IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86208-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
FRANK JOSEPH SANDOVAL,
Appellant.
FELDMAN, J. — Frank Sandoval appeals his conviction for Communication
with a Minor for Immoral Purposes (CMIP). Because the facts of this case are well
known by the parties, we do not repeat them here except as necessary to our
analysis below. Sandoval challenges both the evidentiary and constitutional
underpinnings of the conviction. Finding no error, we affirm.
A. Sandoval argues there is insufficient evidence to support his CMIP
conviction because the State failed to show his conduct was communication for
immoral purposes of a sexual nature. When analyzing whether evidence is
sufficient to uphold a jury’s verdict, this court applies a deferential standard of
review. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277
(2011). “Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the prosecution, it permits any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt.” State v. Andy, 182 Wn.2d 294, No. 86208-1-I
303, 340 P.3d 840 (2014) (quoting State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d
970 (2004)). Also, we defer to the jury on issues of conflicting testimony, witness
credibility, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
Here, the unchallenged jury instructions required the State to prove, “That
on a specific date from on or about the 21st day of May 2021 and on or about the
19th day of October 2021, the defendant communicated with E.B. for immoral
purposes of a sexual nature.” The court also instructed the jury, “Communication
may be by words or conduct.” As no party objected to these instructions, they are
“law of the case” and “‘are treated as the properly applicable law for purposes of
appeal.’” State v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017) (quoting
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005)); see also Millies v.
LandAmerica Transnation, 185 Wn.2d 302, 313, 372 P.3d 111 (2016) (“Unless
there is a proper objection, jury instructions become the law of the case. We review
the sufficiency of the evidence in light of the instructions given.”) (internal citations
and footnote omitted).
Applying these principles, the jury’s verdict is supported by sufficient
evidence. Sandoval was charged with CMIP in connection with several incidents
involving E.B., a 12-year-old girl who Sandoval hired to dry and label cans at the
brewery he owned in Snohomish. Sandoval was able to hire E.B. because he
befriended her parents, who frequented the brewery. E.B. testified Sandoval
sometimes paid her while her mother was at the brewery, but he would take her to
the back room—where they would be alone—to do so. She added, “he would, like,
pull the waistband of my pants out and, like, stuff the cash in the waistband of my
pants. But he would, like, kind of hold the waistband out for a longer time and, like,
2 No. 86208-1-I
look down in my pants. And I felt like he was looking at my underwear.” E.B. also
testified that when Sandoval put the money in her back pocket, rather than putting
it in the waistband of her pants, “he kind of lingered his hand there.” The foregoing
evidence (without considering additional evidence of wrongdoing) was sufficient to
show Sandoval communicated with E.B. to satisfy a sexual purpose or desire, such
as to look at her underwear or touch her buttocks through her clothing.
Sandoval’s contrary arguments lack merit. He argues “the inference [he]
tucked money into E.B.’s waistband to see her underwear or that putting the money
in her back pocket was an excuse to touch her is speculation.” He also argues his
conduct is less egregious than the conduct Washington Courts have “held to be
sufficient to convict, all of which involved sexually explicit language or conduct.”
These arguments misunderstand the nature of our review for sufficiency of the
evidence. “A claim of insufficiency admits the truth of the State’s evidence and all
inferences that reasonably can be drawn therefrom.” Johnson, 188 Wn.2d at 742
(quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). And as the
State correctly notes, “Just because [other] cases involved more explicit
communications does not mean that no reasonable juror in this case could find the
defendant’s actions were sufficient to support the charge.” Viewing the evidence
favorably to the State and drawing all reasonable inferences in its favor, sufficient
evidence supports the jury’s verdict on the CMIP count.
B. Sandoval next argues we should reverse the CMIP conviction
because the underlying criminal statute (RCW 9.96A.090) is unconstitutionally
vague as applied to his conduct. “The due process vagueness doctrine seeks to
ensure that the public has adequate notice of what conduct is proscribed and to
3 No. 86208-1-I
ensure that the public is protected from arbitrary ad hoc enforcement.” State v.
Saunders, 132 Wn. App. 592, 599, 132 P.3d 743 (2006). “The vagueness doctrine
is violated if the provision (1) fails to define the criminal offense so that ordinary
people can understand what conduct is proscribed, and (2) fails to provide
ascertainable standards of guilt to prevent arbitrary enforcement.” Id. “The party
challenging the prohibition carries the burden of overcoming the presumption that
the limitation is constitutional.” Id. Also relevant here, “We review whether a
statute is unconstitutionally vague de novo as a question of constitutional law.”
Dep’t. of Soc. & Health Servs. v. Zamora, 198 Wn. App. 44, 71, 392 P.3d 1124
(2017) (citing State v. Watson, 160 Wn.2d 1, 5, 154 P.3d 909 (2007)).
State v. Schimmelpfennig, 92 Wn.2d 95, 594 P.2d 442 (1979), is controlling
on this issue. The defendant there pointed to the words “communicate” and
“immoral purposes” in the CMIP statute and argued they are “insufficient to provide
ascertainable standards to guide conduct.” Id. at 102. Our Supreme Court
disagreed. Construing “immoral purposes,” the court examined the “whole statute
in the context in which it appears in the criminal code” and held the “structure of
this chapter of our criminal code gives ample notice of the legislature’s intent to
prohibit sexual misconduct.” Id. at 102. Construing “communicate,” the court
noted it is a term of common usage and held it “denotes both a course of conduct
and the spoken word.” Id. at 103.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86208-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
FRANK JOSEPH SANDOVAL,
Appellant.
FELDMAN, J. — Frank Sandoval appeals his conviction for Communication
with a Minor for Immoral Purposes (CMIP). Because the facts of this case are well
known by the parties, we do not repeat them here except as necessary to our
analysis below. Sandoval challenges both the evidentiary and constitutional
underpinnings of the conviction. Finding no error, we affirm.
A. Sandoval argues there is insufficient evidence to support his CMIP
conviction because the State failed to show his conduct was communication for
immoral purposes of a sexual nature. When analyzing whether evidence is
sufficient to uphold a jury’s verdict, this court applies a deferential standard of
review. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277
(2011). “Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the prosecution, it permits any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt.” State v. Andy, 182 Wn.2d 294, No. 86208-1-I
303, 340 P.3d 840 (2014) (quoting State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d
970 (2004)). Also, we defer to the jury on issues of conflicting testimony, witness
credibility, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
Here, the unchallenged jury instructions required the State to prove, “That
on a specific date from on or about the 21st day of May 2021 and on or about the
19th day of October 2021, the defendant communicated with E.B. for immoral
purposes of a sexual nature.” The court also instructed the jury, “Communication
may be by words or conduct.” As no party objected to these instructions, they are
“law of the case” and “‘are treated as the properly applicable law for purposes of
appeal.’” State v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017) (quoting
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005)); see also Millies v.
LandAmerica Transnation, 185 Wn.2d 302, 313, 372 P.3d 111 (2016) (“Unless
there is a proper objection, jury instructions become the law of the case. We review
the sufficiency of the evidence in light of the instructions given.”) (internal citations
and footnote omitted).
Applying these principles, the jury’s verdict is supported by sufficient
evidence. Sandoval was charged with CMIP in connection with several incidents
involving E.B., a 12-year-old girl who Sandoval hired to dry and label cans at the
brewery he owned in Snohomish. Sandoval was able to hire E.B. because he
befriended her parents, who frequented the brewery. E.B. testified Sandoval
sometimes paid her while her mother was at the brewery, but he would take her to
the back room—where they would be alone—to do so. She added, “he would, like,
pull the waistband of my pants out and, like, stuff the cash in the waistband of my
pants. But he would, like, kind of hold the waistband out for a longer time and, like,
2 No. 86208-1-I
look down in my pants. And I felt like he was looking at my underwear.” E.B. also
testified that when Sandoval put the money in her back pocket, rather than putting
it in the waistband of her pants, “he kind of lingered his hand there.” The foregoing
evidence (without considering additional evidence of wrongdoing) was sufficient to
show Sandoval communicated with E.B. to satisfy a sexual purpose or desire, such
as to look at her underwear or touch her buttocks through her clothing.
Sandoval’s contrary arguments lack merit. He argues “the inference [he]
tucked money into E.B.’s waistband to see her underwear or that putting the money
in her back pocket was an excuse to touch her is speculation.” He also argues his
conduct is less egregious than the conduct Washington Courts have “held to be
sufficient to convict, all of which involved sexually explicit language or conduct.”
These arguments misunderstand the nature of our review for sufficiency of the
evidence. “A claim of insufficiency admits the truth of the State’s evidence and all
inferences that reasonably can be drawn therefrom.” Johnson, 188 Wn.2d at 742
(quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). And as the
State correctly notes, “Just because [other] cases involved more explicit
communications does not mean that no reasonable juror in this case could find the
defendant’s actions were sufficient to support the charge.” Viewing the evidence
favorably to the State and drawing all reasonable inferences in its favor, sufficient
evidence supports the jury’s verdict on the CMIP count.
B. Sandoval next argues we should reverse the CMIP conviction
because the underlying criminal statute (RCW 9.96A.090) is unconstitutionally
vague as applied to his conduct. “The due process vagueness doctrine seeks to
ensure that the public has adequate notice of what conduct is proscribed and to
3 No. 86208-1-I
ensure that the public is protected from arbitrary ad hoc enforcement.” State v.
Saunders, 132 Wn. App. 592, 599, 132 P.3d 743 (2006). “The vagueness doctrine
is violated if the provision (1) fails to define the criminal offense so that ordinary
people can understand what conduct is proscribed, and (2) fails to provide
ascertainable standards of guilt to prevent arbitrary enforcement.” Id. “The party
challenging the prohibition carries the burden of overcoming the presumption that
the limitation is constitutional.” Id. Also relevant here, “We review whether a
statute is unconstitutionally vague de novo as a question of constitutional law.”
Dep’t. of Soc. & Health Servs. v. Zamora, 198 Wn. App. 44, 71, 392 P.3d 1124
(2017) (citing State v. Watson, 160 Wn.2d 1, 5, 154 P.3d 909 (2007)).
State v. Schimmelpfennig, 92 Wn.2d 95, 594 P.2d 442 (1979), is controlling
on this issue. The defendant there pointed to the words “communicate” and
“immoral purposes” in the CMIP statute and argued they are “insufficient to provide
ascertainable standards to guide conduct.” Id. at 102. Our Supreme Court
disagreed. Construing “immoral purposes,” the court examined the “whole statute
in the context in which it appears in the criminal code” and held the “structure of
this chapter of our criminal code gives ample notice of the legislature’s intent to
prohibit sexual misconduct.” Id. at 102. Construing “communicate,” the court
noted it is a term of common usage and held it “denotes both a course of conduct
and the spoken word.” Id. at 103. The court then determined, “In the context of
this statute, any spoken word or course of conduct with a minor for purposes of
sexual misconduct is prohibited.” Id. at 103-04. Having so construed the statute,
the court held, “A person of common intelligence and understanding has fair notice
of the conduct prohibited by [the CMIP statute], and ascertainable standards by
4 No. 86208-1-I
which to guide his or her conduct. The statute is neither vague nor overbroad.” Id.
at 104.
Like the defendant in Schimmelpfennig, Sandoval argues “reasonable
ordinary people would not agree” his conduct was prohibited by the CMIP statute.
He also argues there is “no discernable standard” to determine whether his
conduct was “predatory” or was instead “an innocent way of giving E.B. the cash
she earned.” Neither argument is persuasive. In Schimmelpfennig, our Supreme
Court stated it was “satisfied that any person of common understanding,
contemplating asking a small child to climb into a van and engage in sexual
activities need not guess as to the proscription and penalties of the statute.” Id. at
103. Given the facts at issue here, we are equally satisfied any person of common
understanding would know isolating a 12-year-old girl from her parent in order to
pull out her waistband, stuff cash into her pants, and look down at her underwear
or to cause their hand to linger in her back pocket while placing cash there is
prohibited by the CMIP statute as authoritatively construed in Schimmelpfennig. It
strains credulity, under these circumstances, to argue otherwise.
Affirmed.
WE CONCUR: