STATE v. ERLANDSON (2026)

OPINION PUBLISHED IN PART

¶1 Hayden Erlandson was convicted of second degree attempted rape of a child and communicating with a minor for immoral purposes, following a “Net Nanny” sting operation where he communicated with an undercover officer posing as a 13-year-old girl. He raises five issues on appeal and a sixth in his statement of additional grounds for review.

¶2 In the published portion of this opinion, we reject Erlandson's argument that his subjective belief about the fictitious victim's age is a distinct element of the attempt offense. Instead, we hold that Erlandson's belief is material and relevant in demonstrating his requisite intent for attempted rape of a child. While the prosecutor misstated the law in closing argument by suggesting that Erlandson's subjective belief was irrelevant, the unpreserved error does not warrant reversal. Moreover, Erlandson's counsel was not ineffective for failing to object, and the evidence was sufficient to support his convictions for both second degree attempted rape of a child and communicating with a minor for immoral purposes.

¶3 In the unpublished portion of the opinion, we reject Erlandson's remaining arguments and affirm his convictions.

BACKGROUND

¶4 The Washington State Patrol conducts Net Nanny sting operations through its Internet Crimes Against Children (ICAC) task force. These operations are a proactive means to identify and arrest people seeking children online for sexual gratification.

¶5 To conduct an operation, a detective acts as a “chatter.” The chatter creates a fake profile on a popular dating or social media platform. The profile shows the user's purported age, which must be at least 18 for the platforms’ verification purposes. A young-looking law enforcement officer is selected as the undercover decoy and provides photographs for the profile. Then the chatter waits for a user to initiate conversation. Chatters are trained to communicate with users on the platform responsively, letting the other person steer the dialogue. They are also trained to reveal they are underage early in the conversation and to text like a young person by purposely misspelling words and using slang and emojis.¹ If a user continues to pursue the underage chatter, the chatter will agree to meet for a sexual encounter. ICAC assembles surveillance, tactical arrest, evidence, and interview teams and facilitates the meetup at an undercover location.

¶6 In November 2019, ICAC conducted a Net Nanny operation in Yakima County. The chatter created a profile on Skout, a popular online platform that connects users based on the type of relationship they are seeking. The profile showed a female named “Qnkyrie” and stated that she was 39 years old and living in Yakima. Her profile picture was a photograph of the adult decoy, filtered to appear younger. Qnkyrie described herself as “young, short and sassy. very independant” and said she was looking for “Friends, Fun, Chat.” Ex. 13.

¶7 Erlandson messaged Qnkyrie just before midnight and again around 1:30 a.m. asking what she was doing and if she wanted to hang out. Qnkyrie replied at 9:42 a.m. and she and Erlandson exchanged messages throughout the day.

Qnkyrie: Morning

Erlandson: Oh how'd you sleepRPT.CC.2060268599.00010

Erlandson: MorningRPT.CC.2060268599.00020

Qnkyrie: Ugh ok I guess

Erlandson: Just okay? Why what's up

Qnkyrie: notin just did little partin last night

Qnkyrie: mom was yellin at me when I woke up

Qnkyrie: have headach

Qnkyrie: norm

Erlandson: Hell yeah. I was out partying a little too. We're you passed out on the couch or somethingRPT.CC.2060268599.00030RPT.CC.2060268599.00040

Erlandson: Were

Erlandson: You partying again tonight?

Qnkyrie: maybe if i can find som1 to kik it with

Erlandson: Well let's kick it

Qnkyrie: maybe if ur down with younger

Erlandson: How old?

Qnkyrie: dont freak out if i tell u

Erlandson: Ok

Qnkyrie: ok im 13

Erlandson: Jeez you don't look 13RPT.CC.2060268599.00050

Qnkyrie: aww thanks

Qnkyrie: wish i wasnt then i could stop feelin embarresed when i have to tell ppl

Erlandson: I mean RPT.CC.2060268599.00060it's whatever. We friends up in here

Qnkyrie: coo

Erlandson: If you still don't wanna hang out I don't mind RPT.CC.2060268599.00070no biggie. Not gonna force ya.

Qnkyrie: no i like older men they know what they want

Erlandson: Cool. We can watch a movie or something RPT.CC.2060268599.00080

Qnkyrie: lol or somthin huh

Erlandson: I mean if you don't wanna watch a movie we could do something else. Ouu they have laser tag here now RPT.CC.2060268599.00090RPT.CC.2060268599.00100

Qnkyrie: oh jeez dont got time for games

Erlandson: I'm kidding RPT.CC.2060268599.00110

Qnkyrie: mercy ok

Erlandson: Or something as in you RPT.CC.2060268599.00120

Qnkyrie: lol huh

Erlandson: Netflix and chill, Disney+ and thrust. Ya know. RPT.CC.2060268599.00130 you I could do you. RPT.CC.2060268599.00140RPT.CC.2060268599.00150

Qnkyrie: oh thats noddy and possible daddy

Erlandson: RPT.CC.2060268599.00160RPT.CC.2060268599.00170RPT.CC.2060268599.00180 let's kick it

Qnkyrie: txt me a pic of u

Erlandson: You next

Ex. 14. Qnkyrie suggested texting instead of messaging through the platform, and Erlandson agreed, providing his phone number. Erlandson texted a photograph of himself and Qnkyrie sent a photograph of the decoy in return.

¶8 The conversation continued over text message:²

Ex. 15. Qnkyrie texted Erlandson, “my GF mom leaves in about 15 for work and ill have the house to my self” and then asked him to bring condoms. Ex. 15. Erlandson agreed. Qnkyrie texted Erlandson the address to a nearby Wendys, telling him she would send her address after he sent a selfie in front of the restaurant. The conversation continued:

Erlandson: Okay I'll be by in like 15 minutes or so.

Qnkyrie: you for real comin right․ last guy showed up and bounced when he saw i wasnt jokin im 13

Qnkyrie: *When he saw I was 13

Erlandson: Yeah as long as you're OK with it

Qnkyrie: u knw it

Ex. 15. Erlandson drove to the Wendy's, took a selfie, and texted the photograph to Qnkyrie. Then, Qnkyrie texted Erlandson the address to the undercover house and Erlandson replied, telling her to be outside so he would know he was at the right place.

¶9 Erlandson arrived at the undercover house and parked on the street in front of the house. The porch light was on, the front door was open, and the decoy was standing just outside the door. Erlandson entered the house and was immediately arrested. The officers searched Erlandson and found two condoms.

¶10 Erlandson was charged with attempted second degree rape of a child and communicating with a minor for immoral purposes. The case was tried to a jury in June 2023. The jury was unable to reach a verdict, and the court declared a mistrial. Four months later, the case was tried again to a jury. The jury convicted Erlandson as charged.

¶11 Erlandson appeals.

ANALYSIS

1. Erlandson’s Subjective Belief About the Age of the Intended Victim

¶12 Erlandson maintains that the State must prove not only that he intended to have sexual intercourse with a child, but that he subjectively believed that the person he intended to have sexual intercourse with was between the ages of 12 and 14. Based on this premise, he raises three related issues.

¶13 First, he contends that the prosecutor committed misconduct during rebuttal closing arguments by misstating the law and suggesting to the jury that Erlandson's belief was irrelevant:

You just heard that you must find that Mr. Erlandson believed Qnkyrie was 13. But what's that [to-convict] instruction say? It says that the defendant intended to have sexual intercourse with a person between the ages of 12 and 14. It doesn't say that you have to find that he believed she was between 12 and 14, but that there's evidence that she was between the ages of 12 and 14.

Rep. of Proc. (RP) at 973-74. Second, Erlandson contends his attorney was ineffective for failing to object to this argument. Third, he argues the evidence was insufficient to support his convictions for attempted rape of a child in the second degree and communicating with a minor for immoral purposes because the State failed to prove his subjective belief about the age of the intended victim.

¶14 The State's response is nuanced and does not directly address the relevance of Erlandson's subjective belief. Instead, the State contends that by failing to assign error to the to-convict jury instruction, Erlandson concedes that the State need not prove his subjective belief about the age of the intended victim. As such, the State argues, the prosecutor did not misstate the law when he argued that Erlandson's belief was not an element in the to-convict jury instruction. Moreover, defense counsel was not ineffective for failing to object to the prosecutor's argument because the attorney was able to argue the relevance of Erlandson's belief and there was a legitimate reason not to object. Finally, the State maintains that the evidence is sufficient to prove Erlandson's knowledge and belief that the intended victim was a minor.

¶15 We hold that Erlandson's subjective belief about the intended victim's age was relevant and material to prove his intent, but it was not a separate element that the State had to prove. By proving Erlandson's intent, the State necessarily proved his belief. As such, while the prosecutor did not misstate the law in arguing that Erlandson's subjective belief was not an element that the State needed to prove, the prosecutor did misstate the law by implying that Erlandson's belief was irrelevant. The prosecutor also misspoke by suggesting that the to-convict instruction stated that the jury only had to find evidence that the intended victim was between the ages of 12 and 14.

¶16 Despite these misstatements, the misconduct was not incurable and did not rise to the level of flagrant and ill intentioned. Nor was Erlandson's attorney ineffective for failing to object as there were legitimate reasons not to, given his ability to argue Erlandson's subjective belief. Finally, we agree with the State that the evidence was sufficient to show that Erlandson knew the age of the intended victim, believed that the intended victim was between the ages of 12 and 14, communicated with a victim that he believed was of a certain age, and intended to have sexual intercourse with the intended victim.

A. Additional background

¶17 In a pretrial conference, the court considered evidentiary motions from both parties. Erlandson pointed to case law and asked the court to instruct the jury that the State was required to “prove the defendant believed that the victim was age 12 to 14.” Clerk's Papers (CP) at 215. The State disagreed, asserting Erlandson could argue that he never believed the age, as part of his general denial defense theory, but his subjective belief was not “an additional element” the State was required to prove. The court ruled: “I don't think it's an additional element that the [S]tate has to prove the belief.” RP at 618.

¶18 At the close of evidence, the court convened the parties to discuss their proposed jury instructions. Erlandson reiterated his position that a defendant's belief is “entirely material and an element” of second degree attempted rape of a child. RP at 907. Accordingly, his proposed to-convict instruction included “[t]hat the defendant believed the minor was a person between the ages of 12 and 14” as an element required to be proved beyond a reasonable doubt. CP at 299.

¶19 The court denied Erlandson's proposed instruction, ruling:

Intent is required to show that—well, an intent crime, and attempted crime is the intent to accomplish the criminal result of the base crime.

The criminal result we know from the case law of rape of a child in the second degree is to have sexual intercourse with the child, so that's our criminal result here. And that there needs to be an intent to do that.

A defendant who intends—and this is out of State vs. Johnson, I think, a defendant who intends to have sex with a fictitious underage person and takes a substantial step, those are the elements for attempted rape of a child.

․

With regard to the to convict instruction, I—I don't think that the law requires proof of a belief. But I think the law requires proof of intent to have sex with a minor child.

․

I will not allow the third element that the defendant believed the person was between the ages of 12 and 14. I think that falls within the intent. And the defense is free to argue whether the defendant believed that or not because I think the real element is the intent factor.

RP at 914-15.

¶20 Jury instruction number 8 read:

To convict the defendant of the crime of attempted rape of a child in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

․

(2) That the defendant intended to have sexual intercourse with a person between the age of 12 and 14.

CP at 312.

¶21 Instruction number 13 provided:

To convict the defendant of the crime of communication with a minor for immoral purposes, each of the following elements of the crime must be proved beyond a reasonable doubt:

․

(2) That the defendant believed the other person was a minor.

CP at 317.

¶22 After the court finished reading the jury instructions, the State presented its closing argument. Referring to the charge for communications with a minor for immoral purposes, the State explained that “the question is whether the defendant believed [Qnkyrie] was a minor.” RP at 948. It then proceeded to summarize the evidence, concluding that “the evidence is more than sufficient for you to find that he believed he was talking with a minor under the age of 18.” RP at 959.

¶23 Defense counsel countered, arguing the evidence showed that Erlandson did not believe Qnkyrie was 13 years old. Defense counsel encouraged the jury to acquit on both charges if there was a reasonable doubt as to Erlandson's belief, and the State objected:

[DEFENSE COUNSEL]: And if you have a reasonable doubt ․ that he believed that this person was 13, then it would be your duty to acquit him [of] both of these charges. Because in order to intend to have sex with somebody who is 12 to 14 years old you got to believe that the person you're trying to have sex with—

[STATE]: Objection, Your Honor․ That is not the law.

THE COURT: Counsel, we have discussed this. [Defense counsel], please make your argument.

RP at 971-72. Defense counsel continued, concluding:

That he believed that the person was between 12 and 14 years old. In order for you to convict him of the crime of communication with a minor for immoral purposes you have to find that he believed beyond a reasonable doubt that he believed that the person he's communicating with was under the age of 18.

That is not what [Erlandson] believed. And I have given you [․] the reasons for doubt that that is what [Erlandson] believed.

For those reasons I'm asking to you enter verdicts of not guilty on both charges.

RP at 972.

¶24 Then, the State offered a rebuttal argument, pointing to the intent element of each of the charges:

Start with Instruction 13. The [S]tate must prove beyond a reasonable doubt to find Mr. Erlandson guilty of communicating with a minor for immoral purposes.

I'd like to draw your attention to number two. That the defendant believed that the person was the minor. The [S]tate must show you that Mr. Erlandson believed Qnkyrie was under 18 years old.

Turning to jury instruction number eight, the second element. This is what the law is. And this is what you have to follow.

You just heard that you must find that Mr. Erlandson believed Qnkyrie was 13. But what's that instruction say? It says that the defendant intended to have sexual intercourse with a person between the ages of 12 and 14. It doesn't say that you have to find that he believed she was between 12 and 14, but that there's evidence that she was between the ages of 12 and 14.

RP at 973-74 (emphasis added).

¶25 The State continued, rebutting defense counsel's arguments and discussing the evidence, finally concluding: “And there is more than enough evidence for you to find beyond a reasonable doubt that not only was Qnkyrie 13 years old, but that the defendant while chatting with her believed she was a minor. And for these reasons we ask you to return with a verdict of guilty on both counts.” RP at 989.

B. Relevance of Erlandson's subjective belief

¶26 As noted above, Erlandson raises three issues, all based on the premise that the State was required to prove his subjective belief about the intended victim's age. Before we address the individual issues, we consider the validity of this premise.

¶27 The crime of rape of a child in the second degree is a strict liability crime. State v. Johnson, 173 Wash.2d 895, 902, 270 P.3d 591 (2012); State v. Blake, 197 Wash.2d 170, 194, 481 P.3d 521 (2021). To prove the choate crime, the State need only prove that the defendant had “sexual intercourse with another who is at least twelve years old but less than fourteen years old and the perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1). The State does not need to prove that the defendant knew the victim's age or intended to have sexual intercourse with a person of a specific age. Indeed, the defendant's lack of knowledge of the victim's age is not a defense to the choate crime. RCW 9A.44.030(2).

¶28 Attempt crimes, on the other hand, are different. “[C]riminal attempt focuses on the dangerousness of the actor, not the act.” Johnson, 173 Wash.2d at 905, 270 P.3d 591. Thus, even when the base crime is a strict liability offense, an attempt crime requires the State to prove the highest level of mens rea—specific intent. Id. The two elements of every attempt crime are intent to commit the base crime and a substantial step toward committing that crime. Id. at 904, 270 P.3d 591.

¶29 The difference between a choate crime and attempt is displayed in State v. Luther, 157 Wash.2d 63, 134 P.3d 205 (2006). In Luther, the defendant was charged with the choate crime of possession of depictions of minors engaged in sexually explicit conduct. Following a bench trial, the court found that there was reasonable doubt as to whether the persons depicted in the photographs were actually minors. Id. at 68, 134 P.3d 205. As a result, the trial court found the defendant not guilty of the choate crime, but guilty of attempted possession because it was clear that regardless of the actual age of the persons depicted, the defendant intended to possess depictions of minors engaged in sexually explicit conduct and took a substantial step toward that crime. Id. at 69-70, 134 P.3d 205.

¶30 On appeal, the defendant argued that the attempted possession offense was overbroad because it “criminalize[d] possession of depictions of adults and materials that do not involve an actual child.” Id. at 71, 134 P.3d 205. In denying this argument, the Supreme Court explained, “an attempt conviction does not depend on the ultimate harm that results or on whether the crime was actually completed․ Instead, an attempt conviction results because of the defendant's ‘bad intent’ to commit the crime and the fact that had things been as the defendant believed them to be, he or she would have completed the offense.” Id. at 73, 134 P.3d 205 (citation omitted). Thus, even if the photographs depicted adults, the defendant believed they depicted minors and collected the images with the intent to possess depictions of minors; this was sufficient to support the conviction for attempted possession.

¶31 Several years later, in Johnson, the Supreme Court attempted to clarify the law on inchoate sex crimes against fictitious minors. In doing so, the court clarified, narrowed, or overruled several prior cases that previously addressed the issue. For example, the court rejected the claim that “ ‘one may not attempt a nonintent crime.’ ” Johnson, 173 Wash.2d at 902, 270 P.3d 591 (disavowing State v. Dunbar, 117 Wash.2d 587, 590, 817 P.2d 1360 (1991)). Johnson also disagreed with an earlier holding that “the intent required for attempted rape of a child is the intent to have sexual intercourse.” Id. (disapproving of State v. Chhom, 128 Wash.2d 739, 743, 911 P.2d 1014 (1996)). Finally, Johnson agreed with the holding in State v. Patel, 170 Wash.2d 476, 242 P.3d 856 (2010), but concluded that certain comments in Patel were dicta and not binding. Id. at 904, 270 P.3d 591. Specifically, Johnson rejected Patel’s comment that “ ‘a defendant who attempts to have sex with a person he believes is underage but is actually an adult may not be convicted’ of attempted child rape.” Id. at 901, 270 P.3d 591 (quoting Patel, 170 Wash.2d at 485, 242 P.3d 856).

¶32 After reviewing these cases, the Johnson court held that the criminal result of rape of a child was sexual intercourse with a child—not simply sexual intercourse, which alone is not criminal. Id. at 907, 270 P.3d 591. Thus, to prove attempted rape of a child, the State must prove the defendant had the specific intent to have sexual intercourse with a child. Id. at 908, 270 P.3d 591.

¶33 Next, Johnson considered what was necessary to prove intent to commit child rape. “The State must prove the age of the intended victim to prove that the defendant intended to have sexual intercourse with a child.” Id. Additionally, when the victim is fictitious, the State must prove the defendant had knowledge of the intended victim's age. Id. However, when the victim is fictitious, there is no actual age. Instead, the State can prove the age of the fictitious victim and the defendant's knowledge of that age with evidence that the age was communicated to and received by the defendant. Id.

¶34 Establishing knowledge is not enough to prove intent. As the court in Johnson noted: “Johnson's knowledge of their stated ages was material: the State was required to prove that Johnson believed his victims to be minors to prove that he intended to advance or profit from the commercial sexual exploitation of a minor.” Id. at 909, 270 P.3d 591 (emphasis added).³ Proving intent requires the State to prove knowledge plus belief. While the State must produce evidence of knowledge, the jury can infer a defendant's belief and intent from the circumstances.

¶35 We hold that while Johnson did not change the elements of an attempt crime, the court clarified that a defendant's subjective belief is material and relevant to whether the State can prove the defendant's intent. By proving intent, the State necessarily proves knowledge and belief. Thus, in this case, the positions taken by both Erlandson and the State are wrong. Erlandson is wrong in arguing that the defendant's subjective belief is an additional element the State must prove. And the State is wrong to suggest the defendant's subjective belief is irrelevant. A defendant's subjective belief that the victim is a certain age is relevant because it either supports or refutes the specific intent to have sexual intercourse with a child.

¶36 While the jury instructions here are not challenged on appeal, the trial court was correct to reject Erlandson's “belief” as an additional element in the to-convict instruction because the State was already required to prove Erlandson's intent to have sexual intercourse with a person between the ages of 12 and 14. See Johnson, 173 Wash.2d at 908 n.3, 270 P.3d 591. Under the to-convict instruction, Erlandson was free to argue that the State failed to prove intent because he actually believed the intended victim was of legal age.

¶37 We hold that a defendant's subjective belief about the facts used to show the defendant's intent is relevant and material. We now turn to the issues raised by Erlandson.

C. Prosecutorial misconduct

¶38 Erlandson argues that the prosecutor committed misconduct in closing argument by arguing to the jury that the to-convict instruction does not require the State to prove Erlandson's subjective belief, but only that there was evidence that the intended victim was between the ages of 12 and 14. Erlandson acknowledges that he did not object to this argument at trial.

¶39 “ ‘Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard.’ ” State v. Lindsay, 180 Wash.2d 423, 430, 326 P.3d 125 (2014) (quoting State v. Brett, 126 Wash.2d 136, 174, 892 P.2d 29 (1995)). To establish prosecutorial misconduct, the defendant must show that the State acted improperly, and the defendant was prejudiced by the improper act. State v. Sanchez, 30 Wash. App. 2d 402, 408, 544 P.3d 1107 (2024).

¶40 A prosecuting attorney's misstatement of law that shifts or relieves the State's burden of proof is misconduct. Id. If a prosecuting attorney made improper statements, one of two standards is applied to determine whether the defendant was prejudiced. Id. at 409-10, 544 P.3d 1107. “If the defendant objected at trial, the defendant must show that the prosecutor's misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's verdict.” State v. Emery, 174 Wash.2d 741, 760, 278 P.3d 653 (2012). If, however, the defendant did not object, “the defendant is deemed to have waived any error, unless the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.” Id. at 760-61, 278 P.3d 653.

¶41 As an initial matter, the State concedes that the prosecutor misstated the law by suggesting to the jury that the to-convict jury instruction for attempted rape of a child in the second degree only required the State to produce evidence of knowledge: that the defendant was told the victim was between the ages of 12 and 14. The State acknowledges that while evidence of knowledge was necessary, the State still had to prove intent.

¶42 We agree that this comment misstated the law. “The State must prove every essential element of a crime beyond a reasonable doubt.” State v. Byrd, 125 Wash.2d 707, 713, 887 P.2d 396 (1995). Here, the prosecutor told the jury that an element could be proved so long as evidence to support the element was admitted. That was a misstatement of law and misconduct. See Sanchez, 30 Wash. App. 2d at 408, 544 P.3d 1107.

¶43 The State argues, however, that the prosecutor correctly noted that the to-convict instruction did not expressly require proof of Erlandson's subjective belief. While this is technically true, the State's argument went further—suggesting that Erlandson's belief was legally irrelevant simply because it was not an element of the offense. This implication misstates the law and could mislead the jury. As discussed above, a defendant's subjective belief bears directly on the issue of intent, and the State's argument improperly minimized that relevance.

¶44 Having found misconduct, we consider whether the misconduct was prejudicial. A defendant who fails to object to prosecutorial misconduct at trial must show that “no curative instruction would have obviated any prejudicial effect on the jury” and the resulting prejudice “had a substantial likelihood of affecting the jury verdict.” State v. Thorgerson, 172 Wash.2d 438, 455, 258 P.3d 43 (2011).

¶45 Review of unchallenged prosecutorial misconduct focuses “less on whether the prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.” Emery, 174 Wash.2d at 762, 278 P.3d 653. Incurable prejudice has only been found “in a narrow set of cases where we were concerned about the jury drawing improper inferences from the evidence.” In re Pers. Restraint of Phelps, 190 Wash.2d 155, 170, 410 P.3d 1142 (2018). Our Supreme Court has recognized reversible misconduct under this heightened standard when the misconduct is either so inflammatory that it threatens the fundamental fairness of trial or when it is so severe as to demonstrate that it was flagrant and ill intentioned. See id. at 171, 410 P.3d 1142.

¶46 Here, for several reasons, Erlandson fails to establish incurable prejudice. First, the misstatements were minor and subtle. The prosecutor's misconduct was limited to a single sentence, surrounded contextually by correct statements regarding the State's burden of proof. Moreover, the statements were neither inflammatory nor repetitive. Had Erlandson timely objected, the court could have issued a curative instruction clarifying the State's burden of proof.

¶47 Third, the jury instructions were correct. The jury was correctly instructed that it had to find beyond a reasonable doubt that Erlandson intended to have sexual intercourse with a person between the ages of 12 and 14. We presume that juries follow the trial court's instructions. See State v. Kirkman, 159 Wash.2d 918, 937, 155 P.3d 125 (2007). Fourth, Erlandson was allowed to argue over the State's objection that his belief negated the element of intent. And finally, regarding the separate charge of communicating with a minor for immoral purposes, the jury was instructed that the State had to prove Erlandson believed the other person was a minor.

¶48 The prosecutor's misconduct did not result in prejudice that had a substantial likelihood of affecting the jury's verdict and any resulting prejudice could have been obviated by a curative instruction if Erlandson timely objected.

D. Ineffective assistance of counsel

¶49 Erlandson contends his trial attorney was ineffective by failing to object to the prosecutor's misstatements of law during closing argument. The State argues defense counsel's performance was not deficient, and Erlandson was not prejudiced. We conclude defense counsel's performance was not deficient.

¶50 The Sixth Amendment to the United States Constitution and art. I, § 22 of the Washington State Constitution guarantee effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective assistance of counsel are reviewed de novo. State v. Hamilton, 179 Wash. App. 870, 879, 320 P.3d 142 (2014).

¶51 A successful claim requires the defendant to demonstrate two components: that counsel's performance was deficient, and the deficient performance caused prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Representation is deficient if, after considering all circumstances, “it falls ‘below an objective standard of reasonableness.’ ” State v. Grier, 171 Wash.2d 17, 33, 246 P.3d 1260 (2011) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Further, prejudice exists if there is a reasonable probability that except for counsel's errors, the result of the trial would have been different. Id. at 34, 246 P.3d 1260. If either prong is not satisfied, the inquiry ends. State v. Kyllo, 166 Wash.2d 856, 862, 215 P.3d 177 (2009).

¶52 To prevail on an ineffective assistance claim, a defendant must overcome a “strong presumption that counsel's performance was reasonable.” Id. Additionally, the defendant “must demonstrate the absence of a legitimate strategic or tactical reason for counsel's performance.” State v. Johnston, 143 Wash. App. 1, 17, 177 P.3d 1127 (2007).

¶53 Erlandson does not demonstrate an absence of strategic or tactical reason for counsel's performance. “Defense counsel's failure to object during a prosecutor's closing argument will generally not constitute deficient performance because lawyers do not commonly object during closing argument absent egregious misstatements.” State v. Blockman, 198 Wash. App. 34, 42, 392 P.3d 1094 (2017). Here, the prosecutor's misconduct was a single sentence surrounded contextually by statements and instructions that correctly stated the State's burden. Moreover, Erlandson's attorney was allowed to argue his theory of the case, over the State's objection. RP at 972.

¶54 Erlandson fails to show his trial attorney was ineffective.

E. Sufficiency of the evidence

¶55 Erlandson's last issue with respect to his subjective belief is that the evidence was insufficient to support his convictions for both attempted rape of a child in the second degree and communicating with a minor for immoral purposes because the State failed to prove that he subjectively believed the age of the intended victim. We disagree.

¶56 Whether sufficient evidence supports a conviction is reviewed de novo. State v. Zghair, 4 Wash.3d 610, 619, 567 P.3d 1 (2025). Evidence is sufficient to sustain a conviction if any rational jury could find guilt beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wash.2d 243, 265, 401 P.3d 19 (2017). For the purposes of this inquiry, the defendant admits the truth of the State's evidence, and the evidence and all reasonable inferences arising therefrom is viewed in the light most favorable to the State. Id. at 265-66, 401 P.3d 19. “ ‘Jury instructions not objected to become the law of the case.’ ” Zghair, 4 Wash.3d at 623, 567 P.3d 1 (internal quotation marks omitted) (quoting State v. Dreewes, 192 Wash.2d 812, 821, 432 P.3d 795 (2019)).

¶57 As we noted above, to convict for attempted second degree rape of a child, the State had to prove two elements: that Erlandson “intended to have sexual intercourse with a person between the age[s] of 12 and 14” and “did an act that was a substantial step toward” committing that crime. CP at 312; see RCW 9A.44.076(1); RCW 9A.28.020(1). To convict for the crime of communication with a minor for immoral purposes, the State was required to prove beyond a reasonable doubt that Erlandson communicated electronically with another person he believed was a minor for immoral purposes of a sexual nature. See RCW 9.68A.090(2).

¶58 Here, there was sufficient evidence for a reasonable jury to convict on both crimes. Erlandson's communications with Qnkyrie were for immoral purposes of a sexual nature, such as Erlandson's suggestion to “Netflix and chill, Disney+ and thrust ․ you I could do you.” Ex. 14. He said he would “Fuck the shit outa [Qnkyrie]” and then told her “Just let me know and I'll go as fast or as slow as you want.” Ex. 15.

¶59 There was also sufficient evidence that Erlandson intended to have sexual intercourse with Qnkyrie, who he believed was a minor. Qnkyrie told Erlandson she was 13 years old when they began messaging. Just before driving to meet her, Qnkyrie asked Erlandson, “you for real comin right ․ last guy showed up and bounced when he saw i wasnt jokin im 13.” Ex. 15. Erlandson replied, “Yeah as long as you're OK with it.” Ex. 15. Erlandson then drove to the Wendys, took a selfie, and texted the photograph to Qnkyrie as instructed. Upon receiving Qnkyrie's address, Erlandson drove to her house, arriving with two condoms.

¶60 Viewing these facts in the light most favorable to the State, there was sufficient evidence for a reasonable jury to convict on both charges.

¶61 Erlandson argues the State failed to prove communication with a minor because it was not enough for Qnkyrie to be a minor; she had to be 60 months younger than Erlandson, who was 22 years old at the time. This argument fails because Qnkyrie purported to be 13 years old and this provided sufficient evidence for the jury to find that she was at least 60 months younger than Erlandson.

¶62 Finally, Erlandson argues that no reasonable jury could find that he believed Qnkyrie was 13 years old because the photographs depicted an adult woman and the decoy standing in the open doorway at the undercover house was an adult woman. However, the jury both viewed the photographs and heard testimony from Erlandson that he did not believe Qnkyrie was 13 years old. And it is for the jury to weigh evidence and determine credibility. See Zghair, 4 Wash.3d at 627-28, 567 P.3d 1. Moreover, a jury could find the presence of an adult decoy at the front door immaterial because Erlandson took a substantial step toward having sex with Qnkyrie even before arriving at the undercover house.

¶63 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

2. Governmental Misconduct

A. Additional background

¶64 As the State neared the end of its case-in-chief on the second day of trial, one of the jurors discovered that their court-provided notebook contained someone else's writing. The bailiff notified the court that the juror's notebook was not properly purged by court staff after the last trial. The previous trial was also a Net Nanny case with the same prosecutors and some of the same witnesses.

¶65 The court and counsel interviewed the juror. The juror explained that he opened the notebook that morning, having not taken notes the day before, and saw someone else's writing. The juror flipped through the first few pages and saw notes about a 13-year-old. The juror did not share the information or show the notes to other jurors.

¶66 Defense counsel moved to dismiss, arguing Erlandson had the right to the jury as impaneled and this right should not be violated by an act of the government—the bailiff's failure to purge the notebook. The State opposed the motion, recommending the juror be discharged and replaced with one of the two sworn alternates.

¶67 The court agreed Erlandson had a right to the impaneled jury but nevertheless decided to replace the juror with an alternate:

I understand the argument that the defendant is entitled to the jury as impaneled. But I also understand that we have alternates. And the alternates have also sworn an oath and they have been impaneled.

․

We will now then be using an alternate.

RP at 833.

B. Legal analysis

¶68 At the time of the court's ruling,⁴ former CrR 8.3(b) (2008) provided:

On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.

¶69 A trial court's ruling on a CrR 8.3(b) motion to dismiss due to governmental misconduct is reviewed for an abuse of discretion. State v. Salgado-Mendoza, 189 Wash.2d 420, 427, 403 P.3d 45 (2017). Dismissal under CrR 8.3(b) is considered an extraordinary remedy and is only appropriate in egregious cases where the misconduct and prejudice are significant. State v. Martinez, 121 Wash. App. 21, 30, 86 P.3d 1210 (2004). Dismissal of charges under CrR 8.3(b) requires the defendant to show: (1) arbitrary action or governmental misconduct and (2) prejudice affecting the defendant's constitutional right to a fair trial. State v. Michielli, 132 Wash.2d 229, 239-40, 937 P.2d 587 (1997). With this in mind, we consider misconduct and prejudice in turn.

¶70 Governmental misconduct includes simple mismanagement by court administration. State v. Jieta, 12 Wash. App. 2d 227, 229, 457 P.3d 1209 (2020). Jurors are entitled to take notes, which are treated as confidential and “shall be destroyed immediately after the verdict is rendered.” CrR 6.8. Here, the court staff had a duty to immediately destroy jurors’ notes after the previous trial, and they failed to do so. This constitutes governmental misconduct. See Jieta, 12 Wash. App. 2d at 235, 457 P.3d 1209 (“[W]e hold that ‘governmental misconduct’ for purposes of CrRLJ 8.3(b) can extend to mismanagement by court administration.”).

¶71 Although we agree that misconduct has been demonstrated, dismissal under CrR 8.3 also requires Erlandson to show prejudice. Michielli, 132 Wash.2d at 239-40, 937 P.2d 587. For purposes of this rule, the prejudice must not be merely speculative; the defendant must show actual prejudice affected the right to a fair trial. State v. Rohrich, 149 Wash.2d 647, 657, 71 P.3d 638 (2003). Here, Erlandson argues the prejudice affecting his constitutional right to a fair trial was the replacement of the unfit juror with an alternate, contending he was entitled to the jury as impaneled.

¶72 The general rule provides that a court must dismiss an impaneled juror it determines is unfit “by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.” RCW 2.36.110. “[A]ny impaneled juror who ‘is found unable to perform the duties’ ” must be discharged and an alternate juror appointed. State v. Sassen Van Elsloo, 191 Wash.2d 798, 809, 425 P.3d 807 (2018) (quoting CrR 6.5). Here, the court concluded—and the parties did not contest—that the juror was unfit to continue serving. As required by statute and rule, the court discharged the juror and replaced the unfit juror with an alternate.

¶73 Erlandson contends that the general rule should not apply when the government caused the juror to become unfit. In support of this position, he cites Sassen Van Elsloo. We conclude that Sassen Van Elsloo is factually and legally inapposite. In Sassen Van Elsloo, an impaneled juror notified the court that they recognized a witness who had just testified. The Supreme Court held that the trial court abused its discretion by discharging the juror because there was no evidence of bias based on the juror's previous interaction with the witness. Id. at 813-14, 425 P.3d 807. The court then addressed the appropriate remedy when an impaneled juror is erroneously discharged from the jury. Ultimately, the court held that because there was a reasonable probability that the juror was erroneously discharged due to the juror's views of the merits of the case, the State failed to show the error was harmless. Id. at 825, 425 P.3d 807.

¶74 Here, on the other hand, we are not addressing the erroneous removal of an impaneled juror. Neither party contends that the juror who found notes from a previous trial involving similar charges should have remained on the jury panel. Additionally, unlike Sassen Van Elsloo, the juror in this case was not excused on the basis of their views regarding this case or the evidence.

¶75 Nevertheless, Erlandson argues the court erred by treating impaneled and alternate jurors as fungible when it said: “And the alternates have also sworn an oath and they have been impaneled.” RP at 833. Citing Sassen Van Elsloo, he claims that by treating the jurors as fungible, the court applied the wrong legal standard. We disagree. In Sassen Van Elsloo, the court recognized that once a jury begins to hear evidence, “individual jurors may no longer be viewed as fungible,” and it is therefore error to dismiss an impaneled juror based on their views of the case. 191 Wash.2d at 821, 425 P.3d 807. Again, this passage does not apply here because there is no argument or suggestion that the juror in Erlandson's case was excused due to his views of the case.

¶76 Finally, in the alternative, Erlandson contends that even if dismissal for misconduct is not warranted, we should reverse for a new trial. But the authorities he cites, such as Sassen Van Elsloo, remanded for a new trial after finding there was reason to believe that a juror was erroneously dismissed based on the juror's view of the case. 191 Wash.2d at 825, 425 P.3d 807. The court noted that even when a juror is erroneously dismissed, so long as it does not stem from their view on the case, and so long as a suitable alternate juror is available, “the error is cured by the replacement with an impartial juror.” Id. at 821, 425 P.3d 807. Thus, Erlandson fails to show that the court's decision to replace the unfit juror with an alternate was an abuse of discretion.

3. Entrapment Instruction

¶77 Erlandson contends the court abused its discretion by denying his request for an entrapment jury instruction after he made a prima facie showing of inducement and lack of predisposition. The State argues the court properly rejected Erlandson's entrapment instruction for lack of prima facie evidence.

A. Legal principles

¶78 A defendant is entitled to present their theory of the case to the jury. State v. Arbogast, 199 Wash.2d 356, 367, 506 P.3d 1238 (2022). An affirmative defense instruction is given “upon a prima facie showing of some evidence in support of the defense.” Id. at 368, 506 P.3d 1238. A court must carefully differentiate between a defendant's burden of production and burden of persuasion. Id. at 372, 506 P.3d 1238. The trial court determines whether the defendant has met their burden of production, but it does not weigh evidence or evaluate persuasiveness. Id. at 367, 506 P.3d 1238. “Whether the evidence is credible and whether it amounts to proof by a preponderance lies with the jury.” Id. at 372, 506 P.3d 1238.

¶79 The trial court's denial of an instruction for lack of evidentiary support is reviewed for abuse of discretion. State v. Read, 147 Wash.2d 238, 243, 53 P.3d 26 (2002). A trial court abuses its discretion by applying the wrong legal standard, relying on unsupported facts, or basing its ruling on an erroneous interpretation of the law. Arbogast, 199 Wash.2d at 380, 506 P.3d 1238.

¶80 Entrapment is a defense that “(a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and (b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.” RCW 9A.16.070(1). It is well established that Net Nanny sting operations originate with and are designed by law enforcement as a proactive means to prevent sex crimes against children. See Arbogast, 199 Wash.2d at 378, 506 P.3d 1238. Thus, Erlandson must make a prima facie showing of the second element of entrapment, that he “had no predisposition to commit the crime until the intent was implanted in his ․ mind by police and that [he] was induced to commit the crime through fundamentally unfair efforts by law enforcement.” Id. at 379, 506 P.3d 1238; see RCW 9A.16.070.

¶81 Predisposition is an inquiry into the defendant's intent and considers “whether a fact finder could reasonably conclude from the evidence that the defendant had no predisposition to commit the crime until the intent was implanted in his or her mind by police.” Id. Evidence of the defendant's character and criminal history are relevant to proving predisposition. Id.

¶82 “Inducement asks whether police went beyond simply providing a defendant with the opportunity to commit the offense.” Id. at 375, 506 P.3d 1238; see RCW 9A.16.070. Evidence may include “persuasion, fraudulent representations, threats, coercion, harassment, promises of reward, pleas based on need, and sympathy or friendship.” Id. Inducement requires “opportunity ‘plus’ something else, such as excessive pressure placed on the defendant.” Id. at 377, 506 P.3d 1238. However, “ ‘even very subtle governmental pressure, if skillfully applied, can amount to inducement.’ ” Id. (quoting U.S. v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000)).

B. Application

¶83 Here, Erlandson offered evidence that he had no criminal history and no prior involvement with juveniles. This is sufficient prima facie evidence that Erlandson was not predisposed to commit the crime. See id. at 360-61, 506 P.3d 1238. But a defendant must also produce some evidence that he was lured; that law enforcement offered more than a mere opportunity to break the law. Id. at 377, 506 P.3d 1238.

¶84 Two recent cases, State v. Johnson ⁵ and Arbogast, contemplated whether a Net Nanny sting operation presented more than the mere opportunity to commit a crime. The State argues this case is like Johnson, whereas Erlandson contends Arbogast is more on point.

¶85 In Johnson, law enforcement created an online post, posing as a female looking for a “guy that can teach me what it's like to be an adult.” 12 Wash. App. 2d at 206, 460 P.3d 1091. Johnson responded to the advertisement, and the undercover officer replied, asking, “Do you want to teach me to [be] a grown up?” Id. (alteration in original). Johnson agreed and then asked her age and location. Id. After learning that she was 13 years old and would have the house to herself for a time, Johnson replied, “Who all will be at the house. I'm just trying to be cautious as you are underage.” Id. He then detailed explicit sexual acts he would “teach” her and further agreed to her request to “help out with” money. Id. at 206-07, 460 P.3d 1091. Johnson then followed her instructions to drive to a designated minimart where he received the address of the house. Id. at 207, 460 P.3d 1091. He proceeded to the rendezvous and was apprehended and arrested en route. Id.

¶86 The trial court denied Johnson's request for an entrapment instruction and the Court of Appeals affirmed. Id. at 207, 216, 460 P.3d 1091. This court held that the evidence did not show that Johnson was lured or induced by law enforcement; rather, he was merely afforded the opportunity to commit his crimes. Id. at 209, 460 P.3d 1091. The court explained that “Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.” Id. As such, he was not entitled to an entrapment instruction. Id.

¶87 In Arbogast, the defendant was charged with attempted rape of a child as a result of a Net Nanny sting operation. 199 Wash.2d at 360, 506 P.3d 1238. There, officers posted an online advertisement, posing as a mother seeking someone to teach her children about sex. Id. Arbogast responded to the advertisement and exchanged messages with “Brandi,” the undercover officer. Id. at 361, 506 P.3d 1238. Throughout the interactions, “Arbogast continually stated that he was looking for an adult relationship” but “Brandi made sex with her children a condition of her interest in [him].” Id. at 376-77, 506 P.3d 1238.

¶88 The Arbogast court discussed Poehlman, another “sexual mentor” case, where the Ninth Circuit concluded the defendant was induced to commit crimes of a sexual nature with a minor. Arbogast, 199 Wash.2d at 375, 506 P.3d 1238. The Poehlman and Arbogast courts both acknowledged that although “parental consent is no defense to rape ․ characterizing the activity as a part of parents’ responsibility to their children, and selecting a sexual teacher as an expression of confidence can allay a defendant's fears that an act is harmful, distasteful, or inappropriate.” Id. at 376, 506 P.3d 1238; see Poehlman, 217 F.3d at 702. Our Supreme Court further noted that “the sexual mentor sting operation can present difficulties because its targets may ‘feel pressured to agree to “teach” a child about sex in the hope of obtaining a sexual relationship with a child's older relative.’ ” Arbogast, 199 Wash.2d at 377, 506 P.3d 1238 (quoting Mizner v. State, 154 So.3d 391, 393 n.1 (Fla. Dist. Ct. App. 2014)).

¶89 The court ultimately held that the defendant presented prima facie evidence of inducement because Brandi “offered the possible reward of an adult sexual relationship if Arbogast continued to engage her desire to arrange a relationship with her children.” Id. at 378, 506 P.3d 1238. As such, it was reversible error for the trial court to refuse to instruct the jury on entrapment. Id. at 382, 506 P.3d 1238.

¶90 Here, Erlandson did not advance evidence showing inducement under the “opportunity plus” standard in Arbogast. This was not a sexual mentor sting operation; Erlandson's interactions were solely with 13-year-old Qnkyrie. Nor is there any evidence that Erlandson was either pressured to have sexual contact with a minor or offered a reward for doing so. Moreover, there was no evidence of “threats, coercion, harassment ․ pleas based on need, and sympathy or friendship.” Id. at 375, 506 P.3d 1238.

¶91 Erlandson relies on language in Arbogast where our Supreme Court stated that “ ‘even very subtle governmental pressure, if skillfully applied, can amount to inducement.’ ” 199 Wash.2d at 377, 506 P.3d 1238 (quoting Poehlman, 217 F.3d at 701). He contends that highly trained undercover detectives subtly and skillfully lured him by claiming Qnkyrie was 13 years old while simultaneously sending contradicting information suggesting she was an adult. This argument is unpersuasive for multiple reasons. Erlandson was told that Qnkyrie was 13 years old almost immediately into the initial conversation. In his interactions with Qnkyrie, Erlandson never expressed an unwillingness to have sexual relations with a minor. Furthermore, subtle techniques used to convince a person that the chatter is underage do not amount to subtle pressure or inducements to have sexual intercourse with a minor.

¶92 Finally, Erlandson argues the trial court applied the wrong legal standard to the inquiry when it said that “it's not entrapment for law enforcement to use normal persuasion to overcome a defendant's expected resistance.” RP at 904. Indeed, the Arbogast court criticized the court below for using the same language, stating that whether “police engaged in only a ‘normal amount of persuasion’ ․ is a jury question.” 199 Wash.2d at 375, 506 P.3d 1238. But there, the trial court first found there was “evidence of luring by offering a reward” and then proceeded to weigh the evidence, determining that police used only a “normal amount of persuasion.” Id. Thus, the analysis in Arbogast centered on the distinction between a defendant's burden of production as evaluated by the trial court, and the burden of persuasion, decided by the factfinder. See id. at 367, 506 P.3d 1238.

¶93 Here, the court applied the correct standard, limiting its inquiry to whether Erlandson presented evidence of luring. Unlike Arbogast, it did not find evidence of luring. Ultimately the court ruled:

So I don't think this case is like Arbogast because Arbogast had something more. It had the opportunity plus the promise of an adult relationship after Mr. Arbogast had provided sexual relationships with children.

I think this case is more like Johnson in that it's a—it's an opportunity for a crime and that there was a normal amount of persuasion.

RP at 903-04. As such, the court properly limited its inquiry to whether Erlandson met his burden of production.

¶94 The court did not err when it denied Erlandson's request for an entrapment instruction.

4. Statement of Additional Grounds (SAG)

¶95 In his SAG, Erlandson argues that judicial estoppel should have precluded the State from asserting a different legal position at trial than asserted the first time this case was tried. He contends the State derived an unfair advantage after adopting a clearly inconsistent legal position in the second trial that lowered its burden of proof.

¶96 In the first trial, the prosecutor told the jury that to convict Erlandson of attempted rape of a child, they must find that Erlandson believed Qnkyrie was 13 years old. RP at 518. At the second trial, the prosecutor told the jury that it did not need to find Erlandson believed Qnkyrie was 13 years old to convict him of attempted rape of a child. RP at 973-74.

¶97 Judicial estoppel is a doctrine aimed at protecting the integrity of the judicial process. New Hampshire v. Maine, 532 U.S. 742, 750, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). Determining the applicability of judicial estoppel centers on consideration of three factors: “(1) whether the party's later position is clearly inconsistent with its earlier position, (2) whether accepting the new position would create the perception that a court was misled, and (3) whether a party would gain an unfair advantage from the change.” State v. Wilkins, 200 Wash. App. 794, 803, 403 P.3d 890 (2017). Importantly, “[j]udicial estoppel prevents a party from taking inconsistent factual positions from one proceeding to the next but does not preclude inconsistent legal positions.” State v. Sweany, 162 Wash. App. 223, 228-29, 256 P.3d 1230 (2011).

¶98 Erlandson opposes the State's inconsistent legal positions; he does not accuse the State of taking inconsistent factual positions. As such, judicial estoppel does not apply and further analysis of the three factors is unnecessary.

¶99 Affirmed.

FOOTNOTES

1.   Within this opinion we provide direct quotes that include misspellings and grammatical errors. Because the errors were intentional, we do not correct the errors or point them out using “[sic]”.

2.   The cell phone text messages were presented in a spreadsheet where “Outgoing” indicates messages sent by Qnkyrie and “Incoming” indicates messages sent by Erlandson. Screenshots of the exhibit are included to maintain the appearance of the emojis as depicted in the spreadsheet.

3.   In a footnote, the court acknowledged the issue presented here but declined to resolve it. The court noted that by statute, a defendant's reasonable belief that the victim of a choate crime was of legal age was an affirmative defense to the strict liability offenses “for which lack of knowledge of the victim's age is not a defense.” Johnson, 173 Wash.2d at 908 n.3, 270 P.3d 591. However, this affirmative defense is not available for attempt crimes, presumably because lack of knowledge of the victim's age negates culpability. The court would not “speculate as to the effect of these defenses on the intent element of criminal attempt because that issue is not before us.” Id.

4.   CrR 8.3(b) was amended to reflect significant changes effective September 1, 2025; however, the version at the time of the court's ruling applies. See State v. Jefferson, 192 Wash.2d 225, 246, 429 P.3d 467 (2018) (“But such a newly enacted statute or court rule will only be applied to proceedings that occurred far earlier in the case if the ‘triggering event’ to which the new enactment might apply has not yet occurred.”).

5.   12 Wash. App. 2d 201, 460 P.3d 1091 (2020).

Staab, C.J.

WE CONCUR: Lawrence-Berrey, J. Murphy, J.