* City Of Seattle Respondent V. Jose Rodriguez, Petitioner

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE,
Respondent,
v.
JOSE RODRIGUEZ,
Petitioner.
No. 79353-5-I
DIVISION ONE
PUBLISHED OPINION
L EACH , J. — Jose Rodriguez appeals his conviction for sexual exploitation. 	He
claims 	that 	Seattle 	Municipal 	Code 	12A.10.040(A)(2)1 	(SMC 	12A.10.040) 	is
unconstitutional because it is overbroad and vague. 	He also claims two conflicting jury
instructions denied him a fair trial.
Rodriguez fails to show how SMC 12A.10.040 impermissibly burdens innocent or
constitutionally 	protected 	activity, 	how 	an 	ordinary 	person 	would 	not 	be 	able 	to
understand what conduct is prohibited, or how the ordinance provides unascertainable
standards of guilt to protect against arbitrary enforcement. 	Also, Rodriguez failed to
object to the jury instructions below and does not show any constitutional error regarding
the instructions. We affirm.
1 Former SEATTLE MUNICIPAL CODE 12A.10.040(A)(2) (2015).
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FACTS
On February 2, 2016, Seattle Police Department Detective Tammie Case worked
undercover as a prostitute. 	Jose Rodriguez text messaged Case to meet her for sex.
Case sent Rodriguez the address. Case told Rodriguez she would meet him outside her
apartment. When she opened the door, Rodriguez was not there. After calling him, she
saw Rodriguez across the street sitting on some steps. After she started waving at him,
he walked toward her from across the street. 	Both Case and Rodriguez entered the
elevator to go upstairs. Rodriquez stated he wanted a half hour. While they were walking
in the hallway, Case asked him what he wanted and he responded, “[j]ust sex.” She said,
“Okay, $80 bucks.” He shook his head and said, “[y]es” and held up eight fingers. When
they entered the room, Officer Garner was there. 	Case asked Rodriguez if he wanted
two girls. 	He responded, “No, just one girl” and held up one finger. 	Officer Garner left
and Rodriguez handed Case $80. He was arrested and charged with sexual exploitation
or patronizing a prostitute under SMC 12A.10.040.
Before trial, Rodriguez asked the trial court to dismiss the charge because the
sexual exploitation statute was “content-based speech regulation in violation of the United
States and Washington state constitutions.” The trial court denied his request. After trial,
the jury found Rodriguez guilty of sexual exploitation. Rodriguez appeals.
ANALYSIS
Constitutionality of SMC 12A.10.040
Rodriguez challenges the constitutionality of SMC 12A.10.040 on the grounds of
vagueness and overbreadth. We review these claims de novo. A court usually presumes
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a statute is constitutional.2 The party challenging its constitutionality has the burden of
proving otherwise beyond a reasonable doubt.3
Overbreadth
Rodriguez contends Seattle’s sexual exploitation ordinance SMC 12A.10.040 is
unconstitutionally 	overbroad 	because 	it 	proscribes 	content 	based 	speech 	while
prohibiting the trier of fact from considering the defendant’s intent or knowledge. 	As a
result, it criminalizes both protected and unprotected speech.
A statute is overbroad if it impermissibly burdens innocent or constitutionally
protected activity.4 	A court will only declare a law unconstitutional on overbreadth
grounds if that overbreadth is “substantial.”5 When a challenge involves conduct rather
than 	speech, 	we 	judge 	the 	overbreadth 	of 	the 	law 	in 	relation 	to 	its 	legitimate
sweep.6 Rodriguez was convicted of violating SMC 12A.10.040, which provided in part,
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.
. . .
2 Madison v. State, 161 Wn.2d 85, 92, 163 P.3d 757 (2007).
3 Madison, 161 Wn.2d at 92.
4 State v. O'Neill, 103 Wn.2d 853, 700 P.2d 711 (1985).
5 State v. Myers, 133 Wn.2d 26, 32, 941 P.2d 1102 (1997) (citing New York v.
Ferber, 458 U.S. 747, 767, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)); City of Seattle v.
McConahy, 86 Wn. App. 557, 569, 937 P.2d 1133 (citing O'Day v. King County, 109
Wn.2d 796, 803, 749 P.2d 142 (1988), rev. denied, 133 Wn.2d 1018 (1997)).
6 Myers, 133 Wn.2d at 32.
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C. As authorized by Section 12A.04.100, liability for sexual exploitation does
not 	require 	proof 	of 	any 	of 	the 	mental 	states 	described 	in 	Section
12A.04.030.7
Rodriguez correctly notes the ordinance does not require an intent element, and
he claims this shows it is not narrowly tailored, making it unconstitutional. 	Here,
SMC 12A.10.040 adequately defines criminal conduct as soliciting another to engage in
sexual conduct in return for a fee. 	This clearly proscribes prostitution. 	The First
Amendment does not protect prostitution.8 	So, we reject his claim that this ordinance
must survive a strict scrutiny analysis to be constitutional.
This court has previously stated, “the mere act of offering to engage in sexual
intercourse for a consideration is a violation of the law. 	No overt act is required to
complete the offense.”9 	And, “[o]ur Supreme Court repeatedly has stated that the
legislature has the authority to create strict liability crimes that do not include a culpable
mental state.”10 	So, SMC 12A.10.040 does not impermissibly burden innocent or
constitutionally protected activity.
Rodriguez claims the court in City of Seattle v. Slack11 held a scienter element was
required to uphold limitations on speech even for laws related to prostitution. 	We
disagree. 	In Slack, the relevant ordinance “prohibits an individual, including a ‘known
prostitute,’ from loitering in a public place while possessing the criminal intent to solicit,
induce, entice, or procure another to commit prostitution.”12 And, the court there held that
7 Former SMC 12A.10.040(A)(2).
8 State v. Carter, 89 Wn.2d 236, 240-41, 570 P.2d 1218 (1977).
9 City of Yakima v. Emmons, 25 Wn. App. 798, 801, 609 P.2d 973 (1980).
10 State v. Schmeling, 191 Wn. App. 795, 801, 365 P.3d 202 (2015).
11 113 Wn.2d 850, 784 P.2d 494 (1989).
12 113 Wn.2d at 855.
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No. 79353-5-I/5
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the intent element saved the ordinance from being unconstitutionally overbroad. Loitering
in a public place is constitutionally protected, and the status alone of being a “known
prostitute,” cannot by itself be a crime.13 Without the intent element, the ordinance would
criminalize constitutionally protected acts of loitering and being a known prostitute. Here,
there is no similar need for an intent element to prevent the ordinance from being
unconstitutionally overbroad because SMC 12A.10.040, prohibits asking an individual to
exchange sexual conduct for money, which is not a constitutionally protected activity.14
Rodriguez cites no relevant or controlling authority that supports his claim. 	The
challenged ordinance is not overbroad.
Vagueness
Rodriguez next contends SMC 12A.10.040 is unconstitutionally vague because an
ordinary person would not be able to reconcile the terms “agreement” and “pursuant to
an 	understanding” 	with 	the 	additional 	language 	prohibiting 	the 	trier 	of 	fact 	from
considering the defendant’s intent or knowledge.
A statute is void for vagueness if it either fails to define a criminal offense with
sufficient definiteness, so that ordinary people can understand what conduct is prohibited,
or it does not provide ascertainable standards of guilt to protect against arbitrary
enforcement.15 But, “[t]he fact that some terms in a statute are not defined does not mean
the enactment is unconstitutionally vague.”16 	Also, “some measure of vagueness is
inherent 	in 	the 	use 	of 	language 	[so] 	impossible 	standards 	of 	specificity 	are 	not
13 Slack, 113 Wn.2d at 855.
14 Carter, 89 Wn.2d at 240-41.
15 State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001).
16 State v. Lee, 135 Wn.2d 369, 393, 957 P.2d 741 (1998).
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No. 79353-5-I/6
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required.”17 	Simply because the legislature could have drafted the statute with more
precision, the court does not invalidate the statute for vagueness.18
The 	court 	may 	rely 	upon 	the 	dictionary 	when 	statutory 	terms 	are
undefined.19 	“Agree” 	is 	defined 	as 	“to 	indicate 	willingness: 	consent,”20 	and
“understanding” is defined as “a mutual agreement not formally entered into but in some
degree binding on each side.”21
Rodriguez claims a plain reading of “agreement” and “understanding” suggests a
consistent, subjective intent that sexual conduct for a fee would occur. But, neither of the
cited definitions requires a subjective intent. 	An agreement to do something and an
understanding can both be objectively communicated. 	For example, if someone asks
another to exchange money for sexual conduct, both the agreement to pay and the
understanding that the payment is for sexual conduct have been articulated in an
objective manner with the very words spoken.22
Neither of these definitions, when read together with the provision that a trier of
fact is not required to consider a defendant’s mental state, prohibits an ordinary person
from understanding what conduct is prohibited. 	SMC 12A.10.040 is not “so vague that
persons of common intelligence must necessarily guess at its meaning and differ as to its
applicability.”
Rodriguez also claims, “[b]y excising the requirement for any proof of a person's
17 City of Seattle v. Abercrombie, 85 Wn. App. 393, 399, 945 P .2d 1132 (1997).
18 State v. Harrington, 181 Wn. App. 805, 824-25, 333 P.3d 410 (citing to State v.
Watson, 160 Wn.2d 1, 11, 154 P.3d 909 (2007).
19 Armantrout v. Carlson, 166 Wn.2d 931, 937, 214 P.3d 914 (2009).
20 W EBSTER ’S T HIRD NEW I NTERNATIONAL DICTIONARY 43 (2002).
21 W EBSTER ’S T HIRD NEW I NTERNATIONAL DICTIONARY 2490 (2002).
22 Such as responding “yes” to an offer of sexual conduct for money.
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No. 79353-5-I/7
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knowledge or intent, Seattle left the enforcement of the law entirely to the discretion of
the police” and the officer’s ability to make a subjective evaluation of whether the
ordinance applies in a given situation. He claims this makes the ordinance vague.
The mere fact that a law may require some degree of subjective evaluation by a
police 	officer 	to 	determine 	whether 	a 	statute 	applies 	does 	not 	make 	the 	law
unconstitutionally 	vague.23 	“Under 	the 	due 	process 	clause, 	the 	enactment 	is
unconstitutional only if it invites an inordinate amount of police discretion.”24
Here, Rodriguez fails to fully explain how the officer’s discretion in deciding
whether to arrest a suspect for prostitution, based on their observation of an objective act
of offering money for sexual conduct, “invites an inordinate amount of police discretion”
outside 	of 	the 	normal 	level 	of 	police 	officer 	discretion.25 	The 	ordinance 	is 	not
impermissibly vague.
Jury Instructions
Rodriguez claims that the “vagueness inherent in” SMC 12A.10.040 resulted in
contradictions between Instructions No. 7 and No. 10. 	Because Rodriguez never
objected to either jury instruction,26 we only address his constitutional claim that the
instructions denied him a fair trial.27 He supports this claim with the same vagueness
argument that we rejected above. So, his constitutional challenge to the instructions fails.
23 State v. Harrington, 181 Wn. App. 805, 825, 333 P.3d 410 (2014) (citing to In re
Detention of Danforth, 173 Wn.2d 59, 74, 264 P.3d 783 (2011) (citation omitted).
24 Harrington, 181 Wn. App. at 825 (citing to Danforth, 173 Wn.2d at 74) (citation
omitted).
25 Harrington, 181 Wn. App. at 825.
26 State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995).
27 State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011) (quoting State
v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)).
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No. 79353-5-I/8
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CONCLUSION
We affirm. 	Rodriguez fails to show that SMC 12A.10.040 criminalizes protected
speech or that an ordinary person would not be able to understand it. 	He also fails to
show that the ordinance invites an inordinate amount of police discretion. So, he fails to
show the ordinance is unconstitutionally overbroad or unconstitutionally vague. 	Finally,
Rodriguez did not object to the challenged jury Instructions and fails to show any
constitutional error in them.
WE CONCUR:
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