State v. Varnell

167 ¶1 C. Johnson, J. This case asks us to determine whether a solicitation in a single conversation to murder four people constitutes a single unit of prosecution of solicitation to commit murder. The State charged Mitchell Lee Varnell with five counts of soliciting murder based on two conversations. At issue in this case is the second conversation, which arose from Varnell’s discussion with an undercover detective in which Varnell asked the detective to murder four individuals. The jury found Varnell guilty on all five counts. The Court of Appeals affirmed. We reverse and vacate three convictions.1 FACTUAL AND PROCEDURAL HISTORY ¶ 2 After 17 years of marriage, Varnell and his wife, Karen, endured a bitter divorce. Sometime later, Varnell asked Mary Wilson, his employee, to kill Karen for $50,000. Wilson declined Varnell’s offer and decided to contact Karen, who contacted the police. ¶ 3 The police asked Wilson to call Varnell to tell him she met someone who would agree to kill Karen. The call was recorded. Later, an undercover detective contacted Varnell, identifying himself as Wilson’s acquaintance. Arrangements were made for Varnell and the detective to meet, which they did, where Varnell asked the undercover detective to kill Karen, her parents, and her brother. Varnell paid the detective $100 as down payment. The conversation was secretly recorded. Minutes after this conversation the police arrested Varnell. ¶ 4 Varnell was charged with five counts of soliciting murder. One count was based on Varnell’s conversation with Wilson; the other four counts originated from the single conversation Varnell had with the undercover detective. The jury found Varnell guilty on all five counts. Varnell appealed on several grounds, including whether his solicitation in a single conversation to murder four people 168 constituted a single unit of prosecution of solicitation to commit murder. The Court of Appeals affirmed Varnell’s conviction on all five counts. We granted Varnell’s petition for review on the unit of prosecution issue only.2 ISSUE ¶ 5 Whether Varnell’s single conversation with an undercover detective constituted four units of prosecution under RCW 9A.28.030 when that single conversation contained a solicitation to commit four separate murders. ANALYSIS ¶ 6 The legal foundation for the unit of prosecution analysis rests on double jeopardy protections. While the issue is one of constitutional magnitude on double jeopardy grounds, the analytical framework centers around a question of statutory interpretation and legislative intent. See State v. Adel, 136 Wn.2d 629, 965 P.2d 1072 (1998). ¶ 7 The proper question is to determine what act or course of conduct the legislature has defined as the punishable act. When the legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects against multiple convictions for committing just one unit of the crime. Adel, 136 Wn.2d at 634 (citing Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955)). ¶ 8 In a unit of prosecution case, the first step is to analyze the statute in question. Next, we review the statute’s history. Finally, we perform a factual analysis as to the unit of prosecution because even where the legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal more than one “unit of prosecution” is present. State v. Bobic, 140 Wn.2d 250, 263-66, 996 P.2d 610 (2000). 169 Solicitation Statute; RCW 9A.28.030 ¶ 9 The relevant portion of the statute at issue in this case provides: (1) A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime .... RCW 9A.28.030C1). ¶ 10 The language of the solicitation statute focuses on a person’s “intent to promote or facilitate” a crime rather than the crime to be committed. The evil the legislature has criminalized is the act of solicitation. The number of victims is secondary to the statutory aim, which centers on the agreement on solicitation of a criminal act. The statute requires only that the solicitation occur; that is, where a person offers to give money or some other thing of value to another to engage that person to commit a crime. The solicitation has occurred regardless of the completion of the criminal act. ¶ 11 In an analogous statutory interpretation, we reviewed the conspiracy statute and reached the same conclusion. In Bobic, 140 Wn.2d 250, two defendants were charged with numerous crimes arising from a sophisticated auto theft conspiracy. The defendants were convicted of conspiracy to commit first degree theft, conspiracy to commit first degree possession of stolen property, and conspiracy to commit first degree trafficking in stolen property. Defendants were convicted of other crimes not relevant here. We reasoned that the appropriate focus under the statute is on the conspiratorial agreement and not the specific separable criminal acts. We supported our conclusion by noting that the essential elements of a conspiracy are an agreement to commit a crime and taking a substantial step toward the completion of that agreement. Bobic, 140 Wn.2d at 265. 170 ¶ 12 As further support, we noted that conspiracy is an inchoate crime. To obtain a conviction, all a prosecutor needs to prove is that the conspirators agreed to undertake a criminal scheme and that they took a substantial step in furtherance of the conspiracy. Bobic, 140 Wn.2d at 265. The defendants need not commit any other crime. ¶ 13 That same reasoning applies under the solicitation statute. Both solicitation (RCW 9A.28.030) and conspiracy (RCW 9A.28.040(1)) are statutorily listed as “[ajnticipatory offenses.” Solicitation and conspiracy are under the same statutory section. Both solicitation and conspiracy are characterized as “inchoate” crimes. In order to commit the crime of solicitation, all the State needs to prove is the defendant offers something of value in order to facilitate a crime. The fact that no crime is actually committed is no defense under the statute. Both solicitation and conspiracy exist independently of any crimes actually committed pursuant to the agreement of solicitation or conspiracy. ¶ 14 We conclude that the solicitation statute, as does the conspiracy statute, criminalizes the act of engaging another to commit a crime. The unit of prosecution is centered on each solicitation regardless of the number of crimes or objects of the solicitation. ¶ 15 We turn next to the solicitation statute’s history. Our Bobic decision detailed the extensive legislative history of Washington’s conspiracy statute, a statute that has remained unchanged since our holding in that case. Washington’s present solicitation statute has little legislative history. The original solicitation statute was enacted in 1975 during an extraordinary session of the legislature and has remained unchanged since its initial passage. Laws of 1975, 1st Ex. Sess., ch. 260, at 833. The crime of solicitation is categorized by the legislature under “[ajnticipatory offenses” in chapter 9A.28 RCW along with the crimes of criminal attempt and criminal conspiracy. No mention is made anywhere in the legislative history of the solicitation statute (or any of the “anticipatory offenses” in chapter 9A.28 RCW) that the legislature intended to punish a 171 defendant multiple times for committing a single solicitation or conspiracy with multiple objectives. Therefore, the analysis of legislative history does not preclude our finding that the solicitation statute intends to punish only the person’s “intent to promote or facilitate” criminal activity, no matter how many criminal objectives are involved. Further, when the legislature enacts a statute, it is presumed to be familiar with judicial interpretations of statutes. Bobic, 140 Wn.2d 250. Significantly, since our decision in Bobic, the legislature has amended none of the anticipatory offense statutes. f 16 However, the analysis of legislative intent does not end our unit of prosecution analysis. The final step involves the factual situation each case presents. Turning to the factual analysis, we necessarily must ask whether the facts in this case may reveal more than one unit of prosecution because, as we said in Bobic, multiple conspiracies may be charged where the facts of the case support multiple criminal agreements. Bobic, 140 Wn.2d at 266. In Bobic, we cited a Court of Appeals case that looked to whether the time, persons, places, offenses, and overt acts were distinct in deciding if multiple conspiracies were present. Id. (citing State v. Walker, 24 Wn. App. 78, 81, 599 P.2d 533 (1979)). In Walker, the Court of Appeals affirmed the trial court’s judgment that the defendant’s three counts of conspiracy were valid because the defendant’s agreements occurred between defendant and three separate persons, at different times, places, and for somewhat different purposes. ¶ 17 Here, however, Varnell’s solicitation to the undercover detective to commit the four murders was made only to the detective, at the same time, in the same place, and for the same motive. This scenario constitutes a single unit of prosecution. The result logically flows from the fact that the appropriate focus of the crime of solicitation in Washington is on the enticement, not the specific criminal object or objects. Here, the focus is appropriately on the single conversation between Varnell and the detective when 172 Varnell, with intent to facilitate a crime, offered the detective money to engage in specific conduct. The focus is not on the future criminal conduct the detective may have engaged in, but on the solicitation by Varnell to so engage. Under these circumstances, only one solicitation occurred. In further support of this result, we note that the solicitation conviction supported by the conversation with Mary Wilson — although not before us — does factually support a separate solicitation conviction. Varnell offered Wilson something of value to promote or facilitate a crime. This conversation and solicitation is separate and distinct from the solicitation of the undercover officer and supports the separate conviction. CONCLUSION ¶ 18 We hold, on the facts of this case, Varnell’s solicitation in a single conversation to the detective to murder four people constituted a single unit of prosecution of solicitation to commit murder.3 We reverse and vacate three convictions and remand for resentencing. Alexander, C.J., and Madsen, Sanders, Chambers, Owens, and Fairhurst, JJ., concur. Footnotes [1] Varnell was sentenced to 190 months on each conviction to run consecutively. [2] The State filed a motion asking us to strike a portion of Varnell’s supplemental brief. We deny the State’s motion. [3] Our holding does not affect or apply to Vamell’s conviction of solicitation to commit murder stemming from Vamell’s conversation with Mary Wilson.