“Do you want some candy?”
[Luring – Alive and well]
Russell Homan appealed his conviction for “luring.” Mr. Homan’s case took a long time to wind its way back and forth through the appellate courts. Since the opinion of the Washington Court of Appeals occurred in December 2015, the Washington Legislature has already come up with a “fix” for the problem described in Mr. Homan’s matter (reported in March 2016 as State v. Homan, 191 Wn. App. 759 (2015)). The luring statute, RCW 9A.40.090, prior to the legislative fix, is below:
A person commits the crime of luring if the person:
(1)(a) Orders, lures, or attempts to lure a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public, or away from any area or structure constituting a bus terminal, airport terminal, or other transportation terminal, or into a motor vehicle;
(b) Does not have the consent of the minor’s parent or guardian or of the guardian of the person with a developmental disability; and
(c) Is unknown to the child or developmentally disabled person.
(2) It is a defense to luring, which the defendant must prove by a preponderance of the evidence, that the defendant’s actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the minor or the person with the developmental disability.
(3) For purposes of this section:
(a) “Minor” means a person under the age of sixteen;
(b) “Person with a developmental disability” means a person with a developmental disability as defined in RCW 71A.10.020.
(4) Luring is a class C felony.
Mr. Homan’s case started in August 2010, when he spoke to a 9 year old child while riding past on his bicycle. He stated, “Do you want some candy? I’ve got some at my house.” He was charged with and convicted of luring in a judge-only “bench trial” in 2011. The Court of Appeals reversed Mr. Homan’s conviction in 2012, holding that the above evidence was insufficient to convict him of luring. In 2014, the Supreme Court reversed the Court of Appeals, holding that the evidence was sufficient to convict. However, the Supreme Court remanded the case to the Court of Appeals on another issue: whether the luring statute was unconstitutionally overbroad.
The Court of Appeals then, in December 2015, found the luring statute was facially overbroad. However, the constitutional problem was found correctable by the appellate court holding there was an implied element to the crime that the State must prove: that Mr. Homan had the criminal intent to harm the health, safety and welfare of the person involved. The State argued that overbreadth was cured by Mr. Homan having an affirmative defense of showing he had no criminal intent (as defined in the above statute). The Court of Appeals did not agree. The Court held an implied criminal intent element existed that the State must prove.
Mr. Homan’s conviction was reversed and remanded for a new trial. While the case was reported in print media in March 2016, the Court of Appeals opinion was known since late 2015. On March 10, 2016, Washington Governor Jay Inslee signed SSB 6463 into law, with an effective date of June 9, 2016. SSB 6463 directly addressed the Homan court ruling.
There is legislative history documenting debate between the House and Senate branches of the Washington legislature whether criminal intent should be explicit in the crime of luring, or whether the lack of criminal intent should be an affirmative defense. The affirmative defense places the burden on the accused that there was no intent to do anything wrong. The affirmative defense concept was accepted when “luring” was codified into law in 1993. However, the Homan court clearly held the actual burden cannot be on the accused, and that the State needs to prove this person intended to harm the child in some manner. SSB 6463 statutorily recognizes this ruling by codifying the mental element into the crime. The new Luring statute is printed at the end of the article.
It is hard to say exactly what Mr. Homan intended to do based on the evidence, i.e. his weird statement. As of the writing of this blog article, the Lewis County Prosecutor has decided not to re-try Mr. Homan’s case.
SSB 6463
AN ACT Relating to luring; amending RCW 9A.40.090; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON
Sec. 1. RCW 9A.40.090 and 2012 c 145 s1 are each amended to read as follows:
(1) A person commits the crime of luring if the person, with the intent to harm the health, safety or welfare of the minor or person with a developmental disability or with the intent to facilitate the commission of any crime:
(a) Orders, lures, or attempts to lure a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public, or away from any area or structure constituting a bus terminal, airport terminal, or other transportation terminal, or into a motor vehicle;
(b) Does not have the consent of the minor’s parent or guardian or of the guardian of the person with a developmental disability; and
(c) Is unknown to the child or developmentally disabled person.
(2) For purposes of this section:
(a) “Minor” means a person under the age of sixteen;
(b) “Person with a developmental disability” means a person with a developmental disability as defined in RCW 71A.10.020.
(3) Luring is a class C felony.
If you have a criminal matter please contact Jan Olson at Ellis, Li & McKinstry PLLC, (206)682-0565.