State Of Washington, V. Matthew Boldt ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, ) No. 81053-7-I
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
MATTHEW T. BOLDT, )
)
Appellant. )
BOWMAN, J. — Matthew T. Boldt appeals his conviction for second degree
rape by a health care provider under RCW 9A.44.050(1)(d). He argues the
definition of “treatment” in that statute is unconstitutionally vague. Alternatively,
he argues the statute is ambiguous and the rule of lenity applies. Because the
statute as applied to Boldt is not unconstitutionally vague and it is not ambiguous,
we affirm.
FACTS
Boldt worked as a licensed massage therapist at Hand and Stone
Massage and Facial Spa in Kent. D.Y., a member of Hand and Stone Massage
for two years, scheduled an 80-minute massage with Boldt on July 27, 2017.
During the massage, Boldt sexually assaulted D.Y.
The State charged Boldt with second degree rape under RCW
9A.44.050(1)(d), alleging Boldt is “a health care provider,” D.Y. is his “client or
Citations and pin cites are based on the Westlaw online version of the cited material.
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patient,” and the rape occurred “during a treatment session.” At trial, Boldt
argued D.Y. gave him sexual “vibes” during the massage and consented to
sexual contact. D.Y. testified that she never gave Boldt permission to touch her
in a sexual way and gave him “[a]bsolutely no[ ]” indication that she wanted
sexual contact.
A jury convicted Boldt as charged. The court imposed a standard-range
indeterminate sentence of 78 months to life. Boldt appeals.
ANALYSIS
Vagueness
Boldt argues we should reverse his conviction because RCW
9A.44.050(1)(d) is unconstitutionally vague. We review the constitutionality of a
statute de novo. State v. Watson, 160 Wn.2d 1, 5-6, 154 P.3d 909 (2007).
We presume a statute is constitutional, and a party challenging a statute
on vagueness grounds has the heavy burden of proving vagueness beyond a
reasonable doubt. State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992).
Principles of due process underlying the vagueness doctrine require that the
State afford a defendant fair warning of the proscribed conduct. See Spokane v.
Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). A party challenging a
statute as vague must show beyond a reasonable doubt that either (1) the statute
does not define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is proscribed, or (2) the statute does not
provide ascertainable standards of guilt to protect against arbitrary enforcement.
Coria, 120 Wn.2d at 163.
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Our first step in resolving a vagueness challenge is to determine whether
we review the statute as applied to the facts of a particular case or on its face.
Douglass, 115 Wn.2d at 181-82. If a statute does not involve First Amendment1
rights, then we evaluate a vagueness challenge by examining the statute as
applied to the particular facts of the case. Douglass, 115 Wn.2d at 182.
Because RCW 9A.44.050(1)(d) does not invoke First Amendment
considerations, we evaluate Boldt’s vagueness challenge as applied to the facts.
See State v. Mares, 190 Wn. App. 343, 352, 361 P.3d 158 (2015) (finding the
third degree rape statute does not invoke the First Amendment and therefore the
vagueness challenge must be evaluated as-applied).
A person commits second degree rape when,
under circumstances not constituting rape in the first degree, the
person engages in sexual intercourse with another person . . .
[w]hen the perpetrator is a health care provider, the victim is a client
or patient, and the sexual intercourse occurs during a treatment
session, consultation, interview, or examination. It is an affirmative
defense that the defendant must prove by a preponderance of the
evidence that the client or patient consented to the sexual
intercourse with the knowledge that the sexual intercourse was not
for the purpose of treatment.
RCW 9A.44.050(1)(d).
Boldt argues RCW 9A.44.050(1)(d) is unconstitutionally vague because it
does not sufficiently define the word “treatment.” He contends the definition of
“treatment” is vague because it
allows the State to prosecute anyone who is a licensed health care
provider while conducting any “professional service” that they hold
1 U.S. CONST.
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themselves out to be an expert in, regardless of whether that
[service] is actually treatment under any reasonable definition.
We disagree.
“[F]or purposes of RCW 9A.44.050,” “treatment” is defined as “the active
delivery of professional services by a health care provider which the health care
provider holds himself . . . out to be qualified to provide.” RCW 9A.44.010(15).
The legislature defines “massage” and “massage therapy” as a “health care
service involving the external manipulation or pressure of soft tissue for
therapeutic purposes.” RCW 18.108.010(6). “Health care provider” includes
members “of a health care profession under chapter 18.130 RCW.” RCW
9A.44.010(14)(a). “Massage therapists . . . licensed under chapter 18.108 RCW”
are health care providers. RCW 18.130.040(2)(a)(iv); see also LAWS OF 2007,
ch. 165, § 1 (“The legislature finds that licensed massage practitioners should be
treated the same as other health professionals under Title 18 RCW.”).
On July 27, 2017, Boldt was a licensed massage therapist holding himself
out as qualified to provide massage therapy as a staff member of Hand and
Stone Massage. He sexually assaulted his client D.Y. while delivering massage
therapy services. As applied to Boldt, RCW 9A.44.050(1)(d) afforded fair
warning of the proscribed conduct and provided an ascertainable standard to
protect against arbitrary enforcement. The statute is not unconstitutionally
vague.
Boldt proffers several hypothetical scenarios to show the definition of
“treatment” is impermissibly vague. For example, he opines that the statute
would cover a massage therapist providing “ ‘erotic massages,’ ” even though
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other statutes outlaw that conduct. And the statute would cover a hypnotherapist
engaging in sexual conduct while providing conversion therapy, “despite the
dubious nature of such ‘treatment.’ ” But because we review Boldt’s claim as-
applied, we examine the statute in the context of the particular facts of Boldt’s
case, not “hypothetical situations at the periphery of the [statute]’s scope.”
Douglass, 115 Wn.2d at 182-83.2
Rule of Lenity
Alternatively, Boldt argues that the definition of “treatment” as used in
RCW 9A.44.050(1)(d) is “[a]t the very least” ambiguous, and we should apply the
rule of lenity when interpreting its scope.3 But Boldt identifies no ambiguity in the
definition. Instead, he argues the term is defined too broadly for the same
reason he argues it is impermissibly vague—because it allows the State to
prosecute any health care provider engaged in “any ‘professional services,’ ” no
matter if the provider is qualified to perform those services. That the plain
language of the definition does not distinguish between those services a
professional is qualified to provide and those that a professional is not qualified to
provide does not render the statute ambiguous. Because the statute is not
2 Boldt also cites State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), and State v.
Williams, 144 Wn.2d 197, 26 P.3d 890 (2001), in support of his argument that the definition of
“treatment” is unconstitutionally vague. Because both cases address the facial validity of statutes
that invoke First Amendment rights, we do not find them persuasive. See White, 97 Wn.2d at 97
n.1; Williams, 144 Wn.2d at 203-04.
3The rule of lenity is a tool of statutory construction requiring us to construe an
ambiguous statute in the light most favorable to a criminal defendant. State v. Evans, 177 Wn.2d
186, 193, 298 P.3d 724 (2013).
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ambiguous, we need not apply the rule of lenity. State v. McDaniel, 185 Wn.
App. 932, 936, 344 P.3d 1241 (2015).4
We affirm Boldt’s conviction for second degree rape.
WE CONCUR:
4 In a statement of additional grounds for review, Boldt argues that “the law does not
state with specifics what consent by conduct is.” He is incorrect. RCW 9A.44.010(7) defines
“consent” as “words or conduct indicating freely given agreement to have sexual intercourse or
sexual contact.” The court instructed the jury accordingly.
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