State v. Patel

170 Wash. 2d 476
Washington Supreme Court·Decided November 10, 2010·No. No. 82649-8·Published·Cited by 4 cases

Opinions

Chambers, J.

¶1 Mitel Patel was convicted of attempted second degree rape of a child after he was caught in an [478] Internet sting operation conducted by the police. As part of the operation, a Spokane police detective posing as a fictitious 13-year-old girl chatted with Patel over an on-line instant messaging service. Following a sexually explicit conversation, Patel agreed to meet the girl at her apartment for sex. When Patel arrived at the apartment, he knocked on the door and was immediately arrested by police. Patel asks this court to vacate his conviction. He urges us to overrule our decision in State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002), and hold that in order to convict a defendant for attempted rape of a child, the State must always prove there was an actual underage victim. We take this opportunity to clarify our jurisprudence and hold that a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police. We affirm the Court of Appeals.

I

¶2 Detective Jerry Keller was part of an undercover operation run by the Spokane Police Department’s sexual exploitation unit designed to catch on-line sexual predators. As part of that operation, Keller created an on-line profile for a fictitious girl named “Kimberly,” specifically designed to make “Kimberly” appear to be under the age of 16.1 On November 30, 2004, Patel, using his roommate’s computer and screen name, found the profile and initiated an instant messaging chat with “Kimberly.” Clerk’s Papers at 17. He began by writing, “HELLO ... U LIKE OLDER GUYS?” Id. In response “Kimberly” asked Patel his age and, after learning that he was 26 years old replied, “[W]ow im 13 but look and act older.” Id. From there the conversation quickly turned to the topic of sex, with Patel asking “Kimberly” various questions about her prior sexual experience and [479] telling her, “I THINK I WANT TO HAVE SEX WITH U.” Id. at 18. Eventually, “Kimberly” gave Patel the address and directions to an apartment where she said she lived with her mother and the two agreed to meet.

¶3 When Patel arrived at the apartment, he knocked on the door, identified himself, and was immediately arrested. A search incident to arrest revealed that Patel was carrying five condoms2 and directions to the apartment that “Kimberly” had relayed to him during the chat. When Patel was interrogated by police, he was shown a printed transcript of his on-line chat with “Kimberly,” and he admitted that she had told him that she was 13 years old. Patel told police that he might have had sex with her but only if she was 16 years old and not if she looked 13.

¶4 Patel was charged with attempted second degree rape of a child. Prior to trial, he made a motion to dismiss the charge, arguing that the State could not prove that the victim was at least 12 years old but less than 14 years old — a necessary element to prove the completed crime of second degree rape of a child.3 RCW 9A.44.076(1). The trial court denied the motion. After a bench trial, the court found Patel guilty of attempted second degree rape of a child.

¶5 Patel then filed a motion for arrest of judgment pursuant to CrR 7.4, arguing that in the context of attempted second degree rape of a child, the victim’s age is a necessary element that the State must prove beyond a reasonable doubt. Patel maintained that the State had failed to produce sufficient evidence to convict him because the alleged victim in this case was fictitious and not actually 13 years old. He argued that because second degree rape of a child is a strict liability offense, his subjective belief about “Kimberly’s” age was just as irrelevant to [480] proving attempt as it would be to proving the completed crime. See State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996). The trial court denied the motion.

¶6 Patel appealed his conviction. The Court of Appeals affirmed in an unpublished opinion. State v. Patel, noted at 147 Wn. App. 1053 (2008).

II

¶7 “The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We interpret statutes de novo. Morgan v. Johnson, 137 Wn.2d 887, 891, 976 P.2d 619 (1999). We also review questions of law de novo. State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006).

¶8 The elements of attempted second degree rape of a child come from two separate statutes: the child rape statute and the criminal attempt statute. To prove second degree rape of a child, the State must prove beyond a reasonable doubt that the defendant had “sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1). The defendant’s intent with respect to the victim’s age is not an element of the crime, meaning that the State is not required to prove that the defendant knew the victim was underage. Instead, the statute focuses on the criminal result of the defendant’s conduct: sex with an underage partner. While intent with regard to the age of the victim is not an element of the crime, a defendant’s knowledge of the victim’s age is relevant in that defendants may assert an affirmative defense and prove by a preponderance of the evidence that they reasonably believed the victim was older based on the victim’s own declarations. RCW 9A.44.030(2).

[481] ¶9 By contrast, attempt crimes do “not depend on the ultimate harm that results or on whether the crime was actually completed.” State v. Luther, 157 Wn.2d 63, 73, 134 P.3d 205 (2006). The criminal attempt statute states:

A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.

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State v. Patel, 170 Wash. 2d 476 (Wash. 2010).

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