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. 52142-3-II
Respondent,
v.
BRYAN EARLE GLANT, UNPUBLISHED OPINION Appellant.
WORSWICK, J. — Bryan Earle Glant appeals his convictions for two counts of attempted
first degree rape of a child arising from an online sting operation.1 Before trial, Glant moved to
suppress his e-mail and text messages and moved to dismiss the case based on outrageous
government conduct. The trial court denied both motions. The trial court found Glant guilty of
both counts of attempted first degree rape of a child and sentenced Glant within the standard
range.
On appeal, Glant argues that the trial court erred when it denied his motion to suppress
and motion to dismiss. Glant also argues that the trial court abused its discretion when it
imposed a standard range sentence.
1 RCW 9A.44.073; RCW 9A.28.020. No. 52142-3-II
We hold that the trial court did not err when it denied Glant’s motion to suppress and
motion to dismiss. Further, we hold that Glant cannot appeal his standard range sentence. Thus,
we affirm.
FACTS
The Washington State Patrol Missing and Exploited Children Task Force (MECTF)
investigates sex crimes against children. RCW 13.60.110. Many MECTF investigations involve
the internet and are dubbed “Net Nanny” operations. Sergeant Carlos Rodriguez manages
MECTF and oversees its undercover operations.
RCW 13.60.110(4) states, “The chief of the state patrol shall seek public and private
grants and gifts to support the work of the task force.” MECTF receives donations from private
citizens and organizations. One such donor is Operation Underground Railroad (O.U.R.).
O.U.R. has contributed tens of thousands of dollars to support various Net Nanny operations
across the State. Following each Net Nanny operation, the Washington State Patrol issues a
press release. Some of these press releases acknowledge O.U.R.’s support of the Net Nanny
operation. E-mails show that Sergeant Rodriguez coordinated the financial donations from
O.U.R. on behalf of MECTF. Sergeant Rodriguez collected overtime pay while conducting Net
Nanny operations.
In September 2016, MECTF conducted a Net Nanny operation in Thurston County. As
part of the undercover operation, MECTF posted an advertisement on the Casual Encounters
section of Craigslist. “Family Play Time!?!?—w4m,” the advertisement 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.” Clerk’s
Papers (CP) at 772-73.
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Glant responded to the advertisement by e-mail. Glant then began texting with a person
whom he believed was Hannah, a mother of three children. “Hannah”2 told Glant that her son
was 13 years old and her daughters were 6 and 11 years old. Glant stated he was “primarily
interested in the daughters.” CP at 773. Glant stated that he wanted to “use some toys with them
and introduce some touching and then work towards oral.” CP at 773. Hannah stated that her
rules were “no pain, no anal.” CP at 773. She asked Glant if he wanted to perform oral on the
daughters or if he wanted the daughters to perform oral on him. Glant agreed to the rules and
stated that he wanted both methods of oral. Glant asked, “What about like a finger in the bum
though?” CP at 773. Hannah responded that this was acceptable if Glant brought lubricant.3
Glant drove from Mercer Island to Thurston County to meet Hannah and her daughters.
When Glant arrived at the apartment, he had a bottle of lubricant in his pocket. Law
enforcement officers arrested Glant, and the State charged him with two counts of attempted first
degree rape of a child. Glant was 20 years old.
Glant made two pretrial motions. First, Glant moved to suppress his e-mails and text
messages based on the Washington Privacy Act (WPA), chapter 9.73 RCW, and article I, section
7 of the Washington Constitution. The trial court found that the e-mail and text message
communications between Glant and Hannah were private, that the messages were recorded on
the devices used to communicate the messages, and that Glant impliedly consented to the
recording because Glant knew that these messages would be preserved. The trial court also
2 We use the law enforcement officer’s undercover persona for clarity. 3 Glant’s and Hannah’s messages occurred over three days. Hannah reinitiated contact with Glant the second day with a greeting of “hey hun . . . good afternoon . . . how are things?” CP at 454. After the pair arranged a time to meet on the second day, Hannah reinitiated contact on the third day. Over the course of their conversations, Hannah expressed interest in Glant’s hobbies and complimented his looks.
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found that Glant voluntarily disclosed information to the intended recipient. Consequently, the
trial court ruled that law enforcement officers did not violate the WPA or article I, section 7 of
the Washington Constitution, and denied Glant’s motion to suppress.
Second, Glant moved to dismiss his case based on outrageous government conduct.
Glant alleged financial wrongdoing in managing and funding MECTF’s Net Nanny operations.
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. Glant argued that the Net Nanny operations were
improperly funded through an alliance with O.U.R. Glant argued that this arrangement violated
the law because Sergeant Rodriguez solicited donations instead of the WSP chief. Glant alleged
that Sergeant 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 that MECTF then used to solicit higher
O.U.R. donations.
The trial court entered detailed findings of fact and conclusions of law regarding the
motion to dismiss. The trial court concluded that the motion involved two issues: (1) the alleged
misconduct regarding MECTF’s acquisition of funds and how that acquisition was connected to
Glant’s charges, and (2) the nature of the interactions between Hannah and Glant. The trial court
examined these issues in the totality of the circumstances and weighed all Lively4 factors. The
trial court denied Glant’s motion to dismiss for outrageous government conduct.
4 State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996).
4 No. 52142-3-II
The case was tried to the bench based on stipulated facts. The trial court found Glant
guilty of both counts of attempted first degree rape of a child.
At sentencing, Glant sought an exceptional downward sentence based on his youth. Dr.
Richard Packard, a certified sex offender treatment provider, testified regarding the impact of
Glant’s youth on his decision-making abilities and impulsivity. The trial court considered Dr.
Packard’s testimony “helpful.” Verbatim Report of Proceedings (VRP) (July 17, 2018) at 89.
However, the trial court stated, “I am explicitly noting that I am considering the request for an
exceptional sentence. I recognize that I have the discretion and judgment and authority to do that
in an appropriate case. I am not finding that it is appropriate in this case.” VRP (July 17, 2018)
at 89-90. The trial court imposed a sentence of 108 months to life, a sentence within the standard
Glant appeals his convictions and his sentence.
ANALYSIS
I MOTION TO SUPPRESS
Glant argues that the trial court erred when it denied his motion to suppress his e-mail
and text messages because an interception or recording authorization was required prior to
intercepting Glant’s messages, and that the interception of these messages violated the WPA and
article I, section 7 of the Washington Constitution. We disagree.
When reviewing a suppression order, we consider whether substantial evidence supports
the trial court’s findings of fact and whether those findings of fact support the conclusions of
law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence exists
when a fair-minded person is persuaded of the truth of the stated premise. Garvin, 166 Wn.2d at.
249. On a motion to suppress, we review a trial court’s conclusions of law de novo. State v.
5 No. 52142-3-II
Baird, 187 Wn.2d 210, 218, 386 P.3d 239 (2016). We review questions of law de novo. State v.
Kipp, 179 Wn.2d 718, 726, 317 P.3d 1029 (2014).
A. Washington Privacy Act
Glant argues that the trial court erred when it denied his motion to suppress because law
enforcement officers violated his right to privacy under the WPA. Specifically, he argues that an
interception or recording authorization was required before intercepting or recording his
messages to Hannah. Glant also argues that he did not impliedly consent to the recording of his
messages. We hold that law enforcement officers did not violate Glant’s right to privacy under
the WPA.
The WPA prohibits a person or agency from obtaining communications between
individuals if (1) a private communication transmitted by a device was (2) recorded or
intercepted by (3) a recording or transmittal device (4) without the consent of all parties. RCW
9.73.030; State v. Townsend, 147 Wn.2d 666, 672-73, 57 P.3d 255 (2002). Private
communications include conversations transmitted through telephones, computers, and other
devices that are designed to record or transmit communication. RCW 9.73.030(1)(a); Townsend,
147 Wn.2d at 672. A person consents when they explicitly announce their intention to engage in
the communication. RCW 9.73.030(3). A person also consents by choosing to communicate
through a device in which the person knows the information will be recorded. State v. Racus, 7
Wn. App. 2d 287, 299-300, 433 P.3d 830, review denied, 193 Wn.2d 1014 (2019). When a
person sends e-mail or text messages they do so with the understanding that the messages would
be available to the receiving party for reading or printing. Racus, 7 Wn. App. 2d at 299.
In State v. Racus, we recently held that a defendant provided implied consent regarding e-
mail and text conversations because he understood that these messages would be recorded. 7
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Wn. App. 2d at 299-300. Thus, law enforcement officers did not violate the WPA even though
the conversations were private and obtained without authorization. 7 Wn. App. 2d at 299-300.
In Racus, a detective posted an advertisement on Craigslist, posing as a fictitious mother
seeking individuals to engage in sexual activities with her children. 7 Wn. App. 2d at 291. The
detective tracked any responses to the advertisement through Google Hangouts software. 7 Wn.
App. 2d at 291. Racus responded to the advertisement and engaged in a series of e-mails and
text messages with the fictitious mother, inquiring about sexual activities with her children. 7
Wn. App. 2d at 291. Although the detective did not have authorization during some of his
communication with the defendant, we reasoned that authorization was not required because the
defendant provided implied consent. 7 Wn. App. 2d at 299-300. The defendant chose to
communicate with the detective through e-mail and text messages, understanding that the
messages would be available to the receiving party for recording, and therefore, we held that the
defendant impliedly consented to his communications being recorded. 7 Wn. App. 2d at 300.
Here, the trial court found that although the e-mail and text message communications
between Glant and Hannah were private, Glant impliedly consented to the recording because the
messages were recorded on the devices used to communicate the messages, and that Glant knew
that these messages would be preserved.5 See Racus, 7 Wn. App. 2d at 299. As a result, the trial
court ruled that no authorization was required, and that the law enforcement officers did not
violate the WPA.
5 To the extent the State argues that the e-mail and text messages were not private, we note that the trial court made a finding that the communications were private. The State did not file a cross-appeal to challenge this finding. We treat unchallenged findings as verities on appeal. State v. Kinzy, 141 Wn.2d 373, 382, 5 P.3d 668 (2000).
7 No. 52142-3-II
Because Glant impliedly consented to the communications he had with Hannah, all
parties consented to the recording. Racus, 7 Wn. App. 2d at 300. Specifically, Glant had to
understand that computers and phones are message recording devices and that his e-mails and
text messages with Hannah would be preserved. Racus, 7 Wn. App. 2d at 300. As a result, law
enforcement officers did not violate Glant’s right to privacy under the WPA when it recorded
Glant’s e-mail and text messages. Thus, we hold that the trial court did not err when it denied
Glant’s motion to suppress on WPA grounds.
Glant argues that implied consent does not apply here, or if it does, he did not impliedly
consent. Glant argues that RCW 9.73.230 requires either Glant’s consent, or an authorization to
retain the e-mail and text message conversations.6 Glant argues that RCW 9.73.230 applies to all
“child sex cases.” Br. of Appellant at 16. Specifically, Glant contends that the WPA presumes
that consent by all parties is required and that “[t]he concept of ‘implied consent’ does not
overcome this presumption.” Br. of Appellant at 16. He asserts that when the legislature
6 In relevant part, RCW 9.73.230 states:
(1) As part of a bona fide criminal investigation, the chief law enforcement officer of a law enforcement agency . . . may authorize the interception, transmission, or recording of a conversation or communication by officers under the following circumstances: (a) At least one party to the conversation or communication has consented to the interception, transmission, or recording; (b) Probable cause exists to believe that the conversation or communication involves: .... (ii) A party engaging in the commercial sexual abuse of a minor under RCW 9.68A.100, or promoting commercial sexual abuse of a minor under RCW 9.68A.101, or promoting travel for commercial sexual abuse of a minor under RCW 9.68A.102; and (c) A written report has been completed . . . .
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enacted the one-party consent exception for RCW 9.73.230, the legislature intended to entirely
replace the theory of implied consent.
As a general rule, the WPA prohibits recording without the consent of all parties. RCW
9.73.030. Under the one-party consent exception in RCW 9.73.230, law enforcement agencies
may intercept or record conversations with authorization when a person is suspected of
committing or promoting commercial sexual abuse of a minor after obtaining consent from only
one party. RCW 9.73.230(1)(b)(ii). Commercial sexual abuse of a minor is defined as a person
who provides or agrees to provide something of value to the minor in exchange for sexual
conduct with the minor. RCW 9.68A.100(1)(a), (b).
Here, Glant argues that his actions implicated RCW 9.73.230, but RCW 9.73.230 is not
applicable. RCW 9.73.230 is an exception to the general rule, allowing recording without the
consent of all parties if certain requirements are met. But all parties consented here. Therefore,
neither RCW 9.73.230 nor the general rule apply. Glant appears to argue that RCW 9.73.230
adds requirements to the general rule, but he is mistaken. When Glant sent messages to Hannah,
there were no interceptions or transmissions, rather, the messages were recorded and the parties
consented to this recording. Moreover, even if RCW 9.73.230 did apply, the record does not
support that commercial sexual abuse of a minor was at issue in this case.
B. Article I, Section 7 of the Washington Constitution
Glant also moved to suppress his e-mail and text messages based on his right to privacy
under article I, section 7 of the Washington Constitution. On appeal, Glant argues that the
recording of his e-mail and text messages was an unconstitutional warrantless search into his
private affairs. We disagree.
9 No. 52142-3-II
Grounded in a broad right to privacy, article I, section 7 protects citizens from
governmental intrusion into their private affairs without legal authority. State v. Hinton, 179
Wn.2d 862, 868, 319 P.3d 9 (2014). We conduct a two-step inquiry: (1) was there a
governmental intrusion into one’s private affairs, and (2) if so, was that intrusion authorized by
law. State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007).
E-mails and text messages are private communications. State v. Roden, 179 Wn.2d 893,
900, 321 P.3d 1183 (2014). However, when a person voluntarily communicates with a stranger,
that person assumes the risk that that the conversation will not be confidential. State v. Goucher,
124 Wn.2d 778, 786-87, 881 P.2d 210 (1994).
In Goucher, Goucher called the house of his drug dealer while law enforcement officers
were searching the house pursuant to a warrant. 124 Wn.2d at 780-81. A detective answered,
and Goucher asked if he could come over to buy drugs. 124 Wn.2d at 781. Because Goucher
did not attempt to conceal his desire to buy drugs from a stranger, Goucher accepted the risk that
his drug purchase would not be confidential. 124 Wn.2d at 786-87. Our Supreme Court held,
“We do not see how the conversation between the Defendant and the detective constituted an
unreasonable intrusion into the Defendant’s private affairs and thus we find no violation of the
state constitution in this case.” 124 Wn.2d at 787.
Here, Glant argues that his messages were private communications that were unlawfully
viewed by law enforcement officers. But, the trial court found that Glant voluntarily sent the
messages to Hannah as the intended receiver.
Glant went on Craigslist and replied to a stranger’s advertisement. Glant exchanged
messages with a law enforcement officer, under the belief that he was communicating with
Hannah, a stranger to him. Glant did not have a reasonable expectation of privacy in the
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messages he sent to Hannah. Moreover, Glant assumed the risk that his conversations would not
be confidential. Goucher, 124 Wn.2d at 786-87. We hold that the trial court did not err when it
denied Glant’s motion to suppress.
II. MOTION TO DISMISS
Glant argues that the trial court erred when it denied his motion to dismiss for outrageous
government conduct. We hold that the trial court did not abuse its discretion when it denied
Glant’s motion.
A. Outrageous Government Conduct Legal Principles
The concept of outrageous conduct is founded on the principle that “the conduct of law
enforcement officers . . . 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
Wn.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.
Athan, 160 Wn.2d at 375-76. A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or reasons. Athan, 160 Wn.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 Wn. App. 2d 895, 910, 419 P.3d 436 (2018).
To determine whether government conduct violated due process, a trial court must assess
the conduct based on the totality of the circumstances. Lively, 130 Wn.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. Lively, 130 Wn.2d at 19.
“Public policy allows for some deceitful conduct and violation of criminal laws by the police in
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order to detect and eliminate criminal activity.” Lively, 130 Wn.2d at 20. Proper law
enforcement objectives, preventing crime and apprehending violators, must drive law
enforcement officers’ conduct, not encouraging or participating in sheer lawlessness. Lively, 130
Wn.2d at 21. Dismissal based on outrageous government conduct is reserved for only the most
egregious circumstances. Lively, 130 Wn.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 Wn.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)).
B. Glant’s Motion To Dismiss for Outrageous Government Conduct
Glant moved to dismiss for outrageous government misconduct. In denying the motion,
the trial court made detailed findings and conclusions. The trial court concluded 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 Glant’s charges and (2) the nature of the interactions
between law enforcement and Glant. The trial court examined these issues in the totality of the
circumstances and weighed all Lively factors. On appeal, Glant contests the trial court’s
conclusions and examination of each Lively factor.
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1. Private Involvement in Law Enforcement
Glant cites a Kansas case, State v. Berg, 236 Kan. 562, 694 P.2d 427 (1985), to generally
argue the trial court failed to consider the “sui generis, improper nature of private involvement in
law enforcement.” Br. of Appellant at 23. We disagree.
State v. Berg addressed a Kansas statute that allowed for a complaining witness to hire
private counsel as associate counsel to the prosecutor to assist in the criminal proceeding. 236
Kan. at 563. Jerry Berg, a complaining witness in a case against his ex-wife, hired private
counsel to assist in the prosecution. 236 Kan. at 563. But, after further investigation, the
prosecutor moved to dismiss the charges. 236 Kan. at 563. Over the objections of private
counsel, the trial court dismissed the case. Kan. at 563-64. The court held that private counsel
could not overrule the prosecutor’s decision to dismiss the charges, stating that a prosecutor must
be independent. 236 Kan. at 566-68. Here, Glant argues, without elaborating, that “[t]he same
must be true of police officers as well.” Br. of Appellant at 23. But, Berg does not support
Glant’s argument that private funding for certain law enforcement directives are improper by
their very nature. Berg holds that private associate counsel assisting in prosecution cannot
overrule the decisions of the prosecutor. 236 Kan. at 566-68. Here, nothing in the record shows
that O.U.R. was attempting to overrule or commandeer the Net Nanny operations over the
objections of MECTF. We hold that the trial court did not err in this regard.
2. Direct Link to Glant’s Arrest
Glant also argues that the trial court erred when it concluded that there was not a “direct
link” between the O.U.R funding and Glant’s arrest. Br. of Appellant at 24. We hold that the
trial court did not err.
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The trial court concluded, “There is no authority that approves the use of a dismissal
under the due process clause for governmental misconduct that is not related directly to the law
enforcement interactions with the defendants at issue.” CP at 715. It elaborated that funding that
supports law enforcement services “do[es] not create a direct enough link” to the law
enforcement actions specifically related to Glant’s arrest to support dismissal for outrageous
government conduct. CP at 715. Here, Glant argues that, but for O.U.R’s funding, the operation
leading to Glant’s arrest would not have occurred. But the funding of MECTF here is attenuated
from Glant’s arrest. O.U.R.’s funding, along with donations from individuals, generally
supported the Net Nanny operations. O.U.R. did not direct MECTF to target Glant or control the
details of MECTF’s operation. O.U.R. merely acted as a funding source. We hold that the trial
court did not err when determining that there was not a direct link between O.U.R.’s funding and
Glant’s arrest.
3. Lively Factors
Glant also argues that application of the Lively factors shows that there was outrageous
government misconduct. We disagree.
Regarding the first Lively factor, whether police conduct instigated the crime or
infiltrated ongoing activity, 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 715. Explaining the phrase “landscape of Craigslist,” 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 63-64. Because the record lacked
sufficient evidence regarding this, the trial court found that the first factor was neutral. Here,
Glant argues that there was no ongoing criminal activity and that law enforcement officers
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instigated the crime by posting the advertisement. But, the advertisement was not aimed at
Glant. Glant’s response was voluntary and spontaneous. Additionally, the record does not
provide information regarding the level of criminal activity on Craigslist at the time of this Net
Nanny operation. We hold that the trial court did not err when it concluded that the first factor
was neutral.
The trial court concluded the second factor, whether Glant’s reluctance to commit a crime
was overcome by pleas or solicitation, favored the State. Although the trial court recognized that
Glant exhibited some reluctance in his messages, it found that the messages as a whole showed
that Glant was not reluctant to commit a crime and that his will was not overcome by persistent
pleas or solicitations. Here, Glant argues that he expressed reluctance during the conversations
and that law enforcement reinitiated conversations, flattered Glant with compliments, and
feigned interest in his personal activities. However, Glant initiated the conversation by
responding to the advertisement. Glant then steered the conversation toward sexual topics
regarding the daughters. Glant did not hesitate when expressing his sexual desires or agreeing to
Hannah’s rules. Glant drove from Mercer Island to Thurston County with lubricant to meet
Hannah and the daughters. We hold that the trial court did not err when it concluded that the
second factor favored the State.
The trial court concluded the third factor, whether the government controls the criminal
activity or simply allows it to occur, was neutral because, like the first factor, the record lacked
information. Here, Glant argues that “MECTF controlled every detail of the ‘crime.’” Br. of
Appellant at 26. Specifically, Glant argues that Hannah “made sure to mention a child young
enough to trigger the first-degree rape of a child statute” and discussed multiple children so that
Glant’s crimes would be punished more severely. Br. of Appellant at 26. But Glant was told of
15 No. 52142-3-II
three children and only discussed sexual activity regarding the two daughters. Glant controlled
which children he made sexually explicit comments about. We hold that the trial court did not
err when it concluded that the third factor was neutral.
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, which specifically allows for the solicitation of private funds for the MECTF,
and RCW 9A.68.020, which prohibits public employees from requesting unlawful compensation.
The trial court concluded that neither statute was violated for this operation. 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 716.
Glant argues that as a result of Net Nanny arrests, Sergeant Rodriguez personally
collected over $16,000 of overtime in 2016, that most of those arrested were not criminals before
answering the advertisement, and few, if any, children have been rescued from exploitation. He
also argues that Sergeant Rodriguez violated RCW 13.60.110 because the delegation of funding
duties was improper. Additionally, Glant argues that MECTF’s relationship with O.U.R.
actually prevented law enforcement officers from protecting the public. But, RCW 13.60.110
specifically allows for private funding for MECTF’s goal of rooting out potential sexual abusers
of children. Simply because private supporters help to fund a program does not mean that that
program no longer aims to protect the public or prevent crime. We hold that the trial court did
not err when it concluded that the fourth factor favored the State.
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.
16 No. 52142-3-II
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 [sic] criminal activity in
this case, it is not sufficient to justify a dismissal given the standards that apply.” CP at 717.
Here, Glant argues that police conduct amounted to criminal activity because it “offered up
fictitious children for sexual assault,” violated the WPA, and violated RCW 13.60.110. Br. of
Appellant at 28. However, to the extent law enforcement officers violated the law with the
specific facts of the undercover operation, it was to protect the public and prevent crime against
actual children. Additionally, RCW 13.60.110 is not a criminal statute and law enforcement
officers did not violate the WPA. We hold that the trial court did not err when it concluded that
the fifth factor favored the State.
The trial court concluded that regardless of any violation of the law or criminal activity
by police officers, Glant’s motion to dismiss was denied because he did not show that law
enforcement officers participated in outrageous conduct. The trial court did not adopt a view that
no reasonable judge would take. The record does not show whether law enforcement’s operation
instigated a crime or infiltrated ongoing criminal activity. Glant was not reluctant to commit a
crime and his will was not overcome by persistent pleas or solicitations. Government’s motive
was to protect the public and prevent crime, and law enforcement officers did not act in a manner
repugnant to a sense of justice. 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 Glant’s motion
to dismiss.
III. SENTENCING
Glant argues that “the trial court abused its discretion by rejecting the testimony of Dr.
Packard” regarding Glant’s impulsivity and immaturity. Br. of Appellant at 47. Glant argues
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that the trial court abused its discretion when it concluded that the span of time regarding Glant’s
actions “broke the chain” of Glant’s impulsivity. Br. of Appellant at 47. We hold that Glant
cannot appeal his standard range sentence.
Although no defendant is entitled to an exceptional downward sentence, every defendant
is entitled to ask the sentencing court to consider such a sentence and to have it actually
considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). The SRA provides a
defendant an opportunity to raise his youth for the purpose of requesting an exceptional sentence
downward. In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 336, 422 P.3d 444 (2018).
Additionally, the SRA provides the trial court with the ability to exercise its discretion in
considering youth as a mitigating factor. Pers. Restraint of Light-Roth, 191 Wn.2d at 336.
However, “age is not a per se mitigating factor” that automatically entitles young defendants to
an exceptional sentence downward. State v. O’Dell, 183 Wn.2d 680, 695, 358 P.3d 359 (2015)
(plurality opinion).
In general, a party cannot appeal a sentence within the standard range. State v. Brown,
145 Wn. App. 62, 77, 184 P.3d 1284 (2008); RCW 9.94A.585(1).7 The rationale is that a trial
court that imposes a sentence within the range set by the legislature cannot abuse its discretion as
to the length of the sentence as a matter of law. Brown, 145 Wn. App. at 78. However, a
defendant may appeal a standard range sentence when a trial court has refused to exercise its
discretion or relies on an impermissible basis for its refusal to impose an exceptional sentence
downward. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (plurality opinion). It
7 RCW 9.94A.585 (1) provides, “A sentence within the standard sentence range, under RCW 9.94A.510 or 9.94A.517, for an offense shall not be appealed.”
18 No. 52142-3-II
is error for a trial court to categorically refuse to impose an exceptional sentence downward or to
mistakenly believe that it does not have such discretion. McFarland, 189 Wn.2d at 56.
Here, RCW 9.94A.585(1) prevents Glant from appealing his standard range sentence.
The trial court stated, “I am explicitly noting that I am considering the request for an exceptional
sentence. I recognize that I have the discretion and judgment and authority to do that in an
appropriate case. I am not finding that it is appropriate in this case.” VRP (July 17, 2018) at 89-
90. The trial court stated that Dr. Packard’s testimony was “helpful” and considered Glant’s
youthfulness before imposing the standard range sentence. VRP (July 17, 2018) at 89-91. The
trial court did not refuse to exercise its discretion or mistakenly believe it lacked discretion to
deviate from the standard range. Thus, we hold that Glant cannot appeal his standard range
sentence.
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. We concur:
Lee, C.J.
Melnick, J.