IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85336-8-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
AEURLIOUS E. DRAYTON,
Appellant.
FELDMAN, J. — Aeurlious Drayton appeals from the judgment and sentence
entered on a jury’s verdict convicting him of attempted human trafficking in the
second degree, rape of a child in the second degree, and promoting commercial
sexual abuse of a minor. We remand to strike the victim penalty assessment (VPA)
and affirm in all other respects.
I
On the evening of January 19, 2022, 33-year-old Drayton encountered 13-
year-old J.M. outside a restaurant in Tacoma, Washington. Drayton drove his
vehicle into the parking lot, rolled down a window, and asked J.M. if she needed a
ride. J.M. said yes and got into Drayton’s car. When Drayton asked J.M. her age
and whether she was in school, J.M. said she was 13 years old and attended a
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Drayton began driving toward Seattle. During the drive, Drayton asked J.M.
if she was “interested in getting money” through a “side hustle” and told her “it’s
legal for 13-year-olds to prostitute in California.” Drayton then drove to his house
to retrieve more revealing clothing for J.M., including a tank top, basketball shorts,
and a thin robe. After retrieving this clothing, Drayton parked the vehicle on a
secluded street and smoked cannabis with J.M. While they were parked, Drayton
instructed J.M. to take off her clothes, which she did. Drayton then penetrated
J.M.’s vagina with his finger, performed oral sex on her, told her to perform oral
sex on him, which she did, and penetrated her vagina with his penis.
Afterwards, Drayton drove J.M. to an area near Aurora Avenue North in
Seattle and explained various “rules” to J.M. for “getting him money by performing
sexual acts,” including which sexual acts to perform, what prices to charge for
certain sexual acts, how to avoid other “pimps,” which types of customers to solicit,
and how to evade law enforcement. Drayton also gave J.M. items to assist her in
performing the sexual acts, including the revealing clothing he obtained from his
house, cash, brass knuckles, an umbrella, a condom, and a phone containing his
contact information saved as the “Great Father.” Lastly, Drayton instructed J.M.
to tell customers that her name was Brianna and she was 21 years old. Drayton
eventually dropped off J.M. on a street near Aurora Avenue North and told her to
meet him at a nearby restaurant within an hour to give him the money she earned
from performing sexual acts.
After being dropped off, J.M. walked to an apartment complex where she
encountered police officers responding to an unrelated matter. J.M. handed
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officers the items Drayton gave her and provided a description of Drayton and his
vehicle. Shortly thereafter, police located and arrested Drayton several blocks
away from the apartment complex, and they subsequently discovered J.M.’s
belongings inside Drayton’s vehicle. Meanwhile, J.M. was transported to a hospital
where a sexual assault nurse examiner collected a vaginal swab from her. A DNA
analyst later determined that semen recovered on this swab matched Drayton’s
DNA profile.
The State charged Drayton with three counts: (1) attempted human
trafficking in the second degree, (2) rape of a child in the second degree, and (3)
promoting commercial sexual abuse of a minor. A jury found him guilty as charged.
Drayton was sentenced to a determinate sentence of 120 months on count 1, an
indeterminate sentence of 280 months to life on count 2, and a determinate
sentence of 318 months on count 3, all to run concurrently. Drayton appeals.
II
A. Ineffective assistance of counsel
Drayton first argues his trial counsel rendered ineffective assistance of
counsel by telling jurors during his opening statement that Drayton would testify.
We disagree.
A defendant alleging ineffective assistance of counsel must satisfy the two-
prong Strickland test by showing that (a) “counsel’s performance was deficient”
and (b) “the defendant was prejudiced by the deficient performance.” In re Pers.
Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012) (citing Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To
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satisfy the deficiency prong, the defendant must establish that “counsel’s
performance fell below an objective standard of reasonableness in light of all the
circumstances.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90
(2017). To overcome the strong presumption that counsel’s performance was
reasonable, the defendant must show that no legitimate trial tactic can explain
counsel’s performance. Id. at 539. Additionally, on direct appeal, we determine
counsel’s competency “based on the record established in the proceedings below.”
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Our Supreme Court’s opinion in In re Personal Restraint of Benn, 134
Wn.2d 868, 952 P.2d 116 (1998), is instructive on this issue. In that case, Benn’s
trial counsel conceded during opening statements in a murder trial that Benn had
killed the victims and told the jury to instead focus on whether Benn acted with
premeditation. Id. at 879, 897. Although Benn initially planned to testify, he
subsequently “change[d] his mind” and chose not to testify after the State
presented its case. Id. at 895, 898. Following his convictions, Benn filed a
personal restraint petition alleging his counsel was ineffective because “it is
ineffective per se to fail to call a promised witness, such as himself.” Id. at 897.
Our Supreme Court rejected Benn’s argument and stated, “‘[A]ssuming counsel
does not know at the time of the opening statement that he will not produce the
promised evidence, an informed change of strategy in the midst of trial is ‘virtually
unchallengeable.’” Id. at 898 (quoting Turner v. Williams, 35 F.3d 872, 904 (4th
Cir. 1994) (quoting Strickland, 466 U.S. at 690)). The court concluded, “Since
counsel did not know their client was going to change his mind about testifying and
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are not responsible for his decision, the defendant cannot challenge their mid-trial
change of strategy.” Id.
Benn is directly on point and disposes of Drayton’s argument. The record
indicates that at the time Drayton’s counsel told jurors during his opening
statement that Drayton would testify, Drayton indeed planned on testifying. When
the trial court asked defense counsel after the State had rested whether Drayton
would testify, Drayton himself responded, “Oh, I’m going to testify.” And during a
hearing on a post-trial motion filed by Drayton, he reiterated to the court that he
“wanted to testify” at trial but changed his mind after conferring with defense
counsel. Under Benn, Drayton cannot establish ineffective assistance of counsel
merely because he subsequently chose not to testify. Although defense counsel’s
statements may appear unwise given Drayton’s subsequent decision, we may not
rely on hindsight in assessing the reasonableness of defense counsel’s
performance. See State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011) (“‘[A]
fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.’”) (quoting Strickland, 466 U.S. at 689). On this record,
defense counsel’s performance did not fall below an objective standard of
reasonableness in light of all the circumstances.
The federal authorities upon which Drayton relies in support of his
ineffective assistance of counsel argument are not persuasive. In Anderson v.
Butler, 858 F.2d 16, 18-19 (1st Cir. 1988), the First Circuit held that defense
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counsel was ineffective for failing to produce expert testimony after promising to
do so in his opening statement. Later, in Ouber v. Guarino, 293 F.3d 19, 28-29
(1st Cir. 2002), the First Circuit followed Anderson and held that defense counsel
was ineffective for promising during his opening statement that the defendant
would testify but not calling her as a witness later in the trial. Drayton’s reliance
on these cases is misplaced because our Supreme Court’s opinion in Benn—
which is binding on our court—expressly declined to follow Anderson and instead
held, consistent with other federal cases, that counsel’s failure to present promised
evidence does not necessarily constitute defective performance. See Benn, 134
Wn.2d at 898 (citing United States v. McGill, 11 F.3d 223, 227 (1st Cir. 1993);
Turner, 35 F.3d at 904).
Anderson and Ouber are also factually distinguishable. In Anderson, the
promised witness was an expert witness whom defense counsel could compel to
testify. 858 F.2d at 18-19. In Drayton’s case, the promised witness was the
defendant, who ultimately makes the decision whether to testify and can elect not
to do so. See Benn, 134 Wn.2d at 898. And in Ouber, counsel knew the
defendant’s testimony would likely have been persuasive to jurors given the
defendant had previously testified in two trials on the same charge that both
resulted in hung juries. 293 F.3d at 29. In contrast, Drayton’s counsel did not have
the benefit of knowing how the jury would react to Drayton’s testimony.
In sum, we conclude Drayton has not established deficient performance
under the first Strickland prong. Because Drayton fails to demonstrate deficient
performance, we need not address whether he has shown prejudice under the
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second Strickland prong. See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d
563 (1996) (“If either part of the test is not satisfied, the inquiry need go no
further.”).
B. Right to present a defense
Drayton claims the trial court violated his right to present a defense to the
charge of promoting commercial sexual abuse of a minor by “instructing jurors on
an affirmative defense over [his] objection.” We disagree.
“Implicit in the Sixth Amendment is the criminal defendant’s right to control
his defense.” State v. Lynch, 178 Wn.2d 487, 491, 309 P.3d 482 (2013).
“‘Instructing the jury on an affirmative defense over the defendant’s objection
violates the Sixth Amendment by interfering with the defendant’s autonomy to
present a defense.’” Id. at 492 (quoting State v. Coristine, 177 Wn.2d 370, 375,
300 P.3d 400 (2013)). But as controlling precedent makes clear, a defendant’s
right to present a defense is not violated where the defendant acquiesces to the
instruction. See Coristine, 177 Wn.2d at 377 (“[U]nless the accused has
acquiesced . . . , the defense presented is not the defense guaranteed him by the
Constitution, for, in a very real sense, it is not his defense.’”) (quoting Faretta v.
California, 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)) (emphasis
added). “Whether a Sixth Amendment right has been abridged presents a legal
question that is reviewed de novo.” State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d
696 (2019).
During the discussion of proposed jury instructions prior to closing
arguments, the prosecutor proposed the following instruction:
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A person commits the crime of Promoting Commercial Sexual Abuse of a Minor if he or she knowingly advances the commercial sexual abuse of a minor.
It is not a defense that the defendant did not know the minor’s age. 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 driver’s license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor.
Consent of a minor to the sexual conduct does not constitute a defense.
The prosecutor also stated that if the trial court rejected the proposed instruction
then he would move to “preclude [defense] Counsel from making any argument
that the Defendant did not know the minor’s age or believed her to be older than
she was, because . . . those types of arguments are in direct violation of the law”
and “the jury won’t know that unless they are instructed . . . of the law.”
In response to the proposed instruction and the prosecutor’s argument,
defense counsel contended he should be allowed to argue, without this proposed
instruction, that J.M.’s testimony that she told Drayton she was 13 years old was
“very unreliable” and that “[i]t’s more likely than not that [J.M] told [Drayton] that
she was, in fact, 18 years old and wanted to go for a ride and have some fun.”
Defense counsel also noted the second paragraph in the proposed instruction,
which contains the affirmative defense language at issue, deviated from the pattern
jury instructions. The prosecutor replied he would not object to defense counsel’s
argument if the court gave the proposed instruction, but would object if the court
did not give it. Defense counsel then stated, “I understand logically the State’s
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position and . . . am concerned about cutting whole cloth and creating an instruction
that does not exist in the WPICs in its entirety.”
Following this exchange, the trial court told defense counsel it would “really
have trouble letting you make that argument” without the proposed instruction
because “the jury would hear you arguing that the Defendant didn’t know how old
[J.M.] was or believed her to be not a minor, but wouldn’t be instructed that under
RCW [9.68A.110(3)] it is not a defense that the Defendant did not know the alleged
victim’s age,” which “would be confusing to the jury.” Defense counsel then
acquiesced to the State’s proposed instruction, stating, “I think on balance the
State can have their instruction. We keep the WPIC. They can have . . . the
knowledge component with age . . . in a separate instruction.” As to the third
paragraph, defense counsel similarly agreed, “[I]f they [the State] want to keep the
instruction in and it gives me more range to argue my theory of the case, then
that’s fine.”
The next day, the trial court finalized the jury instructions and separated the
prosecutor’s proposed instruction into two final instructions, with the first paragraph
becoming instruction 21 and the second and third paragraphs becoming instruction
28. When the trial court asked if the parties took exception to any of the
instructions, defense counsel replied “we would adopt these instructions pursuant
to our prior discussions and negotiations on the formation of them” and “we accept
the instructions.” After the parties agreed to these instructions, defense counsel
stated he “would just note exception” to instruction 28 “based on the fact that it’s
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not in the WPIC,” but added, “I understand why it’s being offered.” Instruction 28
was then given to the jury without further objection.
On this record, the trial court did not violate Drayton’s right to a defense by
giving the affirmative defense instruction as stated in instruction 28 over Drayton’s
objection because Drayton acquiesced to its substantive language. Drayton was
presented with a choice between (a) proceeding without the instruction and urging
the jury not to believe J.M.’s testimony that she told Drayton she was only 13 years
old, to which the State would object, and (b) agreeing to the instruction and making
this argument to the jury without objection from the State. Drayton chose the latter
and proceeded to argue, without objection from the State, that the jury should
acquit Drayton because it is “implausible” that J.M. told him she was 13 years old.
Having acquiesced to the inclusion of the affirmative defense instruction, Drayton
cannot show, as he must, that the trial court instructed the jury over his objection.
Given Drayton’s acquiescence to instruction 28, the cases upon which he
relies are inapposite because they involved defendants who clearly objected to an
affirmative defense instruction on substantive grounds. See Lynch, 178 Wn.2d at
490 (defendant in an indecent liberties and second degree rape trial “objected to
the consent instruction” because “he did not want to bear the burden of proving
consent”); Coristine, 177 Wn.2d at 374 (defendant in second degree rape trial
objected to instruction regarding whether he reasonably believed the victim was
mentally incapacitated or physically helpless because his argument was “simply
that the State failed to prove [the victim] was incapacitated”); State v. McSorley,
128 Wn. App. 598, 603, 116 P.3d 431 (2005) (defendant in child luring trial “most
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strenuously” objected to affirmative defense instruction regarding the
reasonableness of his actions and his intent because it would “impos[e] on him the
burden of proving facts not in issue”); see also State v. Jones, 99 Wn.2d 735, 737-
38, 664 P.2d 1216 (1983) (trial court erroneously entered a plea of not guilty by
reason of insanity for the defendant “over [his counsel’s] strenuous objections”).
Unlike these defendants, Drayton acquiesced to instruction 28 so that he could
argue his theory of the case to the jury without objection from the State.
Although Drayton subsequently took exception to instruction 28 after
agreeing to its inclusion, this exception was solely “based on the fact that it’s not
in the WPIC,” rather than based on the substantive language in the instruction.
Drayton does not explain how his objection to the form of instruction 28 was
sufficient to revive his earlier objection to its substance, which he had abandoned.
Nor does he argue on appeal that a trial court deprives a defendant of their right
to present a defense by giving a non-pattern jury instruction. 1 Accordingly, the trial
court did not violate Drayton’s right to present a defense by giving instruction 28.
C. Affirmative defense instruction
Drayton also contends the trial court erred in refusing to give his proposed
affirmative defense instruction to the charge of rape of a child in the second degree.
“A defendant is entitled to a jury instruction that is supported by substantial
evidence in the record.” State v. O’Dell, 183 Wn.2d 680, 687, 358 P.3d 359 (2015).
1 To the contrary, we have recognized that “deviation from the language of the Washington Pattern Jury Instructions does not necessarily constitute error.” Humes v. Fritz Cos., 125 Wn. App. 477, 499, 105 P.3d 1000 (2005). That is especially true here because instruction 28 recites the language of RCW 9.68A.101(4) and .110(3).
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In making this evidentiary determination, “the court must view the evidence in the
light most favorable to the defendant.” Id. at 687-88. We review a trial court’s
ruling that an affirmative defense instruction is unsupported by evidence for an
abuse of discretion. State v. Butler, 200 Wn.2d 695, 713, 521 P.3d 931 (2022). A
trial court abuses its discretion when its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons. State v. Ferguson, 25 Wn.
App. 2d 727, 735, 524 P.3d 1080 (2023).
The State prosecuted Drayton under RCW 9A.44.076(1), which states, “[a]
person is guilty of rape of a child in the second degree when the person has sexual
intercourse with another who is at least twelve years old but less than fourteen
years old and the perpetrator is at least thirty-six months older than the victim.” In
such prosecutions, RCW 9A.44.030(2) provides that “it is no defense that the
perpetrator did not know the victim’s age, or that the perpetrator believed the victim
to be older, as the case may be.” The statute creates one exception to the
prohibition on this argument, namely that “it is a defense which the defendant must
prove by a preponderance of the evidence that at the time of the offense the
defendant reasonably believed the alleged victim” was at least fourteen years old
or was less than thirty-six months younger than the defendant “based upon
declarations as to age by the alleged victim.” Id.; RCW 9A.44.030(3)(b). A
“declaration” for purposes of RCW 9A.44.030(2) refers to “some kind of explicit
assertion from the victim,” as opposed to the victim’s “generalized, nonassertive
manifestations of appearance, behavior and demeanor.” State v. Bennett, 36 Wn.
App. 176, 181-82, 672 P.2d 772 (1983); see also O’Dell, 183 Wn.2d at 688 (victim
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did not make a declaration by stating, in response to defendant’s comment that
she appeared too young to be drinking, “I get that a lot”).
Applying this statutory framework, the trial court did not abuse its discretion
in rejecting Drayton’s proposed affirmative defense instruction based on RCW
9A.44.030(2) because there is no evidence J.M. made a declaration that she was
at least 14 years old or less than 36 months younger than Drayton. J.M. testified
that she told Drayton she was 13 years old shortly after he picked her up in his
vehicle. Drayton, who was 33 years old at the time, acknowledged J.M.’s age by
telling her “it’s legal for 13-year-olds to prostitute in California.” There is no
evidence in the record that J.M. told anyone she was at least 14 years old during
the events in question. Viewing this evidence in the light most favorable to
Drayton, there is insufficient evidence to support the affirmative defense contained
in RCW 9A.44.030(2).
Drayton argues J.M. made a declaration for purposes of RCW 9A.44.030(2)
because she “recant[ed] allegations that Mr. Drayton pressured her to get in his
vehicle, that he falsely promised to take her home, and that she never wanted to
go to Seattle.” These discrepancies in J.M.’s story, Drayton argues, “supported an
argument that J.M. also lied when testifying that the age she provided him was
thirteen.” This argument erroneously conflates J.M.’s statement to Drayton with
her recanted statements to law enforcement. The affirmative defense is only
available where the alleged victim’s declaration relates “to age” and causes the
defendant to “reasonably believe” the alleged victim is older than their true age
before the defendant commits the offense. RCW 9A.44.030(2). But none of J.M.’s
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statements to law enforcement that she would later recant related to her age. Nor
could these statements have caused Drayton to reasonably believe J.M. was at
least 14 years old before he committed the offense, given that J.M. made these
statements outside of Drayton’s presence after he already had sexual intercourse
with her. Accordingly, the trial court did not abuse its discretion in denying
Drayton’s proposed affirmative defense instruction regarding rape of a child in the
second degree.
D. Sufficiency of the evidence
In his statement of additional grounds (SAG), 2 Drayton argues the State
presented insufficient evidence to support his conviction for attempted human
trafficking in the second degree because “there was no force, fraud or coercion.”
Similarly, Drayton contends the State presented insufficient evidence to support
his conviction for promoting commercial sexual abuse of a minor because J.M.
“was free to walk away at any time.” To determine whether sufficient evidence
supports a jury’s verdict, we must assess “whether any rational fact finder could
have found the elements of the crime beyond a reasonable doubt.” State v.
Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).
Both of Drayton’s arguments fail because force, fraud, or coercion and lack
of consent are not elements of the respective crimes. The trafficking statute
provides, “If the victim of any offense identified in this section is a minor, force,
fraud, or coercion are not necessary elements of an offense and consent to the . . .
2 Drayton also filed a pro se personal restraint petition (PRP) concurrently with his SAG. Drayton subsequently filed a motion to withdraw his PRP, and a commissioner of this court granted that motion. Therefore, we do not address Drayton’s PRP.
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commercial sex act does not constitute a defense.” RCW 9A.40.100(5). Likewise,
the promoting commercial sexual abuse of a minor statute omits the victim’s lack
of consent as an element of the crime. See RCW 9.68A.101. Instead, the statute
states, “Consent of a minor to the . . . sexual conduct does not constitute a defense
to any offense listed in this section.” RCW 9.68A.101(4). Accordingly, sufficient
evidence supports Drayton’s convictions on counts 1 and 3.
E. Double jeopardy
Drayton further argues his convictions for attempted human trafficking in the
second degree and promoting commercial sexual abuse of a minor violate double
jeopardy. We disagree.
The double jeopardy provisions of our federal and state constitutions bar
multiple punishments for the same offense. State v. Kelley, 168 Wn.2d 72, 76,
226 P.3d 773 (2010) (citing U.S. Const. amend. V; Wash. Const. art. I, sec. 9). We
review double jeopardy claims de novo. Arndt, 194 Wn.2d at 815. Where, as here,
a defendant’s act supports charges under two criminal statutes, we “must
determine whether, in light of legislative intent, the charged crimes constitute the
same offense.” State v. Nysta, 168 Wn. App. 30, 44, 275 P.3d 1162 (2012). “If
the legislature intended that cumulative punishments can be imposed for the
crimes, double jeopardy is not offended.” In re Pers. Restraint of Borrero, 161
Wn.2d 532, 536, 167 P.3d 1106 (2007).
To determine whether the legislature intended to impose cumulative
punishments, we follow four analytical steps: “(1) consideration of any express or
implicit legislative intent, (2) application of the Blockburger, or ‘same evidence,’
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test, (3) application of the ‘merger doctrine,’ and (4) consideration of any
independent purpose or effect that would allow punishment as a separate offense.”
Arndt, 194 Wn.2d at 816 (citing Blockburger v. United States, 284 U.S. 299, 52 S.
Ct. 180, 76 L. Ed. 306 (1932)). “If legislative intent to allow separate punishments
can be found in any of the four steps of the analysis, then there is no double
jeopardy violation.” State v. Heng, 22 Wn. App. 2d 717, 732, 512 P.3d 942 (2022),
aff’d, 2 Wn.3d 384, 539 P.3d 13 (2023).
Drayton addresses only the second analytical step. Under the controlling
Blockburger test, “double jeopardy principles are violated if the defendant is
convicted of offenses that are identical in fact and in law.” Borrero, 161 Wn.2d at
537. We consider the elements of the crimes “as charged and proved, not merely
as the level of an abstract articulation of the elements.” State v. Freeman, 153
Wn.2d 765, 777, 108 P.3d 753 (2005). In other words, we determine “‘whether the
evidence required to support the conviction for [one offense] would have been
sufficient to warrant a conviction upon the other.’” State v. Lee, 12 Wn. App. 2d
378, 398-99, 460 P.3d 701 (2020) (quoting Nysta, 168 Wn. App. at 47).
Drayton’s double jeopardy argument is similar to the argument that the court
rejected in State v. Clark, 170 Wn. App. 166, 189, 283 P.3d 1116 (2012). There,
Clark was convicted of human trafficking in the second degree where the State
alleged he “recruited, harbored, transported, provided, or obtained by any means”
an adult victim “knowing that force, fraud, or coercion would be used to cause [the
victim] to engage in forced labor or involuntary servitude.” Id. 3 Clark was also
3 The relevant statute for this offense provided that a person is guilty of trafficking in the second degree when such person “[r]ecruits, harbors, transports, provides, or obtains by any means
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convicted of promoting prostitution in the first degree where the State alleged he
“knowingly advanced prostitution by compelling [the victim] by threat or force to
engage in prostitution.” Id. at 190. 4
On appeal, we concluded these offenses were not the same in law because
the promoting prostitution statute required “proof that the defendant actually used
force to compel a person to engage in prostitution,” whereas the human trafficking
statute required proof “the defendant knew that force, fraud, or coercion ‘will be
used’ in the future to cause another person to engage in forced labor or involuntary
servitude by engaging in prostitution.” Id. at 190-91 (citing former RCW
9A.88.070(1); quoting former RCW 9A.40.100(2)(a)(i)). We also noted that proof
that the defendant recruited, harbored, transported, provided, or obtained by any
means the victim was required to convict the defendant of human trafficking but
not promoting prostitution. Id. at 191 n.12. We concluded the offenses were not
the same in fact because the prosecutor was required to prove a different mens
rea for each offense. As the prosecutor in Clark explained in closing argument,
the jury had to find Clark knew that force was “going to be used” to convict him of
human trafficking, whereas it had to find he knowingly used such force to convict
him of promoting prostitution. Id. at 191. Therefore, Clark’s convictions did not
violate double jeopardy. Id. at 191-92.
another person knowing that force, fraud, or coercion as defined in RCW 9A.36.070 will be used to cause the person to engage in forced labor or involuntary servitude.” Clark, 170 Wn. App. at 189 (quoting former RCW 9A.40.100(2)(a)(i)). 4 The relevant statute for this offense provided, “A person is guilty of promoting prostitution in the first degree if he or she knowingly advances prostitution by compelling a person by threat or force to engage in prostitution or profits from prostitution which results from such threat or force.” Id.at 190 (quoting former RCW 9A.88.070(1)). The Clark court also noted, “Under RCW 9A.88.060(1), a person ‘advances prostitution’ if he causes a person to commit or engage in prostitution.” Id. at 190 n.7.
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For similar reasons, Drayton’s convictions for attempted human trafficking
in the second degree and promoting commercial sexual abuse of a minor do not
violate double jeopardy. The State alleged Drayton committed attempted human
trafficking in the second degree by “knowingly attempt[ing] to recruit, harbor,
transport, or provide[] by any means another person, to-wit: J.M. . . . who had not
attained the age of eighteen years and was caused to engage in a commercial sex
act.” 5 The State further alleged Drayton committed promoting commercial sexual
abuse of a minor by “knowingly advanc[ing] the commercial sexual abuse of a
minor to-wit: J.M.” 6 As in Clark, these offenses are legally distinct. To prove
attempted human trafficking the State had to show that Drayton took a substantial
step toward recruiting, harboring, transporting, or providing J.M. knowing that J.M.
would be caused to engage in a commercial sex act, whereas to prove promoting
commercial sexual abuse of a minor the State had to show that Drayton knowingly
advanced such abuse by presently instituting, aiding, or facilitating the abuse.
Each offense includes an element not included in the other.
5 This language from the charging instrument aligns with the statutory language of the trafficking statute, which provides in relevant part that a person is guilty of human trafficking in the second degree when he or she “[r]ecruits, harbors, transports, transfers, provides, obtains, buys, purchases, or receives by any means another person knowing, or in reckless disregard of the fact . . . that the person has not attained the age of eighteen years and is caused to engage in . . . a commercial sex act.” RCW 9A.40.100(3)(a). The State charged Drayton with an attempted crime rather than a completed crime because J.M. did not engage in a commercial sex act. Thus, the State had to prove that, with intent to commit human trafficking in the second degree, Drayton took a “substantial step toward commission of that crime.” RCW 9A.28.020(1). 6 This language from the charging instrument aligns with the promoting commercial sexual abuse of a minor statute, which provides that a person is guilty of this crime if they “knowingly advance[] commercial sexual abuse . . . of a minor,” which in turn means to “engage[] in any . . . conduct designed to institute, aid, cause, assist, or facilitate an act or enterprise of commercial sexual abuse of a minor.” RCW 9.68A.101(1), (3)(a). A person is guilty of commercial sexual abuse of a minor if he or she “provides anything of value to a minor or a third person as compensation for a minor having engaged in sexual conduct with him or her,” “provides or agrees to provide anything of value to a minor or a third person pursuant to an understanding that in return therefore such minor will engage in sexual conduct with him or her,” or “solicits, offers, or requests to engage in sexual conduct with a minor in return for anything of value.” RCW 9.68A.100(1).
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These offenses also are factually distinguishable based on the facts proven
at trial. J.M. testified that Drayton invited her into his vehicle and drove her from
Tacoma to Seattle. J.M. also testified that Drayton discussed prostitution during
this drive by asking her if she was “interested in getting money” through a “side
hustle” and telling her “it’s legal for 13-year-olds to prostitute in California.” Based
on this evidence that Drayton recruited, harbored, transported, and/or provided
J.M. for eventual engagement in commercial sex acts, the jury could have found
Drayton guilty of attempted human trafficking in the second degree. But this
testimony alone was not sufficient for the jury to find Drayton guilty of promoting
commercial sexual abuse of J.M. Regarding that offense, J.M. testified that
Drayton explained the rules for engaging in commercial sex acts, gave her items
to help her engage in such acts, dropped her off in an area described by multiple
witnesses as a high prostitution area, and told her when and where to meet him
later to give him the money she earned by performing such acts. While this
evidence was sufficient for the jury to find that Drayton advanced commercial
sexual abuse of J.M. (as defined in footnote 6 above), it would have been
insufficient to find that he attempted to traffic J.M. As the prosecutor emphasized
in closing argument, the offenses “were committed through different means and at
different stages of the timeline.” Thus, Drayton’s convictions are both legally and
factually distinct under the Blockburger test.
Notwithstanding the dissimilarities between these offenses, Drayton argues
his convictions offend double jeopardy because “[n]othing in the instructions or
prosecutor’s arguments foreclosed jurors from basing both convictions on the
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same act.” We previously rejected a similar argument in Nysta, where a defendant
argued his convictions for second degree rape and felony harassment violated
double jeopardy because evidence of the defendant’s threat to kill the victim was
“available” to prove both counts but the jury was not asked to specify what
evidence they relied upon to support each conviction. 168 Wn. App. at 43, 49. We
noted, “‘If each [element] requires proof of a fact that the other does not, the
Blockburger test is satisfied, notwithstanding a substantial overlap in the proof
offered to establish the crimes.’” Id. at 45 (internal quotation marks omitted)
(quoting Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187
(1977)). Given evidence that Nysta used other forms of physical force to compel
the rape, his convictions did not violate double jeopardy because “[t]he death threat
was available to support the second degree rape, but it was not required.” Id.
Similarly here, despite overlap in the evidence available to establish attempted
human trafficking in the second degree and promoting commercial sexual abuse
of a minor, each offense ultimately required proof of a fact which the other did not.
The double jeopardy cases upon which Drayton relies are inapposite. In
State v. Kier, 164 Wn.2d 798, 813-14, 194 P.3d 212 (2008), the court merged a
second degree assault conviction into a first degree robbery conviction because it
was “unclear from the jury’s verdict whether the assault was used to elevate the
robbery to first degree.” Drayton’s reliance on Kier is misplaced because his
convictions for attempted human trafficking in the second degree and promoting
commercial sexual abuse of a minor do not implicate the merger doctrine, which
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applies only where “the degree of one offense is elevated by conduct constituting
a separate offense.” Id. at 804. That did not occur here.
Drayton’s reliance on State v. Adel, 136 Wn.2d 629, 965 P.2d 1072 (1998),
is similarly misplaced. There, the court held that multiple convictions for cannabis
possession violated double jeopardy under the “unit of prosecution” test, which we
apply where a defendant is convicted of violating one statute multiple times. Id. at
634-35. The Adel court noted this test is designed to prevent prosecutors from
“arbitrarily . . . divid[ing] up ongoing criminal conduct into separate time periods to
support separate charges.” Id. at 635 (citing In re Snow, 120 U.S. 274, 282, 7 S.
Ct. 556, 30 L. Ed. 658 (1887)). In contrast, Drayton was convicted of violating
several statutes, which, as the Adel court recognized, requires us to apply the
Blockburger test instead of the unit of prosecution test. See id. at 633. Thus, the
concerns about arbitrary temporal distinctions between charges that were present
in Adel are not present in Drayton’s case. See Freeman, 153 Wn.2d at 776 (“the
mere fact that the same conduct is used to prove each crime is not dispositive”
under the Blockburger test).
In sum, because Drayton’s convictions for attempted human trafficking in
the second degree and promoting commercial sexual abuse of a minor are legally
and factually distinct under the Blockburger test, his double jeopardy argument
fails on this basis.
F. VPA
Lastly, Drayton argues remand is necessary to strike the $500 VPA from
his judgment and sentence because recent amendments to RCW 7.68.035 prohibit
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the imposition of this fee against defendants who, like Drayton, are indigent at the
time of sentencing. The State agrees the VPA should be stricken due to Drayton’s
indigency. We accept the State’s concession and remand to the trial court to strike
the VPA. See State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023) (“Although
[the] amendment [to RCW 7.68.035] will take effect after Ellis’s resentencing, it
applies to Ellis because this case is on direct appeal.”).
In all other respects, we affirm.
WE CONCUR:
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