State Of Washington v. Kevin Lee Forler ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79079-0-I
Respondent,
) DIVISION ONE
v.
KEVIN LEE FORLER, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: June 10, 2019
MANN, A.C.J. — Kevin Forler appeals his conviction and sentence for attempted
rape of a child. Forler makes several assignments of error, contending that (1) the trial
court deprived him of an impartial jury, (2) his defense counsel was ineffective for failing
to request a jury instruction on the defense of entrapment, (3) that law enforcement
engaged in outrageous police conduct, (4) the trial court erred by giving the jury the “to
convict” instructions for the completed offenses, and (5) that several community custody
conditions are unconstitutionally vague, overbroad, or violate his First Amendment
rights.
We affirm Forler’s conviction, but reverse and remand to modify the community
custody conditions consistent with this opinion.
No. 79079-0-1/2
Washington State Patrol Detective Carlos Rodriguez posted an ad on a Craigslist
Casual Encounters forum posing as “Shannon Pearsen,” a mother of two young
daughters. The ad was part of a sting operation with the Kitsap Missing and Exploited
Children’s Task Force to apprehend people who were sexually exploiting children. The
ad was titled, “New to area. Young fun family. No RP. W4M.” The ad read:
New to the area and interested in new friends. I have a very close young
family that is very giving. Incest experience is a plus. Reply if interested.
No RP. Only serious that want to meet respond. 43/f/Silverdale. Reply
with a/s/I. I can tell you more when you respond. No solicitations but gifts
are welcome. 2 dau 11/7 that are home schooled.1
On 12:04 a.m. on August 29, 2015, Forler responded by email: “I’m interested”
and “If your [sic] real.” Forler signed the email as “KF.” Detective Rodriguez responded
at 12:08 a.m., “Very real. Tell me what you want and then we can text/call. Available
for next hour.” Forler responded at 12:11 a.m., “Give me a few details” and at 12:14
a.m., with “I’m a little bit of a distance but I wouldn’t mind the drive under the right
circumstances.” At 12:20 a.m., Forler said “I wouldn’t mind a little home schooling,” at
12:26 a.m., “Still there?” and at 12:47 a.m. “I’m really interested.” At 12:52 am.
Rodriguez responded, “I’m done for the night. Can chat tomorrow and maybe next
week,” to which Forler responded, “Yes, I’m definitely interested.” Despite Rodriguez’s
indication that he was done talking for the night, at 12:57 a.m. Forler asked “Got any
pics?” at 12:58 a.m. “or anymore details,” and at 2:05 a.m. “Still awake?”
1 The following abbreviations were explained by Detective Rodriguez: ‘RP” means role play,
“a/s/I” means age, sex, location, “43/f/S ilverdale” means the person posting the ad is a 43 year old female
living in Silverdale, Washington, “2 dau 11/7” means two daughters, ages 11 and 7, and “home schooled”
means the children are taught at home, indicating they are isolated from people who could discover
abuse.
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No. 79079-0-1/3
At 8:47 that morning, Forler emailed saying “Email me when you check your
email.” At 2:59 p.m. Detective Rodriguez responded. The detective again
asked for more specific details from Forler, saying “what do you want and are you
interested in my close family experience? If so tell me what your experience is and I
can tell you about my family.” Forler replied at 3:04 p.m., “Got more details on what you
want?” and “I’m looking for the full family experience.” The detective responded, “What
do you mean? More details.” At 3:10 p.m. Forler stated, “I’m interested in what you
have to offer.” Rodriguez replied, “Tell me what and only if you are serious. Who do
you want? We can move to text if you are serious. There are rules and I must be very
careful.” At 3:13 p.m. Forler replied, “I understand” and provided his phone number.
Forler continued communicating with Detective Rodriguez through text
messages. The detective asked Forler “Please tell me what you are interested in so I
know if this is right for you. No R.P. No chat for hours. I am interested in meeting.”
Forler replied, “Home schooling. Tell me where and I’ll meet.” The detective replied “I
need to be sure you are not a cop or any form of law enforcement. Home schooling
isn’t specific enough. I can’t lose my kids.” Forler responded, “I’m trying to be careful
too. How about we meet first. Then when we are sure of each other then we can
discuss other things.” Rodriguez then stated “No. This isn’t for you then. I never meet
until I talk and you seem like a cop already.” Forler responded “I have the same
concern about you. This could be a sting operation.” Rodriguez then tried to end the
conversation by saying, “I have a system and follow same rules each time so I don’t get
caught. It’s best we don’t go further then. Good luck.”
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No. 79079-0-1/4
Forler reengaged: “I’m trying to be careful like you. That’s why if we meet first
then we’ve done nothing that we can get in trouble for.” Detective Rodriguez
responded, “I never meet till I talk on the phone. I screen on here and text because
nothing but creeps on here or guys that don’t want to do what they say. Too many
times I have met people that do not do what they say or are just all talk. Sorry.” Forler
responded, “Call me.” The detective replied “Maybe tomorrow.” Forler attempted to
continue the conversation and stated, “Then keep texting. I’m bored and excited at the
possibilities.” The detective responded “I’m trying to get my day planned for Monday
and Tuesday so I’ll pass. If you are interested, we can talk more if we like you. Then I’ll
send a non nude photo of my oldest.” Forler responded, “I look forward to it.”
Detective Rodriguez then stated, “I don’t mean to come off as harsh or a bitch. I
just have to be very careful. If you are really interested you will answer. Later.” Then
Forler gave “Shannon” a tip about “flagging” her own posts, to avoid detection by law
enforcement. Forler stated, “next time you put an ad up remove it in less than hour.
The longer you leave it up the more chance you have of being noticed by people you
don’t want seeing it” and “[Ilearn how to remove them yourself. If someone flags them it
means you’ve been noticed by someone.” Finally, Forler stated “Don’t want you to get
busted. You have to fly under the radar. You’ll have to excuse me. I’ve never done
this before.”
On August 31st, Forler and Detective Rodriguez resumed communication. The
detective asked, “Are you still interested? I can talk around 1-2” and “I still want to hear
what you want first so I’m not wasting my time.” Forler responded, “I want to be a family
friend. Are you looking for money or enjoyment?” The detective stated, “Who doesn’t
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No. 79079-0-1/5
like money, but I don’t want to talk about that in text. I want enjoyment for my kids, and
I like to watch to make sure the rules are followed.” Forler responded, “I understand. I
would not want anything to do with bringing harm to a child, mental or physical. What
are some of your rules?” The detective responded that the rules are, “no anal and no
pain. Condoms are a must. I don’t need a pregnant 11-year-old.” Forler responded
‘ok”
Forler next spoke by telephone with undercover Detective Krista McDonald.
Detective McDonald went over the rules with Forler again—that Forler needed to wear a
condom, and there should be no pain or anal intercourse. Detective McDonald asked
Forler how large his genitals were, and whether he had any sexually transmitted
diseases (STD5). McDonald told Forler that it would be difficult to explain to her doctor
how an eleven year old got an STD. Forler and McDonald also discussed how many
“roses” Forler should bring for each child. McDonald explained that the seven year old
cost 200 roses, and the eleven year old cost 150 roses. In the commercial sex
business the term “roses” refers to dollars.
After the phone conversation, Forler started sending text messages and stated
that he could be at “Shannon’s” apartment in about an hour. Detective Rodriguez gave
Forler the address to a Burger King2 in Bremerton to stop at before receiving the
address to “Shannon’s” apartment. During these exchanges, Forler sent a photo of
himself, and the detective sent a photo of an undercover detective that played the
mother, a photo of a state trooper who played one of the daughters, and a photo of two
2 There is conflicting testimony about whether Forler stopped at a Burger King or an AMPM.
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No. 79079-0-1/6
outfits for “Shannon’s’ daughter, asking Forler to pick which outfit her daughter should
wear. Forler replied, “Black with plaid skirt.”
When Forler arrived at Burger King, he called Detective McDonald for the
address to “Shannon’s” apartment.3 While discussing the address, Forler asked
McDonald about two vehicles across the street at the AMPM because he felt like they
were watching him. Detective McDonald stated she did not know anything about the
vehicles. At trial, Detective McDonald indicated that the cars Forler was worried about
were not associated with the undercover operation.
After receiving the address from McDonald, Forler proceeded to the apartment
complex where the operation was located. Forler was arrested when he arrived. A
search of his vehicle found condoms and a bottle of Astroglide lubricant in a bag on the
front seat. Forler was arrested with $260.00 in his pocket.
The State charged Forler with attempted rape of a child and commercial abuse of
a child. At trial, Forler testified that he only continued conversations with “Shannon” and
went to the apartment complex to find out if “real children” were involved. Forler
testified that he did not intend to commit rape of a child, or commercial abuse of a child.
Forler explained that he continued engaging “Shannon” by saying he was “excited at the
possibilities” because if he did not use the “right words” when talking about the
Craigslist ad, “[m]ost of the time—boom-—you never hear from [the Craigslist poster]
again” and he was trying to “make it sound like [he] was interested” so he could
determine if children were at risk.
~ In these operations, detectives send the target, such as Forler, to a location near the operation
so that officers can identify the target before the target arrives at the operation.
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No. 79079-0-1/7
Forler also indicated that he always had condoms in his car, but that he left them
in the car when he arrived at the apartment complex because he had no intention of
using them. When asked why Forler did not call law enforcement if he was worried
children were at risk, he stated, ‘[Ijike with so many things, it would just fall in between
the cracks and nobody would ever investigate it.” Forler also testified to his belief that
he was as well suited as law enforcement to investigate whether children were at risk.
The jury convicted Forler of attempted rape of a child and attempted commercial
abuse of a child. The trial court sentenced Forler to the standard range of 90 months to
life for attempted rape, with the sentence for the attempted commercial abuse running
concurrently.
Forler first contends that the trial court abused its discretion by denying his for
cause challenge to juror 8. Forler argues that juror 8 demonstrated actual bias after the
questionnaire phase of voir dire. We disagree.
“The right to trial by an impartial jury is guaranteed by the Sixth Amendment to
the United States Constitution and article 1, section 22 of the Washington Constitution.”
State v. Gonzalez, ill Wn. App. 276, 277, 45 P.3d 205 (2002). A juror will be excused
for cause if the juror’s views would “prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath.” State v. Hughes,
106 Wash. 2d 176, 181, 721 P.2d 902 (1986) (citation omitted). The standard of review for
denial of a defendant’s for cause challenge to seating a juror is manifest abuse of
discretion. Gonzalez, 111 Wash. App. at 277.
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No. 79079-0-1/8
Actual bias is a statutory for cause challenge and occurs when there is “the
existence of a state of mind on the part of the juror in reference to the action, or to either
party, which satisfies the court that the challenged person cannot try the issue
impartially and without prejudice to the substantial rights of the party challenging.” RCW
4.44.170(2). When a juror is challenged for cause based on actual bias “it is not
enough that the juror has formed an opinion on the matter. . . actual bias must be
established by proof. . . and the proof must indicate that the challenged juror cannot try
the issue impartially and without prejudice to the substantial rights of the party
challenging.” Brady v. Fibreboard Corp., 71 Wash. App. 280, 283, 857 P.2d 1094 (1993)
(citations omitted). The question for the trial court is “whether a juror with preconceived
ideas can set them aside.” State v. Noltie, 116 Wash. 2d 831, 839, 809 P.2d 190 (1991).
The court split voir dire into two phases. The first was a questionnaire phase
where the potential jurors answered various written questions and were then called in
individually when their answers demonstrated a hardship or bias. The court heard for
cause challenges during the first phase of voir dire. The questionnaire related to
hardships for serving on the jury, past experience with law enforcement, and concerns
about the charges in this case. The second portion of voir dire was a general voir dire
session with all remaining potential jurors. During general voir dire, the parties asked
questions to all potential jurors before exercising their challenges.
On his questionnaire, Juror 8 answered “no” to “[us there any reason you could
not be a fair juror in a criminal case?” In the space provided for further explanation after
the question juror 8 wrote, “[h]owever, a case of this nature will be challenging to
separate my emotion from fact. This could be typical of a juror experience.” When juror
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No. 79079-0-1/9
8 was called in for further questioning, the following exchange occurred between the
prosecutor and juror 8:
[Prosecutor]: Okay. You also indicated you might have a hard time
being fair and impartial in this case?
[Juror 8]: Yeah. I mean, I’m—this is powerful. It’s just a very
emotionally laden situation involving children.
[Prosecutor]: Okay. Can you describe what you mean by that?
[Juror 8]: Well, it’s—rather than a crime against property, it’s a
crime against—the crime itself is against vulnerable people, in this case,
children. So everything that is debated or presented as far as facts in this
situation addresses whether something of that nature did or did not occur.
[Prosecutor]: So without knowing any of the facts of this case at
this point, you have concerns, just because of the nature of the charges,
whether or not you can be—is it a question or not you can be fair and
impartial, or do you think you can’t be?
[Juror 8]: It’s a question in my mind. If we were asked this
question earlier in the afternoon, I think I would have raised my hand and
indicated that right away.
[Prosecutor]: Okay. So you don’t—
[Juror 8]: I mean, I’m projecting—and this may not happen, of
course. I’m projecting that, if I’m on the jury, I’m going to have to struggle
with the ramifications of how the facts are going to be presented.
There’s a lot at stake here. There’s a lot at stake here, so it’s really
important to try and make the decision as charged, which I think has to do
with judging on the facts.
[Prosecutor]: So you think you will be able to take the facts and
solely base your decision on the facts of this case?
[Juror 8]: I am not confident that I can. I’m just seeing it as a
struggle, and I don’t feel right off the bat that I can’t be.
Defense counsel did not ask any additional questions, but requested that juror 8 be
removed for cause. The court denied the request stating,
I don’t think I’ve got a clear indication, [defense counsel]. I’m going to
deny cause at this time, and perhaps you can ask more questions under
general voir dire. I don’t have an indication from him he could not be fair
and impartial one way or the other. I don’t know which side, from what I
heard, he might be favoring or not. His questionnaire indicates that he
might have difficulty separating emotion from fact. Certainly, that may be
concerning, but having difficulty on a case like this is not unusual. Right
now I don’t believe I have a sufficient basis.
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No. 79079-0-1/10
Juror 8 answered two questions during general voir dire, but those questions were not
related to his ability to be fair and impartial.4 Defense counsel did not exercise all of
Forler’s peremptory challenges, leaving one before accepting the panel. Juror 8 was
seated on the panel.
Forler primarily relies on Gonzalez to support his claim that juror 8 showed actual
bias. In Gonzalez, the potential juror was asked if she would presume a police officer
was telling the truth and equivocally answered “yes,” in essence admitting “a bias
regarding a class of persons” and that the “bias would likely affect her deliberations.”
Gonzalez, 111 Wash. App. at 279, 281. Furthermore, the potential juror expressed doubts
in her ability to presume Gonzalez’s innocence when faced with officer testimony.
Gonzalez, 111 Wash. App. at 281. The court concluded, while “[a] prospective juror’s
expression of preference in favor of police testimony does not, standing alone,
conclusively demonstrate bias. . . . At no time did Juror 11 express confidence in her
ability to deliberate fairly or to follow the judge’s instructions regarding the presumption
of innocence.” Gonzalez, 111 Wash. App. at 281.
Here, in contrast with Gonzalez, juror 8’s statements were equivocal at best. The
response to the questionnaire does not indicate actual bias. When juror 8 was
interviewed individually, he conveyed the same general hesitation about the facts, but
did not demonstrate actual bias toward people who abuse children or toward the
prosecution or the defense. The court did not engage in any curative questioning, but
that was not warranted because juror 8’s answers did not indicate partiality or prejudice.
~ The first question juror 8 answered related to his ability to work in groups. The second question
juror 8 answered related to “group think.”
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No. 79079-0-I/li
While the trial court’s ruling was final during the first phase of voir dire, the trial
court left the door open for defense counsel to revisit the issue during general voir dire.
“The trial judge is in the best position to evaluate whether a particular potential juror is
able to be fair and impartial based on observations of mannerisms, demeanor and the
like.” Gonzalez, 111 Wash. App. at 278 (citation omitted). During general voir dire, juror 8
was asked several more questions, but those related to his ability to work in groups, and
the effects of “group think” on jury deliberations.
The question to ask when determining whether a juror must be excused for
cause based on actual bias is whether the juror can set aside his preconceived ideas.
Noltie, 116 Wash. 2d at 839. In this case, juror 8 did not indicate that he had any
preconceived ideas that must be set aside to be fair and impartial. Instead, the juror
was generally concerned about the subject matter, stating “I’m projecting that, if I’m on
the jury, I’m going to have to struggle with the ramifications of how the facts are going to
be presented.” This statement is not indicative of any preconceived idea about the
parties, the specific facts of the case, or the outcome, rather it demonstrated a juror who
was contemplating that the facts would be difficult to hear and the case difficult to
decide.
Finally, a defendant cannot show prejudice based on jury composition unless he
exhausts all peremptory challenges. State v. Elmore, 139 Wash. 2d 250, 277, 985 P.2d
289 (1999). Forler had the opportunity to exercise a peremptory challenge against juror
8, yet failed to exercise it; thus he cannot show prejudice. Forler fails to show that juror
8 exhibited actual bias toward the defendant or the crime charged.
—ii—
No. 79079-0-1/12
III.
Forler next contends that his defense counsel was ineffective for failing to
request an instruction on the defense of entrapment. We disagree. Even if Forler can
show that he was entitled to a jury instruction on the defense of entrapment, Forler
cannot show that his defense counsel lacked a legitimate trial strategy for not
requesting the instruction.
The Sixth Amendment to the United States Constitution and article I, section 22
of the Washington Constitution guarantee the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland sets forth the standard for reversal of criminal convictions based on
ineffective assistance of counsel. Ineffective assistance of counsel is a two-pronged
inquiry: a defendant must first show that counsel’s performance was deficient and
second, that the deficient performance prejudiced the defendant. Strickland, 466 U.S.
at 687-88.
To show that counsel’s performance was deficient, a defendant must
demonstrate that representation fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 688(”[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms”). “The threshold for the
deficient performance prong is high, given the deference afforded to decisions of
defense counsel in the course of representation.” State v. Grier, 171 Wash. 2d 17, 33, 246
P.3d 1260 (2010). Thus, there is a strong presumption that defense counsel’s
performance was reasonable. State v. Weaville, 162 Wash. App. 801, 823, 256 P.3d 426
(2011).
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No. 79079-0-1/13
“Where the claim of ineffective assistance is based upon counsel’s failure to
request a particular jury instruction, the defendant must show he was entitled to the
instruction, counsel’s performance was deficient in failing to request it, and the failure to
request the instruction caused prejudice.” State v. Thompson, 169 Wash. App. 436, 495,
290 P.3d 996 (2012) (citing State v. Johnston, 143 Wash. App. 1, 21, 177 P.3d 1127
(2007)). If defense counsel’s conduct is the product of a legitimate trial strategy or
tactic, it is not deficient performance. Weaville, 162 Wash. App. at 823. “Conversely, a
criminal defendant can rebut the presumption of reasonable performance by
demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s
performance.” Grier, 171 Wash. 2d at 33 (quoting State v. Reichenbach, 153 Wash. 2d 126,
130, 101 P.3d 80 (2004)).
Defense counsel was not ineffective for failing to request a jury instruction on the
defense of entrapment because Forler cannot show the absence of a legitimate trial
strategy for not requesting the instruction. Forler’s theory at trial was to challenge the
mens rea element of attempted rape of a child and attempted commercial abuse of a
child. He testified that he did not go to the apartment with the specific intent to commit
those crimes, rather he was trying to discern whether children were at risk. If, at the
same time, Forler argued that he was entrapped by law enforcement, he would have to
prove, by a preponderance of evidence, that law enforcement induced him to commit a
crime he was not predisposed to commit. See State v. Smith, 101 Wash. 2d 36, 43, 677
P.2d 100 (1984) (explaining that the defense of entrapment has two elements, first that
the defendant was induced into committing the crime by acts of law enforcement, and
second, the defendant lacked a predisposition to commit the crime).
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No. 79079-0-1114
Forler’s actions, and subsequently, the defense’s legal theory, were inconsistent
with showing the required elements of entrapment—inducement and lack of
predisposition. Considering Forler showed no resistance to the illicit activities
suggested by detectives, the defense could more convincingly attack the mens rea
element, arguing that Forler’s attitude towards the illicit activities was explained by his
purely altruistic motive of saving children. While the jury did not find the defense’s
theory convincing, this court does not use hindsight “to conclude that a particular act or
omission of counsel was unreasonable.” Strickland, 466 U.S. at 689.
Because Forler fails to show the absence of a legitimate trial strategy, he cannot
show that his trial counsel was ineffective for failing to request an instruction on the
defense of entrapment.
IV.
Next, Forler contends that the police conduct was so outrageous that it violated
his right to due process. We disagree.
Principles of due process prevent law enforcement from invoking the judicial
process to obtain a conviction based on outrageous police conduct. State v. Lively, 130
Wash. 2d 1, 18-19, 921 P.2d 1035 (1996). Whether law enforcement has engaged in
outrageous conduct is a question of law and reviewed de novo. Lively, 130 Wash. 2d at
19.
Police conduct violates due process when the conduct “shocks the universal
sense of fairness.” Lively, 130 Wash. 2d at 19. “Public policy allows for some deceitful
conduct and violation of criminal laws by the police in order to detect and eliminate
criminal activity.” Lively, 130 Wash. 2d at 20 (citation omitted). Dismissal based on
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No. 79079-0-1/15
outrageous police conduct is reserved for only “the most egregious circumstances” and
should not be invoked each time law enforcement acts deceptively. Lively, 130 Wash. 2d
at 20.
When evaluating whether law enforcement engaged in outrageous conduct, we
focus on the State’s behavior rather than the defendant’s predisposition. Lively, 130
Wash. 2d at 22. The court considers several factors when evaluating whether police
conduct offends due process: (1) “whether the police conduct instigated a crime or
merely infiltrated ongoing criminal activity,” (2) “whether the defendant’s reluctance to
commit a crime was overcome by pleas of sympathy, promises of excessive profits, or
persistent solicitation,” (3) “whether the government controls the criminal activity or
simply allows for the criminal activity to occur,” (4) “whether the police motive was to
prevent crime or protect the public,” and (5) “whether the government conduct itself
amounted to criminal activity or conduct ‘repugnant to a sense of justice.” Lively, 130
Wash. 2d at 22 (citations omitted).
Forler urges this court to find that he was reeled in by law enforcement, similarly
to the defendant in State v. Solomon, 3 Wash. App. 2d 895, 419 P.3d 436 (2018). In
Solomon, we affirmed the trial court’s decision to dismiss charges against a defendant
because law enforcement engaged in outrageous conduct, violating the defendant’s due
process rights. Solomon, 3 Wash. App. 2d at 916. The facts of Solomon are in sharp
contrast to this case. In Solomon, law enforcement acted in a manner repugnant to the
trial judge’s view of the community’s sense of justice. Solomon, 3 Wash. App. 2d at 916.
In Solomon, the trial court found that law enforcement used lewd and offensive
language to instigate the crime. Solomon, 3 Wash. App. 2d at 912. Solomon was
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solicited in similar manner to Forler, through a Craigslist ad, advertising sex with a 15-
year-old girl. Solomon, 3 Wash. App. 2d at 898. Detective Luvera used lewd language to
entice Solomon to agree to meet her. Solomon, 3 Wash. App. 2d at 913-14. Solomon
indicated to detectives seven times that he did not want to engage with an underage
girl, and attempted to discontinue conversations. Solomon, 3 Wash. App. 2d at 913-14.
Each time, Detective Luvera engaged in more persistent solicitation. Solomon, 3 Wn.
App. 2d at 913-14.
The trial court also found that the State controlled the criminal conduct by
stringing Solomon along over the course of four days, despite Solomon’s seven
attempts to discontinue conversations. Solomon, 3 Wash. App. 2d at 914. Finally, the
trial court found that Detective Luvera’s “use of graphic and highly sexualized language
amounted to a manipulation of Solomon and was repugnant to a sense of justice.”
Solomon, 3 Wash. App. 2d at 915.
Comparing Solomon to the facts in this case, Forler continued to instigate the
conversations, even after offered the chance to cease communications. Even though
Detective Rodriguez attempted to discontinue conversations by saying ‘[ut’s best we
don’t go further then. Good luck,” Forler responded and continued conversations. At no
point did Forler express disinterest in “Shannon’s” offer. In this case, law enforcement
used code words, such as “home-schooling” and “family experience” instead of the
highly sexualized and graphic language that Detective Luvera used in Solomon.
Therefore, law enforcement’s conduct was not repugnant to a sense of justice and the
primary motive was to prevent people from exploiting children.
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No. 79079-0-1/17
Forler also unsuccessfully analogizes this case to Lively. In Lively, a police
informant convinced Lively—an alcoholic in “extreme distress”—to deliver cocaine to an
undercover officer. Lively, 130 Wash. 2d at 25-26. Law enforcement actively solicited
Lively at a Narcotics Anonymous and Alcoholics Anonymous meeting where she was
receiving treatment. Lively, 130 Wash. 2d at 23, 25. Lively began living with the informant
and eventually the informant asked Lively to marry him. Lively, 130 Wash. 2d at 7, 25.
Lively delivered the cocaine to the undercover officer at the informant’s apartment.
Lively, 130 Wash. 2d at 26. The court concluded that Lively agreed to the transaction in
part due to her emotional dependence on the informant. Lively, 130 Wash. 2d at 26.
In addition, the court determined that the informant, at the request of law
enforcement, controlled the criminal activity from start to finish, from scheduling when
Lively would obtain the cocaine to allowing Lively to use the informant’s car. Lively, 130
Wash. 2d at 26. Finally, the court concluded that condoning the police conduct, when the
police solicited a recovering addict at an Narcotics Anonymous and Alcoholics
Anonymous meeting, who was in extreme emotional distress, had previously attempted
suicide, and where the police had no evidence that she was involved in any criminal
activity, was contrary to public policy and to basic principles of human decency. Lively,
130 Wash. 2d at 27.
Viewing the totality of the police conduct, Forler fails to show that the undercover
Craigslist operation was so outrageous that it violated his due process rights. Here, the
police conduct was aimed at infiltrating ongoing criminal activity on the “Casual
Encounters” forum on Craigslist, by engaging people who were predisposed to sexually
abuse children. Forler’s only instances of reluctance were when he was worried it was
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No. 79079-0-1/18
a “sting operation,’ and mentioned he felt like people were watching him while he waited
at Burger King for “Shannon’s” address. From this evidence, Forler has not shown that
law enforcement used excessive persuasion to overcome his reluctance.
While the detectives controlled the Craigslist ad and the age of “Shannon’s” two
daughters, detectives were not coercive or overly persistent when engaging Forler. The
conversation developed mostly from Forler’s insistence to continue discussions. At one
point, the detectives even attempted to cease communications with Forler when
“Shannon” stated, “I have a system and follow the same rules each time so I don’t get
caught. It’s best we don’t go further then. Good luck,” but even after this statement,
Forler continued to engage detectives in conversation.
Unlike Solomon and Lively, Forler is unable to show that law enforcement
controlled the criminal activity from start to finish. Forler used his own transportation to
travel to “Shannon’s” apartment, and brought condoms and money as requested by the
detectives. Finally, the government’s conduct was not repugnant to a sense of justice
because the government did not unduly pressure Forler into the arrangement. Instead,
Forler chose to drive over an hour to the designated location, for what he was told was
sex with two children, ages seven and eleven.
V.
Forler next argues that providing the jury with the to-convict instructions for the
completed crimes of rape of a child in the first degree and commercial sexual abuse of a
minor, was instructional error and a manifest violation of due process. We disagree.
We review alleged instructional errors de novo. State v. Becklin, 163 Wash. 2d 519,
525, 182 P.3d 944 (2008). Because Forler did not object to the jury instructions below,
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RAP 2.5(a) prevents him from raising this issue for the first time on appeal unless he
can show that providing the instructions was “manifest error affecting a constitutional
right.” RAP 2.5(a). State v. O’Hara, 167 Wash. 2d 91, 98, 217 P.3d 756 (2009). To meet
RAP 2.5(a), the appellant must demonstrate that the error is both manifest and truly of
constitutional dimension. State v. Kirkman, 159 Wash. 2d 918, 926-27, 155 P.3d 125
(2007). “Stated another way, the appellant must ‘identify a constitutional error and show
how the alleged error actually affected the [appellant]’s rights at trial.” O’Hara, 167
Wash. 2d at 98 (quoting Kirkman, 159 Wash. 2d at 926-27). Manifest error requires a
showing of actual prejudice. Kirkman, 159 Wash. 2d at 935.
Actual prejudice is a “plausible showing by the [appellant] that the asserted error
had practical and identifiable consequences in the trial.” Kirkman, 159 Wash. 2d at 935.
The focus is on whether the error is so obvious that it warrants appellate review. State
v. McFarland, 127 Wash. 2d 322, 333, 899 P.2d 1251 (1995). The appellate court “must
place itself in the shoes of the trial court to ascertain whether, given what the trial court
knew at the time, court could have corrected the error.” O’Hara, 167 Wash. 2d at 100. If
the reviewing court determines that the claim raises a manifest constitutional error, “it
may still be subject to a harmless error analysis.” McFarland, 127 Wash. 2d at 333.
The prosecution must prove every element of the crime charged beyond a
reasonable doubt. State v. Brown, 147 Wash. 2d 330, 339, 58 P.3d 889 (2002). A
to-convict instruction must contain all elements of the crime. State v. Smith, 131 Wash. 2d
258, 263, 930 P.2d 917 (1997). A conviction cannot stand if the jury is instructed in a
manner that lessens the State’s burden. Brown, 147 Wash. 2d at 339 (citation omitted).
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The State proposed to-convict instructions for the attempted rape of a child in the
first degree and attempted commercial sexual abuse of a minor. Instruction 14 provided
in relevant part:
To convict the defendant of Attempted Rape of a Child in the First
Degree as charged in Count I, each of the following elements of the crime
must be proved beyond a reasonable doubt—
(1) That on or about August 31 2015, the defendant did an act which
was a substantial step toward the commission of Rape of a Child in
the First Degree;
(2) That the act was done with intent to commit Rape of a Child in the
First Degree; and
(3) That the acts occurred in the State of Washington.
The State also proposed giving to-convict instructions for the uncharged crimes
of rape of a child in the first degree and commercial sexual abuse of a minor.
Instruction 13 provided in relevant part:
To convict the defendant of the crime of Rape of a Child in the First
Degree, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about August 31, 2015, the defendant had sexual
intercourse with a child;
(2) That the child was less than twelve years old at the time of the
sexual intercourse and was not married to the defendant;
(3) That the child was at least twenty-four months younger than the
defendant; and
(4) That this act occurred in the State of Washington.
The State argued that the to-convict instructions for the completed but uncharged
crime was appropriate because it had to prove that the “defendant intended to commit
rape of a child in order to prove that he attempted to commit rape of a child.” In
permitting both sets of to-convict instructions, the trial court noted that the definition of
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attempted rape referred back to a substantial step towards the commission of the
completed crime.
Fowler argues that by providing the to-convict instructions for the completed
crimes, the court
[pjlac[ed] the notion before the jury that a real child could have been
subjected to sexual intercourse on that given date of August 15 [sic], the
instruction served to focus the jury on the specter of horrific conduct that
could possibly have occurred under different facts. This made it easier for
the jury to convict Mr. Forler of the crime charged, that crime seeming, in
comparison, to be less grave than what might have happened.
This argument, however, ignores the purpose of punishing inchoate crimes. It is
irrelevant whether a “real child” was involved in this case. “It is generally of no
consequence in the context of an anticipatory or inchoate offense, what the actual
attendant circumstances were at the time the actor engaged in proscribed conduct,” the
question is what the defendant “believed the attendant circumstances to be.” State v.
Nelson, 191 Wash. 2d 61, 70, 419 P.3d 410 (2018); see also RCW 9A.28.020(2) (“it is no
defense to a prosecution of such attempt that the crime charged to have been
attempted was, under the attendant circumstances, factually or legally impossible of
commission”); State v. Johnson, 173 Wash. 2d 895, 909, 270 P.3d 591 (2012) (In a case
of commercial sexual exploitation of minors, “the State was required to prove that [the
defendant] believed his victims to be minors to prove that he intended to advance or
profit from the commercial sexual exploitation of a minor.”).
In order to find Forler guilty of the attempted crimes, the jury was required to find
that Forler intended to commit rape of a child and commercial sexual abuse of a “real
child,” and therefore had formed the specific intent to commit each crime. Forler argues
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No. 79079-0-1/22
the to-convict instructions caused the jury to consider the “specter of horrific conduct
that could possibly have occurred under different facts.” But what Forler describes is
exactly what the jury would consider without the to-convict instructions for the
completed crimes because whether a real child was involved was irrelevant to the
State’s burden of proving the defendant’s intent and belief.
The trial court provided the jury with additional instructions—it was not missing
any instructions nor did it eliminate any of the necessary elements in the to-convict
instructions for the attempted crimes. Including separate to-convict instructions for the
completed crimes did no more than inform the jury of the elements of the underlying
crime that Forler was accused of attempting. This was not manifest error. Forler
cannot demonstrate actual prejudice—he cannot point to any practicable or identifiable
consequences at trial that are readily discernable on the record. Kirkman, 159 Wash. 2d at
935.
The to-convict instructions for the completed offenses did not lessen the State’s
burden of proof or cause manifest constitutional error.
VI.
Finally, Forler challenges several community custody conditions on the basis of
scrivener’s errors, vagueness, and overbreadth. The State concedes that certain
community custody conditions should be stricken or modified in the judgment and
sentence to match appendix F. We will address each in turn.
A defendant may challenge an illegal or erroneous sentence for the first time on
appeal. State v. BahI, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008). We review de novo
whether the trial court had statutory authority to impose community custody conditions.
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No. 79079-0-1/23
State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 (2007). If the condition is
statutorily authorized, we review the imposition of crime-related prohibitions for abuse of
discretion. Armendariz, 160 Wash. 2d at 110 (citation omitted). Conditions that do not
reasonably relate to the circumstances of the crime, the risk of reoffense, or public
safety are unlawful, unless those conditions are explicitly permitted by statute. State v.
Jones, 118 Wash. App. 119, 204, 76 P.3d 258 (2003). Additionally, the remedy for
scrivener’s errors in the judgment and sentence is remand to the trial court for
correction. CR 7.8(a); see RAP 7.2(e).
Consume no alcohol
Forler challenges the condition that he “Consume no alcohol, if so directed by the
COO” as previously stricken by the trial judge in appendix F. The State concedes this
issue. Since the trial court correctly struck this condition from appendix F as not crime-
related, we remand to the trial court to strike “Consume no alcohol, if so directed by the
COO” from the judgment and sentence supervision schedule.
Contact with victims
Forler challenges the condition “Have no direct or indirect contact with victim(s)
or his or her family, including by telephone, computer, letter, in person, or via third party”
as previously stricken by the trial judge in appendix F. The State concedes this issue.
Since the trial court correctly struck this condition from appendix F because the victim of
this crime was the State, we remand to the trial court to strike “Have no direct or indirect
contact with victim(s) or his or her family, including by telephone, computer, letter, in
person, or via third party” from the judgment and sentence supervision schedule.
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No. 79079-0-1/24
Frequent adult book stores
Forler challenges the condition “Frequent no adult book stores, arcades, or
places providing sexual entertainment” as previously stricken by the trial judge in
appendix F. The State concedes this issue. Since the trial court correctly struck this
condition in appendix F, as not crime-related, we remand to the trial court to strike
“Frequent no adult book stores, arcades, or places providing sexual entertainment” from
the judgment and sentence supervision schedule.
Contact 900 telephone numbers
Forler challenges the condition “Contact no ‘900’ telephone numbers that offer
sexually explicit material. Provide copies of phone records to CCC” in the judgment and
sentence supervision schedule, and “Do not contact (900) telephone numbers that offer
sexually explicit material and provide copies of phone records to CCC upon request” in
appendix F as unrelated to the crime Forler committed. The State concedes this issue.
Since this condition is not crime-related, we remand to the trial court to strike “Contact
no ‘900’ telephone numbers that offer sexually explicit material. Provide copies of
phone records to CCC” from the judgment and sentence supervision schedule, and “Do
not contact (900) telephone numbers that offer sexually explicit material and provide
copies of phone records to CCC upon request” from appendix F.
Possession of sexually explicit materials
Forler challenges the condition “Possess/access no sexually explicit materials
(as defined by Defendant’s treating therapist or CCO)” in the judgment and sentence
supervision schedule as previously modified by the trial judge in appendix F. The State
concedes this issue. Since the trial court previously modified this condition to be
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No. 79079-0-1125
sufficiently crime-related, we remand to the trial court to modify the condition in the
judgment and sentence supervision schedule to match appendix F: “Do not possess or
access any sexually explicit material depicting minors.”
Access sexually explicit materials by computer
Forler challenges the condition “Possess/access no sexually explicit materials,
and/or information pertaining to minors via computer (i.e. internet)” in the judgment and
sentence supervision schedule as previously modified by the trial judge in appendix F.
The State concedes this issue. Since the trial court previously modified this condition to
be sufficiently crime-related, we remand to the trial court to modify the condition in the
judgment and sentence supervision schedule to match appendix F: ‘Do not access
sexually explicit materials that are intended for sexual gratification involving minors.”
Internet use
Finally, Forler challenges the condition “No internet use unless authorized by
treatment provider and Community Custody Officer” as unconstitutional on both
vagueness and overbreadth grounds, and as violating his First Amendment rights. We
agree.
The constitutional protections of due process in the Fourteenth Amendment to
the United States Constitution and article 1, section 3 of the Washington Constitution
prohibit vague laws. BahI, 164 Wash. 2d at 752-53. Laws must provide ordinary people
fair warning of proscribed conduct and have standards that are definite enough to
protect against arbitrary enforcement. BahI, 164 Wash. 2d at 752-53. If a community
custody condition does either, it is unconstitutionally vague. BahI, 164 Wash. 2d at 752-53.
When reviewing the challenged language to determine if it is sufficiently definite to
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No. 79079-0-1/26
provide fair warning, the court must read the language in context and give it a sensible,
meaningful, and practical interpretation.” City of Spokane v. Douglass, 115 Wash. 2d 171,
180, 795 P.2d 693 (1990). Applying this standard to community custody conditions, a
condition is sufficiently definite if persons of ordinary intelligence would understand what
behavior is proscribed. Douglass, 115 Wash. 2d at 179. Where community custody
conditions prohibit material protected by the First Amendment, stricter standards of
definiteness are required. State v. Nguyen, 191 Wash. 2d 671, 679, 425 P.3d 847 (2018)
(citing BahI, 164 Wash. 2d at 753.).
In State v. Irwin, this court held that a community custody condition that
prohibited “frequent[ing] areas where minor children are known to congregate, as
defined by the supervising CCC” was unconstitutionally vague because “[w]ithout some
clarifying language or an illustrative list of prohibited locations . . . the condition does not
give ordinary people sufficient notice to ‘understand what conduct is proscribed.” 191
Wash. App. 644, 655, 364 P.3d 830 (2015). Furthermore, including “as defined by the
supervising CCC” did not remedy the constitutional violation, even though it could
provide Irwin with fair warning once the CCC gave Irwin a restrictive list, because “it
would leave the condition vulnerable to arbitrary enforcement.” Irwin, 191 Wash. App. at
665 (citation omitted). Similarly in Bahi, our Supreme Court held that because the CCO
could “direct what falls within the condition only makes the vagueness problem more
apparent, since it virtually acknowledges that on its face it does not provide
ascertainable standards for enforcement.” BahI, 164 Wash. 2d at 758.
Similarly here, “No internet use unless authorized by treatment provider and
Community Custody Officer” is unconstitutionally vague because it fails the second
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No. 79079-0-1/27
prong of the vagueness analysis. The condition does not protect against arbitrary
enforcement, because it does not provide ascertainable standards for enforcement.
The condition also fails because it is unconstitutionally overbroad. “A criminal
statute that sweeps constitutionally protected free speech activities within its
prohibitions may be overbroad and thus violate the First Amendment.” State v. Bahi,
137 Wash. App. 709, 714, 159 P.3d 416 (2007), rev’d on other grounds, 164 Wash. 2d 739
(2007). In the context of community custody conditions, “[am offender’s usual
constitutional rights during community placement are subject to [Sentencing Reform Act
(SRA)J-authorized infringements.” State v. Hearn, 131 Wash. App. 601, 607, 128 P.3d
139 (2006) (citation omitted). A court’s imposition of crime-related prohibitions
authorized by the SRA will be reversed only if it is manifestly unreasonable. State v.
Riley, 121 Wash. 2d 22, 37, 846 P.2d 1365 (1993).
The prohibition on “no internet use,” is manifestly unreasonable. Forler was
convicted of attempted rape a child by soliciting an undercover officer through
Craigslist’s Causal Encounters forum. The blanket restriction of “no internet use” goes
beyond tailoring Forler’s internet use to a crime-related prohibition. Today, internet use
is ubiquitous, allowing people to easily accomplish many daily tasks and functions,
including but not limited to: finding a job or housing, managing banking and investment
accounts, paying bills, receiving directions, listening to music, reading the news, and
connecting with friends and family. The list provided is only a short list of what can be
accomplished using the internet. But none relate to Forler’s conviction. Furthermore,
many devices such as televisions are “smart devices” and require an internet
connection to access their “smart” features. Under the broad community custody
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No. 79079-0-1/28
condition here, Forler would be in violation if he used a “smart device” that was
connected to the internet.
Because we find that the community custody condition is both unconstitutionally
vague and overbroad, we decline to reach Forler’s argument that the condition also
violates his First Amendment rights. We remand to the trial court to modify the
condition in appendix F to include limiting language that prohibits Forler from using the
internet to solicit minors, and to include the same language in the judgment and
sentence supervision schedule.
We affirm Forler’s conviction, but reverse and remand to modify the community
custody conditions consistent with this opinion.
6
WE CONCUR:
47
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