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Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 19304-7-III
Title of Case: State of Washington
v.
Donald T. Townsend
File Date: 04/05/2001
SOURCE OF APPEAL
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Appeal from Superior Court of Spokane County
Docket No: 99-1-01239-0
Judgment or order under review
Date filed: 04/19/2000
Judge signing: Hon. Michael E. Donohue
JUDGES
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Authored by Kenneth H Kato
Concurring: Frank L. Kurtz
Dennis J. Sweeney
COUNSEL OF RECORD
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Counsel for Appellant(s)
Paul J. Wasson Ii
Attorney At Law
2521 W Longfellow Ave
Spokane, WA 99205-1548
Counsel for Respondent(s)
Kevin M. Korsmo
Spokane County Prosecutor's Office
W. 1100 Mallon
Spokane, WA 99260
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF
WASHINGTON,
)
) No. 19304-7-III
Respondent,
)
) Division Three
v.
) Panel Nine
)
DONALD THEODORE
TOWNSEND, )
PUBLISHED OPINION
)
Appellant.
) FILED
KATO, J. -- Donald T. Townsend appeals his
conviction for attempted second degree rape of a child. He contends
the trial court erroneously admitted into evidence copies of e-mail
and client-to-client computer messages between himself and a
fictitious 13-year-old girl with whom he corresponded. He also
contends the conviction is unlawful because it is impossible to
attempt to rape a fictitious child and because the State failed to
prove he took a substantial step toward commission of child rape. We
affirm.
Based on tips from two citizen informants, Spokane
Police Detective Jerry Keller suspected that Mr. Townsend was
attempting to set up sexual liaisons with minor girls on the
computer. To investigate the matter, the detective created a
fictitious 13-year-old girl named 'Amber.' He established a Hotmail
Internet e-mail account for 'Amber.' He also created an account for
'Amber' on ICQ, an Internet discussion software program that allows
real-time client-to-client communications.
Beginning in May 1999, 'Amber' had several e-mail
and ICQ discussions with Mr. Townsend. These communications were
saved automatically on Detective Keller's computer, so he was able
to store and print them for use as evidence in this case. The e-mail
messages pertained to having a face-to-face meeting. The ICQ
communications contained very graphic discussions about sex. Mr.
Townsend explained to 'Amber' how one gets pregnant and how they
could avoid getting her pregnant. The details of what he intended to
do with 'Amber' when they met became increasingly graphic and
described sexual intercourse and oral sex. 'Amber' eventually told
Mr. Townsend she would meet him in a room at a Spokane motel on June
4, 1999. The night before the planned meeting, Mr. Townsend stated
in an ICQ message that he wanted to have sex with her the next day.
The last ICQ communication was on June 4, 1999, and lasted from 4:57
p.m. to 5:20 p.m. During this communication, Mr. Townsend indicated
that he still wanted to have sex with SAmber.'
About an hour later, Mr. Townsend knocked on the
motel room door, identified himself as Donald, and said he was
looking for 'Amber.' After Detective Keller arrested him, Mr.
Townsend admitted he left his apartment to come to the motel to have
sex with 'Amber,' who he believed to be 13 years old, but he had
changed his mind. Mr. Townsend admitted sending the ICQ message on
June 3, in which he said he wanted to have sex with 'Amber' the next
day.
Mr. Townsend was charged with attempted second
degree rape of a child.1 Mr. Townsend moved to dismiss, arguing
(among other things) that the e-mail and ICQ evidence violated the
Washington Privacy Act and there was insufficient evidence of an
attempt. The court denied the motion in a memorandum decision that
later was incorporated into formal findings of fact and conclusions
of law. The court then found Mr. Townsend guilty after a bench
trial.
We first consider whether Detective Keller violated
the Washington Privacy Act by recording or printing the e-mail
messages and ICQ discussions. The statute makes it unlawful to
record2 a {p}rivate communication transmitted by telephone,
telegraph, radio, or other device between two or more individuals
between points within or without the state by any device electronic
or otherwise designed to record and/or transmit said communication
regardless how such device is powered or actuated, without first
obtaining the consent of all the participants in the
communication{.}
RCW 9.73.030(1)(a). 3
This statute is 'one of the most restrictive in the nation.' State
v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996). Evidence
obtained in violation of the statute is inadmissible for any
purpose. Id. at 488.
The State first contends it is unclear whether the
communications here were private, because Mr. Townsend was aware
that e-mail and ICQ messages are not secure from interception.
Whether particular communications are private generally is a
question of fact, but the question may be decided as a matter of law
if the facts are undisputed and reasonable minds could not differ.
State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996). The Supreme
Court has adopted the dictionary definition of the word 'private':
''belonging to one's self . . . secret . . . intended only for the
persons involved (a conversation) . . . holding a confidential
relationship to something . . . a secret message: a private
communication . . . secretly: not open or in public.'' Kadoranian v.
Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992)
(quoting Webster's Third New International Dictionary (1969) and
State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978),
review denied, 92 Wn.2d 1006 (1979)).
The subjective intentions of the parties to the
communication are among the factors to be considered, as well as
other factors bearing on the reasonableness of the participants'
expectations, such as the duration and subject matter; the location
of the communication and the presence of potential third parties;
and the role of the nonconsenting party and his or her relationship
to the consenting party. Clark, 129 Wn.2d at 225-27. The mere
possibility that interception is technologically feasible does not
render public a communication that is otherwise private. Faford, 128
Wn.2d at 485 (Privacy Act protects cordless telephone
conversations). |
