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State v. Johnson
State: Washington
Court: Supreme Court
Docket No: 85765-2
Case Date: 02/23/2012
 
Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 85765-2
Title of Case: State v. Johnson
File Date: 02/23/2012
Oral Argument Date: 10/18/2011

SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
 09-1-04983-8
 Honorable Ronald Kessler

JUSTICES
--------
Barbara A. MadsenSigned Majority
Charles W. JohnsonSigned Majority
Tom ChambersSigned Majority
Susan OwensSigned Majority
Mary E. FairhurstSigned Majority
James M. JohnsonSigned Majority
Debra L. StephensSigned Majority
Charles K. WigginsMajority Author
Steven C. GonzálezDid Not Participate
Gerry L Alexander,
Justice Pro Tem.
Signed Majority

COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
 Thomas Michael Kummerow  
 Washington Appellate Project
 1511 3rd Ave Ste 701
 Seattle, WA, 98101-3647

Counsel for Respondent(s)
 Ann Marie Summers  
 King County Prosecutor's Office
 516 3rd Ave Ste W554
 Seattle, WA, 98104-2362

Amicus Curiae on behalf of Washington Association of Prosec
 Randall Avery Sutton  
 Kitsap Co Prosecutor's Office
 614 Division St
 Port Orchard, WA, 98366-4614
			

   IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                               )
                                                    )
                Respondent,                         )                      No. 85765-2
                                                    )
        v.                                          )                        En Banc
                                                    )
 ROOSEVELT RAFELO JOHNSON, JR.,                     )
                                                    )               Filed February 23, 2012
                Appellant.                          )
                                                    )

       WIGGINS, J. -- Roosevelt  Rafelo Johnson Jr. was convicted by a jury of 

attempted promotion of commercial sexual abuse of a minor based on his interaction 

with two undercover police officers.  The female undercover officers were posing as 

17-year-old girls, though both were in their mid to late 20s.  We hold that a defendant 

can be found guilty of attempted promotion of commercial sexual abuse of a minor 

when the defendant intends the criminal result of the crime, believes that the intended 

victim is a minor even if the victim is an adult posing as a minor, and takes a 

substantial step toward the commission of the crime.  The criminal result of promoting 

commercial sexual abuse of a minor is to advance or profit from the  sexual 

exploitation of minors for financial compensation.        Because the evidence was more  

No. 85765-2

than sufficient to show that Johnson intended to commit the crime and took a 

substantial step toward completion, we affirm his conviction.

                         FACTS AND PROCEDURAL HISTORY

       In July 2009, Seattle Police Sgt. Ryan Long organized a sting operation 

targeting the commercial sexual abuse of minors in the Westlake Mall area of Seattle.  

It was the first time Sgt. Long had run an operation with undercover police officers 

posing as minors to target recruiters of "children into prostitution."     2 Verbatim Report

of Proceedings (RP) at 185.  Sgt. Long chose two female decoy officers who looked 

young: Officer J. Morris (Officer M) and Officer A. Johnson (Officer J).  He instructed 

Officers M and J to hang out at the Westlake Mall and act like 17 year olds.  After two 

hours with no result, Sgt. Long instructed Officers M and J to stroll toward the nearby 

McDonald's restaurant.        Roosevelt Johnson and Lester Payton approached the 

officers en route to McDonald's.

       When Johnson asked their ages, Officers M and J told him they were 17.  

Johnson acknowledged that both women were 17.  After the officers agreed to hang 

out with Johnson and Payton, Johnson told them that the two men were making 

money illegally.  Payton suggested that the two officers could also make money for 

himself and Johnson by selling sexual favors.            Johnson attempted to arrange a 

training session with the two officers and one of his experienced girls.           The officers 

left the area after Johnson and Payton told them to go to Aurora Avenue to walk up 

and down the street soliciting sexual transactions and gave them instructions on how 

                                               2 

No. 85765-2

much to charge for different sexual services.  Uniformed police officers arrested 

Johnson and Payton shortly thereafter.  The two men were tried together.

       The jury was instructed on both attempted promotion of commercial sexual 

abuse of a minor and attempted promotion of prostitution, a lesser included offense.  

During deliberations, the jury inquired whether a conviction on the greater charge 

required that the defendants believed the officers were 17 or whether it was enough 

that the defendants had been told the officers were 17.  The court referred the jury to 

instruction 18, defining knowledge.  The jury ultimately convicted Johnson of 

attempted promotion of commercial sexual abuse of a minor.  Johnson argued on 

appeal that because the victims were both over 18 years old, the State had not 

presented sufficient evidence to convict him of attempted promotion of commercial 

sexual abuse of a minor.  The Court of Appeals certified the matter to this court and 

we accepted certification.

                                          ANALYSIS

       The meaning of a statute is a question of law that we review de novo.  State v. 

Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001).  In assessing whether the 

evidence was sufficient to support a conviction, we view the evidence in the light most 

favorable to the State and decide whether any rational trier of fact could have found 

the elements of the crime beyond a reasonable doubt.  State v. Luther, 157 Wn.2d 

63, 77, 134 P.3d 205 (2006).

                  I.  Substantial Evidence Supports Johnson's Conviction

       Johnson was convicted of attempting to promote the commercial sexual abuse 

                                               3 

No. 85765-2

of a minor.  "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).  The intent required is the intent to 

accomplish the criminal result of the base crime.  State v. DeRyke, 149 Wn.2d 906, 

913, 73 P.3d 1000 (2003).  We look to the definition of the base crime for the 

requisite criminal result.  See id.       A substantial step is an act that is "strongly 

corroborative" of the actor's criminal purpose.  Luther, 157 Wn.2d at 78.  Neither 

factual nor legal impossibility is a defense to criminal attempt.  RCW 9A.28.020(2).  

       A person promotes commercial sexual abuse of a minor "if he or she knowingly 

advances commercial sexual abuse of a minor or profits from a minor engaged in 

sexual conduct."  RCW          9.68A.101(1).  The statute further defines advancing 

commercial sexual abuse of a minor as any conduct, by someone other than the 

minor or the customer, "designed to institute, aid, cause, assist, or facilitate an act or 

enterprise of commercial sexual abuse of a minor." RCW 9.68A.101(3)(a).  A person, 

other than the minor or the customer, profits from commercial sexual abuse of a 

minor by accepting or receiving "money or other property pursuant to an agreement or 

understanding with any person whereby he or she participates or will participate in the 

proceeds of commercial sexual abuse of a minor."  RCW 9.68A.101(3)(b).  

       Thus, the prosecution was required to prove that Johnson (1) intended to either 

advance or profit from the  commercial sexual abuse of a minor and (2) took a 

substantial step toward doing so.  Johnson challenges the sufficiency of the evidence 

                                               4 

No. 85765-2

to support his conviction.

       Here, the State proved that Johnson asked the officers how old they were, that 

each officer told him that she was 17 years old, and that Johnson acknowledged that 

each officer said that she was 17.  After he learned that they were 17 years old, 

Johnson asked Officer J if she was interested in working for him as a "'ho.'"           I RP at 

87. Johnson explained to Officer J what a "ho" does (pleasure men for money), what 

type of customer they should seek, and that they should bring the money back to him.  

Id. at 92-93.   Johnson instructed both officers that each would have to choose 

whether to work for him or for Payton.  Johnson even tried to arrange training for the 

two officers from one of his experienced girls.

       A challenge to the sufficiency of the evidence admits the truth of the State's 

evidence.  Luther, 157 Wn.2d at 77-78.  Based on this evidence, it is clear that a 

rational trier-of-fact could conclude beyond a reasonable doubt that Johnson intended 

to both advance and profit from the sexual exploitation of two women who claimed to 

be 17 years old and that he took a substantial step in that direction.  Johnson admits 

as much but bases his argument solely on the fact that the officers were not actually 

17.

  II. Johnson's Arguments Amount to a Claim of Impossibility, Which Is Not a Defense 
                                       to Criminal Attempt

       Johnson's challenge to the sufficiency of the evidence fails because it is 

essentially an impossibility defense.  He argues that the verdict was not supported by 

substantial evidence because the officers were both adults and there was no 

                                               5 

No. 85765-2

evidence of an actual minor victim because neither officer was actually 17.  In other 

words, it was impossible for him to commit the crime with these officers.  But our 

legislature has rejected both factual and legal impossibility as a defense to criminal 

attempt.  RCW 9A.28.020(2).

       We have held that this rejection of impossibility as a defense applies to 

attempted crimes against minors.  Luther, 157 Wn.2d at 73-74 (impossibility not a 

defense to attempted possession of child pornography where the defendant did not 

receive the images he sought or where the images the defendant received were not 

of actual minors); State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002) 

(defendant took a substantial step toward rape of a 13-year-old child that he met in an 

on-line chat room even though the victim was actually a male detective pretending to 

be a 13-year-old girl because impossibility is not a defense to criminal attempt).  We 

similarly reject Johnson's attempt to raise an impossibility defense here.

       III. Our Dictum in Patel Does Not Compel Us To Allow Johnson To Raise an 
                                      Impossibility Defense

       Johnson argues that our recent decision in State v. Patel, 170 Wn.2d 476, 242 

P.3d 856 (2010), requires that the State prove an actual victim is under the age of 18.  

Johnson bases his argument on the cautionary statement in Patel that "a defendant 

who attempts to have sex with a person he believes is underage but is actually an 

adult may not be convicted" of attempted child rape.  Br. of Appellant at 10 (quoting 

Patel, 170 Wn.2d at 485).  

           The Road to Patel

                                               6 

No. 85765-2

       To understand Patel, we begin with our earlier decision in State v. Dunbar, 117 

Wn.2d 587, 817 P.2d 1360 (1991).  The defendants in Dunbar had fired shots from a 

moving car into a crowd.  Id. at 589.  Although no one in the crowd was injured, 

Dunbar and his codefendant were charged with attempted first degree murder by 

extreme indifference creating a grave risk of death under RCW 9A.32.030(1)(b).  117 

Wn.2d at 589. We held that Dunbar could not be convicted of attempted first degree 

murder by extreme indifference.  To be guilty of attempt, one must act "with intent to 

commit a specific crime . . . ."  RCW 9A.28.020(1).  So to be guilty of attempted 

murder, one must intend the death of another person.  But the crime of murder by 

indifference does not require intent to cause death.  Dunbar, 117 Wn.2d at 595.  

Therefore, one cannot be guilty of attempted first degree murder by extreme 

indifference.  Id. at 596.

       We quoted in Dunbar a concession by the parties: "All parties concede one 

may not attempt a nonintent crime."  Id. at 590.  The defendant relied on this 

statement in the subsequent case of State v. Chhom, 128 Wn.2d 739, 911 P.2d 1014 

(1995).  Chhom was charged with attempted rape of a child when he tried to force his 

penis into the mouth of a 9-year-old boy.  Id. at 740.  Chhom argued that knowledge 

of the victim's age was not an element of the offense and reasoned from the 

"nonintent crime" statement in Dunbar that he could not be guilty of attempted rape of 

a child because there was no intent required as to the victim's age.  Id. at 741.  We 

rejected Chhom's argument, reasoning that the intent required for attempted rape of a 

                                               7 

No. 85765-2

child is the intent to have sexual intercourse: "the attempt statute brings into the crime 

of rape of a child the element of 'the intent to have sexual intercourse' (the criminal 

result) but it does not add anything to the remaining strict liability requirements 

(perpetrator and victim not married, and the ages of the victim and perpetrator).  As to 

these elements, attempted rape of a child is still a strict liability offense."  Id. at 743.

                                               8 

No. 85765-2

       We again considered this issue in Townsend, 147 Wn.2d 666.  A Spokane

police detective set up a sting operation by establishing a "'Hotmail'" Internet e-mail 

account with a screen name of "'ambergirl87'" (Amber), a fictitious 13-year-old girl.  

Id. at 670.  Posing as Amber, the detective communicated via the Internet with 

defendant Townsend, who arranged to meet Amber at a motel and to have sexual 

intercourse with her.  Id. at 671.  Townsend was charged with attempted second 

degree rape of a child.  He argued that he could not be convicted of attempt, which 

requires taking a substantial step toward completing the crime, RCW 9A.28.020(1), 

because "Amber" did not exist.  147 Wn.2d at 679.  We characterized his argument 

as one of impossibility, which is not a defense under the attempt statute.  RCW 

9A.28.020(2).  We held that it makes no difference that Amber did not exist because 

Townsend intended to commit the crime and took a substantial step toward

completion.  147 Wn.2d at 679.

       Chhom and  Townsend were followed by Patel,  170 Wn.2d 476, with facts 

virtually identical to Townsend: a sting operation by the same Spokane                    police

detective posing as an underage girl over the Internet.  Like Townsend, Patel was 

arrested when he arrived at the proposed rendezvous.  Also like Townsend, Patel 

was convicted of attempted second degree rape of a child.  Patel argued an apparent 

contradiction between Chhom, in which the State was not required to prove that the 

defendant knew the age of the victim in order to convict the defendant of attempted 

rape of a child, and Townsend, in which the State was required to prove that the 

                                               9 

No. 85765-2

defendant intended to have sexual intercourse with an imaginary victim whom he 

believed to be underage in order to convict of attempted rape of a child: "Patel sees 

an apparent contradiction in these two holdings, suggesting that either the 

defendant's belief about the victim's age is relevant (Townsend) or it is not (Chhom) 

but that it cannot be both."  170 Wn.2d at 483.

       A plurality of the court in Patel reconciled this arguable inconsistency, holding 

that in the case of an actual victim, the State need not prove that the defendant 

believed the victim to be underage, but in the case of a fictitious victim, the State must 

prove the defendant's specific intent to have intercourse with an underage victim.  

170 Wn.2d at 484.  However, the plurality then addressed a hypothetical fact pattern, 

which has arisen in the case now before us: "a defendant who attempts to have sex 

with a person he believes is underage but is actually an adult may not be convicted 

under either [Chhom or Townsend] -- because the victim actually existed and factual 

impossibility is not a concern."  Id. at 485.  Here, defendant Johnson relies on this 

statement, pointing out that the undercover police officers were both adults.

       The actual holding of Patel is correct and we reaffirm it -- a defendant who 

intends to have sexual intercourse with a fictitious underage person and takes a 

substantial step in that direction can be convicted of attempted rape of a child.  The 

plurality's statement about attempted sexual intercourse with an adult whom the 

defendant believes to be underage was unnecessary to the resolution of Patel and is 

nonbinding dictum.  Ass'n of Wash. Bus. v. Dep't of Revenue, 155 Wn.2d 430, 442 

                                               10 

No. 85765-2

n.11, 120 P.3d 46 (2005).  It is not binding for the additional reason that only four 

justices agreed with the statement.  A plurality has little precedential value and is not 

binding.  See In re Isadore, 151 Wn.2d 294, 302, 88 P.3d 390 (2004).  Finally, the 

language in question was rejected by five members of the court that did not join the 

plurality.  Patel, 170 Wn.2d at 486 (Madsen, C.J., concurring) (rejecting the cited 

language as internally inconsistent and undermining the rationale of the lead opinion); 

id. at 490 (Sanders, J., concurring) (rejecting the distinction between fictitious and 

actual victims).

       We now disapprove the Patel dictum because it can be traced back to the 

misstatement in Dunbar that one cannot commit attempt of a "nonintent" crime.  

Dunbar, 117 Wn.2d at 590.

       Our statement in Dunbar is erroneous because it conflates the elements of 

criminal attempt and the  elements of the base crime.  Criminal attempt has two 

elements: intent to commit the base crime and a substantial step toward doing so.  

RCW 9A.28.020(1).  While we look to the base crime to define the specific intent 

element of criminal attempt, the elements of criminal attempt do not define the base 

crime.  The Dunbar court correctly identified death as the criminal result of first 

degree murder by extreme indifference.  117 Wn.2d at 589.  The court could have 

stopped there and held that where the prosecution cannot make a prima facie 

showing of intent to kill, the charge of attempted first degree murder cannot stand.  

Instead the court reversed the analysis: it applied the intent element of criminal 

                                               11 

No. 85765-2

attempt to first degree murder by reckless indifference and held that because the 

base crime did not require the mental state of intent to kill it could not serve as a base 

crime for attempted murder.  Id. at 594-95.

       It is not necessary that the base crime contain the same mental state element 

as the crime of attempt in order to prosecute the attempt crime.  The mental state 

required for criminal attempt (specific intent) is the highest mental state requirement 

defined by statute.  See RCW 9A.08.010 (defining the four mental states in declining 

order of seriousness: intent, knowledge, recklessness, and criminal negligence).  We 

require the highest possible mental state for criminal attempt because criminal 

attempt focuses on the dangerousness of the actor, not the act. See 2 pt. 1 Model 

Penal Code and Commentaries cmt. 1 at 298-99, cmt. 2, at 303 (1985) (MPC & 

Cmts.); Judiciary  Comm. of Wash. Legis.  Council, Revised  Washington Criminal 

Code 104-05 (Dec. 3, 1970) (Judiciary Comm. Draft).             Because we do not punish 

"evil thoughts alone," the law of criminal attempt does not punish "conduct that does 

not itself strongly corroborate the actor's criminal objective."  MPC & Cmts. cmt. 1, at

298-99. Our legislature accomplished this by requiring both intent to commit the base 

crime and a substantial step toward that crime.

       Although the Dunbar holding is problematic, it supports the legislature's policy 

choice in adopting the revised criminal code in 1975.  This revision was the first 

comprehensive review and reform of the criminal code since 1909.  1975  Final 

Legislative Report, 44th Wash. Leg. at 243.  It was based in part on the Model Penal 

                                               12 

No. 85765-2

Code.  Id.   The Model Penal Code defines criminal attempt more broadly than does 

RCW 9A.28.020:

       A person is guilty of an attempt to commit a crime if, acting with the kind 
       of culpability otherwise required for commission of the crime, he:
              (a)      purposely engages in conduct that would constitute the 
       crime if the attendant circumstances were as he believes them to be; or
              (b)      when causing a particular result is an element of the crime, 
       does or omits to do anything with the purpose of causing or with the 
       belief that it will cause such a result without further conduct on his part; 
       or
              (c)     purposely does or omits to do anything that, under the 
       circumstances as he believes them to be, is an act or omission 
       constituting a substantial step in a         course of conduct planned to 
       culminate in his commission of the crime.

MPC & Cmts. § 5.01(1), at 295-96.

       One major effect of this definition was to "sweep[] aside the defense of 

impossibility."  MPC & Cmts. at 295.  Our legislature clearly agreed that impossibility 

should not be a defense.  RCW 9A.28.020(2), see also Judiciary Comm. Draft cmt. 2,

at 105.   But the drafters of the Model Penal Code also intended this definition of 
criminal attempt to extend culpability to defendants like Dunbar.1  MPC & Cmts. cmt. 

2, at 304-05.  We rejected this extension of culpability.  Judiciary Comm. Draft cmt. 1, 

at 103 (stating that the two attempt definitions in subsections (a) and (b) of MPC 

5.01(1) "appear too broad in their potential application"); see also MPC & Cmts. cmt. 

1 The comment to the Model Penal Code section 5.01 gives the example of a person who 
intends to demolish a building, knowing that people are living there. MPC & Cmts. cmt. 2, at
305. The comment argues that there is not a sufficient basis for distinguishing between the 
dangerousness of the person who succeeds in killing the people in the building and the 
person whose bomb was defective because "the actor has done all within his power to 
cause [the criminal] result to occur."  Id.

                                               13 

No. 85765-2

2, at 305 ("Only a minority of recent revisions have explicitly followed the Model Code 

on this point.").

       Therefore, the Dunbar court was correct that RCW 9A.32.030(1)(b) could not 

serve as a base crime for criminal attempt.  But the court reached that holding by 

incorrectly applying the mental state required for criminal attempt to the base crime.  

Therefore, we limit Dunbar's holding to attempted first degree murder by extreme 

reckless indifference under RCW 9A.32.030(1)(b).

       Relying on Dunbar, the defendant in Chhom, 128 Wn.2d at 741, argued that 

because rape of a child had no mental state element, it could not serve as a base 

crime for criminal attempt.  Instead of recognizing the error in Dunbar's reasoning, we 

redefined the criminal result of rape of a child as mere "sexual intercourse" rather 

than "sexual intercourse with a child."  Chhom, 128 Wn.2d at 741. We reasoned that 

attempted rape of a child could therefore remain a "strict liability" offense with regard 

to the age of the child.  Id.  

       But criminal attempt is not a strict liability offense.  Even the conduct element of 

criminal attempt (substantial step) must be strongly corroborative of the actor's 

criminal intent.  Luther, 157 Wn.2d at 78.  Moreover, sexual intercourse alone is not 

criminal.  The general rape statutes require forcible compulsion or an unwilling or 

incapacitated victim.  See RCW 9A.44.040, .050, .060.  Similarly, rape of a child 

requires that the victim be a child of a certain age and a certain number of months 

younger than the perpetrator.  See RCW 9A.44.073. .076, .079.             Just as the criminal 

                                               14 

No. 85765-2

result of first degree rape is sexual intercourse by forcible compulsion, DeRyke, 149 

Wn.2d at 913, the criminal result of rape of a child is sexual intercourse with a child.2  

Accordingly, we disapprove of our statement in Chhom, 128 Wn.2d at 741, defining 

the criminal result of rape of a child as sexual intercourse alone.

       Indeed, the Townsend court held that the criminal result of rape of a child was 

sexual intercourse with a minor, without any reference to or acknowledgement of the 

holding in Chhom.  Townsend, 147 Wn.2d at 679-80; Patel, 170 Wn.2d 482.  It was 

the  Patel  plurality's attempt to harmonize this fundamental dissonance between 

Chhom and Townsend that resulted in thefractured opinion.

       Accordingly, it is clear that the age of the victim of child rape -- either the child 

victim's actual age or the defendant's belief in a fictitious victim's age -- is material to 

proving the specific intent element of attempted child rape.  The State must prove the 

age of the intended victim to prove that the defendant intended to have sexual 

intercourse with a child.  However, the State's method of proving the intended victim's 

age will be different depending on whether the victim is an actual child or a fictitious 

child.

       An actual child's age can be proved by extrinsic sources, a birth certificate for 

2 Interestingly,  DeRyke distinguished first degree rape from first degree rape of a child 
based on Chhom's definition of the criminal result of the latter offense.  DeRyke, 149 Wn.2d 
at 913.  While under Chhom, rape of a child requires only the intent to have sexual 
intercourse, the first degree rape statute requires proof of forcible compulsion.  DeRyke, 
149 Wn.2d at 913.  However, the child rape statutes also require proof of the age of the 
child victim.  This requirement strongly suggests that the age of the victim is also relevant to 
the intent element of attempted rape of a child.

                                               15 

No. 85765-2

example.  Having proved the intended victim's age, the State must show that the 

defendant intended to have sexual intercourse with this victim in order to prove that 

the defendant intended to have sexual intercourse with a child.  But a fictitious victim 

exists only within the context of the sting operation; her age can be established only

by publication and receipt of the information.  Thus, the State must show that the 

defendant knew the perceived victim's age, usually by proving that the perceived 

victim communicated her age and the defendant received the information.  The State 

must then make the same proof of the defendant's intent:  that he intended sexual 
intercourse with this victim.3

       Here, the base crime for Johnson's conviction of criminal attempt was 

promoting commercial sexual abuse of a minor.  This crime is similar to rape of a child 

in that lack of knowledge of the minor's age is not a defense to the crime.  Compare

3 RCW 9A.44.030(2) provides a defense to rape of a child: "the defendant must prove by a 
preponderance of the evidence that at the time of the offense the defendant reasonably 
believed the alleged victim to be the age  identified in subsection (3) [for  a defendant 
charged with first, second, or third degree rape of a child]." This reasonable belief must be 
"based upon declarations as to age by the alleged victim."  Id.      This defense to rape of a 
child has a corollary that applies to promoting commercial sexual abuse of a minor:

       It is a defense, which the defendant must prove by a preponderance of the 
       evidence, that at the time of the offense, the defendant made a reasonable 
       bona fide attempt to ascertain the true age of the minor by requiring 
       production of [a valid government identification document] and did not rely 
       solely on the oral allegations or apparent age of the minor.

RCW 9.68A.110(3).

       Both of these provisions are defenses to crimes for which lack of knowledge of the 
victim's age is not a defense.  Neither are defenses to criminal attempt.  We decline to 
speculate as to the effect of these defenses on the intent element of criminal attempt 
because that issue is not before us on the facts of this case.

                                               16 

No. 85765-2

RCW 9A.44.030(2), with RCW 9.68A.110(3).  However, Johnson was charged with 

attempted promotion of commercial sexual abuse of a minor.  And in the context of 

criminal attempt, the victim's age is similarly material to proving the defendant's intent 

to accomplish the criminal result of promoting commercial sexual exploitation of 

minors.    Johnson's victims were undercover police officers pretending to be 17.  

Therefore, Johnson's knowledge of their stated ages was material: the State was 

required to prove that Johnson believed his victims to be minors to prove that he 

intended to advance or profit from the commercial sexual exploitation of a minor.             At 

Johnson's trial, each of the officers testified that she told Johnson that she was 17, 

that Johnson acknowledged it, and that afterward he asked them to work for him as a 

"'ho.'" RP at 92, 299. This evidence is sufficient.

                                          Conclusion

       We affirm Johnson's conviction of attempted promotion of commercial sexual 

abuse of a minor because the evidence at his trial, viewed in the light most favorable 

to the State, was more than sufficient to convince a rational trier-of-fact of Johnson's 

guilt.

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

                                               17 

No. 85765-2

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Gerry L. Alexander, Justice Pro Tem.

        Justice Susan Owens

        Justice Mary E. Fairhurst

                                               18
			

 

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