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Here, Mr. Townsend's messages to 'Amber' certainly
were intended only for her. His subjective expectations are clear;
he specifically asked 'Amber' not to 'tell anyone about us.' Clerk's
Papers (CP) at 66. Moreover, the subject matter itself clearly
suggests the communications were private. The possibility of
interception alone does not refute this suggestion. The
communications were private.
The State next contends the communications were not
recorded as anticipated by the Privacy Act. The State points out
that recording is an inherent function of a computer, and prior
cases all involved recording by devices different from the devices
used to perform the communications themselves. Even if true, this is
a distinction without a legal difference. The communications here
were recorded on Detective Keller's computer. As the State appears
to concede, only by recording them could Detective Keller read or
print them.
The State next contends Detective Keller's computer
was not a device as anticipated by the Act. This argument simply
ignores the broad language of the statute, which refers to devices
'electronic or otherwise designed to record and/or transmit said
communication{s} regardless of how such device is powered or
actuated.' RCW 9.73.030(1)(a); see Kadoranian, 119 Wn.2d at 185
(when statutory language is clear, there is no room for judicial
interpretation). Detective Keller's computer certainly was designed
to record communications such as e-mail and other messages. The
e-mail and ICQ messages thus were private communications transmitted
between two individuals that were recorded by a device. The critical
issue, then, is whether all of the participants consented to the
recording. If so, the recording was not unlawful.
The Privacy Act provides that 'consent shall be
considered obtained whenever one party has announced to all other
parties engaged in the communication or conversation, in any
reasonably effective manner, that such communication or conversation
is about to be recorded or transmitted.' RCW 9.73.030(3). Under this
provision, consent is valid if the nature of the communication is
such that the parties understand it will be recorded. See In re
Marriage of Farr, 87 Wn. App. 177, 184, 940 P.2d 679 (1997)
(function of telephone answering machine is to record messages),
review denied, 134 Wn.2d 1014 (1998).
The nature of e-mail is such that, to be useful, it
must be recorded. See William Decoste, Sender Beware: The
Discoverability and Admissibility of E-Mail, 2 Vand. J. Ent. L.
& Prac. 79, 81 (2000) (even deleted messages may remain
available for retrieval). A person sends an e-mail message with the
expectation that it will be read and perhaps printed by another
person. To be available for reading or printing, the message first
must be recorded on another computer's memory. Like a person who
leaves a message on a telephone answering machine, a person who
sends an e-mail message anticipates that it will be recorded. That
person thus implicitly consents to having the message recorded on
the addressee's computer. Because Mr. Townsend understood that his
e-mail messages would be recorded on a device that would make the
messages available for 'Amber' to read, he consented to the
recording.
The nature of ICQ client-to-client communications
is less clear, because the technology itself does not require that
messages be recorded for later use. However, the ICQ privacy policy
expressly warns users of '{u}nauthorized exposure of information and
material you listed or sent, on or through the ICQ system, to other
users, the general public or any other specific entities for which
the information and material was not intended by you.' CP at 136.
And ICQ expressly advises users that if they wish not to be exposed
to these risks, they should not use the software. Especially
pertinent is the following provision:
9. Some versions of the software allow any party to
an ICQ session to record the content of the session (messages, URL,
chat, chat request and other events). The ICQ program default in
some versions is set to record message and other event dialog and
traffic.
CP at 139.
By using the ICQ client-to-client communications, Mr. Townsend
impliedly consented to recording of the communications by the
intended recipient.
The e-mail and ICQ messages were private
communications protected by the Washington Privacy Act. However,
because Mr. Townsend impliedly consented to the recording of the
messages, there was no violation. The trial court correctly
concluded the messages were admissible. Next, we consider whether
the evidence established that Mr. Townsend took a substantial step
toward committing the crime of second degree child rape. A person is
guilty of an attempt if, with intent to commit a specific crime, he
or she 'does any act which is a substantial step toward the
commission of that crime.' RCW 9A.28.020(1). Mr. Townsend contends
he did not and could not have taken a substantial step toward
committing second degree child rape. A person commits second degree
rape of a child if he or she 'has sexual intercourse with another
who is at least twelve years old but less than fourteen years old
and not married to the perpetrator and the perpetrator is at least
thirty-six months older than the victim.' RCW 9A.44.076(1). Thus, to
convict Mr. Townsend of attempted second degree child rape, the
State was required to prove he took a substantial step toward having
sexual intercourse with 'Amber.'
Mr. Townsend argues in part that he could not have
taken such a substantial step because 'Amber' was not real. But RCW
9A.28.020(2) expressly provides that factual impossibility is not a
defense to a crime of attempt. Under this provision, for example, a
person may attempt to possess stolen property even if the property
he attempts to possess is not actually stolen. State v. Davidson, 20
Wn. App. 893, 897-98, 584 P.2d 401 (1978), review denied, 91 Wn.2d
1011 (1979). The attempt statute focuses 'on the criminal intent of
the actor, rather than the impossibility of convicting him of a
completed crime.' Id. at 897. It thus makes no difference that Mr.
Townsend could not have completed the crime because 'Amber' did not
exist. He is guilty of the attempt if he intended to have sexual
intercourse with her.
Mr. Townsend also contends the evidence was
insufficient to show that he took a substantial step toward
committing second degree child rape. In this context, we must view
the evidence in a light most favorable to the prosecution and must
determine whether any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. State v. Green, 94
Wn.2d 216, 220-22, 616 P.2d 628 (1980). The court must draw all
reasonable inferences in favor of the State. State v. Partin, 88
Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The elements of a crime may
be established by either direct or circumstantial evidence, and one
type of evidence is no less valuable than the other. State v.
Thompson, 88 Wn.2d 13, 16, 558 P.2d 202, appeal dismissed, 434 U.S.
898 (1977).
Mere preparation to commit a crime is not an
attempt. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). A
person's 'conduct is not a substantial step 'unless it is strongly
corroborative of the actor's criminal purpose.'' Id. at 451 (quoting
Model Penal Code sec. 5.01(2)); see State v. Smith, 115 Wn.2d 775,
782, 801 P.2d 975 (1990). Conduct that may constitute a substantial
step includes ''enticing or seeking to entice the contemplated
victim of the crime to go to the place contemplated for its
commission.'' Workman, 90 Wn.2d at 451-52 n.2 (quoting Model Penal
Code sec. 5.01(2)(b)).
The evidence shows that Mr. Townsend sought to
entice 'Amber' to meet with him at the motel room to engage in
sexual intercourse. This alone would support the conviction, but Mr.
Townsend went even further: He appeared at the door where the crime
was to have occurred. A reasonable inference is that in going there
he intended to engage in sexual intercourse with 'Amber.' From this
evidence, a rational factfinder could have found that Mr. Townsend
took a substantial step toward committing the crime of second degree
child rape.
There was no error.
Affirmed.
Kato, J.
WE CONCUR:
Kurtz, C.J.
Sweeney, J.
1 Mr. Townsend initially was charged with two
additional counts involving sexually explicit materials discovered
in a post-arrest search of his residence. After the superior court
concluded the search was unlawful and suppressed this evidence, the
State amended the information to include only the count at issue
here.
2 The statute also makes it unlawful to 'intercept'
private communications. RCW 9.73.030(1). Mr. Townsend does not
contend the communications here were intercepted within the meaning
of the statute. 3 The State does not contend the Privacy Act is
preempted by federal law. See State v. Williams, 94 Wn.2d 531,
538-39, 617 P.2d 1012, 24 A.L.R.4th 1191 (1980). |
