IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

YASIR M. MAJEED,

Appellant.

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No. 36591-3-III

OPINION PUBLISHED IN

PART

FEARING, J. — After jury findings of guilt, the trial court convicted Yasir Majeed 

with the crimes of commercial sexual abuse of a minor and communication with a minor 

for immoral purposes. On appeal, he seeks reversal of both convictions on the ground 

that the trial court commented on the evidence. He seeks reversal of his conviction for 

commercial sexual abuse of a minor on the grounds that the information did not charge a 

crime and insufficient evidence supported the conviction. Finally, he seeks reversal of 

his conviction for communication with a minor for immoral purposes on the basis that the 

to-convict jury instruction allowed a conviction if he communicated with someone other 

than the minor victim. We reverse Majeed’s conviction for commercial sexual abuse of a 

minor. We affirm his conviction for communication with a minor for immoral purposes. 

FILED

OCTOBER 27, 2020

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 36591-3-III

State v. Majeed 

2

FACTS

The prosecution of Yasir Majeed arises from a sting operation aimed at men 

seeking sex with girls. In July 2017, Sergeant Carlos Rodriguez of the Washington State 

Patrol Missing and Exploited Children’s Task Force posted an advertisement on the 

website Craigslist in its Casual Encounters section. Sergeant Rodriguez adopted the 

persona of a 13-year old runaway, Denise Collins. The posting was titled “young looking 

for older daddy – w4m” and stated:

I am young looking for older daddy to take care of this young baby 

girl. Be real. Be nice, your pic gets mine. let’s get lit! I have a daddy 

fetish and love to take showers, very clean. let’s talk. DDF.

Br. of Resp’t App. A at 3 (grammatical and spelling errors in original). “W4m” means 

woman looking for a man. “DDF” is shorthand for disease and drug free, and “let’s get 

lit” indicates that the advertiser wants to get high or drink. 

Yasir Majeed responded by e-mail to the posting: “Tell me more about you. I’m 

interested 35 yo clean, nice educated and like to spoil you if we click.” See Br. of Resp’t 

App. B at 5. During his communications in response to the Craigslist ad, Majeed 

employed the alias “Jay.” Report of Proceedings (RP) at 524. During trial, he explained 

that he used the name because he did not know to whom he was writing. 

The ersatz Denise Collins replied to Yasir Majeed’s first e-mail message:

“I am in need of a daddy. I ran away a while ago cause my mom is a 

bitch. Just hanging with friends for right now. But just want to have some 

fun and forgot [sic] about things. If you want to have some fun with me,
No. 36591-3-III

State v. Majeed 

3

tell me how and let’s chat. I am getting a lot of responses, so get me your 

phone number and we can talk. If you don’t like young fun, then this isn’t 

for you. I’m 13 but I am all woman and fine AF [as f***].”

RP at 370 (grammatical and spelling errors in original). 

With Denise Collins’ response, Sergeant Carlos Rodriguez attached a photograph. 

Washington State Patrol (WSP) standard operating procedure disallows use of photos of 

real children. Sergeant Rodriguez used a photo of Trooper Anna Gasser, who was in her

mid-twenties. Law enforcement used a filter, available through the social media 

application Snapchat, to render Trooper Gasser’s appearance younger. 

The rest of the e-mail messages progressed as follows: 

[Majeed] [pretend Jay]: Do you like to go on road trip? Camping? 

[WSP] [pretend Collins]: I do like trips and camping, but right now 

kind of want to get turnt up and have some playtime daddy what did you 

have in mind 

[Majeed:] I wanna meet and have fun with you as start and see how 

things going. Let’s meet sunday. can you? 

And I’ll make it worth your time

I wanna meet and have fun with you as start and see how things 

going. Let’s meet sunday. can you?

[WSP:] Like how. can we talk about it in text so its not on CL

[Craigslist]. sunday works I don’t have any plans LOL [laugh out loud]

[Majeed:] I prefer not to text till we meet I will make it worth your 

time and will pay you. Will meet and chat about the details

You clean? I need to make sure that you are discreet.

[WSP:] I am for sure babe

[Majeed:] Give me your number so I can text u love

[WSP:] . . . tell me your name and text the word camping so I know 

its you daddy
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State v. Majeed 

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See Br. of Resp’t App. B at 5-7 (grammatical and spelling errors in original). Sergeant 

Carlos Rodriguez, as Denise Collins, sent Yasir Majeed, as Jay, a phone number at which 

to continue communicating by text message. Majeed sent a text to that number stating

“Camping . . . Jay.” Br. of Resp’t App. C at 9. 

Once the conversation moved to texting, Detective Kristl Pohl, also with the WSP 

task force, continued to communicate as Denise Collins with Majeed. During these texts, 

Majeed requested a “sexy pic” and said “I want u in my arms and to have you . . . .” Br. 

of Resp’t App. C at 9. Detective Pohl sent Majeed another picture of Trooper Anna 

Gasser posing as a 13 year-old. 

The imaginary Denise Collins told Yasir Majeed, aka Jay, that she resided at a 

friend’s home in Richland, but that her friend would be gone for the weekend. Majeed 

asked what he could bring when they met, and the following conversation ensued:

[WSP:] how long do you want to hang out?

[Majeed:] Like 30 minutes or so

[WSP:] that’s all daddy? $100 and bring condoms daddy. i really 

like strawberry flavored lube

[Majeed:] So how old are u again?

[WSP:] 13 silly daddy

[Majeed:] How tight you are baby

[WSP:] i dunno?? Ive only done this once before

[Majeed:] Mmmm. 

I will get you on Sunday baby girl

See Br. of Resp’t App. C at 10 (grammatical and spelling errors in original).
No. 36591-3-III

State v. Majeed 

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On the morning of July 8, 2017, Yasir Majeed initiated more texts with Detective 

Kristl Pohl, still acting as Denise Collins, and asked what she was doing that evening. 

Detective Pohl responded that she was looking for a date. Majeed replied: “I want u, and

[sic] will give u 100[.]” Br. of Resp’t App. C at 11. Pohl emphasized that Majeed must 

bring condoms. The two agreed to meet. Detective Pohl, however, did not yet give an 

address. She told Majeed that she wanted a picture in order to identify him. Majeed 

described himself to her, and she told him to go to the Liberty Car Wash, from where 

they would walk to the residence in the Shoreline Apartments. Pohl also asked Majeed to 

describe his vehicle, and he wrote that he drove a silver truck. 

Yasir Majeed drove ten minutes from his house to the carwash designated by 

Detective Kristl Pohl. Law enforcement officers positioned themselves near the carwash 

and the apartment complex. Majeed then drove through the apartment complex parking 

lot and exited the lot onto the street. Law enforcement stopped Majeed’s silver truck on 

the road. Officers arrested Majeed. He possessed condoms and $100 in his pocket. 

Detective Kristl Pohl sent a text message to Yasir Majeed’s cellphone after his 

arrest. Pohl routinely sends a message to a suspect’s phone after law enforcement detains 

the person, and the arresting officer watches the phone to determine if the phone receives 

a message from Pohl’s phone number. One of Majeed’s arresting officers noticed a text 

arrive from Pohl’s number on Majeed’s mobile phone. Pohl’s text linked Majeed to the 

earlier sexual communications. 
No. 36591-3-III

State v. Majeed 

6

PROCEDURE

The State of Washington charged Yasir Majeed, by third amended information,

with attempted rape of a child in the second degree, commercial sexual abuse of a minor, 

and communication with a minor for immoral purposes. Count II of the information, 

which charged commercial sexual abuse of a child, read:

That the said YASIR M MAJEED in the County of Benton, State of 

Washington, during the time intervening between the 7th day of July, 2017, 

and the 8th day of July, 2017, in violation of RCW 9.68A.100(1)(b), did 

pay or agree to pay a fee to a minor or a third person pursuant to an 

understanding that in return therefore such minor will engage in sexual 

conduct with him, to wit: did agree to pay a person the defendant believed 

was a thirteen (13) year old female $100 for sexual conduct, contrary to the 

form of the Statute in such cases made and provided, and against the peace 

and dignity of the State of Washington. 

Clerk’s Papers (CP) at 15 (emphasis added). Count III of the information, which charged 

communication with a minor, alleged: 

That the said YASIR M MAJEED in the County of Benton, State of 

Washington, during the time intervening between the 7th day of July, 2017, 

and the 8th day of July, 2017, in violation of RCW 9.68A.090(2), did 

communicate with a person the defendant believed was thirteen year old 

“Denise,” a minor, for immoral purposes, to wit: email and text message 

regarding sexual intercourse, and that communication was through the 

sending of an electronic communication, contrary to the form of the Statute 

in such cases made and provided, and against the peace and dignity of the 

State of Washington. 

CP at 16. Yasir Majeed did not challenge the sufficiency of the information 

before the trial court. 
No. 36591-3-III

State v. Majeed 

7

During jury selection, the State inquired about attitudes toward law enforcement 

acting in an undercover capacity and attitudes toward proactive rather than reactive action 

on the part of officers. One juror stated that he approved of law officers engaging in 

proactive actions provided the officers were acting within the law. 

At trial, Sergeant Carlos Rodriguez testified regarding exchanged emails, and 

Detective Kristl Pohl testified regarding text messages. During trial, Yasir Majeed 

testified that he believed “Denise” was an adult role playing as a minor. He argued that 

the fictitious Denise used words and described items related to sex that demonstrated 

knowledge of an adult. He testified that he took on the role of a “sugar daddy” as part of 

the act but did not intend to pay for sex. RP at 522. He also asserted that he went to the 

apartment complex out of curiosity and claimed that, had a 13-year old met him, he 

would have called police. 

The trial court instructed the jury using the following instructions without 

objection from either party:

INSTRUCTION NO. 1

Our state constitution prohibits a trial judge from making a comment 

on the evidence. It would be improper for me to express, by words or 

conduct, my personal opinion about the value of testimony or other 

evidence. I have not intentionally done this. If it appeared to you that I 

have indicated my personal opinion in any way, either during trial or in 

giving these instructions, you must disregard this entirely.

CP at 18-19.
No. 36591-3-III

State v. Majeed 

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INSTRUCTION NO. 12

A person commits the crime of commercial sexual abuse of a minor 

when he pays or agrees to pay a fee to a minor or a third person pursuant to 

an understanding that in return therefore such minor will engage in sexual 

conduct with him.

CP at 30.

INSTRUCTION NO. 14:

“Minor” means any person under eighteen years of age.

CP at 32.

INSTRUCTION NO. 15

To convict the defendant of the crime of commercial sexual abuse of 

a minor, each of the following elements of the crime must be proved 

beyond a reasonable doubt:

(1) That on or about July 7-8, 2017, the defendant agreed to pay a 

fee to a minor or a third person pursuant to an understanding that in return 

therefore such minor will engage in sexual conduct with him; and 

(2) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements has been 

proved beyond a reasonable doubt, then it will be your duty to return a 

verdict of guilty.

On the other hand, if, after weighing all the evidence you have a 

reasonable doubt as to any of these elements, then it will be your duty to 

return a verdict of not guilty.

CP at 33.

INSTRUCTION NO. 16

A person commits the crime of communication with a minor for 

immoral purposes when he communicates with someone the person 

believes to be a minor for immoral purposes of a sexual nature.

Communication may be by words or conduct.
No. 36591-3-III

State v. Majeed 

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CP at 34.

INSTRUCTION NO. 17. 

To convict the defendant of the crime of communicating with a 

minor for immoral purposes, each of the following elements of the crime

must be proved beyond a reasonable doubt:

(1) That on or about July 7-8, 2017, the defendant communicated 

with another person for immoral purposes of a sexual nature; 

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

(3) The defendant sent another person an electronic communication 

for immoral purposes; and 

(4) That this act occurred in the State of Washington;

If you find from the evidence that each of these elements has been 

proved beyond a reasonable doubt, then it will be your duty to return a 

verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a 

reasonable doubt as to any of these elements, then it will be your duty to 

return a verdict of not guilty.

CP at 35. 

INSTRUCTION NO. 18.

You have heard testimony from undercover officers who were 

involved in the government’s investigation in this case. Law enforcement 

officials may engage in stealth and deception, such as the use of undercover 

agents, in order to investigate criminal activities. Undercover agents may 

use false names and identities. 

CP at 36.

The jury found Yasir Majeed guilty of commercial sexual abuse of a minor and 

communication of a minor for an immoral purpose, but could not reach a verdict on the 

charge of attempted rape of a child. The trial court declared a mistrial on the attempted 

rape charge, and the State later dismissed the charge. 
No. 36591-3-III

State v. Majeed 

10

LAW AND ANALYSIS

On appeal, Yasir Majeed challenges the adequacy of the information and the 

sufficiency of evidence as to the charge of commercial sexual abuse of a minor found in 

count II. He challenges the jury instruction on the charge of communication with a minor 

for immoral purposes as conflicting with law. He challenges both convictions based on 

the contention that the trial court commented on the evidence when instructing the jury. 

We address, in the published portion of our opinion, only the challenge to the sufficiency 

of the information and the adequacy of the charge of commercial sexual abuse of a minor. 

Sufficiency of Information - Commercial Sexual Abuse of a Minor

Yasir Majeed contends the facts alleged in count II of the information do not fit 

the statutory elements of the crime of commercial sexual abuse of a minor, found in 

RCW 9.68A.100(1)(b), because the information does not expressly state that he agreed to 

pay for sexual relations with a minor. Instead, the information reads that Majeed agreed 

to pay for sex with someone “he believed” to be a minor. Majeed’s contention does not 

follow the typical challenge to an information based on the charging instrument allegedly 

inadequately describing the crime and thereby failing to give adequate notice. Majeed 

instead echoes the argument found in civil law that the State failed to state a claim for 

which relief can be granted. 

We decline to address Yasir Majeed’s argument of a deficient information 

because, if we agreed with Majeed, we would dismiss the information without prejudice, 
No. 36591-3-III

State v. Majeed 

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and the State could refile the charges with changed language. State v. Johnson, 180 

Wn.2d 295, 300-01, 325 P.3d 135 (2014). Majeed benefits instead by this court’s 

dismissal of the charges with prejudice resulting from insufficient evidence to convict. 

Sufficiency of Evidence - Commercial Sexual Abuse of Minor

Yasir Majeed next maintains that the charging statute, RCW 9.68A.100(1)(b),

requires the State, in count II, to prove that he offered payment for sexual relations with a 

corporeal minor and the State only submitted evidence that he offered payment for 

contact with an invented minor. Thus, he requests that this court dismiss count II for 

insufficient evidence. The State responds that RCW 9.68A.100 does not expressly 

demand that an actual minor be involved. Stated differently, according to the State, the 

statute permits a conviction if Majeed agreed to pay a law enforcement officer acting as a 

thirteen-year-old minor. We agree with Majeed. 

At the time of Yasir Majeed’s conduct, RCW 9.68A.100(1)(b) declared: 

(1) A person is guilty of commercial sexual abuse of a minor if:

. . . .

(b) He or she pays or agrees to pay a fee to a minor or a third person 

pursuant to an understanding that in return therefore such minor will 

engage in sexual conduct with him or her.

(Emphasis added.) The statute now substitutes “provides anything of value” for “pay a 

fee.” We must determine if the word “minor” and the phrase “such minor” denote an 

authentic, rather than chimerical, person. Based on the definitions of “minor” and 

“person” found in criminal statutes, based on a comparison of RCW 9.68A.100 with
No. 36591-3-III

State v. Majeed 

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another statute, and based on foreign related decisions, we conclude “minor” within 

RCW 9.68A.100 means a real person. 

We first find assistance in construing “minor” in RCW 9.68A.100 by reviewing 

definitions found in surrounding statutes. Chapter 9.68A RCW “Sexual Exploitation of 

Children” defines “minor” as:

any person under eighteen years of age. 

RCW 9.68A.011(5) (emphasis added). Definitions provided under Chapter 9.68A RCW 

apply throughout the chapter “[u]nless the context clearly indicates otherwise.” 

RCW 9.68A.011. In turn, Washington’s criminal code defines “person” as 

any natural person and, where relevant, a corporation, joint stock 

association, or an unincorporated association. 

RCW 9A.04.110(17) (emphasis added). A “natural person” excludes imaginary, 

artificial, or fictitious persons. State v. Washington, 168 N.H. 689, 136 A.3d 916, 918 

(2016); State v. Covey, 290 Neb. 257, 859 N.W.2d 558, 562 (2015). 

We next compare RCW 9.68A.100 with another criminal statute. In 2003, the 

legislature amended RCW 9.68A.090, “Communication with minor for immoral 

purposes” which now reads in part:

(1) Except as provided in subsection (2) of this section, a person who 

communicates with a minor for immoral purposes, or a person who 

communicates with someone the person believes to be a minor for immoral 

purposes, is guilty of a gross misdemeanor.
No. 36591-3-III

State v. Majeed 

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RCW 9.68A.090; LAW OF 2003, ch. 26, § 1 (emphasis added). Based on this second 

statute, we reason that the Washington State legislature knows when it wishes to impose 

criminal liability for a person’s actions aimed toward sex with a minor, despite the minor 

being imaginary and created by law enforcement. The legislature, as it did in 

RCW 9.68A.090, knows when it wishes to use the phrase “someone the person believes 

to be a minor.” RCW 9.68A.100 omits “believes to be a minor” and only references a 

“minor” and “such minor.” 

We also note that RCW 9A.28.020(2), which governs attempts to commit a crime, 

declares:

If the conduct in which a person engages otherwise constitutes an 

attempt to commit a crime, it is no defense to a prosecution of such attempt 

that the crime charged to have been attempted was, under the attendant 

circumstances, factually or legally impossible of commission.

The State may have been better served by charging Yasir Majeed with attempt to commit 

commercial sexual abuse of a minor, rather than the completed crime. 

The State underscores that the second employment of the word “minor” in 

RCW 9.68A.100 is accompanied with the determiner “such.” In turn, the State contends 

that “such minor” could refer to some implied or undefined minor, which would include a 

pretend person. The State argues that legislative findings stated in RCW 9.68A.001 

reinforce this position, including its finding that:

[P]revention of sexual exploitation and abuse of children constitutes 

a government objective of surpassing importance. The care of children is a 
No. 36591-3-III

State v. Majeed 

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sacred trust and should not be abused by those who seek commercial gain 

or personal gratification based on the exploitation of children. 

. . . .

The legislature further finds that children engaged in sexual conduct 

for financial compensation are frequently the victims of sexual abuse. . . . It 

is the intent of the legislature to . . . hold those who pay to engage in the 

sexual abuse of children accountable for the trauma they inflict on children.

The State also distinguishes the point at which the crime of commercial sexual 

abuse of a minor is committed as compared to other crimes. For instance, rape of a child 

requires that a “person has sexual intercourse with another.” RCW 9A.44.073, .076, 

.079 (emphasis added). The crime of possessions of depictions of minor engaged in 

sexually explicit conduct requires a person to “knowingly possesses a visual or printed

matter depicting a minor engaged in sexually explicit conduct.” RCW 9.68A.070(1)(a)

(emphasis added). These crimes require an actual child in order to be violated. By 

contrast, the State argues that the crime of commercial sexual abuse of a child, under 

RCW 9.68A.100(1)(b), is completed on the formation of an agreement to pay for sex. 

We concur in the State’s condemnation of sexual relations by an adult with a 

minor, regardless of whether the conduct is part of a commercial transaction, as a vile act. 

The State holds a compelling interest to preclude the sexual abuse of a minor. 

Nevertheless, based on the legislative definition of a “minor,” regardless of whether we 

add the determiner “such,” a minor must be an existent human being. 

Finally, we survey foreign decisions, wherein the courts addressed a criminal 

statute that protected a “minor” or a “person.” The prevailing, if not universal, view is 
No. 36591-3-III

State v. Majeed 

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that a person, whether or not a minor person, does not include a fictitious person. United 

States v. Vasquez, 839 F.3d 409, 411-13 (5th Cir. 2016); United States v. Fulford, 662 

F.3d 1174, 1181 (11th Cir. 2011); United States v. Kahn, 524 F. Supp. 2d 1278, 1282-83

(W.D. Wash. 2007); State v. Washington, 136 A.3d 916, 916-19 (N. H. 2016); State v. 

Covey, 290 Neb. 257, 859 N.W.2d 558, 562 (2015). 

A United States Sentencing Commission guideline recommends an increase in a 

sentence for the crime of enticing and coercing an individual to engage in unlawful 

sexual activity, under 18 U.S.C. § 2422(a), when the crime involves a minor under the 

age of twelve-years-old. In United States v. Vasquez, 839 F.3d at 411-13, the court ruled 

that the term “minor” did not include a fictitious infant, but required a “sure enough” 

individual. In a losing argument, the government contended that Congress intended to 

punish the intent to offer a minor to engage in sex. 

Another United States Sentencing Commission guideline recommends an increase 

in a sentence for the crime of distribution of child pornography if the accused distributed 

the pornography to a minor in violation of 18 U.S.C. § 2252A(a)(2). In United States v. 

Fulford, 662 F.3d at 1175 (11th Cir. 2011), the intermediate level court held that the 

guideline did not cover distribution to a fictitious minor that the defendant believed to be 

a minor. The court recognized that the government’s position might be the better 

outcome, but that the court could not rewrite the guideline. 
No. 36591-3-III

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In State v. Washington, 136 A.3d 916 (N. H. 2016), the state high court affirmed 

the trial court’s dismissal of the charge of identity fraud. A New Hampshire criminal 

statute prohibited posing as “another person” in order to defraud. The court held that 

“person” denoted an actual, rather than a fictitious, person. The accused had fabricated 

the personage of Eli Watts. The New Hampshire statutory definition of “person” echoed 

the state of Washington’s definition. New Hampshire defined “person” to “include any 

natural person and, a corporation or an unincorporated association.” N.H. REV. STAT.

ANN. 625:11(II). The prosecution lost the argument that the word “include” suggested a 

broad interpretation of the word “person” that could include someone other than a natural 

person. 

In State v. Covey, 859 N.W.2d 558 (Neb. 2015), the Nebraska court ruled that one 

did not commit the crime of criminal impersonation of a person when one employed a 

false name that did not correspond to any real individual. The Nebraska criminal code 

defined “person” as “any natural person and where relevant a corporation or an 

unincorporated association.” NEB. REV. STAT. § 28-109(17) (emphasis added). The 

court observed that Black’s Law Dictionary defined a “natural person” as “‘[a] human 

being, as distinguished from an artificial person created by law.’” State v. Covey, 290 

Neb. at 262 (alteration in original) (quoting BLACKS LAW DICTIONARY 1162 (7th ed.

1999)). Thus, a “natural person” excluded imaginary, artificial, or fictitious persons. If 
No. 36591-3-III

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the legislature wished to extend the criminal statute to impersonating an ersatz person, the 

legislature could have so expressly stated. 

The State of Washington failed to present evidence that Denise Collins was a 

genuine minor. The undisputed evidence is that Denise was a fictitious being. Therefore, 

the State did not present evidence to show that Yasir Majeed offered to pay for sex with a 

minor within the confines of RCW 9.68A.100. If insufficient evidence supports the 

elements of a crime, we must reverse the conviction. State v. Hickman, 135 Wn.2d 97, 

103, 954 P.2d 900 (1998). We must also dismiss the charges with prejudice. Retrial after 

a finding of insufficient evidence would violate the Fifth Amendment’s double jeopardy 

clause against a subsequent prosecution for the same offense. State v. Hardesty, 129 

Wn.2d 303, 309, 915 P.2d 1080 (1996). Thus, we dismiss with prejudice the charge 

against Yasir Majeed for commercial sexual abuse of a minor. 

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.

Comment on the Evidence

Yasir Majeed contends that jury instruction number 18 was an unconstitutional

judicial comment on the evidence. Based on this assignment of error, he requests that we 

reverse both convictions and remand for a new trial. We have already dismissed the one 
No. 36591-3-III

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conviction and dismissed it with prejudice, so the argument now applies only to the 

conviction for communication with a minor. To repeat, the instruction read:

You have heard testimony from undercover officers who were 

involved in the government’s investigation in this case. Law enforcement 

officials may engage in stealth and deception, such as the use of undercover 

agents, in order to investigate criminal activities. Undercover agents may 

use false names and identities. 

CP at 36 (emphasis added).

Yasir Majeed asserts that, for two reasons, jury instruction 18, commented on the 

evidence. First, he complains that the jury instruction vouched for the credibility of the 

WSP troopers and suggested to a juror that he or she should believe the trooper when the 

trooper’s testimony contradicts the testimony of Majeed. Second, Majeed complains that 

the instruction assumed that Yasir Majeed engaged in criminal activity. We analyze each 

contention separately. 

We agree with the State that jury instruction 18 did not vouch for the credibility of 

the testifying law enforcement officers, particularly in regard to their trial testimony. The 

instruction instead was a correct statement of law that, under some circumstances, 

officers may lie in the course of investigative conduct. State v. Smith, 101 Wn.2d 36, 43, 

677 P.2d 100 (1984). 

Yasir Majeed also worries about a juror deflating his credibility as a result of his 

using a fictitious name when communicating on the Internet. Unlike the jury instruction 

condoning deception by law enforcement officers, no instruction mentioned the legality 
No. 36591-3-III

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of the use of an alias on e-mail or in texting by a private citizen. 

We do not share in Yasir Majeed’s worry. Jurors understand the use of assumed 

names when engaging in electronic communications. Majeed did not object to the jury 

instruction at trial, at a time when he could have asked for some modification in the 

instruction to allay his fears. His trial counsel could have mentioned in summation the 

phenomenon of the use of aliases when communicating. Nothing in the instruction 

suggested that the jury should deem Yasir Majeed’s testimony untrustworthy. 

We also agree with the State that jury instruction 18 did not tell the jury that Yasir 

Majeed engaged in criminal activity. The instruction did not single out the investigation 

of Majeed. Instead, the instruction spoke in generalities. More importantly, instruction 

18 did not suggest that all criminal investigations lead to the discovery of a crime. The 

undisputed facts established that Washington State Patrol troopers were engaged, at the 

time of the relevant facts, in investigating criminal activities. 

Article IV, section 16 of the Washington State Constitution provides:

Judges shall not charge juries with respect to matters of fact, nor 

comment thereon, but shall declare the law.

Pursuant to this constitutional provision, if the trial judge conveys to the jury his or her 

personal opinion regarding the truth or falsity of any evidence introduced at trial, the 

judge has violated the constitutional mandate. State v. Bogner, 62 Wn.2d 247, 250, 382 

P.2d 254 (1963). The trial court violates this prohibition regardless of whether the court 
No. 36591-3-III

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expressly conveys his or her personal feelings on an element of the offense, as long as the 

court impliedly conveys that feeling. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 

(2006). Nevertheless, assumption of a peripheral fact not disputed is not constitutionally 

prohibited. State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706 (1986), amended, 737 

P.2d 670 (1987). 

With regard to jury instruction 18’s reference to a criminal investigation, Yasir 

Majeed compares the instruction to one given in State v. Baun, 123 Wash. 340, 212 P. 

553 (1923). There, the trial court instructed the jury as follows:

If you are convinced beyond a reasonable doubt that any of the 

defendants in this case aided or abetted in the commission of the crime, 

whether present or absent, or of [sic] you are convinced beyond a 

reasonable doubt that any of the defendants in this case, directly or 

indirectly, counseled, encouraged, hired, commanded, induced, or 

otherwise procured any other of the defendants herein to commit the crime, 

you should find any such defendants guilty as charged.

State v. Baun, 123 Wash. at 344. In Baun, the high court held that the instruction was 

erroneous as the appealing defendants denied their involvement in a crime. The court 

held that the trial court assumed a material fact instead of leaving the issue of whether a 

crime was committed to the jury. 

We distinguish State v. Baun in that the jury instruction used the definite article 

“the” when referencing the crime. The instruction suggested that the judge considered 

the charge to constitute a “crime.” 
No. 36591-3-III

State v. Majeed 

21

Yasir Majeed cites a number of cases, in which the accused complained about the 

trial court’s commenting on the evidence. On review, the comments were held to be 

unconstitutional. 

In State v. Jackson, 83 Wash. 514, 520-23, 145 P. 470 (1915), the trial court 

interrupted the prosecuting attorney during cross-examination and cross-examined the 

witness. The Washington Supreme Court determined that the extensive questioning 

expressed doubt as to the credibility of a material witness. Yasir Majeed’s trial judge did 

not question any witnesses. 

Our high court determined that a statement by the trial court that a witness would 

be discharged provided he testify “fully as to all material matters within his knowledge” 

constituted a comment on the evidence and bolstered the witness’s credibility when, 

thereafter, the trial court informed the jury of the witness’s discharge. State v. James, 63 

Wn.2d 71, 76, 385 P.2d 558 (1963). Yasir Majeed’s trial court did not reference any 

testimony by a witness. 

In State v. Yanai, 128 Wash. 568, 224 P. 15 (1924), the trial court excluded 

witnesses from the courtroom. One witness, however, remained in the open doorway in 

the crowd that attended the trial while other witnesses testified. The witness testified that 

he could not hear anything. Our high court held that the trial court vouched for the 

witness’s credibility when it stated: “We can all take notice, in a practical way, that a 

witness standing outside of the door there could not have possibly heard any witness 
No. 36591-3-III

State v. Majeed 

22

testifying here on the stand. I don’t believe he could have heard it.” State v. Yanai, 128 

Wash. at 569. To repeat, Yasir Majeed’s trial judge did not remark about the testimony 

of any witness. 

Finally, in State v. Bogner, 62 Wn.2d 247 (1963) the defense attorney and court 

engaged in an extended discussion, after which the trial court retorted in the presence of 

the jury: “Don’t you think we are getting a little ridiculous, or aren’t we?” State v. 

Bogner, 62 Wn.2d at 249. Our state Supreme Court determined this was a comment on 

the evidence. Yasir Majeed’s trial court did not criticize the presentation by defense 

counsel. 

Communication with a Minor for Immoral Purposes

Yasir Majeed contends that jury instruction 17, the to-convict instruction for the 

crime of communication with a minor for immoral purposes, alleged in count III, relieved 

the State of its duty to prove that he communicated with “Denise,” the fictitious victim, 

by electronic communication. To repeat, jury instruction 17 required that the State prove: 

(1) That on or about July 7-8, 2017, the defendant communicated 

with another person for immoral purposes of a sexual nature;

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

(3) The defendant sent another person an electronic communication 

for immoral purposes; and 

(4) That this act occurred in the State of Washington.

CP at 35 (emphasis added). 
No. 36591-3-III

State v. Majeed 

23

According to Yasir Majeed, the governing criminal statute, RCW 9.68A.090(2), 

requires that the communication be to the person the defendant believes to be a minor, 

but paragraph 3 of jury instruction 17 allows a conviction regardless of whether the 

accused sent the communication to the supposed minor or to some third person. Yasir 

Majeed adds that “another” is not a definite term. State v. Graham, 153 Wn.2d 400, 406 

n.2, 103 P.3d 1238 (2005). According to Majeed, by using the word “another,” the jury 

instruction expanded the range of possible persons beyond what the statute narrowly 

requires for the crime. Therefore, the instruction did not limit the jury’s verdict to the 

essential elements of the crime. Majeed highlights that jury instruction 17 failed to 

follow Washington Pattern Jury Instructions. 11 WASHINGTON PRACTICE: WASHINGTON 

PATTERN JURY INSTRUCTIONS: CRIMINAL 47.06 (4th ed. 2016) advises that the name of 

the person to whom the defendant sent the communication be given. 

The State observes that both paragraphs 1 and 3 of jury instruction 17 reference 

“another person,” such that the “another person” is the same real or imagined person. 

The statute’s use of “other person” in paragraph 2 also refers, in this prosecution, to the 

persona assumed by police. The State also contends that the only evidence of electronic 

communications at trial were those between Yasir Majeed and “Denise,” such that the 

State could not have convicted Majeed based on communications to a third party. 

The State must prove every essential element of a crime beyond a reasonable 

doubt. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). An assertion that a “to 
No. 36591-3-III

State v. Majeed 

24

convict” jury instruction fails to convey every element of the crime implicates manifest 

constitutional error. State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). A “to convict”

instruction must contain all of the elements of the crime because the instruction serves as 

a “yardstick,” by which the jury measures the evidence to determine guilt or innocence. 

State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). In turn, the trial court commits 

reversible error when instructing the jury in a manner that would relieve the State of this 

burden. State v. Byrd, 125 Wn.2d at 714. If the jury “must guess at the meaning of an 

essential element of a crime or if the jury might assume that an essential element need not 

be proved” the defendant does not receive a fair trial. State v. Smith, 131 Wn.2d at 263. 

Absence of an essential element of a crime in a to-convict instruction violates due process 

and is harmless only if the reviewing court is convinced beyond a reasonable doubt any 

reasonable jury would reach the same result absent the error. State v. Linehan, 147 

Wn.2d 638, 654, 56 P.3d 542 (2002); State v. Van Tuyl, 132 Wn. App. 750, 758, 133 P.3d 

955 (2006). 

We agree with Yasir Majeed that jury instruction 17 created confusion as to 

whether the State needed to prove that Denise was the “another person” to whom he sent 

the e-mail and texts or whether the State could convict Majeed for sending the text to any 

other person. The jury instruction detached “electronic communication” from the minor 

or person the defendant believed to be a minor. 
No. 36591-3-III

State v. Majeed 

25

Notwithstanding our agreement with Yasir Majeed, we affirm the conviction 

based on the doctrine of harmless error. Any jury would have reached the same verdict

absent the error. The only evidence of electronic communications was from Majeed to 

Denise, a person he believed to be a minor. 

CONCLUSION

We reverse Yasir Majeed’s conviction for commercial sexual abuse of a minor and 

order dismissal of the charge. We affirm Majeed’s conviction for communication with a 

minor for immoral purposes. 

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Korsmo, A.C.J.

______________________________

Siddoway, J.