¶1¶12 (dissenting) — I respectfully dissent from the majority’s holding that the evidence is insufficient to support Homan’s conviction for luring. Looking at the facts in the light most favorable to the State post conviction, as we must, (1) Homan, a stranger, attempted to lure a nine-year-old child to his house; (2) he enticed this child, walking home from the store without an adult, with an offer of candy; (3) this conduct meets the requirements of luring under RCW 9A.40.090.1 would affirm Homan’s conviction.
¶2¶13 RCW 9A.40.090 provides, in pertinent part:
A person commits the crime of luring if the person:
(l)(a) [A]ttempts to lure a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public or into a motor vehicle;
(b) Does not have the consent of the minor’s parent or guardian or of the guardian of the person with a developmental disability; and
(c) Is unknown to the child or developmentally disabled person.
*494(3) For purposes of this section:
(a) “Minor” means a person under the age of sixteen;
(b) “Person with a developmental disability” means a person with a developmental disability as defined in RCW 71A.10.020.
(4) Luring is a class C felony.
¶3The majority holds that Homan’s asking the child, “ ‘[D]o you want some candy? I’ve got some at my house’ ” is insufficient to constitute luring under this statute. Majority at 492 (quoting Clerk’s Papers at 4). I disagree.
¶4¶14 As Division One of our court articulated in State v. Dana, luring requires something more than a mere invitation; luring also requires “some other enticement or conduct constituting an enticement (or attempted enticement).” 84 Wn. App. 166, 175, 926 P.2d 344 (1996), review denied, 133 Wn.2d 1021 (1997). Words are sufficient to constitute an enticement. Dana, 84 Wn. App. at 176 (“The enticement accompanying the invitation, be it conduct or words . . . .” (emphasis added)). With his words, Homan impliedly invited the child to a “structure . . . obscured from or inaccessible to the public.” RCW 9A.40.090(l)(a). Homan stated that he had candy in his house and asked the child if he wanted some. Although Homan did not expressly ask the child to come to his house, a rational trier of fact could find beyond a reasonable doubt that Homan invited the child to his house to receive the offered candy.
¶5¶15 This inference is further compelling when viewed in light of the rules that (1) circumstantial evidence receives the same consideration as direct evidence; (2) direct evidence is not essential where reasonable inferences can be drawn from substantial evidence; and (3) we view the evidence in the light most favorable to the State. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). That Homan kept on riding his bicycle when the child did not respond does not eradicate Homan’s luring invitation. Furthermore, Homan’s offer of candy met the statutory requirement of *495enticement, even though it was unsuccessful in attracting this particular child. See Dana, 84 Wn. App. at 175-76, 169.
¶6¶16 I would hold that the evidence is sufficient to uphold Homan’s conviction of luring.
¶7¶17 I would affirm.
¶8Review granted at 177 Wn.2d 1022 (2013).
¶9 Because the majority reverses Homan’s conviction for lack of sufficient evidence, it does not address his constitutional argument that RCW 9A.40.090 is overbroad. Because I would affirm, it is appropriate to comment on the constitutionality issue to show that affirming based on the sufficiency of evidence would not be futile. Without engaging in a full analysis, I touch on a few highlights.
¶10I agree with Division One’s constitutional analysis in Dana that the luring statute’s limitation on protected speech is minimal when balanced against the legislature’s objective to protect children and the developmentally disabled from predators. To support this point, Dana focused on the statutory requirements:
[Lluring and inviting are not the same. Luring requires something more than an invitation. The enticement accompanying the invitation, be it conduct or words, for example, sufficiently narrows the scope of the statute in relation to its plainly legitimate sweep. In any event, even if this statute results in strangers failing to offer children rides home in the rain — avoiding getting wet being the inducement — the risk to children from contact with strangers outweighs any perceived harm.
¶11Dana, 84 Wn. App. at 175-76. In other words, a mere verbal invitation is not enough; it must be coupled with enticement, namely using something pleasurable to attract the child to come to the private place. See Dana, 84 Wn. App. at 175; Webster’s Third New International Dictionary 757 (1976) (definition of “entice”).
¶12Homan’s proposed hypothetical — that a teenager offering an invitation to her peers to come back to her house for cupcakes could be found guilty of luring — is highly unlikely and, thus, does not pose a viable constitutional challenge. On the contrary, in addition to the above requirements, the statute expressly provides a defense for innocent conduct:
It is a defense to luring, which the defendant must prove by a preponderance of the evidence, that the defendant’s actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the minor or the person with the developmental disability.
¶13RCW 9A.40.090(2). Moreover, prosecuting attorneys are vested with discretion to decide whether particular conduct meets the statutory criteria and, if so, whether to file criminal charges. “This ‘most important prosecutorial power’ allows for the consideration of individual facts and circumstances when deciding whether to enforce criminal laws, and permits the prosecuting attorney to seek individualized justice.” State v. Rice, 174 Wn.2d 884, 901-02, 279 P.3d 849 (2012) (quoting Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 22 (2007)).
¶14Clearly Homan’s conduct was not an exercise of innocent free speech. Rather his conduct constituted the very type of potential child endangerment that the legislature sought to curtail with the luring statute — to protect those who because of tender years or developmental delay cannot protect themselves — with minimal, if any, infringement on protected speech.