesslev, 118
Wn.2d 773, 778, 827 P.2d 996 (1992).
Moreover, because a finding by the sentencing court of same criminal
conduct always favors the defendant, "it is the defendant who must establish
[that] the crimes constitute the same criminal conduct." State v. Aldana
Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013). We review the trial court's
decision as to whether multiple offenses constitute the same criminal conduct for
abuse of discretion. Graciano, 176 Wn.2d at 540. The abuse of discretion
standard requires "a clear showing that the exercise of discretion was manifestly
unreasonable, based on untenable grounds, or based on untenable reasons."
State v. Horn, 3 Wn. App. 2d 302, 312, 415 P.3d 1225(2018)(citing State v.
Dye, 178 Wn.2d 541, 548, 309 P.3d 1192(2013)).
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No. 78619-9-1/9
Archer's conviction on the count of communication with a minor for
immoral purposes stemmed from his electronic mails and text messages sent to
"Jake." After "Jake" stated that he was 13 years old, Archer responded,"Ok, I
would love to see a picture of you." In subsequent text messages, Archer's
statements included,"Yes I am still down for some awesome sex!" and "I've
never had sex with someone as young as you, it's awesome." Separately in time
and place from these communications, Archer arrived at a predetermined
location carrying lubricant and a condom with the intent to engage in sexual
intercourse with a person he believed to be 13 years old.
It is undisputed that both of these offenses involved the same fictitious
"victim." Archer argues that the two crimes also satisfy the other criteria of RCW
9.94A.589(1)(a): He asserts that they were committed at the same time and
place, and that they involved the same criminal intent. In support of his argument
that the offenses occurred at the same time and place, he relies principally on
State v. Longuskie, 59 Wn. App. 838, 847, 801 P.2d 1004 (1990).
In Lonquskie, the defendant, a grade school teacher, took one of his
students to multiple motels and molested the student. Longuskie was convicted
of first degree kidnapping and third degree child molestation. Lonquskie, 59 Wn.
App. at 840. We held, sua sponte, that the kidnapping and the molestation
constituted the same criminal conduct because "child molestation was the
objective intent," and the kidnapping "furthered that criminal objective and the
crimes were committed at the same time and place." Lonquskie, 59 Wn. App. at
847.
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No. 78619-9-1/10
Here, Archer's conviction for communication with a minor for immoral
purposes is not based on the same objective intent as his conviction for
attempted rape of a child. His intent in communicating with "Jake" was to entice
"Jake" and determine whether "Jake" would engage in an unlawful sexual
encounter with him. It was the act of sending "Jake" e-mails seeking this
encounter, when he was aware "Jake" purported to be 13, that constituted
criminal conduct leading to his conviction of communication with a minor for
immoral purposes. This is materially different from his intent when he arrived at
the would-be meeting place, after engaging in the communication, and with
lubricant and a condom at the ready, for the purpose of effectuating said
encounter. This intent, to engage in the act of sexual intercourse with a minor
child, is the distinct intent on which his conviction for attempted rape of a child in
the second degree was predicated.
With ample support in the facts, it is plain that the trial court's
determination—that the two offenses did not constitute the same criminal
conduct—was not an abuse of discretion.
Affirmed.
WE CONCUR: ,)
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