### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OFWASHINGTON, 

### ) No. 77587-1-I

Respondent,
v. 

### ) UNPUBLISHED OPINION JOSEPH DINO BUFFALINO, 

### ) ) FILED: April 22, 2019 Appellant. 

### )
VERELLEN, 

### J.

— Because RCW 9A.88.060 does not implicate free speech and because Joseph Buffalino fails to argue .060 is unconstitutional as applied to his conduct, his appeal fails. Therefore, we affirm. FACTS The State charged Buffalino with several charges, including one count of first degree promoting prostitution. Thejuryfound Buffalino guilty ofsecond degree promoting prostitution, the lesser included offirst degree promoting prostitution.1

1 Buffalino appeals only his conviction ofsecond degree promoting prostitution.No. 77587-1 -112

ANALYSIS Buffalino contends his conviction forsecond degree promoting prostitution should be reversed because RCW 9A.88.060(1), defining “advancing prostitution,” is unconstitutionallyvague. Underthe Fourteenth Amendmentto the United States Constitution and article I ofthe Washington Constitution, the due process vagueness doctrine requires statutes “provide citizenswith fairwarning ofwhat conductthey must avoid” and “protectthem from arbitrary, ad hoc, ordiscriminatory law enforcement.”2 “[A] statute is void forvagueness ifeither: (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed; or (2) the statute does not provide ascertainable standards ofguiltto protect against arbitrary enforcement.”3 The party challenging a statute has the burden of proving it is unconstitutionally vague.4 “A person is guilty of promoting prostitution in the second degree if he or she knowingly.

. . [a]dvancesprostitution.”5 Under RCW 9A.88.060(1), A person “advances prostitution” if, acting otherthan as a prostitute or as a customerthereof, he orshe causes or aids a person to commit orengage in prostitution, procures orsolicits customers for prostitution, provides persons or premisesfor

2 State v. Halstien, 122 Wn.2d 109, 116-17, 857 P.2d 270 (1993) j~ at 117 (internal quotation marks omitted) (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). 4ki.at 118.

~ RCW 9A.88.080 (emphasis added).

2No. 77587-1 -1/3
prostitution purposes, operates orassists in the operation ofa house of prostitution ora prostitution enterprise, or engages in any other conduct designed to institute, aid, orfacilitate an act or enterprise of prostitution.[6] When a challenged statute does not involve FirstAmendment interests, an appellant may challenge the statute only as it applies to theirown conduct.7 As a threshold matter, the State argues Buffalino cannot make a facial challenge to .060 because the statute does not implicate the FirstAmendment. Buffalino argues .060 implicates protected speech. But in State v. Cann, the appellant challenged the last clause of RCW 9A.88.060(1) as unconstitutionallyvague because “it could be construed to forbid innocent conductwhich might incidentally advance prostitution.”8 Our Supreme Court acknowledged “[s]peech directed toward the persuasion ofanotherto enter into an illegal arrangementdoes not enjoy constitutional protection” underthe First Amendment.9 And the court determined “[t]hat is the only kind ofspeech punished underthis statute.”1° In his reply brief, Buffalino argues section .060 does implicate the First Amendment because it “prohibits all aid, not only aid provided forthe purpose offurthering prostitution.”11 Butthis argument ignores the express language of

6 RCW 9A.88.060(1) (emphasis added).

~ Douglass, 115Wn.2d at 182. 892 Wn.2d 193, 195, 595 P.2d 912 (1979). ~Id.at 195-96. 1° Id. at 196. 11 Reply Br. ofApp. at 8.

3No. 77587-1-114

the challenged clause. Section .060 provides a person advances prostitution if, “acting otherthan as a prostitute oras a customerthereof, he orshe causes or aids a person 

### to commitorengage in prostitution.”12 The statute does not prohibit general aid to a known prostitute. Rather, the statute prohibits an individual from aiding a person to commit prostitution. Buffalino fails to provide any authoritythatthe FirstAmendment protections extend to conductthat “aids a person to commit orengage in prostitution.” Although Buffalino challenges a different portion of .060 than at issue in Cann, the analysis in Cann extends to the entire statute: “Speech directed toward the persuasion ofanotherto enter into an illegal arrangementdoes not enjoy constitutional protection,” and “[t]hat is the only kind ofspeech punished underthis statute.” RCW 9A.88.060 does not implicate the FirstAmendment. Buffalino cannot challenge .060 as unconstitutionallyvague on its face. And Buffalino fails to provide any argument as to how RCW 9A.88.060 is unconstitutionallyvague as applied to his own conduct. Rather, he relies on hypothetical scenarios to illustrate that .060 is unconstitutionallyvague. “Therefore, a person who gives food or drinkto anotherwhom he orshe knows to engage in prostitution would ‘aid’ in its commission by helping him or her

12 RCW 9A.88.060(1).

4No. 77587-1-115

survive, thereby advancing prostitution.”13 Buffalino does not suggestthat his own conductwas ofan equally innocent nature.14 Because RCW 9A.88.060 does not implicate FirstAmendment issues and because Buffalinofails to argue .060 is unconstitutional as applied to his conduct, his appeal fails. Therefore, we affirm.

WE CONCUR:

___ ____ 

# I

13Appellant’s Br. at 15. 14 See Cann, 92 Wn.2d at 195 (“The second contention is thatthe last clause of RCW 9A.88.060(1), defining ‘advances prostitution,’ is unconstitutionally vague in that it could be construed to forbid innocent conduct which might incidentally advance prostitution. A neighborgratuitously shoveling snowfrom the sidewalks ofa house of prostitution, ora taxicab drivertaking a prostitute to meet a client are cited as examples. This is the only clause, the appellantsays, into which his conduct can reasonably be fitted. He does not suggest, however, that his own conductwas ofan equally innocent nature.”).