State v. Gantt

540 P.3d 845

STATE of Washington, Respondent,

v.Ian Anthony GANTT, Appellant.

No. 84445-8-I

Court of Appeals of Washington, Division 1.

Filed January 2, 2024

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Díaz, J.

¶1 A jury convicted Ian Anthony Gantt of five felonies committed against his daughter, K.G.¹ These convictions included incest, child molestation, and rape of a child. Gantt appeals his conviction on numerous grounds, including that RCW 9A.64.020, criminalizing incest, is facially unconstitutional. He also claims there was insufficient evidence for certain convictions and that other irregularities occurred at trial and sentencing. We affirm Gantt's conviction.

I. BACKGROUND

¶2 Gantt has two biological daughters, K.G. and S.G., born in 1999 and 2002 respectively. When K.G. was 11 years old, Gantt and her mother began living in separate residences. There was no formal parenting or custody plan in place. The daughters frequently moved between their parents’ residences. K.G. usually visited her father alone.

¶3 At trial, K.G. testified that Gantt began sexually abusing her when she was 11 years old. Gantt's abuse started with him inappropriately touching K.G. while she slept in the same bed as him. K.G. was "scared," but believed that Gantt was asleep as he had been taking sleeping pills. This abuse escalated to increasingly intrusive contact, including digital penetration. When K.G. was 14, she confronted Gantt about the abuse. In response, Gantt reacted angrily and said "[i]f I'm going to get in trouble for it, I might as well remember doing it."

¶4 After that point, Gantt's abuse further escalated and he frequently forced K.G. to have sexual intercourse with him, against her stated wishes. This type of abuse continued until K.G. was 17 years old, when she disclosed Gantt's abuse to a high school friend in January 2017, following an attempted suicide. The friend successfully encouraged K.G. to tell a high school counselor, who alerted law enforcement.

¶5 Immediately thereafter, K.G.’s underwent a sexual assault examination. As part of the exam, K.G. disclosed that Gantt had been assaulting her for "years." The DNA sample taken during the exam matched Gantt's.

¶6 Gantt was arrested and the State charged him with the following five crimes: two counts of incest in the first degree under RCW 9A.64.020(1), one count of child molestation in the second degree, one count of rape of a child in the second degree, and one count of rape of a child in the third degree.

¶7 While the case was still in discovery, S.G. disclosed to detectives that Gantt had also abused her. S.G.’s abuse also had started when she was 11 years old. At trial, the parties contested the admissibility of S.G.’s testimony under ER 404(b). The court allowed the evidence for the limited purpose of showing a common scheme or plan and gave a limiting instruction.

¶8 Also at trial, Gantt requested an instruction for a lack of volition defense for the child molestation (count 2) and the rape of child (count 5) charges, both in the second degree, under the theory he had been asleep during the underlying acts. The court ultimately gave the instruction only for count 5, a strict liability offense. The court reasoned that it would be "duplicative" to issue a volitional instruction for count 2 when the State was already required to establish a mens rea element, namely that he did these actions for the purpose of sexual gratification, which presumes consciousness.

¶9 On May 2, 2022, a jury found Gantt guilty on all five counts. On August 12, 2022, Gantt was sentenced to five concurrent prison terms, the longest of which was 245 months for rape of a child in the second degree. On the same day, Gantt appealed. On July 14, 2023, Gantt filed a Statement of Additional Grounds for Review ("SAG").

II. ANALYSIS

A. Constitutional challenge to RCW 9A.64.020

¶10 Under RCW 9A.64.020(1)(a), "[a] person is guilty of incest in the first degree if he or she engages in sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as ... [a] descendant."

¶11 " ‘Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality.’ " State v. Batson, 196 Wash.2d 670, 674, 478 P.3d 75 (2020) (quoting State v. Abrams, 163 Wash.2d 277, 282, 178 P.3d 1021 (2008) ). A challenger "has the burden of proving the statute is unconstitutional beyond a reasonable doubt." State v. Watson, 130 Wash. App. 376, 378, 122 P.3d 939 (2005) (citing City of Seattle v. Eze, 111 Wash.2d 22, 27, 759 P.2d 366 (1988) ). A statute's constitutionality is reviewed de novo. Batson, 196 Wash.2d at 674, 478 P.3d 75.

¶12 Gantt claims RCW 9A.64.020 is facially² unconstitutional, first, "because it prohibits private sexual acts between consenting adults." Gantt appears to misunderstand what he must show to successfully facially challenge the statute. "[A] successful facial challenge is one where no set of circumstances exists in which the statute, as currently written, can be constitutionally applied." City of Redmond v. Moore, 151 Wash.2d 664, 669, 91 P.3d 875 (2004) (emphasis added); In re Detention of Turay, 139 Wash.2d 379, 417 n. 27, 986 P.2d 790 (1999) (citing Ada v. Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012, 113 S. Ct. 633, 121 L. Ed. 2d 564 (1992) ).

¶13 Rather than meeting this standard, Gantt is simultaneously (a) attempting to show that there is one application of the statute that, for the sake of argument , could be unconstitutional (namely, barring intercourse between consenting adults), while (b) effectively conceding that RCW 9A.64.020 is constitutional where the incest is committed against a minor or one who could not legally consent. Under Moore, the former showing is irrelevant and the latter concession alone defeats Gantt's facial challenge. That is, the fact, which Gantt implicitly acknowledges, that there is one circumstance (e.g., had K.G. been under age 16) in which RCW 9A.64.020 can be constitutionally applied dooms his facial challenge.

¶14 And indeed, this and other courts that have considered the matter have held that criminalizing incest, particularly committed against minors or those unable to consent, is constitutional because the prohibition against such conduct does not implicate a fundamental right and the state has an interest in preventing such acts.

¶15 Nonetheless, Gantt urges us to analyze this statute under the strict scrutiny standard because "autonomy in matters of sexual intimacy is a fundamental right ."³ In support, Gantt cites to both Washington and federal caselaw, including In re Custody of Smith, 137 Wash.2d 1, 13, 969 P.2d 21 (1998) ; Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) ; and Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). None of these cases, which we address in turn, supports Gantt's arguments.

¶16 In re Custody of Smith specifically dealt with the "fundamental right to autonomy in child rearing decisions." 137 Wash.2d at 13, 969 P.2d 21. Similarly, Obergefell v. Hodges was focused on the idea that "[s]ame-sex couples may exercise the fundamental right to marry ." 576 U.S. at 647, 135 S.Ct. 2584 (emphasis added).⁴ Both cases expressly cabined their analyses to each specific fundamental right. Smith, 137 Wash.2d at 13, 969 P.2d 21 ; Obergefell, 576 U.S. at 646, 135 S.Ct. 2584 ("Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser."). Nowhere did either case assert a sweeping fundamental right to "intimate association with the partner of one's choice," as argued by Gantt.⁵

¶17 Lawrence v. Texas struck down a Texas statute criminalizing sodomy between same-sex partners. 539 U.S. at 578-79, 123 S.Ct. 2472. The Court held that, as "two adults who, with full and mutual consent from each other ... [t]he petitioners [were] entitled to respect for their private lives." Id. at 578, 123 S. Ct. 2472. However, this court has already found that Lawrence "[did] not employ a fundamental rights analysis, but instead applied a rational basis review[.]" State v. Clinkenbeard, 130 Wash. App. 552, 563, 123 P.3d 872 (2005). Stated otherwise, we held that "[t]his application of rational basis review implicitly asserts that the right to consenting adults to engage in private, sexual behavior does not rise to the level of a fundamental right." Id. (emphasis added).

¶18 We find no reason to disturb that holding, no less because a plethora of federal and state courts also agree that Lawrence did not establish such a fundamental right, and specifically so as to incest . See Muth v. Frank, 412 F.3d 808, 810 (7th Cir. 2005) (" Lawrence ... did not announce ... a fundamental right ... for adults to engage in all manner of consensual adult conduct, specifically in this case, incest."); Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 815 (11th Cir. 2004) (rejecting the assertion Lawrence created a fundamental right); Lowe v. Swanson, 663 F.3d 258, 264 (6th Cir. 2011) (distinguishing Lawrence from laws criminalizing incest, which is a "far greater and much different" interest); People v. Scott, 157 Cal. App. 4th 189, 68 Cal.Rptr.3d 592 (2007) ( Lawrence had no impact on laws prohibiting sexual relationships where "consent might not easily be refused.").

¶19 As it is clear a fundamental right is not implicated, we reaffirm that this statute is not subject to strict scrutiny, but to a rational basis review. And, this court has already upheld the constitutionality of RCW 9A.64.020 under a rational basis review, although in a slightly...