Background
A Washington State Patrol detective posted an advertisement on a prostitution website while posing as “Cheri,” a mother offering access to her purported 10- and 12-year-old daughters. Anh My Nguyen Duc Le responded, expressed a desire to have sex with both girls, and persisted after being told their ages. He and “Cheri” agreed that he would pay $200 for 30 minutes with both girls and use condoms.
Le exchanged photographs with the undercover officers, agreed to meet at a dog park near a Renton apartment complex, and arrived carrying two phones, two condoms, and $200 in cash. Officers arrested him after he approached the undercover officer. A jury convicted Le of attempted first-degree rape of a child, attempted second-degree rape of a child, and two counts of attempted commercial sexual abuse of a minor.
On appeal, Le argued that his conduct remained negotiation or preparation and did not amount to a substantial step toward the offenses. He also argued that trial counsel provided ineffective assistance by failing to pursue an entrapment defense.
The Court’s Holding
The Court of Appeals affirmed all four convictions. Viewing the evidence in the State’s favor, it held that a rational jury could find a substantial step because Le expressed his intent to have sex with children he understood to be 10 and 12, negotiated the price and conditions, exchanged identifying photographs, traveled to the agreed meeting place, and arrived with the agreed payment and condoms. Those actions strongly corroborated his criminal purpose, even though the purported children were fictitious and the sexual acts were to occur elsewhere.
The court rejected Le’s reliance on State v. Grundy, explaining that Grundy involved a different statutory attempt standard applicable to a drug offense. Le’s charges were governed by Washington’s broader “substantial step” standard under RCW 9A.28.020, not the former “overt act” formulation discussed in Grundy.
The court also rejected Le’s ineffective-assistance claim. Assuming without deciding that the evidence could have supported an entrapment instruction, counsel reasonably chose to argue that Le had not taken a substantial step because the dog park was merely an initial meeting point. Counsel could conclude that also asserting entrapment—which would require arguing that law enforcement induced Le to commit crimes he otherwise would not have committed—would confuse the jury and weaken the primary defense. Because that choice was a legitimate trial strategy, Le did not establish deficient performance.
Key Takeaways
- Explicitly arranging sex with purported minors, agreeing on price and conditions, traveling to the meeting site, and arriving with payment and condoms can constitute a substantial step toward child-sex offenses.
- Factual or legal impossibility is not a defense to attempt merely because the supposed minors are fictitious and the arrangement is an undercover operation.
- Counsel may reasonably decline an entrapment defense when it could conflict with or weaken the primary argument that the defendant never progressed beyond preparation.
Why It Matters
The decision reinforces that Washington’s substantial-step test focuses on conduct strongly corroborating criminal intent and does not require the defendant to reach the place where the planned sexual activity would occur. In an undercover operation, the combination of detailed communications, concrete arrangements, travel, and possession of the agreed payment or supplies may be enough to sustain attempt convictions.
The opinion also illustrates the deference given to defense counsel’s strategic selection among potentially inconsistent theories. Even when an alternative instruction might arguably be available, counsel is not constitutionally ineffective merely for choosing a focused defense that avoids confusing or contradictory arguments.