Appeal from Superior Court of Snohomish County. Docket No: 93-1-01511-3. Date filed: 03/09/94. Judge signing: Hon. Paul D. Hansen.
Authored by Ronald E. Cox. Concurring: C. Kenneth Grosse, Walter E. Webster
The opinion of the court was delivered by: Cox
COX, J. -- Lorren Dana appeals his judgment and sentence for two counts of luring a child in violation of RCW 9A.40.090. We hold that the luring statute is not void for vagueness, is not unconstitutionally overbroad, and does not exceed the scope of the State's police power. We also hold that there was sufficient evidence to support Dana's conviction. Accordingly, we affirm.
In October 1993, Dana stopped his car in Edmonds near a McDonald's restaurant and spoke to two girls, A.K. and C.F. They were 12 and 11 years old, respectively. Dana and the girls had never met before.
He first mumbled something that they could not understand. The girls testified at trial that he then asked them if they would like to get into his car. The girls saw that he was wearing a leather jacket, a gold chain around his neck, and no shirt. C.F. testified that she saw that Dana was also wearing only a red jockstrap pulled over to one side, partially exposing his genitals. At trial, she confirmed that a pair of red bikini underpants that police obtained during a search of Dana's residence closely resembled what Dana was wearing during their encounter. A.K. was unable to see what Dana was wearing below his waist.
When Dana asked them to get into his car, C.F. was so shocked that she dropped the french fries she had bought at the nearby McDonald's. Both girls then moved away from the car and returned to C.F.'s home to notify their parents about the incident.
Dana testified at trial that he had spoken to the girls to ask directions to the nearby Farmers Insurance Agency. He denied that he had asked them to get into his car or that he had exposed his genitals to them.
The State charged Dana with two counts of luring a child in violation of RCW 9A.40.090. Dana waived his right to a jury trial. The trial court convicted him on both counts.
Dana contends that the luring statute is unconstitutional because it is facially void for vagueness. We disagree.
Due process under the Fourteenth Amendment of the United States Constitution and article 1, section 3 of our state constitution requires that statutes give citizens fair warning of prohibited conduct and protect them from "arbitrary, ad hoc, or discriminatory law enforcement." *fn1 When a statute implicates the First Amendment right to free speech, a criminal defendant may bring a facial vagueness challenge. *fn2 Such a statute is void for vagueness "if either: (1) the statute 'does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed'; or (2) the statute 'does not provide ascertainable standards of guilt to protect against arbitrary enforcement'." *fn3 The language of the statute must be understandable to "a person of ordinary intelligence." *fn4 Where a statute fails to define a term, this court will give the term its plain and ordinary meaning. *fn5 We may ascertain that meaning from a dictionary. *fn6 Appellate courts have the duty to interpret statutes so as to uphold their constitutionality. *fn7 A party bringing a constitutional challenge to a statute bears the burden of proof beyond a reasonable doubt. *fn8 The State prosecuted Dana under former RCW 9A.40.090, *fn9 which provided:
A person commits the crime of luring if the person:
(1)(a) Orders, lures, or attempts to lure a minor or developmentally disabled person into a structure that is obscured from or inaccessible ...