State v. Patel
State v. Patel
Opinion of the Court
¶1 Mitel Patel was convicted of attempted second degree rape of a child after he was caught in an
I
¶2 Detective Jerry Keller was part of an undercover operation run by the Spokane Police Department’s sexual exploitation unit designed to catch on-line sexual predators. As part of that operation, Keller created an on-line profile for a fictitious girl named “Kimberly,” specifically designed to make “Kimberly” appear to be under the age of 16.
¶3 When Patel arrived at the apartment, he knocked on the door, identified himself, and was immediately arrested. A search incident to arrest revealed that Patel was carrying five condoms
¶4 Patel was charged with attempted second degree rape of a child. Prior to trial, he made a motion to dismiss the charge, arguing that the State could not prove that the victim was at least 12 years old but less than 14 years old — a necessary element to prove the completed crime of second degree rape of a child.
¶5 Patel then filed a motion for arrest of judgment pursuant to CrR 7.4, arguing that in the context of attempted second degree rape of a child, the victim’s age is a necessary element that the State must prove beyond a reasonable doubt. Patel maintained that the State had failed to produce sufficient evidence to convict him because the alleged victim in this case was fictitious and not actually 13 years old. He argued that because second degree rape of a child is a strict liability offense, his subjective belief about “Kimberly’s” age was just as irrelevant to
¶6 Patel appealed his conviction. The Court of Appeals affirmed in an unpublished opinion. State v. Patel, noted at 147 Wn. App. 1053 (2008).
II
¶7 “The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We interpret statutes de novo. Morgan v. Johnson, 137 Wn.2d 887, 891, 976 P.2d 619 (1999). We also review questions of law de novo. State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006).
¶8 The elements of attempted second degree rape of a child come from two separate statutes: the child rape statute and the criminal attempt statute. To prove second degree rape of a child, the State must prove beyond a reasonable doubt that the defendant had “sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1). The defendant’s intent with respect to the victim’s age is not an element of the crime, meaning that the State is not required to prove that the defendant knew the victim was underage. Instead, the statute focuses on the criminal result of the defendant’s conduct: sex with an underage partner. While intent with regard to the age of the victim is not an element of the crime, a defendant’s knowledge of the victim’s age is relevant in that defendants may assert an affirmative defense and prove by a preponderance of the evidence that they reasonably believed the victim was older based on the victim’s own declarations. RCW 9A.44.030(2).
A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.
RCW 9A.28.020(1) (emphasis added). The attempt statute focuses on the defendant’s intent by imposing criminal liability if the defendant intends a criminal result and takes a substantial step toward achieving that result, regardless of whether the act is completed. State v. Dunbar, 117 Wn.2d 587, 590, 817 P.2d 1360 (1991). The statute specifically eliminates legal or factual impossibility as a defense. RCW 9A.28.020(2). Criminal attempt crimes provide “a basis of punishment for actors who, by mere fortuity, have not completed a crime, but who are indistinguishable in blameworthiness from those who succeed.” Audrey Rogers, New Technology, Old Defenses: Internet Sting Operations and Attempt Liability, 38 U. Rich. L. Rev. 477, 479 (2004).
¶10 We have harmonized these statutes before. The fact that the State is not required to prove the defendant knew the victim was underage in order to establish child rape has previously raised questions about whether rape of a child can serve as a base crime under the attempt statute at all. Chhom, 128 Wn.2d at 741. In Chhom, a 16-year-old defendant was charged with attempted rape of a child after he attacked a 9-year-old boy, exposed himself, and tried to force his penis into the boy’s mouth. Id. at 740. The defendant argued that because rape of a child requires no proof of intent with regard to the age of the victim, the State could not prove the “ ‘intent to commit a specific crime’ ” element necessary to convict the defendant under the attempt statute. Id. at 743. We held that “[w]hen coupled with the attempt statute, the intent required for attempted rape of a child is the intent to accomplish the criminal result: to have sexual intercourse.” Id. We concluded that the State was not
¶11 Six years after our decision in Chhom we held, on facts very similar to those here, that a defendant caught in an Internet sting operation may be convicted of attempted rape of a child even if the alleged victim does not in fact exist. Townsend, 147 Wn.2d at 679. Townsend argued that there was insufficient evidence to convict him of attempted rape of a child because the intended victim in that case was in fact a police officer posing as a 13-year-old girl named “Amber.”
¶12 The Court of Appeals found, and the State
¶13 Patel essentially argues that although he intended to have sex with a minor and attempted to do so, he cannot be convicted of attempted rape of a child because, fortuitously, the victim did not in fact exist.
¶15 Both of these positions further the legislature’s intent with regard to the child rape and criminal attempt statutes. Chhom recognizes the legislature’s intent to protect children by forcing defendants “to assume the risk when they engage in conduct that may be harmful to children” even when they are stopped short of completing the act. Rogers, supra, at 519. Townsend's holding adheres to the legislature’s directive to preclude legal and factual impossibility as defenses to the criminal attempt statute. RCW 9A.28.020(2). Contrary to Patel’s assertion, Townsend provides significant protection for children by allowing police investigators to take a proactive role in preventing harm before Internet predators can complete their objective.
¶16 Our position is consistent with other jurisdictions. Most states that have addressed this issue have upheld attempted rape convictions arising out of sting operations
¶17 However, we caution that before us in Townsend and today is a “victim” who is in fact a fictional underage character created by the police. A defendant who attempts to have sex with a person he believes is an adult but is actually underage can be convicted under Chhom.
¶18 Generally, to prove attempted child rape, the State must prove the defendant intended to have sex and took a substantial step toward doing so, and that the intended victim was actually underage. However, where the victim is a fictitious character created by the police, the State may prove attempted rape of a child by establishing the defendant specifically intended to have sex with an underage person and took substantial steps toward that objective. We affirm the Court of Appeals.
The on-line profile did not actually state “Kimberly’s” age, but Detective Keller testified that the other information he posted, such as where she went to school and what she liked to do, was designed to make “Kimberly’ appear as though she was under 16 years old. I Verbatim Report of Proceedings at 49.
During the on-line chat, in response to “Kimberly’s” expressed concerns about getting pregnant, Patel told her that he had five condoms.
Patel also made a motion to suppress the chat conversations under Washington’s privacy act, chapter 9.73 RCW. The trial court’s denial of that motion was affirmed by the Court of Appeals. State v. Patel, noted at 147 Wn. App. 1053 (2008). Neither party has raised this issue here.
The victim in Townsend was also a fictitious 13-year-old girl (“Amber”) created by Detective Keller as part of an Internet “sting” operation. Townsend, 147 Wn.2d at 670.
Under the attempt statute,
[i]f the conduct in which a person engages otherwise constitutes an attempt to commit a crime, 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.
ROW 9A.28.020(2).
The State relies on the 2007 brief it filed in this court on direct review. No response was filed to Patel’s petition for review, nor did the State file a supplemental brief after we accepted discretionary review.
Additionally, Patel argues that the true victim here was Detective Keller, an adult. However, it was the fictional character “Kimberly” with whom Patel intended and attempted to have sex. Detective Keller was not the intended victim.
Patel’s argument is similar to that of a thief who tries to pick an empty pocket and argues that he cannot be convicted of theft because he could not have completed the crime. See Rogers, supra, at 493.
We acknowledge that Chhom indicates that intent with respect to the victim’s age is immaterial in cases involving attempted rape of a child while Townsend indicates that it is material. However, Chhom involved an actual child where there was no dispute over the victim’s age, and Townsend involved a fictitious child the defendant believed was underage. Read in context, these two cases are in harmony.
Of course, as noted above, defendants in this situation may still affirmatively show that their belief that the child was older was reasonable based on the child’s own declarations. RCW 9A.44.030(2).
We do not believe it was the intent of the legislature to protect adults who “role play” and pretend to be younger than they actually are.
Concurring Opinion
¶19 (concurring) — I agree with the lead opinion that a defendant may be convicted of attempted rape of a child, even though the “child” is a fictional character, so long as the State proves the defendant took a substantial step toward intercourse with a person he believed was within the protected age range.
¶20 However, I write separately because the lead opinion says that “a defendant who attempts to have sex with a person he believes is underage but is actually an adult may not be convicted ... because the victim actually existed and factual impossibility is not a concern.” Lead opinion at 485.
¶21 This is internally inconsistent and, indeed, undermines the rationale that otherwise supports the lead opinion.
Concurring Opinion
¶22 (concurring) — Attempted rape of a child in the second degree is defined by the criminal attempt requirements, RCW 9A.28.020(1), which reference the un
¶23 The lead opinion takes a different approach, artfully dancing between the two existing interpretations. Under the lead opinion, the requirements for attempted rape of a child shift depending upon the characteristics of the targeted partner/victim for the sexual intercourse. The lead opinion would hold: (1) when the targeted partner turns out to be an actual minor, the State must prove the strict liability element of child rape in the second degree — that the minor is at least 12 but less than 14 years old — to prove attempt (the lead opinion bases this upon Chhom, 128 Wn.2d at 743) and (2) when the targeted partner turns out to be a fabricated Internet persona used in a sting operation, the State must prove the defendant intended to have sexual intercourse with a minor between 12 and 14 to prove attempt (the lead opinion bases this upon Townsend, 147 Wn.2d at 679).
¶24 The lead opinion would rewrite the attempted child rape offenses. But it is not the role of the court to rewrite the law; its role is simply to apply it. Nothing in the criminal attempt statute, RCW 9A.28.020(1), or anything it references in the underlying offense statute, RCW 9A.44-.076(1), permits the requirements of the offense to change depending upon the identity of the targeted partner. The lead opinion tries to overstep its role as a judicial body and assumes the mantle of the legislature. This court must interpret the law based upon what the law says, not what the lead opinion would like it to say. I instead turn to the language of the relevant statutes.
¶25 To determine what the elements are for attempted rape of a child in the second degree, we turn to the attempt statute. Attempt crimes are defined by RCW 9A.28.020(1) as follows: “A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.” Thus, there are two elements: intent and a substantial step.
¶26 The intent to commit a specific crime means the perpetrator intends to bring about the “criminal result” of the crime. State v. Dunbar, 117 Wn.2d 587, 590, 817 P.2d 1360 (1991). The attempt statute thus refers us to the criminal result of the underlying offense. The criminal result of the rape of a child in the second degree is “sexual intercourse[
¶27 Here, Mitel Patel intended to have sexual intercourse with a 13-year-old girl who was not his wife and who was at least 36 months younger than he is. He has satisfied the intent element of the attempt crime. He satisfied the substantial
II. Walking the Earth, like Caine in Rung Fu
¶29 Having resolved the issue on appeal, the lead opinion journeys into the land of hypotheticals, “fixing” the “problems” it foresees. The lead opinion would hold that Townsend applies when the intended victim is a fictional persona created by police officers for a sting operation, but does not apply when there is an actual minor victim. Not only is there no statutory basis for the lead opinion to create different elements of the offense depending on the identity of the victim, but the elements adopted for these two other circumstances lack support in the language of the statute and are unworkable.
Actual minor victim
¶30 The lead opinion would hold Chhom’s definition of attempted child rape applies when there is an actual minor victim. Again, under the attempt statute, a person must intend the criminal result of the underlying offense. Chhom defined the “criminal result” for child rape simply as “sexual intercourse,” not necessarily sexual intercourse with a minor. 128 Wn.2d at 743. Chhom then added an additional element to the attempted child rape offense, requiring proof (1) of intent to have sexual intercourse, (2) of a substantial step toward having sexual intercourse, and (3) that the intended victim was actually a minor (of the age and with the characteristics set forth in the underlying child rape statute). The lead opinion would adopt these three elements for situations where there is an actual minor victim. Unfortunately Chhom is a misunderstanding of the attempt statute and is unworkable.
¶31 The attempt statute sets forth the elements of the crime. It references and incorporates the criminal result from the underlying statute. Chhom sought to merge the attempt statute (RCW 9A.28.020) with the underlying of
¶32 Furthermore, by its express language, the statute setting forth the defenses to child rape that Chhom merges with the attempt statute does not apply to the attempt
¶33 The statutory misinterpretation in Chhom also leads to absurd results. We must avoid such absurdity. See, e.g., State v. Hall, 168 Wn.2d 726, 737, 230 P.3d 1048 (2010) (a court is bound to interpret the law to avoid absurd results when it can do so without doing violence to the words of the statute). Chhom identified the criminal result of the rape of a child as “sexual intercourse.” But sexual intercourse, by itself, is not a criminal result. Nor is the general intent to have sexual intercourse an “intent to commit a specific crime.” RCW 9A.28.020(1). Sexual intercourse is criminal only when performed with a member of a restricted class: here, with a minor who has the characteristics set forth under the relevant statutes. See RCW 9A.44.073, .076, .079.
¶34 Under Chhom, an individual has committed all the actions necessary for attempted child rape by intending to have sexual intercourse and knocking on the door of a woman he believes to be an adult. See 128 Wn.2d at 743. But where is the “intent to commit a specific crime” as the attempt statute requires? RCW 9A.28.020(1) (emphasis added). It is no crime to intend to have sex and take a substantial step to do so. The crime is that the intended partner in the sexual act is a minor (as characterized under the relevant statute).
¶35 Under Chhom and the lead opinion, a person is guilty of attempted rape of a child and will be labeled a sex offender under the following circumstances: He meets someone on-line who says she is 25 years old. After a risqué discussion, he intends to have sex with her. Upon invitation, he goes to her home to have sex with this 25-year-old woman. He knocks on the door. A 13-year-old girl, who posed
¶36 One might argue that just as a person can be guilty of child rape without realizing that his partner was a minor, so too can a person be guilty of attempted child rape without realizing that his intended partner is underage. But such a comparison is readily distinguishable; RCW 9A.28.020(1) requires criminal intent for the attempt, whereas RCW 9A.44.020(1) and .030(2) require no such intent. The statutes, on their faces, impose different requirements.
¶37 In application, this difference makes an abundance of sense. In a situation involving the rape of a child, a person would have had firsthand personal contact with the minor up to and upon sexual intercourse, providing an opportunity for his suspicions to be aroused that the individual was not an adult — and fairly shifting onto him the responsibility to confirm otherwise. In a situation involving the attempted rape of a child where, as here, the contact is initiated on-line, the person may not even be in the presence of his intended partner until after he has committed the necessary actions for attempted child rape under Chhom and the lead opinion. Thus, the lead opinion misinterprets RCW 9A.28.020(1) to put those who seek amorous relationships on-line in peril of attempted child rape charges even where they neither are seeking nor would carry out any sexual contact with a minor.
¶38 One might argue that RCW 9A.44.030(2) provides rescue to such hapless Internet users because a defendant can avoid conviction by proving at the time of the offense he
¶39 The language of the attempt statute does not create a strict liability offense, and Chhom’s attempt to do so leads to absurd results. I disagree with the lead opinion’s reliance on Chhom where there is an actual minor involved, instead of uniformly applying Townsend.
III. Conclusion
¶40 As the saying goes, “If it ain’t broke, don’t fix it.” The statutes here are not broken, and the lead opinion has neither the authority nor the justification to “fix” them. I would continue to follow our decision in Townsend and apply the criminal attempt statute as written: attempted rape of a child is not a strict liability crime and the government must prove the defendant intended to have sexual intercourse with a minor of the age and under the circumstances set forth by the underlying child rape offense. I concur with the lead opinion’s application of Townsend to the facts here but disagree with its reliance on Chhom.
¶41 I concur.
“Sexual intercourse” is defined as:
(a) halving] its ordinary meaning and occurs upon any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
RCW 9A.44.010CL).
We did not grant review on the issue of whether Patel’s actions constitute a substantial step. It was not raised in the petition for review.
Patel argues this is inconsistent with this court’s treatment of attempted theft of property in the first degree, citing State v. Delmarter, 94 Wn.2d 634, 618 P.2d 99 (1980). At the time that case was decided, theft of property in the first degree required theft of over $1,500 worth of property. Id. at 636 (citing former RCW 9A.56.030 (1975)). The defendant was found in the proximity of a cash drawer with approximately $1,800 in it. Id. The defendant argued there was insufficient evidence to establish that he knew there was over $1,500 in the cash drawer so he could not have had the requisite intent to steal over $1,500 required for first degree theft. Id. at 637. The five-justice majority did not analyze the issue in depth but merely concluded the underlying theft charge did not require proof of knowledge of the property value, making no reference to application of the attempt statute. Id. The four-justice dissent argued the record was insufficient to infer the defendant specifically intended to take the contents of the cash drawer, rather than the prescription drugs that were also present. Id. at 639-40 (Williams, J., dissenting). Neither the majority nor the dissent discussed the “criminal result” of theft of property in the first degree; Delmarter provides no analysis to assist the inquiry here.
Patel challenges Townsend because it leaves a gap in prosecutorial coverage. For instance, a man goes home with a 13-year-old girl, actually believing her to be 18 years old. At no point, regardless of the substantial steps he takes toward sexual intercourse, would he be guilty of attempted child rape because he lacked the intent. Thus, if he was prevented from having actual sexual intercourse with the 13-year-old girl by intervening circumstances, he would avoid being guilty of a crime, because he did not commit child rape (although he would have if he could have) and did not have the criminal intent needed to prove attempt.
This “gap” in coverage exists, but is overstated. In the hypothetical situation above, the man’s conduct leading up to the prevented sexual intercourse may constitute child molestation. See RCW 9A.44.083, .086, .089. Furthermore, the attempt statute sets forth the crime. If the legislature did not intend the gap the statutory language creates, it is the role of the legislature, not the judiciary, to rewrite the statute.
As the State points out, if an attempt statute merged with the underlying offense — requiring a prosecutor to establish the elements of the completed offense — there would be no purpose or place for an attempt crime. The prosecutor would just charge the defendant with the underlying offense.
One might argue reference to RCW 9A.44.030(2), the defense statute, is irrelevant because RCW 9A.44.076(1), the child rape statute, itself sets forth a strict liability offense — since it contains no intent language. This argument is immaterial; even if RCW 9A.44.076(1) independently sets forth a strict liability crime, the attempt statute incorporates only its criminal result into the attempt offense. RCW 9A.28.020(1). Nowhere does the attempt statute adopt the strict liability component of rape of a child.
In any event, this argument is misleading and incorrect. There is no question here that rape of a child is a strict liability offense. However, the legislature imposed strict liability by virtue of the defense statute, RCW 9A.44.030(2). As we stressed in State v. Anderson, an offense statute’s lack of an express provision for an affirmative defense of unwitting conduct or lack of knowledge indicates that intent is an element of the offense. 141 Wn.2d 357, 362-63, 5 P.3d 1247 (2000). Here, RCW 9A.44.076(1) itself provides no such defense; it is RCW 9A.44.030(2) that makes clear ignorance and indifference provide no defense.
Additionally, if RCW 9A.44.076 is a strict liability offense independently of RCW 9A.44.030(2), then it renders the defense statute redundant. See RCW 9A.44 .030(2) (“[I]t is no defense that the perpetrator did not know the victim’s age, or that the perpetrator believed the victim to be older . . . .”). We do not interpret statutes to render terms or language redundant. See, e.g., Berrocal v. Fernandez, 155 Wn.2d 585, 599-600, 121 P.3d 82 (2005). Thus, RCW 9A.44.030(2) must provide the strict liability component.
By its language, RCW 9A.44.030(2) applies only to prosecution of offenses under chapter 9A.44 RCW; therefore, it does not cover attempt crimes, RCW 9A.28.020(1). But since the lead opinion tries to erroneously merge RCW 9A.44.030(2) into the attempt crime, a defendant presumably would be privy to the defenses provided therein.
Reference
- Full Case Name
- The State of Washington v. Mitel Patel
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