Category Archives: Promoting Prostitution

Backpage.com Evidence Admitted at Trial as “Business Record.”

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In State v. Butler, the WA Court of Appeals decided a trial court rightfully admitted business records connecting showing the defendant used Backpage.com to facilitate the commercial sexual abuse of a minor because the State’s failure to provide the written notice of the evidence did not prejudice the defendant, who was given the business records months before trial.

BACKGROUND FACTS

N.C. was 14 years old when she first met 22-year-old defendant Ivory Butler. One day, N.C. skipped school and spent the day with Butler. N.C.’s mother found out she had skipped school and punished her. N.C. ran away from home, and Butler picked her up. He took her to a motel room and arranged for her to meet men at the motel for sex. She gave the money she received to Butler. N.C. continued selling sexual services and giving the money to Butler.

Detective Raymond Unsworth found Internet ads on Backpage.com for female escort services with Butler’s phone number listed as the contact number. The ads included photographs of the body, but not the face, of a young woman. The ads alluded to sexual services that would be provided, with the prices that would be charged.

An undercover detective responded to the Backpage ads by contacting Butler’s phone number. The detective, posing as a customer, arranged to obtain sexual services for $300 from a woman in room 201 of the New Horizon Motel. Police found N.C. in that room, together with a disposable cellphone under the mattress, condoms in a Crown Royal bag, and a knife in the bedside table drawer.

In Butler’s phone, the contact name assigned to the disposable phone found in the motel room was “Money Baby Money Baby.” Text messages between Butler’s phone and the disposable phone found in the motel room included details about providing sexual services for money. The messages also included instructions from Butler to N.C. to discard the phone in the toilet if the police came. Butler was arrested and charged under RCW 9.68A.101 with promoting commercial sexual abuse of a minor.

The Trial Exhibits

At trial, the State sought to admit three exhibits. Exhibits #3 and #4 relate to Backpage ads for escort services. Exhibit #5 was the certification from the Backpage records custodian. Detective Unsworth testified that he found the ads on Backpage’s public website. Each ad included photographs of a young woman, information about the sexual services that could be provided, the price, and Butler’s telephone number as the contact.

Exhibits #3 and #4 compiled the ads that were online, more photographs that Detective Unsworth had not seen online, the date each ad was posted, and the poster’s fictitious name, mailing address, and e-mail address. Backpage provided the certification from its records custodian in response to a search warrant for business records.

The State provided these exhibits to Butler months before trial as part of discovery. The trial court admitted the exhibits over Butler’s objection.

The jury found Butler guilty as charged. On Appeal, Butler argues the Exhibits #3, #4 and #5 were wrongfully admitted.

COURT’S ANALYSIS AND DECISION

Butler argues Exhibits #3, #4 and #5 were inadmissible because the State did not give proper notice under RCW 10.96.030(3). This statute contains an exception to the general rule requiring witness testimony to admit business records. To ensure the opposing party has a fair opportunity to challenge the business records and certification, the statute provides in part:

“A party intending to offer a record into evidence under this section must provide written notice of that intention to all adverse parties, and must make the record and affidavit, declaration, or certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”

The court reasoned that approaching these issues is similar to approaching the child hearsay rule: basically, cases addressing the child hearsay statute have upheld the admission of statements without prior notice “so long as the adverse party had or was offered an opportunity to prepare to challenge the statements.”

Here, Butler argued the State was required to provide a separate written notice to inform him that it intended to rely on RCW 10.96.030 for admission of the business records. But months before trial, the State provided the certification of the Backpage records custodian, together with the Backpage business records. Mid-trial, the State also offered to produce the custodian for live testimony and a defense interview. This allowed Butler ample opportunity to prepare to challenge the records. With that, the Court denied Butler’s arguments:

“Consistent with the cases addressing the child hearsay statute, we conclude the lack of written notice required by RCW 10.96.030 did not cause any prejudice to Butler. He had ample opportunity to prepare to challenge the business records when the State provided all of the proposed business records and the certification from the records custodian months prior to trial.”

Moreover, the Court reasoned that the State offered to call the records custodian as a witness and to allow Butler to interview the custodian. However, Butler declined to request a continuance to interview the witness.

Finally, the Court of appeals rejected arguments that the Backpage ads bolstered N.C.’s testimony tying Butler to the Backpage evidence. The Court reasoned that even without the admission of the Backpage ads, overwhelming evidence links Butler to his exploitation of N.C.:

“The physical evidence, text messages, jail phone calls, testimony from N.C., and successful undercover sting operation provide overwhelming evidence that Butler promoted the prostitution of N.C.”

Consequently, the Court concluded that the lack of written notice required by RCW 10.96.030 did not cause prejudice to Butler. Overwhelming evidence supported Butler’s guilt.

Prostitution Evidence Admitted During Defendant’s Assault Trial.

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In State v. Woods, the WA Court of Appeals held that evidence that the defendant prostituted the victim was properly admitted in his prosecution for second degree assault by strangulation. These prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS.

The Defendant Euran Woods and victim BrittanyEnglund began their volatile relationship in 2009. At that time, Woods and Englund sold drugs together and Englund herself was addicted to drugs. As Englund’s drug addiction grew, so did her dependency on Woods— who exploited this dependency to isolate Englund from her friends and family. In addition to being emotionally abusive, Woods physically abused Englund throughout their relationship.

In 2011, Woods began forcing Englund to prostitute herself. He conditioned Englund to comply with his demands by convincing her that her life of prostitution was only temporary and that one day they would both have normal jobs and be happy together.

Englund argued with Woods regarding the prostitution several times. On one occasion in August of 2011, Woods strangled Englund until she passed out. Englund did not inform the police or her family of the abuse or prostitution both out of fear that Woods would retaliate and because she felt that Woods loved her and was sorry.

However, Woods strangled Englund again in September of 2011 after she discovered  he had been taking suggestive pictures with other women. Woods threw Englund across the room, kicked her, stomped on her, and strangled her until she passed out. Woods later apologized to Englund, who decided to not call the police.

In April of 2012, Woods again assaulted Englund. Her mother drove her to the hospital. Englund disclosed the 2011 assaults for the first time during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL.

Woods was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of the August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the victim’s state of mind.  The trial court also noted that—in matters dealing with domestic violence—testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the victim’s credibility.

The jury found Woods guilty. He timely appealed. Although his attorney filed an Anders brief on arguments that the appeal was frivolous, the WA Court of Appeals nevertheless granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals illustrated that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein werecorrect. Englund’s testimony as to how Woods forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, Woods’ forced prostitution of Englund was a source of shame and fear for Englund and was an important factor in understanding why she refused to seek help from her friends, family, and the police.

Ineffective Assistance of Counsel

The Court illustrated how Constitutionally ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected Wood’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, Woods’ counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

Woods also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of Woods’ defense attorney: “Defense counsel argued to the jury that Woods did not cause Englund’s injuries. Rather, he posited, those injuries could have been a result of Englund’s prostitution.” Thus, deficient performance was not established.

With that, the COurt of Appeals held that Woods was not prejudiced and upheld his conviction.

Promoting Prostitution

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In State v. Barbee, the WA Supreme Court held that a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved.

Defendant Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee “supervised” during 2010 were SE, BK, and CW.

S.E.

SE met Mr. Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work “the track” (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She was expected to make $1,000 a day or stay up at night until she met that quota.

All of her earnings went to Barbee, who required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in “escorting.” During 2010, two of the women she recruited on Barbee’s behalf were two 18-year-olds, BK and CW.

B.K.

BK soon began working as a prostitute for Barbee, initially working out of a motel room and later moving to “the track.”  After BK was arrested and then released from jail, she went to her parents’ house, intending to stop working for Barbee. A few months later, Barbee texted BK and convinced her to come to his apartment in Seattle. BK soon began living in the apartment and worldng for Barbee again. She testified at trial that Barbee took the keys to her car and refused to return them, would not allow her to leave the apartment during the day, and allowed her to go shopping or visit her daughter only if he accompanied her. At some point in late 2010, BK left and stopped working for Barbee permanently.

C.W.

Eighteen-year-old CW also worked for Barbee during 2010, but for a comparatively short time. She was living in Bellingham and working at a nursing home when SE began communicating with her via MySpace in early May. Excited about the idea of becoming more independent, CW packed her bags, borrowed a friend’s car, and moved to Seattle to meet SEat a Motel6 on Pacific Highway South. Once she arrived, CW was told that she would be worldng for Barbee as an escort, that all of her money would go to him, and that he would provide her with clothes, jewelry, and a place to live.

A few weeks later, CW became disillusioned and texted Barbee that she was quitting. She left and never had contact with Barbee again.

THE ARREST & THE VERDICT

That December, SE arranged online to meet a client for an out-call at the Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she went inside. The client she had arranged to meet turned out to be an undercover officer. When SE arrived and agreed to have sex with the detective, she was arrested. After a short car chase, police officers arrested Barbee as well.

The State charged Barbee with two counts of promoting sexual abuse of a minor (SE), one count of first degree promoting prostitution (BK), one count of second degree promoting prostitution (CW), one count of leading organized crime, two counts of first degree theft from the Social Security Administration, and one count of second degree theft from the Department of Social and Health Services (DSHS).

The jury found Barbee guilty on all counts, except that they found him guilty of the lesser included offense of second degree promoting prostitution of BK.

THE APPEAL

Barbee claims that the two counts of promoting prostitution of BK and CW constitute a single unit of prosecution, or that he committed a single “enterprise” of promoting prostitution that involved two prostitutes. On Appeal, he argues that his two convictions for promoting prostitution of”different women as part of the same enterprise over the same period of time” encompassed a single unit of prosecution in violation of the double jeopardy prohibition clauses of our federal and state constitutions.

THE ISSUE

The WA Supreme Court addressed whether Barbee’s two counts of second degree promoting prostitution constitute a single unit of prosecution. Here, it appears so.

THE CONCLUSION

The Court decided that yes, Barbee’s two counts of Second Degree Promoting Prostitution constituted two distinct units of prosecution.

THE COURT’S ANALYSIS OF “UNITS OF PROSECUTION”

The WA Supreme Court reasoned that Double Jeopardy is violated when a person is convicted multiple times for the same offense. When the convictions are under the same statute, the court must ask what ‘”unit of prosecution”‘ the legislature intended as the punishable act under the specific criminal statute.

The Court further reasoned that both constitutions protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. Thus, while a unit of prosecution inquiry is “one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent.”

Furthermore, the court reasoned that when engaging in statutory interpretation, its goal is to ascertain and carry out the intent of the legislature: “To determine legislative intent and thus define the proper unit of prosecution, we first look to the statute’s plain meaning. If the plain meaning of the statute is ambiguous, we may also determine legislative intent by reviewing legislative history.”

Once we have defined the proper unit of prosecution, we perform a factual analysis to ascertain whether the facts in a particular case reveal that more than one “unit” is present.

THE COURT’S REASONING ON “UNITS OF PROSECUTION” IN ‘PROMOTING PROSTITUTION’ CASES

The Court reasoned that the plain Language of the Promoting Prostitution statute unambiguously authorizes multiple convictions when an individual promotes prostitution of multiple people:

“While the ‘evil’ of promoting prostitution may be the same regardless of how many prostitutes are “promoted,” it does not follow that a person is ‘equally guilty’ whether he pimps one prostitute or several. Rather, in statutes that involve crimes against persons, that guilt compounds in magnitude depending on the number of lives that are affected.”

Ultimately, two “units” were clearly proper here: CW and BK are two distinct “persons” who were both exploited by Barbee.

CONCLUSION

In sum, the WA Supreme Court held that the legislature, by use of the language “a person,” unambiguously authorized a unit of prosecution for each person promoted. “When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.” Accordingly, the Court affirmed the Court of Appeals’ decision that Barbee’s convictions for promoting prostitution of BK and CW did not violate prohibitions on double jeopardy.