State v. Townsend, No. 19304-7-III, (Slip Op., April 5, 2001).



Apr. 2001               STATE v. TOWNSEND                      1

                      Cause No. 19304-7-III

        [No. 19304-7-III. Division Three. April 5, 2001.]

             STATE OF WASHINGTON, )

                                  ) No. 19304-7-III

                      Respondent, )

                                  ) Division Three

                               v. ) Panel Nine

                                  )

        DONALD THEODORE TOWNSEND, ) PUBLISHED OPINION

                                  )

                       Appellant. ) FILED: April 5, 2001.



  Trial Court: Superior Court, Spokane County,

No. 99-1-01239-0, Michael Donohue, J., April 19, 2000.

  Paul J. Wasson, for appellant.

  Kevin M. Korsmo, Deputy Prosecuting Attorney, for respondent.



  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 "Amber."

  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 record /2  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).

  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 § 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 §

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.



  KURTZ, C.J., and SWEENEY, J., concur.



_______________

  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).