State Of Washington v. Adam J. Persell ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
April 14, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52236-5-II
Respondent,
v.
ADAM JOSEPH PERSELL,
UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Following an online sting operation, a jury found Adam Persell guilty
of two counts of attempted first degree rape of a child1 and one count of attempted second degree
rape of a child.2 Persell argues (1) there is insufficient evidence to support his convictions, (2)
his trial counsel provided ineffective assistance by failing to object to certain testimony, and (3)
the trial court erred by prohibiting Persell from having contact with his minor biological and
legal children.
In addition, Persell raises several issues in a statement of additional grounds (SAG) for
review. Persell argues that his sentence as a persistent offender violates constitutional
protections against double jeopardy, the “substantial step” required for an attempt crime is
unconstitutionally vague, the trial court erred by denying an entrapment defense, this court
should adopt federal standards for an entrapment defense, the trial court erred by denying
1
RCW 9A.44.073; RCW 9A.28.020.
2
RCW 9A.44.076; RCW 9A.28.020.
No. 52236-5-II
Persell’s motion to dismiss for outrageous government conduct, and Persell received ineffective
assistance from his trial counsel.
We hold that (1) sufficient evidence supports Persell’s convictions, (2) trial counsel did
not provide ineffective assistance, (3) the trial court erred when it failed to consider Persell’s
fundamental right to parent before prohibiting contact with minors, and (4) Persell raises no
reversible issues in his SAG.
Accordingly, we affirm Persell’s convictions, but remand for the trial court to consider
Persell’s fundamental right to parent before imposing a sentencing condition prohibiting contact
with minors.
FACTS
Law enforcement officers posted an advertisement on the Craigslist Casual Encounters
online platform, purporting to be “Hannah,” a mother of three children.3 1 Verbatim Report of
Proceedings (VRP) (July 24-26, 2018) at 114, 127. The posting was titled “Family Play
Time!?!? – w4m,” and stated, “Mommy/daughter, Daddy/daughter, Daddy/son, Mommy/son. . . .
you get the drift. If you know what I’m talking about hit me up we’ll chat more about what I
have to offer you.”4,5 Ex. 9. Persell responded that he knew what the post author was referring
to and was interested. Detective Kristl Pohl, posing as Hannah, stated that she was the mother of
three young children, her offer was not role play, and she “need[ed] a man to help me teach my
3
We use the law enforcement officer’s undercover persona for clarity.
4
“W4M” stands for woman for man.
5
We preserve the original spelling and grammar in the messages.
2
No. 52236-5-II
kids the way I grew up learning about sex from my dad.” 1 VRP (July 24-26, 2018) at 124-25.
Hannah provided a phone number to Persell, so he could text her.
Persell texted Hannah, asking for more information about her family. Hannah stated the
children were Sam, age 6; Anna, age 11; and Jay, age 13. Persell continued, asking, “Has there
been any exploration or experimenting?” and stating, “I am assuming that you will want
everyone to be able to play with everyone.” 1 VRP (July 24-26, 2018) at 127. Hannah replied,
“All the kids have had some experience. My son prefers men and just had his first bottom
experience which he loved” and “Anna has a lot of experience with oral and toys but has not
been fully penetrated yet. Sam has a little experience with toys and oral.” 1 VRP (July 24-26,
2018) at 128. Hannah asked about Persell’s experience and how he wanted to be involved with
Hannah’s children. Persell stated, “Was involved with my brother and sister growing up. I want
to be involved with you guys in any way that you want. I’m very open and comfortable with
sex.” 1 VRP (July 24-26, 2018) at 129. Hannah asked if he was interested in all three children.
Persell said “Yup. Into pretty much everything.” 1 VRP (July 24-26, 2018) at 130. Hannah and
Persell exchanged photos of themselves.6 Persell requested photos of the children.
Hannah stated, “My rule are [sic] no pain and no anal (except for my son of course) and
condoms and lube are required for the girls.” 1 VRP (July 24-26, 2018) at 130. Persell said,
“Definitely” and “I’m good with those rules.” 1 VRP (July 24-26, 2018) at 130. Hannah asked
what Persell wanted. Persell stated, “So here’s the deal. I am kinda hesitant. I think I am good.
You are pressing really hard for details. I am thinking you are just a guy trying to get his rocks
off. So I am good. Hope you find what you are looking for.” 1 VRP (July 24-26, 2018) at 133-
6
“Hannah” in the photographs was portrayed by Detective Krista McDonald.
3
No. 52236-5-II
34. Hannah replied, “I’m pressing for details because I’ve exposed myself, telling you a lot, and
you’ve said nothing. That’s a total cop move.” 1 VRP (July 24-26, 2018) at 134. Hannah sent a
picture of herself with Jay and Anna that Persell had previously requested.7 Persell stated, “Tell
you what. You’re in Tumwater. Do you have a min to meet up somewhere public?” 1 VRP
(July 24-26, 2018) at 134-35. Hannah replied that she did not want to meet in public and asked
Persell to provide details about what he wanted to do with the children.
Persell asked the ages of the children and then specifically and graphically detailed
sexual acts involving all three children.8 Persell requested a photograph of Jay’s buttocks, and
Hannah sent a photograph of a clothed buttocks. Persell asked for a photograph of one of the
girls. Hannah declined, but invited Persell to come over, telling him to go to a mini-mart near
her address.
Persell said, “I might be able to sneak away for a bit, lunch and all. Just enough for a
meet and greet kinda thing.” 1 VRP (July 24-26, 2018) at 139. Hannah replied, “These kind of
meet and greets are the fun kind. Jay is especially excited to meet you.” 1 VRP (July 24-26,
2018) at 140. Persell replied, “Nice. Me too.” VRP (July 24-26, 2018) at 140. Persell went to
the designated mini-mart, and sent photographs from that location. Hannah provided Persell the
apartment address.
7
The photographs law enforcement officers sent to Persell were of officers posing as the
children, not actual children.
8
Persell’s graphic language is not reproduced here, but he described performing sexual acts on
the children that included sexual intercourse and sexual contact as defined by RCW
9A.44.010(1)-(2).
4
No. 52236-5-II
Persell arrived at the apartment and Hannah met Persell at the door and let him inside.
Law enforcement officers then arrested Persell. Persell was charged with two counts of
attempted first degree rape of a child and one count of attempted second degree rape of a child.
The case proceeded to a jury trial. Detective Pohl testified about the text conversations
described above. Detective Krista McDonald testified, among other things, about Persell’s
phone’s ring tone, which played after Persell entered the apartment. Detective McDonald
testified that Persell’s ring tone was “a laughing sound” followed by “touch my d**k.” 1 VRP
(July 24-26, 2018) at 118. When asked how she knew it was the cell phone making that sound,
Detective McDonald testified:
I didn’t turn around to look, but it was coming from his person, and then the text
message tone went off a couple more times, and one of the times that the text
message tone alerted from his phone was when the undercover detective sent out a
test text to his phone so we would know which phone to seize as evidence.
VRP (July 24-26, 2018) at 118. Persell’s counsel did not object to Detective McDonald’s
testimony. The trial court also admitted a video of Persell entering the apartment. During the
video, Persell’s cellphone’s ring tone is audible. At trial, the State provided no evidence that
Persell possessed condoms or lubricant when he was arrested. During closing arguments, the
State referenced the ring tone multiple times to support its argument that Persell intended to
commit first and second degree rape of children.
A jury found Persell guilty as charged. Because Persell had a previous conviction for
second degree child rape, the trial court sentenced him as a persistent offender, resulting in his
confinement for life without the possibility of release. At sentencing, Persell submitted letters
from his wife and stepson stating that not being able to have contact with Persell would have a
negative effect on his son and stepson. The stepson claimed that Persell was the only father he
5
No. 52236-5-II
had ever known. Nonetheless, the trial court imposed a sentencing condition that prohibited
contact with all minors, including his “biological and legal children.” Clerk’s Papers (CP) at
312. Persell appeals his convictions and sentence.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Persell argues that his convictions are not supported by sufficient evidence. Specifically,
Persell argues the evidence does not support that he possessed the requisite intent or took a
substantial step toward committing the crimes of first and second degree rape of a child. We
disagree.
Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
beyond a reasonable doubt. State v. Farnsworth, 185 Wash. 2d 768, 775, 374 P.3d 1152 (2016).
“In claiming insufficient evidence, the defendant necessarily admits the truth of the State’s
evidence and all reasonable inferences that can be drawn from it.” State v. Homan, 181 Wash. 2d
102, 106, 330 P.3d 182 (2014). We draw such inferences in favor of the State and interpret them
most strongly against the defendant. State v. Kintz, 169 Wash. 2d 537, 551, 238 P.3d 470 (2010).
We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence. State v. Andy, 182 Wash. 2d 294, 303, 340 P.3d 840 (2014).
Circumstantial evidence is not any less reliable or probative than direct evidence in reviewing the
sufficiency of the evidence supporting a jury verdict. Kintz, 169 Wash. 2d at 551.
To convict a defendant of attempted rape of a child, the State must prove beyond a
reasonable doubt that the defendant intended to have sexual intercourse with a child, and that he
6
No. 52236-5-II
took a substantial step toward having sexual intercourse with a child. RCW 9A.44.073, .076;
RCW 9A.28.020.9 Persell argues that the intent and substantial step elements were not proved.
A. Sufficient Evidence Support’s Persell’s Intent To Rape
Persell argues that insufficient evidence supports an intent to rape when he went to
Hannah’s residence. We disagree.
The requisite intent required for attempted rape of a child is the intent to have sexual
intercourse with a child. RCW 9A.28.020(1); RCW 9A.44.076; State v. Johnson, 173 Wash. 2d
895, 907, 270 P.3d 591 (2012). “Sexual intercourse” is defined as any penetration however
slight, or any sexual contact between one person’s sex organs and the mouth or anus of another.
RCW 9A.44.010(1)(a), (c). “Sexual contact” is defined as any touching of the sexual or other
intimate part of a person done for the purpose of gratifying sexual desire. RCW 9A.44.010(2).
Persell argues that the State did not prove his intent to have sexual contact with the
children because he agreed to Hannah’s rules and went to Hannah’s address simply to meet the
children. Persell argues that Hannah’s rules required that he use lubricant and condoms and that
he did not bring these items to the meeting. He additionally points to evidence that he told
Hannah that he was on his lunch break and only wanted a “meet and greet” with her and the
children. We hold that sufficient evidence supports Persell’s convictions.
Persell’s text messages described to Hannah in graphic detail the sex acts he wanted to
perform with her children, ages six, eleven, and thirteen. Hannah set forth rules for having sex
9
The difference between first degree and second degree rape of a child is the age of the intended
victim. For attempted first degree rape, the intended victim must be under the age of twelve.
RCW 9A.44.073. For attempted second degree rape, the intended victim must be between the
ages of twelve and fourteen. RCW 9A.44.076.
7
No. 52236-5-II
with her children, to which Persell agreed. Persell followed Hannah’s directions to travel to her
address to meet the children. Hannah said that this meeting was “the fun kind” and Persell
responded positively. 1 VRP (July 24-26, 2018) at 140.
A reasonable jury could find beyond a reasonable doubt that Persell had the requisite
intent to have sexual intercourse with a child. Persell sent graphic messages describing his desire
to engage in sexual intercourse and sexual contact with the children. Two hours after these
graphic messages, Persell tried to meet Hannah and the children. A jury could reasonably infer
that the “fun kind” of meeting included sexual contact with the children. Persell’s argument that
he did not bring lubricant and condoms to the meeting is an invitation to reweigh the evidence in
Persell’s favor. However, any rational fact finder, viewing the evidence in the light most
favorable to the State, could find that Persell possessed the requisite intent to commit attempted
first and second degree rape of a child beyond a reasonable doubt. Accordingly, sufficient
evidence supports that Persell possessed the intent to rape the children.
B. Sufficient Evidence Supports that Persell Took a Substantial Step Toward Rape
Persell also argues that the State failed to prove he took a substantial step toward
committing first or second degree rape of a child. His argument here relies on the lack of intent
to have sex with the children. He argues that because his plan was only to meet the children, he
did not take a substantial step toward raping them. Because sufficient evidence supports
Persell’s criminal intent and because Persell went to the place where his crimes were to be
committed with that criminal intent, we hold that substantial evidence supports that Persell took
a substantial step.
8
No. 52236-5-II
To commit attempt, a defendant must take a substantial step toward the commission of a
crime. RCW 9A.28.020(1). A substantial step is conduct strongly corroborative of the
defendant’s criminal purpose. State v. Wilson, 158 Wash. App. 305, 317, 242 P.3d 19 (2010).
Mere preparation to commit a crime is not a substantial step toward the commission of that
crime. Wilson, 158 Wash. App. at 317. However, “[a]ny slight act done in furtherance of a crime
constitutes an attempt if it clearly shows the design of the individual to commit the crime.” State
v. Price, 103 Wash. App. 845, 852, 14 P.3d 841 (2000). The question of whether certain conduct
constitutes a substantial step in a particular case is for the trier of fact. State v. Workman, 90
Wash. 2d 443, 449, 584 P.2d 382 (1978).
Conduct that may be indicative of a substantial step includes physically traveling to the
place where the crime may be committed. State v. Townsend, 105 Wash. App. 622, 631-32, 20
P.3d 1027 (2001). Once a substantial step is taken, the crime of attempt occurred. Workman, 90
Wash. 2d at 450.
Persell compares this case to State v. Grundy, 76 Wash. App. 335, 886 P.2d 208 (1994). In
Grundy, an undercover officer posing as a drug runner approached Grundy, and asked Grundy
what he wanted. 76 Wash. App. at 336. When Grundy expressed a desire to purchase cocaine, the
officer arrested him. 76 Wash. App. at 336. Division Three of this court reversed Grundy’s
conviction for attempted possession of cocaine because there was insufficient evidence of a
substantial step. 76 Wash. App. at 338. This court held that the parties were merely in “the
negotiation stage.” 76 Wash. App. at 338. Persell argues that the State failed to prove he took a
substantial step because he and Hannah were still in the negotiation stage.
9
No. 52236-5-II
Here, unlike Grundy, the evidence establishes that Persell took actions that strongly
corroborated his intent to rape the children. Persell went to Hannah’s address for a “fun kind” of
meet and greet with the children. Persell travelled to meet the children after he agreed to
Hannah’s rules and discussed his sexual desires. A jury could reasonably infer that nothing
remained to be negotiated between Persell and Hannah for the sex acts to take place. Taking the
evidence in a light most favorable to the State, a reasonable jury could find beyond a reasonable
doubt that Persell took a substantial step toward raping the children by traveling to the apartment.
Accordingly, we hold that sufficient evidence supports that Persell took a substantial step toward
committing his crimes. As a result, sufficient evidence supports Persell’s convictions.10
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Persell argues that he received ineffective assistance from his trial counsel when counsel
failed to object to Detective McDonald’s testimony regarding Persell’s ring tone. Specifically,
Persell argues that Detective McDonald’s testimony regarding the ring tone’s content was
“opinion testimony.” Br. of Appellant at 26. He argues that it was improper opinion testimony
because it was an opinion on evidence the jury could hear for itself and because Detective
McDonald did not have a sufficient factual basis to support her testimony as to the ring tone’s
content. Finally, Persell argues that Detective McDonald’s testimony was a comment on
Persell’s state of mind. We hold that Persell’s counsel’s performance was not deficient because
Detective McDonald’s testimony was not opinion testimony.
10
Moreover, to the extend Persell’s argument hinges on the fact that he did not intend to rape the
children during the specific visit, his argument fails. Persell identifies no law that imposes a
restriction on the length of time between the substantial step and the intended crime.
10
No. 52236-5-II
A. Ineffective Assistance of Counsel Principles
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wash. 2d
17, 32, 246 P.3d 1260 (2011). To demonstrate that he received ineffective assistance of counsel,
Persell must show both (1) that defense counsel’s performance was deficient and (2) that the
deficient performance resulted in prejudice. State v. Linville, 191 Wash. 2d 513, 524, 423 P.3d 842
(2018). Defense counsel’s performance is deficient if it falls below an objective standard of
reasonableness. State v. Estes, 188 Wash. 2d 450, 458, 395 P.3d 1045 (2017). Prejudice ensues if
the result of the proceeding would have been different had defense counsel not performed
deficiently. 188 Wash. 2d at 458. Because both prongs of the ineffective assistance of counsel test
must be met, the failure to demonstrate either prong will end our inquiry. State v. Classen, 4
Wn. App.2d 520, 535, 422 P.3d 489 (2018). We strongly presume that defense counsel’s
performance was not deficient. State v. Emery, 174 Wash. 2d 741, 755, 278 P.3d 653 (2012).
Where the defendant claims ineffective assistance based on counsel’s failure to challenge
the admission of evidence, the defendant must show (1) an absence of legitimate strategic or
tactical reasons supporting the failure to object, (2) that an objection likely would have been
sustained, and (3) that the trial’s result would have differed had the evidence not been admitted.
State v. McFarland, 127 Wash. 2d 322, 336-37, 899 P.2d 1251 (1995)); State v. Hendrickson, 129
Wash. 2d 61, 80, 917 P.2d 563 (1996).
B. Evidentiary Principles
A lay witness with personal knowledge may give opinion testimony if the testimony is
(1) rationally based on the witness’s perception and (2) helpful to a clear understanding of the
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No. 52236-5-II
testimony or the fact in issue. ER 602; ER 701; see State v. Hardy, 76 Wash. App. 188, 190, 884
P.2d 8 (1994). No witness may give an opinion regarding the guilt of the defendant because
such testimony invades the exclusive province of the jury. State v. Demery, 144 Wash. 2d 753,
759, 30 P.3d 1278 (2001). Opinion testimony is not objectionable simply because it relates to
the ultimate issue in the case. State v. George, 150 Wash. App. 110, 117, 206 P.3d 697 (2009); ER
704. However, when a witness has insufficient factual information, the witness may not opine
on another person’s state of mind. State v. Farr-Lenzini, 93 Wash. App. 453, 462, 970 P.2d 313
(1999). Opinion testimony can be defined as testimony based on a person’s belief rather than on
their direct knowledge of the facts. Demery, 144 Wash. 2d at 760.
C. Counsel Was Not Ineffective
Detective McDonald testified that Persell’s ring tone was “a laughing sound” followed by
“touch my d**k.” 1 VRP (July 24-26, 2018) at 118. Persell argues that because the ring tone is
undecipherable in the video, Detective McDonald cannot testify as to what she heard. Persell is
incorrect.
Detective McDonald’s testimony was not an opinion. She testified regarding what she
heard when Persell’s ring tone sounded. Testimony regarding what Detective McDonald heard
was not based on her belief. Rather, Detective McDonald testified as to her observations based
on her personal knowledge because she was in the room when the ring tone played. Because
Detective McDonald’s testimony was not an opinion, an objection to her testimony based on
improper opinion would have failed. Persell did not receive ineffective assistance from his trial
counsel.
12
No. 52236-5-II
III. NO CONTACT WITH HIS MINOR CHILDREN
Persell argues that the trial court erred by preventing Persell from having contact with his
son, age five, and stepson, age sixteen. We hold that the trial court erred because it failed to
consider Persell’s fundamental right to parent before prohibiting contact with minors.
A sentencing court is authorized to impose and enforce crime-related prohibitions. RCW
9.94A.505(9); State v. Warren, 165 Wash. 2d 17, 32, 195 P.3d 940 (2008). “Crime-related
prohibitions” are orders directly related to “the circumstances of the crime” for which the
offender has been convicted, and may include orders prohibiting contact. RCW 9.94A.030(10);
State v. Armendariz, 160 Wash. 2d 106, 113, 156 P.3d 201 (2007). A causal link between the
condition imposed and the crime committed is not necessary as long as the condition relates to
the crime’s circumstances. State v. Llamas-Villa, 67 Wash. App. 448, 456, 836 P.2d 239 (1992).
We review a trial court’s imposition of crime-related prohibitions for abuse of discretion.
Warren, 165 Wash. 2d at 32. A trial court abuses its discretion if its decision in imposing a
sentencing condition is manifestly unreasonable or based on untenable grounds. State v. Ancira,
107 Wash. App. 650, 653, 27 P.3d 1246 (2001). We do not substitute our own reasoning for the
trial court’s reasoning, absent an abuse of discretion. State v. Lord, 161 Wash. 2d 276, 295, 165
P.3d 1251 (2007).
Parents have a fundamental liberty interest in the care, custody, and companionship of
their children. In re Pers. Restraint of Rainey, 168 Wash. 2d 367, 374, 229 P.3d 686 (2010);
Warren, 165 Wash. 2d at 34. However, parental rights are not absolute; the State has a compelling
interest in protecting children from actions that would jeopardize their physical or mental health.
Pers. Restraint of Rainey, 168 Wash. 2d at 378; Warren, 165 Wash. 2d at 34.
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No. 52236-5-II
When a sentencing condition interferes with a fundamental constitutional right, we
engage in a more careful review of the condition. Warren, 165 Wash. 2d at 32. Conditions that
interfere with fundamental rights “must be ‘sensitively imposed’ so that they are ‘reasonably
necessary to accomplish the essential needs of the State and public order.’” Pers. Restraint of
Rainey, 168 Wash. 2d at 374 (quoting Warren, 165 Wash. 2d at 32).
Sentencing courts can restrict the fundamental right to parent by conditioning a criminal
sentence if the condition is reasonably necessary to further the State’s compelling interest in
preventing harm and protecting children. See, e.g., State v. Corbett, 158 Wash. App. 576, 598, 242
P.3d 52 (2010). Before imposing a sentencing condition that restricts the fundamental right to
parent, a trial court must address the defendant’s fundamental right to parent and set forth in the
record an explanation as to whether the condition is reasonably necessary to achieve the
compelling state interest of preventing harm to children. State v. DeLeon, __ Wn. App. 2d __,
456 P.3d 405, 407-08 (2020).
Here, the trial court prohibited contact with minors, including Persell’s “biological and
legal children.” CP at 312. However, the trial court did not consider Persell’s fundamental right
to parent before imposing this condition. Further, the trial court failed to set forth an explanation
as to whether the condition was reasonably necessary to achieving a compelling State interest or
consider less restrictive alternatives.
We remand for the trial court to conduct the proper analysis on the record before
imposing a sentencing condition which interferes with Persell’s fundamental right to parent. To
the extent it is necessary for the trial court to determine Persell’s constitutional right to parent his
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No. 52236-5-II
stepson, we note that Persell’s stepson was sixteen at the time of sentencing in August 2018, and
thus may have already reached the age of majority.
IV. STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Persell argues (1) that his sentencing as a persistent offender violates
constitutional protections against double jeopardy, (2) the “substantial step” required for an
attempt crime is unconstitutionally vague, (3) the trial court erred by denying an entrapment
defense, (4) this court should adopt federal standards for an entrapment defense, (5) the trial
court erred by denying Persell’s motion to dismiss, and (6) Persell received ineffective assistance
from his trial counsel. Persell’s SAG arguments fail.
A. Additional Facts
Before trial, Persell filed a motion to dismiss his case, based on outrageous government
conduct. Persell’s motion largely adopted the motion to dismiss of another defendant, Bryan
Glant, who had also responded to the Craigslist posting.
Glant’s motion alleged financial wrongdoing by Washington State Patrol (WSP) in
managing and funding the Washington Missing and Exploited Children Task Force’s (MECTF)
“Net Nanny” sting operations. Glant claimed that the Net Nanny operations were funded
through an alliance with Operation Underground Railroad (O.U.R.), a private organization
seeking to eliminate child exploitation. Glant alleged that WSP Sergeant Carlos Rodriguez
solicited donations from O.U.R. for the purpose of funding officer overtime pay that resulted
from the Net Nanny operations. Glant argued that the relationship between MECTF, WSP, and
O.U.R. caused MECTF to generate more arrests and push the individuals targeted by the stings
into more severe crimes to solicit higher O.U.R. donations. Glant argued that this arrangement
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No. 52236-5-II
violated the law. Specifically, Glant argued that law enforcement officers’ conduct toward Glant
in the sting, along with this financial arrangement with O.U.R., amounted to outrageous
government conduct which violated Glant’s right to due process. The trial court denied Persell’s
motion.
B. SAG Principles
We consider only arguments not already adequately addressed as raised by the
defendant’s appellate counsel. State v. Thompson, 169 Wash. App. 436, 493, 290 P.3d 996 (2012).
We do not consider matters outside the scope of the direct appeal. State v. Barberio, 121 Wash. 2d
48, 50-51, 846 P.2d 519 (1993). We do not review matters outside the record on direct appeal.
McFarland, 127 Wash. 2d at 338. Issues involving facts outside of the record are properly raised in
a personal restraint petition, rather than a SAG. State v. Calvin, 176 Wash. App. 1, 26, 316 P.3d
496 (2013).
C. Double Jeopardy is Not Implicated
Persell argues that being sentenced as a persistent offender under the Persistent Offender
Accountability Act (POAA)11 violated his Fifth Amendment right against double jeopardy
because he is being punished for a previous conviction he was already punished for. We
disagree.
We review double jeopardy claims de novo. State v. Mutch, 171 Wash. 2d 646, 661-62, 254
P.3d 803 (2011). The constitutional guarantee against double jeopardy protects defendants from
being punished multiple times for the same offense. U.S. CONST. amend. V; WASH. CONST. art.
I, § 9; Mutch, 171 Wash. 2d at 661. For purposes of a double jeopardy inquiry, where the
11
RCW 9.94A.570.
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No. 52236-5-II
legislature has authorized a punishment range for a particular crime, the resulting sentence within
that range constitutes punishment only for the offense of conviction. Witte v. United States, 515
U.S. 389, 403-04, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995).
The POAA states that anyone convicted as a persistent offender shall be sentenced to a
term of total confinement for life without the possibility of release. RCW 9.94A.570. The
definition of persistent offender includes someone who twice has been convicted of certain listed
sex offenses in Washington. Former RCW 9.94A.030(37) (2012). Those listed offenses include
second degree rape of a child, attempted second degree rape of a child, and attempted first degree
rape of a child. Former RCW 9.94A.030(37)(b)(i).
Here, Persell’s sentence of life without the possibility of release resulting from his second
strike offense under the POAA does not violate his right against double jeopardy. For the
present case in Thurston County, Persell was charged with and convicted of two counts of
attempted second degree rape of a child and one count of attempted first degree rape of a child.
In Mason County, Persell had previously been convicted of second degree rape of a child. Thus,
his present convictions in Thurston County qualified as a second strike requiring a sentence of
life without the possibility of release under the POAA. As a result of his Thurston County
convictions, Persell did not receive a separate sentence for his previous conviction of second
degree rape of a child from Mason County. Witte, 515 U.S. at 403-04. Rather, Persell received
sentences only for his crimes in Thurston County. We hold that Persell’s right against double
jeopardy is not implicated here.
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No. 52236-5-II
D. “Substantial Step” Is Not Unconstitutionally Vague
Persell argues that the “substantial step” required for an attempt crime is
unconstitutionally vague because it is not defined. We disagree. To the extent that Persell also
contends he did not take a substantial step toward committing attempted child rape, we addressed
this argument above.
A statute may be unconstitutionally vague if it fails to define an ascertainable standard
by which a person may measure their conduct. State v. Cozza, 19 Wash. App. 623, 626, 576 P.2d
1336 (1978). RCW 9A.28.020(1) states that a person is guilty of attempt to commit a crime
when that person, with the intent to commit a specific crime, takes a “substantial step toward the
commission of that crime.” In State v. Cozza, we held that the term “substantial step” in the
criminal intent statute was not unconstitutionally vague. 19 Wash. App. at 626. We stated, “The
term ‘substantial step’ is not a technical one so as to require definition but rather clearly advises
the public that mere preparation to commit a crime is not a criminal offense.” 19 Wash. App. at
626. The question of whether certain conduct constitutes a substantial step in a particular case is
for the trier of fact. Workman, 90 Wash. 2d at 449.
Here, RCW 9A.28.020 (1) provides an ascertainable standard for a person to measure
their conduct. A reasonable person would not be required to guess at the meaning of a
“substantial step toward the commission of that crime.” We hold that “substantial step” is not
unconstitutionally vague.
E. Entrapment Is Outside the Record on Appeal
Persell argues that the trial court erred by not allowing an entrapment defense, and that
this court should adopt federal standards for entrapment. Persell states that the trial court denied
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No. 52236-5-II
his request for an entrapment defense in a pretrial hearing. However, the record on appeal does
not contain such a pretrial hearing. Rather, the trial court considered Persell’s motion to dismiss
based on a due process violation for outrageous government conduct. Although the motion to
dismiss and hearing on the motion discussed entrapment as related to potential due process
violations, the record does not include any proposal of an entrapment instruction or attempt to
argue an entrapment defense. Because we do not review matters outside the record on direct
appeal, McFarland, 127 Wash. 2d at 338, we decline to consider Persell’s SAG arguments
regarding entrapment.
F. Trial Court Properly Denied Persell’s Motion To Dismiss
Persell argues that the trial court erred when it denied his motion to dismiss based on
outrageous government misconduct. We hold that the trial court did not abuse its discretion
when it denied Persell’s motion.
The concept of outrageous conduct is founded on the principle that “the conduct of law
enforcement . . . may be ‘so outrageous that due process principles would absolutely bar the
government from invoking judicial processes to obtain a conviction.’” State v. Lively, 130
Wash. 2d 1, 19, 921 P.2d 1035 (1996) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93
S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). We review whether the trial court erred in denying a
motion to dismiss based on outrageous government misconduct for an abuse of discretion. State
v. Athan, 160 Wash. 2d 354, 375, 158 P.3d 27 (2007). A trial court abuses its discretion when its
decision is manifestly unreasonable or based on untenable grounds or reasons. Athan, 160
Wash. 2d at 375-76. When a trial court adopts a view that no reasonable person would take, then it
has abused its discretion. State v. Solomon, 3 Wash. App. 2d 895, 910, 419 P.3d 436 (2018).
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No. 52236-5-II
To determine whether government conduct violated due process, a trial court must assess
the conduct based on the totality of the circumstances. Lively, 130 Wash. 2d at 21. Government
conduct is outrageous and violates due process only when the conduct is so shocking that it
violates fundamental fairness and the universal sense of fairness. 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.” 130 Wash. 2d at 20. Dismissal based on outrageous
government conduct is reserved for only the most egregious circumstances. 130 Wash. 2d at 20.
In evaluating whether government conduct violated due process, courts consider several
factors, including: (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) (quoting People v. Isaacson, 44
N.Y.2d 511, 521, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978)).
Here, Persell moved to dismiss based on perceived outrageous government conduct and
constitutional violations. In denying the motion, the trial court made detailed findings and
conclusions. The trial court determined that the motion was based on two issues: (1) the alleged
misconduct regarding MECTF’s acquisition of funds and how that acquisition was connected to
Persell’s charges, and (2) the nature of the interactions between law enforcement officers and
Persell. The trial court considered these issues within the Lively factors.
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No. 52236-5-II
The trial court considered the totality of the circumstances and weighed all Lively factors.
Regarding the first factor, police conduct instigating crime or infiltrating existing crime, the trial
court concluded the factor was neutral because little evidence in the record provided specific
information about the “landscape of Craigslist” at the time of the sting. CP at 291. During its
oral ruling, the trial court stated that Craigslist might be a meeting place for consenting adults or
Craigslist might be “fraught with criminal misconduct.” VRP (March 26, 2018) at 64. Because
the record lacked sufficient evidence, the trial court found that the first factor was neutral. For
the same reason, the trial court concluded the third factor, whether the government controls the
criminal activity or simply allows it to occur, was also neutral.
The trial court concluded the second factor, whether Persell’s reluctance to commit a
crime was overcome by pleas or solicitation, favored the State. Although the trial court
recognized that Persell exhibited some reluctance in his messages, the messages as a whole
showed that Persell was not reluctant to commit a crime and that his will was not overcome by
persistent pleas or solicitations.
For the fourth factor, whether or not the police motive was to prevent crime or protect the
public, the trial court concluded this factor strongly favored the State. The trial court examined
RCW 13.60.110,12 which allows for the solicitation of private funds for the MECTF, and RCW
9A.68.020,13 which prohibits public employees from requesting unlawful compensation. The
12
“The chief of the state patrol shall seek public and private grants and gifts to support the work
of the task force.” RCW 13.60.110(4).
13
“A public servant is guilty of requesting unlawful compensation if he or she requests a
pecuniary benefit for the performance of an official action knowing that he or she is required to
perform that action without compensation or at a level of compensation lower than that
requested.” RCW 9A.68.020(1).
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No. 52236-5-II
trial court concluded that neither statute was violated for this sting. Nonetheless, the trial court
stated that “even if there were technical violations of RCW 13.60.110 or RCW 9A.68.020, or
another statute, the Court still finds that overall the police motive was to prevent crime and
protect the public.” CP at 292.
The trial court concluded the fifth factor, whether the government conduct itself
amounted to criminal activity or conduct that is repugnant to a sense of justice, favored the State.
The trial court concluded that no law enforcement officer violated the law or acted in a way that
was repugnant to justice. The trial court concluded, “Even if there were criminal activity in this
case, it is not sufficient to justify a dismissal given the standards that apply.” CP at 293.
In his SAG, Persell argues the trial court erred when denying his motion because “[t]he
police instigated the crime; persistently solicited the appellant to commit the crime; the police
controlled, and in fact engineered, the criminal activity; and the police committed criminal
conduct in operating the ‘sting operation’ by corrupt profiteering and illegal fundraising without
statutory authority.” SAG at 5. We hold that the trial court did not abuse its discretion when
denying Persell’s motion to dismiss.
The trial court denied Persell’s motion to dismiss, regardless of any violation of the law
or criminal activity of by law enforcement officers, because he did not show that the government
participated in outrageous conduct. In making this ruling, the trial court did not adopt a view
that no reasonable judge would take. The record does not show whether MECTF’s sting
operation instigated a crime or infiltrated ongoing criminal activity. However, Persell was not
hesitant in his pursuit of Hannah’s children. Persell responded to the posting the same day he
attempted to have sexual contact with the children. Although law enforcement officers solicited
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No. 52236-5-II
and encouraged Persell, there is little evidence that law enforcement overcame any reluctance
Persell had to commit the crimes. Because a reasonable judge could have adopted the view of
the trial court, we hold that the trial court did not abuse its discretion when denying Persell’s
motion to dismiss.
G. Persell Did Not Receive Ineffective Assistance from his Trial Counsel
Persell argues that he received ineffective assistance from his trial counsel because
counsel did not (1) challenge certain phone records, (2) present a defense, and (3) pursue an
entrapment defense. Persell also challenges Detective McDonald’s testimony, but we addressed
that argument above. We hold that Persell did not receive ineffective assistance.
To demonstrate that he received ineffective assistance of counsel, Persell must show both
(1) that defense counsel’s performance was deficient and (2) that the deficient performance
resulted in prejudice. Linville, 191 Wash. 2d at 524. Counsel is not deficient for failing to make
requests that would be unsuccessful. State v. Denny, 173 Wash. App. 805, 811, 294 P.3d 862
(2013). We strongly presume that defense counsel’s performance was not deficient. Emery, 174
Wash. 2d at 755.
1. Phone Records
Persell argues that his trial counsel was ineffective for failing to argue that law
enforcement officers violated Persell’s Fourth Amendment rights when it sent text messages
from Persell’s unlocked phone between 10:43 PM and 11:46 PM. The record contains the text log
between law enforcement officers and Persell. The last text in the log is at 9:12 PM. The record
does not contain the additional texts sent after 9:12 PM. Because we do not review matters
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No. 52236-5-II
outside the record on direct appeal, McFarland, 127 Wash. 2d at 338, we decline to consider
Persell’s argument.
2. Presenting a Defense
Persell argues that his counsel was ineffective for failing to (1) present exculpatory
evidence gathered by a defense investigator, (2) call witnesses regarding his work schedule, (3)
follow Persell’s requests to present Persell’s cell phone to the jury, and (4) submit Persell’s
psychological evaluation.
To provide effective assistance, defense counsel must investigate the case, including an
investigation of witnesses. State v. Visitacion, 55 Wash. App. 166, 173-74, 776 P.2d 986 (1989).
Defense counsel’s failure to investigate or interview witnesses, or inform the court of witness
testimony can support a claim for ineffective assistance of counsel. State v. Ray, 116 Wash. 2d
531, 548, 806 P.2d 1220 (1991).
Here, the record on appeal does not contain the evidence gathered by the defense
investigator, Persell’s requests to present the cell phone, or Persell’s psychological evaluation.
Similarly, the record does not include what witnesses would have said regarding Persell’s work
schedule. Persell relied on matters outside the record to support his claim that his counsel failed
to present a defense. Accordingly, we decline to consider Persell’s arguments.
3. Entrapment
Persell argues that his counsel was ineffective for failing to pursue an entrapment
defense. Because Persell cannot show he was entitled to an entrapment defense, we hold that
Persell’s argument fails.
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No. 52236-5-II
To prove the affirmative defense of entrapment, a defendant must show, by a
preponderance of the evidence, that he committed a crime, that the State or a State actor lured or
induced him to commit the crime, and that the defendant lacked the disposition to commit the
crime. Lively, 130 Wash. 2d at 9; RCW 9A.16.070. However, entrapment is not a defense if law
enforcement officers “merely afforded the actor an opportunity to commit a crime.” RCW
9A.16.070(2).
Here, Persell cannot show deficient performance because Persell cannot show by a
preponderance that he was entitled to an entrapment defense. Persell’s theory at trial was that he
did not take a substantial step toward committing the crimes. If, at the same time, Persell argued
that he was entrapped by law enforcement officers, he would have to prove that he was induced
to commit a crime that he was not predisposed to commit. Lively, 130 Wash. 2d at 9. An
entrapment defense necessarily admits that the defendant committed the crimes, but was lured by
the government into committing them, and thus, the defendant’s conduct should be excused.
Lively, 130 Wash. 2d at 9; RCW 9A.16.070. Persell’s actions were inconsistent with the elements
of entrapment. Persell’s defense theory was a denial of the crimes and Persell showed little
resistance toward committing the crimes. Thus, Persell cannot show by a preponderance that he
was entitled to an entrapment defense. As a result, Persell cannot show his counsel’s
performance fell below an objective standard of reasonableness by not pursuing an unsuccessful
defense. Estes, 188 Wash. 2d at 458. Accordingly, because Persell does not show deficient
performance by failing to pursue entrapment, we reject his argument. Persell fails to raise any
reversible issues in his SAG.
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No. 52236-5-II
We hold that (1) sufficient evidence supports Persell’s convictions, (2) trial counsel did
not provide ineffective assistance, (3) the trial court erred when it failed to consider Persell’s
fundamental right to parent before prohibiting contact with minors, and (4) Persell does not raise
reversible issues in his SAG. Accordingly, we affirm Persell’s convictions, but remand for the
trial court to consider Persell’s fundamental right to parent before imposing a sentencing
condition prohibiting contact with minors.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
_______________________________
Worswick, J.
________________________________
Lee, C.J.
________________________________
Melnick, J.
26