City Of Seattle, Petitioner V. Daryl Sharma, Respondent

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CITY OF SEATTLE,
Appellant,
v.
DARYL RUDRA SHARMA,
Respondent.
No. 80022-1-I
DIVISION ONE
UNPUBLISHED OPINION
L EACH , J. — The City of Seattle appeals a superior court decision reversing Daryl
Rudra Sharma’s Seattle Municipal Court conviction for the crime of Sexual Exploitation.
On Sharma’s appeal from municipal court, the superior court introduced an issue not
raised by either party, whether the municipal court jury instructions violated Sharma’s
due process rights. 	Because the superior court incorrectly decided the instructions
violated due process, we reverse and remand to the superior court to decide the issues
raised before it by the parties.
FACTS
On 	July 30, 	2017, 	Seattle 	Police 	Detective 	Ashley 	Fitzgerald 	was 	working
undercover as a sex worker. 	At 6:36 p.m., Fitzgerald walked by a bus stop on Aurora
Avenue. 	Officer Fitzgerald saw Daryl Sharma sitting there and initiated a conversation
with him.

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Fitzgerald: 	Are you looking for a date?
Sharma: 	Hey, Actually I was wondering if I could
call you later because, you know, I don’t
have my money right now and I have to
get my shit.
Fitzgerald: 	Sure. What are you looking for?
Sharma: 	You 	know, 	anything, 	maybe 	like 	a
blowjob or something?
Fitzgerald: 	Alright, I can do that for $20.
Fitzgerald then signaled to other officers to arrest Sharma. The conversation continued.
Sharma: 	For $20? What’s your name?
Fitzgerald: 	Candy.
Sharma: 	Oh 	so 	that 	should 	taste 	good 	then.
What’s your number?
[. . .]
Fitzgerald: 	OK so call me later and we’ll meet back
here, blowjob for $20 right?
Sharma 	Yes.
Fitzgerald walked away and again signaled to other officers to arrest Sharma. 	The
officers arrested him. 	The City of Seattle (City) charged Sharma with the crime of
Sexual Exploitation under Seattle Municipal Code (SMC) 12A.10.040.
Knapstad Motion
Sharma asked the Seattle Municipal Court to dismiss the charge of Sexual
Exploitation, claiming the City had insufficient evidence to prove its case relying on
State v. Knapstad.1 	Sharma argued the City did not have evidence of a clear
agreement between him and Fitzgerald as required by SMC 12A.10.040(A)(2). Sharma
contended that because he told Fitzgerald he did not have any money no contract was
formed. 	He noted, after Fitzgerald said “OK so call me later and we’ll meet back here,
1 State v. Knapstad, 107 Wn. 2d 346, 729 P.2d 48 (1986).

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blowjob for $20 right?” he paid her no money and did not agree to a time to meet. 	So,
the City had no evidence of an agreement or an agreement to a time to meet later.
The municipal court considered Sharma’s statement that he did not have money
to pay Fitzgerald and did not confirm a time to meet her later. 	It also considered that
before Fitzgerald left, “she did confirm the agreement and he said yes.” 	The municipal
court 	found 	this 	evidence 	was 	sufficient 	to 	allow 	a 	reasonable 	juror 	to 	find 	the
agreement 	element 	of 	the 	crime 	of 	Sexual 	Exploitation 	and 	it 	denied 	Sharma’s
Knapstad motion.
Jury Instructions
The City asked the municipal court to require Sharma to submit proposed jury
instructions. The municipal court agreed and instructed both parties to submit proposed
jury instructions.
The City’s proposed instructions tracked SMC 12A.10.040(A)(2) to define Sexual
Exploitation 	and 	SMC 12A.02.150(21)(a) 	to 	define 	Sexual 	Conduct.
SMC 12A.10.040(A) provides:
A. A person is guilty of sexual exploitation if:
1. 	Pursuant to a prior understanding, he or she pays a fee to another
person as compensation for such person or a third person having
engaged in sexual conduct with him or her; or
2. 	He or she pays or agrees to pay a fee to another person pursuant
to an understanding that in return therefor such person will engage
in sexual conduct with him or her; or
3. 	He or she solicits or requests another person to engage in sexual
conduct with him or her in return for a fee.
SMC 12A.02.150(21)(a)(b) defines “sexual conduct” as:

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a. Sexual 	intercourse 	in 	its 	ordinary 	sense 	which 	occurs 	upon 	any
penetration, however slight, or contact between persons involving the sex
organs of one and the mouth or anus of another;
b. Masturbation, manual or instrumental, of one (1) person by another.
The City’s proposed elements instruction told the jury that to find Sharma guilty of
Sexual Exploitation, it must find the city “proved beyond a reasonable doubt: (1) That on
or about July 30, 2017, the defendant agreed to pay a fee to another person pursuant to
an understanding that in return therefor that person would engage in sexual conduct
with the defendant; and (2) That the acts occurred in the City of Seattle.”
Sharma did not object to the City’s proposed instructions. 	Sharma asked the
municipal court to exclude the terms “patronizing a prostitute” and “sexual exploitation”
from trial and the jury instructions. 	The municipal court denied Sharma’s request to
exclude those terms.
The municipal court used the City’s proposed instructions and incorporated
SMC 12A.10.040(A)(2)’s definition of Sexual Exploitation in instructions three and five.
INSTRUCTION NO. 3
A person commits Sexual Exploitation when he or she agrees to
pay a fee to another person pursuant to an understanding that in return
therefor that person will engage in sexual conduct with him or her.
INSTRUCTION NO. 5
To convict the defendant of the crime of Sexual Exploitation, each
of 	the 	following 	elements 	of 	the 	crime 	must 	be 	proved 	beyond 	a
reasonable doubt:
(1) That on or about July 30, 2017, the defendant agreed to pay a
fee to another person pursuant to an understanding that in return therefor
that person would engage in sexual conduct with the defendant; and
(2) That the acts occurred in the City Of Seattle.
Sharma did not object.

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Motion to Preclude
Before trial, the City asked the municipal court to prevent Sharma from arguing
that he did not intend to commit Sexual Exploitation. 	The City asserted, “Pursuant to
SMC 12A.04.100, liability for sexual exploitation does not require proof of any of the
mental states described in Section 12A.04.030.” 	The City contended this provision
made it improper for Sharma to argue he “did not have intent, knowledge, or any of the
mental 	states defined in Section 12A.04.030 to commit sexual 	exploitation.” 	The
municipal court agreed and precluded Sharma from arguing he did not intend to commit
Sexual Exploitation.
Verdict and Sentence
The jury convicted Sharma of the crime of Sexual Exploitation. 	The municipal
court imposed a 90-day jail sentence with 30-days suspended, and it granted Sharma’s
request to stay the sentence pending the appeal.
Appeal to Superior Court
Sharma 	appealed 	to 	King 	County 	Superior 	Court. 	Sharma 	argued
SMC 12A.10.040 was unconstitutionally overbroad and vague. 	He also challenged the
sufficiency of the evidence to prove each element of the crime of Sexual Exploitation
beyond a reasonable doubt.
The superior court did not reach these issues. 	In a written decision, it stated,
“While the parties in this case argue about the mens rea element of the Sexual
Exploitation statute, the central problem with Mr. Sharma’s case centers around the
actus reus.” It also stated,

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The statute does not require proof of an intent to commit the
completed crime (sex for money). 	Rather, the City has defined the actus
reus 	for 	Sexual 	Exploitation 	as 	an 	agreement 	that 	includes, 	‘an
understanding’ of what, ‘will,’ occur in the future. Thus, the actus reus for
Sexual Exploitation is a complex concept requiring various mental states.
It is very different than the typical strict liability crime that simply requires a
physical act, a bodily movement, or a willful doing. 	How does one
volitionally, willfully, purposefully, agree to do something in return for
receiving something else in the future without actually intending to carry
out the agreement, or at least knowing that this is a real agreement?
The superior court determined without clear instructions,
One 	could 	be 	convicted 	for 	expressing 	sexual 	interest 	in 	a
purported 	prostitute, 	playing 	along 	with 	a 	prostitute’s 	desire 	for 	a
transaction in an effort to appease her, with no intention of ever engaging
in sex for money. The facts of the current case could be interpreted in this
way.
The trial court failed to provide any instructions to the jury as to how
they should consider the conversation between Officer Fitzgerald and
Mr. Sharma. 	The 	jury 	was 	not 	provided 	instructions 	related 	to 	the
language in SMC 12A.04.010. 	Thus, they had not basis on which to
determine 	whether 	Mr. Sharma 	made 	the 	agreement 	with
Officer Fitzgerald with resolve, effort and determination.
This is particularly true under the facts of the current case, where
Mr. Sharma’s 	participation 	in 	the 	act 	was 	ambiguous. 	Additional
instructions or a defense attorney authorized to discuss mental states was
necessary for a fair trial.
The 	superior 	court 	decided 	that 	because 	the 	jury 	instructions 	did 	not 	define
“agreement,” “understanding,” “knowledge,” and other terms required to complete the
actus reus of the crime, the instructions denied Sharma a fair trial under Washington
State Constitution Article I, Section 3. 	Based on this decision, the superior court
reversed the jury verdict and remanded for a new trial without addressing Sharma’s
constitutional and sufficiency arguments.
The City appeals.

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ANALYSIS
As a preliminary matter, the City argues the superior court improperly reviewed
an unpreserved error about jury instructions. Specifically, the City claims that Sharma’s
failure to request jury instructions defining “volition,” “knowledge,” “an understanding,”
and “agreement,” and failure to object to the absence of instructions defining those
terms in municipal court, the superior court should not have considered the instructions
on appeal. 	But, the authorities cited by the City address Sharma’s right to raise an
unpreserved issue, and not an appellate court’s authority to raise on its own initiative
constitutional issues it identifies. The city cites no case that prohibits an appellate court
from identifying a denial of due process and providing a remedy for a trial court’s denial
of that constitutional right. So, we address the merits of the superior court’s decision.
The municipal court’s jury instructions did not violate Sharma’s due process
rights. 	To satisfy due process requirements, jury instructions must properly inform the
jury of the elements of the charged crime. “[A]ny error in further defining terms used in
the elements is not of constitutional magnitude.”2
Here, the municipal court’s elements instruction described the elements of sexual
exploitation in language identical to SMC 12A.10.040(A)(2). 	Sharma makes no claim
that the municipal court’s elements instruction incorrectly or incompletely described the
elements of the crime charged. It provided what due process requires. So, the superior
court decision that the municipal instructions violated due process was wrong. Because
this decision provided the sole basis for the superior court’s reversal of Sharma’s
2 State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 (1992).

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conviction, we reverse the superior court and remand to consider the issues of the
constitutional and evidentiary issues raised by Sharma in his appeal.
The City also argues the superior court incorrectly determined that the actus reus
for Sexual Exploitation requires a mental state. 	Because we reverse the superior
court’s decision, we do not reach this issue.
CONCLUSION
The superior court incorrectly decided that the municipal court’s jury instructions
violated Sharma’s due process rights. 	So, we reverse the superior court and remand
for the superior court to consider Sharma’s constitutional and sufficiency claims raised
in his appeal.
WE CONCUR: