State Of Washington, V. Kyran J. Lien ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
November 23, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54146-7-II
Respondent,
v. UNPUBLISHED OPINION
KYRAN JOHN LIEN,
Appellant.
MAXA, J. – Kyran Lien appeals his convictions of communication with a minor for
immoral purposes and tampering with physical evidence. The convictions arose out of an
undercover operation in which a Washington State Patrol (WSP) officer posing as a 13-year-old
girl exchanged a series of text messages with Lien that ultimately included an explicit description
of Lien having a sexual encounter with the girl. Lien also was charged with attempted second
degree child rape and attempted commercial sexual abuse of a minor, but he was acquitted of
those charges.
We hold that
(1) the trial court did not abuse its discretion in denying Lien’s motion to dismiss all
charges based on outrageous governmental conduct,
(2) the trial court did not err in admitting into evidence Lien’s text messages because the
Washington Privacy Act (WPA), RCW 9.73.030, is inapplicable to them,
No. 54146-7-II
(3) the trial court did not err in admitting the women’s underwear and lotion found in
Lien’s vehicle because they were relevant to the charges,
(4) the trial court did not err in admitting a redacted transcript and audio recording of his
interrogation without allowing him to introduce exculpatory portions of the interrogation,
(5) Lien cannot challenge on appeal the WSP officer’s testimony that all of Lien’s
communications were about sex with a 13-year-old because he did not object in the trial court,
(6) we decline to consider Lien’s argument that the trial court erred in not giving an
entrapment jury instruction for the communication with a minor for immoral purposes charge
because Lien did not object to the failure to give the instruction,
(7) sufficient evidence supported the conviction for communication with a minor for
immoral purposes, and
(8) sufficient evidence supported the conviction for tampering with physical evidence.
Accordingly, we affirm Lien’s convictions of communication with a minor for immoral purposes
and tampering with physical evidence.
FACTS
Background
The WSP initiated an undercover operation in Kitsap County. As part of this operation,
WSP sergeant Carlos Rodriguez posted an ad in the Craigslist casual encounters section. 2 RP
386-87. The body of the ad read:
I am young looking for a daddy. long hair. Looking for a guy that knows what he
wants and can teach me new things. Let’s have some fun. I like showers, very clean,
DDF, gifts are always nice. if you don’t want to hang out then go to another ad. my
house is best.
Ex. 1.
On October 11, 2017, Lien responded to the Craigslist ad via email:
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Hi I’ve been looking for a naughty younger princess. I’m in silverdale work a lot
in Bremerton area. I'm 46, 6'3", 200 fit lbs, non smoker, blue eyes, great health
and hygiene, nicely hung and smooth. Love getting you sexy outfits, mani pedi,
you be into kinky fun, lots of role play, teasing daddy, being a naughty girl. I’m
self employed so very flexible to play.
Ex. 2. WSP detective John Garden responded with an email posing as a 13-year-old girl who
had run away from home and was staying with a friend, and sent pictures of two females.
Garden gave Lien a number to text for the remainder of their communications.
Text Messages Between Lien and Garden
Lien and Garden exchanged many text messages over a period of four days. Lien sent
the first text to Garden on October 11, stating, “Hi it’s ky.” 3 Report of Proceedings (RP) at 463.
The two exchanged multiple messages for the next several hours.
The next morning (October 12), Lien initiated the conversation for the day with “Good
morning. What’s your day like?” 3 RP at 468. After an exchange of several texts, Lien asked to
see a picture and Garden asked if Lien was “willing to donate $$ to see my face in person.” 3 RP
at 469. Lien noted that this was the first time she had brought up money, but stated, “I don’t
mind helping.” 3 RP at 470. Lien asserted that he did not want a girlfriend and preferred
“hooking up.” 3 RP at 470.
After several more exchanges, Garden said, “I want a condom party, but you don’t seem
interested in that. You want to come over and fill me?” 3 RP at 471. Lien asked what a condom
party was, and Garden responded, “It’s sex silly.” 3 RP at 472. Lien then asked for Garden’s
age, and Garden replied, “Did you forget . . . . My friend and I are 13.” 3 RP at 472-73. Lien
commented, “I thought your 13 was 18, OMG. Honestly that’s scary. You look gorgeous 25
year old.” 3 RP at 473.
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After some exchanges about Garden going to a bar, Lien stated, “Let’s take you to get
your nails done tomorrow.” 3 RP at 474. Garden asked Lien to call, and that was the last text
message of the day.
The next morning (October 13), Lien opened the conversation with “Good morning.
Sorry I missed this. I had gone upstairs to shower, laid down and fell asleep.” 3 RP at 474.
Garden stated, “I thought being 13 scared you off.” 3 RP at 474. Lien replied with “that’s scary
honestly. My eyes are bad, and I thought it was an eight.” 3 RP at 474. He then commented
that Garden was mature and hot, and Garden replied, “How long you going to keep this hot tight
ass waiting?” 3 RP at 475. Lien asked to see a picture of her rear end, and when Garden sent
one Lien said, “OMG, it’s perfect” and “God, that pic is great. Can hardly stand it.” 3 RP at
475.
After an exchange of several more texts, Garden stated, “Come see me, baby.” 3 RP at
476. Lien replied, “Let’s figure this out.” 3 RP at 477. Garden told Lien to hit her up tomorrow
and the texts stopped for the day.
The next day (October 14), Garden initiated the conversation with a “Morning, babe”
text. 3 RP at 477. Garden stated that the basement where she was sleeping was cold, and said,
“A warm body on me would do nice.” 3 RP at 478. Lien replied, “OMG, yes.” 3 RP at 478.
Garden asked Lien how he would warm her up, and Lien responded, “First you have to be
wearing something sexy and enticing. You’re all snugged in under the blankets in your cold
room. My strong big hands start to give you a nice deep tissue massage with a nice oil.” 3 RP at
478. The exchange continued with very sexually explicit texts from both Lien and Garden
describing an imagined sexual encounter between Lien and the 13-year-old girl.
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After that, Lien asked where Garden was staying and Garden directed Lien to a nearby 7-
Eleven store. After Lien sent a picture of himself at that location, Garden gave an address. Lien
then texted, “Something seems wrong. There’s lots of vehicles there. It’s making me uneasy.”
3 RP at 486. Lien then texted, “Too freaked out. Seemed too sketch. Needs to be different.”
3 RP at 486.
Arrest and Charges
At this point, officers in at least three vehicles initiated a traffic stop of Lien. As he
pulled over with the police cars behind him, Lien broke his cell phone. Officers arrested Lien.
Lien said that he had an idea why he was arrested – because he had been talking “naughty” to a
young girl. 3 RP at 555. Lien admitted that he knew the person he was talking to was 13 and
that he thought about having sex with her.
Lien consented to the officers searching his vehicle. They found a wallet, keys, a broken
iPhone, some money, and six pairs of pink and black women’s underwear. They also found
tanning lotion in the glovebox.
While Lien was in custody, detectives conducted a lengthy interrogation of him. Lien
admitted he knew the person he was texting was 13 and made other inculpatory statements.
However, he also made some exculpatory statements.
The State charged Lien with attempted second degree child rape (count I), attempted
commercial sexual abuse of a minor (count II), communication with a minor for immoral
purposes (count III), and tampering with physical evidence (count IV).
Pretrial Motions
Lien moved to dismiss all charges based on outrageous government misconduct. He
argued that the misconduct was instigating the alleged offenses by luring him into texting with a
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fake girl and then overcoming his reluctance through persistent solicitations and sexual
communications.
In conjunction with this motion, Lien filed supplemental argument and materials. Lien
alleged:
[A] private religiously affiliated organization, Operation Underground Railroad
(OUR), improperly allied itself with the Washington Missing and Exploited
Children Task Force (MECTF). MECTF, through Detective Sergeant Carlos
Rodriguez, directly and repeatedly solicited donations from OUR to pay for officer
overtime and meals in the Net Nanny stings. Rodriguez, in turn, was a direct
beneficiary of OUR’s donations, which MECTF employed to escalate its
operations. As the scope of the stings grew, officers seemed to abandon standard
police tactics in favor of more questionable actions-to placate OUR and guarantee
additional funding.
Clerk’s Papers at 156. Lien argued that the funding of WSP operations through a private
religious group was unlawful and violated due process.
The trial court denied Lien’s motion to dismiss. The court stated that it was viewing the
evidence in the light most favorable to the State. The court distinguished State v. Solomon, 3
Wn. App. 2d 895, 419 P.3d 436 (2018), where the court affirmed a dismissal based on
outrageous government conduct when the charges arose from a similar undercover operation.
The trial court noted that the defendant in Solomon attempted to disengage multiple times, while
Lien continued to engage even after confirming that the person he was texting was 13 years old.
However, the court did not undertake a detailed analysis of the claim and did not enter findings
of fact. At oral argument, neither of the parties nor the court addressed Liens’ argument about
the connection between the MECTF and OUR.
In his trial brief, Lien moved to exclude admission of his text messages based on the
WPA, RCW 9.73.030. The trial court denied this motion.
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No. 54146-7-II
Lien also moved to exclude admission of the women’s underwear and tanning lotion
found in his vehicle, arguing that the evidence was irrelevant and inadmissible under ER 403.
The trial court denied this motion.
The trial court entered an in limine order prohibiting the State and its witnesses from
mentioning the MECTF.
Trial
At trial, Garden read all the text messages he and Lien exchanged. Officers also testified
about finding the women’s underwear and tanning lotion in Lien’s vehicle.
The State sought to introduce redacted portions of Lien’s interrogation. Lien argued that
additional portions of the interrogation should be admitted under exceptions to the hearsay rule
and the rule of completeness. However, both parties and the trial court earlier had gone through
an exhaustive line-by-line examination of the transcript, discussing which portions that Lien
sought to admit should be included in the transcript provided to the jury and which should not.
The court allowed some of the portions that Lien requested to be included and disallowed others.
The trial court declined to reconsider its earlier rulings and allowed the State to present the
redacted version of the interrogation.
In his testimony, Garden stated that he “received a detective position at the Missing and
Exploited Children.” 3 RP at 454-55. This testimony violated the trial court’s in limine order
prohibiting the State from mentioning the MECTF. Lien did not object to the testimony.
On cross-examination, the following question and answer took place:
Q. And this is kind of where the communications get a bit x-rated; is that true?
A. I feel like they’re x-rated all the way through, but this is x-rated at this part. I
think it’s all about sex with a 13 year old prior to this. So to me it’s all – it’s not
just at this point.
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No. 54146-7-II
3 RP at 529 (emphasis added).
Lien testified at trial. He repeatedly testified that he did not believe the person he was
texting was 13 years old and that he thought the person was over 18 years old. He also
repeatedly testified that he was engaged in role playing. Lien stated that communicating with a
13-year-old girl the way he did would not be appropriate, and that he would not have used sexual
language if he knew he was communicating with a 13-year-old.
The trial court gave entrapment jury instructions for counts I and II. But the court stated
without discussion that entrapment does not apply to communicating with a minor for immoral
purposes and did not give an entrapment instruction for that charge. Defense counsel responded
to the trial court’s ruling by stating, “That is correct. We agree with that” and “I think that is our
proposed instructions.” 6 RP at 1014-15. Lien did not object to the trial court’s failure to give
the entrapment instruction for the communication with a minor for immoral purposes charge.
The jury found Lien guilty of communication with a minor for immoral purposes and
tampering with physical evidence. The jury acquitted Lien of attempted second degree child
rape and attempted commercial sexual abuse of a minor.
Lien appeals his convictions.
ANALYSIS
A. OUTRAGEOUS GOVERNMENT CONDUCT
Lien argues that the trial court erred in denying his motion to dismiss based on
outrageous government conduct. We disagree.
1. Legal Principles
A trial court can dismiss charges against a defendant based on due process principles if
the government has engaged in outrageous conduct. See State v. Lively, 130 Wn.2d 1, 19, 921
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P.2d 1035 (1996). To support dismissal, the “conduct must be so shocking that it violates
fundamental fairness.” Id. However, the circumstances under which dismissal is appropriate are
limited:
[A] due process claim based on outrageous conduct requires more than a mere
demonstration of flagrant police conduct. Public policy allows for some deceitful
conduct and violation of criminal laws by the police in order to detect and eliminate
criminal activity. Dismissal based on outrageous conduct is reserved for only the
most egregious circumstances.
Id. at 20 (citations omitted).
We evaluate claims of outrageous government conduct based on the totality of the
circumstances, addressing the unique set of facts in each case. Id. at 21. The focus is on the
State’s conduct, not on the defendant’s predisposition to commit a crime. Id. at 22. The court in
Lively identified several factors that should be considered in determining whether government
conduct violates due process:
[1] whether the police conduct instigated a crime or merely infiltrated ongoing
criminal activity; [2] whether the defendant’s reluctance to commit a crime was
overcome by pleas of sympathy, promises of excessive profits, or persistent
solicitation; [3] whether the government controls the criminal activity or simply
allows for the criminal activity to occur; [4] whether the police motive was to
prevent crime or protect the public; and [5] whether the government conduct itself
amounted to criminal activity or conduct “repugnant to a sense of justice.”
Id. at 22 (citations omitted) (quoting People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 83
(1978).
We review claims of outrageous government conduct under an abuse of discretion
standard. State v. Glant, 13 Wn. App. 2d 356, 369, 465 P.3d 382, review denied, 196 Wn.2d
1021 (2020). An abuse of discretion occurs when the trial court’s ruling is “manifestly
unreasonable or based on untenable grounds or reasons” and when the court “adopts a view that
no reasonable person would take.” Id.9
No. 54146-7-II
Two published Court of Appeals cases address outrageous government conduct claims
relating to undercover operations similar to the one here: Glant, 13 Wn. App. 2d at 369-75 and
Solomon, 3 Wn. App. 2d at 909-16.
In Glant, the WSP placed a vague Craigslist ad soliciting a man interested in sex with
children. 13 Wn. App. 2d at 361. Glant responded, and in texting with a fictional mother of a
13-year-old boy and two girls, aged 11 and 6 expressed an interest in engaging in oral sex with
the daughters. Id. Glant then drove from Mercer Island to Thurston County to meet the
daughters, and he was arrested there. Id. at 361-62. After applying the Lively factors, the trial
court denied Glant’s motion to dismiss based on outrageous government conduct and entered
extensive findings of fact and conclusions of law. Id. at 363.
This court evaluated the trial court’s analysis of the Lively factors, in which the trial court
found that (1) the first factor was neutral because although the WSP posted the Craigslist ad, it
was not aimed at Glant specifically and Glant voluntarily responded; (2) the second factor
favored the State because the messages as a whole showed that Glant was not reluctant to
commit a crime; (3) the third factor was neutral because although WSP mentioned children
young enough to trigger first degree child rape, Glant controlled which children he made
sexually explicit comments about; (4) the fourth factor strongly favored the State because the
WSP’s overall motive was to prevent crime and to protect the public; and (5) to the extent WSP
committed a crime by soliciting sex with a child, that fact did not justify dismissal because the
purpose was to prevent crime against actual children. Id. at 372-375. The court concluded that
the trial court did not err in its analysis of these factors. Id. at 375. And the court ultimately held
that the trial court did not abuse its discretion in denying the motion to dismiss. Id.
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No. 54146-7-II
In Solomon, law enforcement posted an ad in the Craigslist causal encounters section
stating that a young woman was looking for sex with a man or a woman. 3 Wn. App. 2d at 898.
Solomon responded to the ad, but said that he would not contact the person again after not
hearing back. Id. The person then contacted Solomon four days later, but after learning that the
person was only 14 years old Solomon twice stated that he was not interested. Id. at 899. The
person continued to send Solomon explicit messages expressing an interest in a sexual encounter.
Id. After briefly engaging in sexual conversation, Solomon again rejected the person’s advances.
Id. The trial court found that Solomon attempted to discontinue the conversation seven times,
but the person persisted. Id. at 913-14. Solomon eventually agreed to meet the person for sex,
and was arrested. Id. at 901.
The trial court, after considering the totality of the circumstances, granted the defendant’s
motion to dismiss all charges based on outrageous government conduct. Id. at 901, 916. The
court entered extensive oral findings of fact, finding that law enforcement (1) instigated the
criminal activity by posting the Craigslist ad and messaging Solomon after he discontinued
contact, (2) engaged in persistent solicitation that overcame Solomon’s reluctance to commit a
crime, (3) controlled the criminal conduct by stringing Solomon along over four days of
messages, and (4) engaged in conduct that was repugnant to a sense of justice by using graphic
and sexualized language to manipulate Solomon. Id. at 911-15. Division One of this court
affirmed, finding no abuse of discretion. Id. at 916.
2. Proper Legal Standard
Lien argues that the trial court abused its discretion because it applied the wrong legal
standard in addressing his motion to dismiss based on outrageous government conduct. Instead
of focusing on the State’s conduct, the court viewed the evidence in the light most favorable to
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No. 54146-7-II
the State when determining whether the government engaged in outrageous conduct. The State
does not address this issue.
There is no authority for the proposition that the trial court should view the evidence in
the light most favorable to the State when evaluating an outrageous governmental conduct claim.
Instead, the court in State v. Valentine indicated only that the trial court should resolve any
factual issues relating to the claim and issue findings of fact. 132 Wn.2d 1, 23, 935 P.2d 1294(1997).
Here, Lien based his motion to dismiss on WSP posting the Craigslist ad and subsequent
communications between Garden and Lien. The content of those communications was not
disputed. Therefore, the trial court’s statement does not require reversal.
However, the trial court did not analyze the Lively factors and entered no findings of fact
and conclusions of law. Instead, the court merely distinguished Solomon because in that case the
defendant had attempted to discontinue contact seven times while Lien continued to engage even
after finding out that the girl he was texting was 13 years old. Therefore, it is unclear what legal
standard the trial court applied in denying the motion to dismiss.
The trial court’s failure to apply the Lively factors also makes our review more difficult.
In Glant, the trial court made specific rulings regarding each Lively factor, and this court
reviewed those rulings. 13 Wn. App. 2d at 372-75. In Solomon, it is unclear whether the trial
court expressly referenced Lively, but the court’s extensive oral findings tracked the Lively
factors. 3 Wn. App. 2d at 910-15. The appellate court determined that dismissal based on those
findings did not constitute an abuse of discretion. Id. at 916. Here, there are no rulings
regarding the Lively factors or factual findings tracking those factors for us to review to
determine if the trial court abused its discretion.
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No. 54146-7-II
In Lively, the defendant raised outrageous governmental conduct for the first time on
appeal, so the trial court did not address the issue. 130 Wn.2d at 18-19. Nevertheless, the
Supreme Court analyzed the factors it identified and concluded as a matter of law that the
government’s conduct was so outrageous that it constituted a due process violation. Id. at 22-27.
We follow this approach and analyze the Lively factors ourself to determine if the trial court
erred in denying Lien’s motion to dismiss.
3. Analysis – Lively Factors
Lien argues that an analysis of the Lively factors shows that the charges against him
should have been dismissed based on outrageous government conduct. We disagree.
a. Instigation of Crime
The analysis of the first Lively factor, instigation of the crime, is similar to that of the trial
court’s analysis in Glant. Although the WSP posted the Craigslist ad, Lien was not the target of
the ad. And Lien voluntarily replied to the ad. Conversely, in Solomon the officer initiated
contact four days after the defendant stated that he would not be communicating further. 3 Wn.
App. 2d at 898-99. We conclude that the first Lively factor is neutral.
b. Overcoming Reluctance by Persistent Solicitation
Garden certainly continued to exchange text messages with Lien that suggested a sexual
encounter. However, Lien’s texts showed almost no hesitation when he found out that the girl he
was texting was 13 years old. He commented that her age was “scary,” 3 RP at 474, not because
he was concerned about her age but because she was mature for her age and was hot. Lien then
asked to see a picture of her rear end, and when Garden sent one Lien said, “OMG, it’s perfect”
and “God, that pic is great. Can hardly stand it.” 3 RP at 475. Lien continued to text with
Garden, culminating in the very sexually explicit exchange about how Lien planned to have sex
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No. 54146-7-II
with the 13-year-old girl. This case is much different than Solomon, where the defendant
attempted to disengage seven times and the officer continued to text him. 3 Wn. App. 2d at 913.
Lien argues that Garden solicited him for sex numerous times. But Garden’s only direct
mention of sex was when he said that he wanted a condom party, which meant sex. Garden did
not pursue that comment further. The comment that triggered Lien’s sexually explicit response
was “A warm body on me would do nice.” 3 RP at 478.
A review of the full text message exchange does not show that Garden overcame Lien’s
reluctance to commit a crime with persistent solicitation. We conclude that the second Lively
factor does not support dismissal.
c. Control of Criminal Activity
As in Solomon, the WSP controlled the criminal activity to some extent because Garden
had numerous exchanges with Lien over a four-day period. But unlike in Solomon, Lien was an
equal participant in the exchanges. Lien was the one who initiated the conversations on the
second and third days. And as noted above, Lien did not disengage when he found out that the
girl he was texting was only 13 years old. In fact, he commented on how hot the girl was and
asked for a photo of her rear end.
Garden first mentioned sex by stating he wanted to have a condom party. Garden later
made the comment “how long you going to keep this hot tight ass waiting.” 3 RP at 475. And
Garden initiated the graphic conversation by suggesting that she would like a body on her to
warm her up. However, Lien needed little encouragement to begin explicitly telling Garden
exactly how he would have sex with her.
Garden had some control over the criminal activity, but not complete control. We
conclude that the third Lively factor is neutral.
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d. WSP’s Motive
This court in Glant held that the trial court did not err in ruling that the fourth factor
strongly favored the State because the WSP’s overall motive in conducting its undercover
operation was to prevent crime and protect the public. 13 Wn. App. at 374. The trial court in
Solomon made no findings regarding this factor.
Lien argues that the relationship between OUR and the MECTF created an illegal
relationship. But in Glant this court stated that “[s]imply because private supporters help to fund
a program does not mean that that program no longer aims to protect the public or prevent
crime.” 13 Wn. App. 2d at 374-75. And the court noted that RCW 13.60.110 specifically allows
private funding for the purpose of catching potential sexual abusers of children. Id. at 374.
Further, nothing in the record indicates that OUR directed or controlled the details of the WSP
operation that implicated Lien.
We conclude that the fourth Lively factor does not support dismissal.
e. Repugnant to Sense of Justice
Lien argues that the WSP illegally soliciting sex with a child is repugnant to a sense of
justice. This court in Glant held that the trial court did not err in ruling that to the extent WSP
committed a crime by soliciting sex with a child, that fact did not justify dismissal because the
purpose was to prevent crime against actual children. 13 Wn. App. 2d at 375. The trial court in
Solomon did not address this issue. We agree with Glant. As the court stated in Lively, “[p]ublic
policy allows for some deceitful conduct and violation of criminal laws by the police in order to
detect and eliminate criminal activity.” 130 Wn.2d at 20.
The trial court in Solomon found that law enforcement engaged in conduct that was
repugnant to a sense of justice by using graphic and sexualized language to manipulate the
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No. 54146-7-II
defendant. 3 Wn. App. at 915. There is no question that Garden used graphic and highly
sexualized language in the last few messages with Lien. But unlike in Solomon, Garden did not
use sexually explicit language earlier in the communications. And Lien used equally explicit
language as he and Garden exchanged descriptions of Lien having sex with a 13-year-old girl.
We conclude that based on the totality of the communications between Garden and Lien,
Garden’s conduct was not repugnant to a sense of justice and therefore that the fifth Lively factor
does not support dismissal.
4. Summary
The court in Lively stated that “[d]ismissal based on outrageous conduct is reserved for
only the most egregious circumstances.” 130 Wn.2d at 20 (citation omitted). We conclude that
based on an analysis of the Lively factors and the totality of the circumstances, this case does not
involve egregious circumstances. Accordingly, we hold that the trial court did not err in denying
Lien’s motion to dismiss based on outrageous government conduct.
B. ADMISSION OF LIEN’S TEXT MESSAGES
Lien argues that the trial court erred in denying his motion to exclude from evidence his
text messages based on the WPA, RCW 9.73.030. We disagree.
“The WPA prohibits a person or agency from obtaining communications between
individuals if (1) a private communication transmitted by a device was (2) recorded or
intercepted by (3) a recording or transmittal device (4) without the consent of all parties.” Glant,
13 Wn. App. 2d at 364; see RCW 9.73.030. However, a person consents to a recording by
“choosing to communicate through a device in which the person knows the information will be
recorded,” including sending emails and text messages. Id. at 365. As a result, this court in
Glant held that the WPA does not require suppression of the defendant’s emails and text
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messages sent to an undercover officer. Id. at 366. This holding is consistent with State v.
Townsend, 147 Wn.2d 666, 676, 57 P.3d 255 (2002) and follows an earlier decision from this
court, State v. Racus, 7 Wn. App. 2d 287, 433 P.3d 830, review denied, 193 Wn.2d 1014 (2019).1
As Lien acknowledges, Townsend, Glant, and Racus control here. Accordingly, we hold
that the trial court did not err in denying Lien’s motion to exclude his text messages.
C. ADMISSION OF WOMEN’S UNDERWEAR AND LOTION
Lien argues that the trial court erred in admitting into evidence the women’s underwear
and lotion found in his vehicle because they were irrelevant and unduly prejudicial. We
disagree.
We review a trial court’s decision to admit or exclude evidence for abuse of discretion.
State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). We will reverse this ruling only
when “no reasonable person would take the view adopted by the trial court.” State v. Horn, 3
Wn. App. 2d 302, 311, 415 P.3d 1225 (2018). In other words, an abuse of discretion is present
when there is a clear showing that the decision was based on manifestly unreasonable or on
untenable reasons or grounds. Id. at 312.
Evidence is relevant if it makes the existence of a fact of consequence more or less
probable than without it. ER 401; see City of Seattle v. Lange, 18 Wn. App. 2d 139, 162, 491
P.3d 156, review denied, 198 Wn.2d 1024 (2021). The threshold for admitting relevant evidence
is very low; even if there is a minimal relevance, the evidence is admissible. ER 401; State v.
Briejer, 172 Wn. App. 209, 225, 289 P.3d 698 (2012). Under ER 403, relevant evidence will be
excluded if its probative value is substantially outweighed by its prejudice. But ER 403 relates
1
Townsend, Glant, and Racus all involved undercover operations similar to the one in this case.
Townsend, 147 Wn.2d at 670-71; Glant, 13 Wn. App. 2d at 360-62; Racus, 7 Wn. App. 2d at
291-96.
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No. 54146-7-II
to unfair prejudice, not the fact that the evidence might prejudice the defendant’s case. Carson v.
Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994).
Here, the trial court properly admitted the women’s underwear and lotion because they
were relevant to counts I and II, attempted rape of a child in the second degree and attempted
commercial sexual abuse of a minor. Lien texted Garden about how he wanted the fictional girl
to wear sexy outfits and talked about rubbing something on her: “First you have to be wearing
something sexy and enticing . . . . My strong big hands start to give you a nice deep tissue
massage with a nice oil.” 3 RP at 478.
There is a logical inference from Lien and Garden’s texts that the women’s underwear
and lotion were for their sexual encounter and that the evidence was relevant to Lien’s motive for
the first two counts. Lien argues that the underwear was for a woman and not a girl, and that the
underwear was not sexy. But those arguments go to the weight of the evidence, not its relevance.
And Lien cannot show that the evidence was unfairly prejudicial so as to outweigh its probative
value under ER 403.
We hold that the trial court did not abuse its discretion in admitting into evidence the
women’s underwear and lotion found in Lien’s vehicle.
D. ADMISSION OF REDACTED INTERROGATION
Lien argues that the trial court violated the rule of completeness and his right to present a
defense in refusing to admit his entire custodial interrogation. We disagree.
1. Legal Principles
a. Rule of Completeness
ER 106 states the rule of completeness in Washington. See State v. Roberts, 142 Wn.2d
471, 496, 14 P.3d 713 (2000) (referring to ER 106 as the rule of completeness). ER 106
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No. 54146-7-II
provides: “When a writing or recorded statement or part thereof is introduced by a party, an
adverse party may require the party at that time to introduce any other part, or any other writing
or recorded statement, which ought in fairness to be considered contemporaneously with it.”
A trial court only needs to admit portions of a statement which are necessary to clarify or
explain the portion already received. State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001).
The portions the defendant seeks to offer must be relevant and must “ ‘(1) [e]xplain the admitted
evidence, (2) [p]lace the admitted portion in context, (3) [a]void misleading the trier of fact, and
(4) [e]nsure [a] fair and impartial understanding of the evidence.’ ” Id. (quoting U.S. v. Haddad,
10 F.3d 1252, 1259 (7th Cir. 1993)).
We review a trial court’s ER 106 rulings for an abuse of discretion. Larry, 108 Wn. App.
at 910.
b. Right to Present a Defense
Both the United States Constitution and the Washington Constitution protect a criminal
defendant’s right to present a complete defense. State v. Orn, 197 Wn.2d 343, 347, 482 P.3d 913(2021). However, a defendant’s right to present a defense is not absolute. State v. Arndt, 194
Wn.2d 784, 812, 453 P.3d 696 (2019), pet. for cert. filed, No. 21-6242 (U.S. Nov. 10, 2021).
That right is subject to “ ‘established rules of procedure and evidence.’ ” State v. Lizarraga, 191
Wn. App. 530, 553, 364 P.3d 810 (2015) (quoting Chambers v. Mississippi, 410 U.S. 284, 302,
93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). A defendant does not have “an unfettered right to offer
[evidence] that is . . . inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S.
400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
Our Supreme Court has developed a two-step process when addressing evidentiary
rulings and the right to present a defense. Arndt, 194 Wn.2d at 797-98. First, the challenged
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evidentiary rulings are reviewed under an abuse of discretion standard. Id. at 797. Second, the
rulings are reviewed de novo to determine whether they violated a defendant's constitutional
right to present a defense. Id. at 797-98. In evaluating whether the exclusion of evidence
violates the defendant’s constitutional right to present a defense, “the State’s interest in
excluding evidence must be balanced against the defendant’s need for the information sought to
be admitted.” Id. at 812. Whether the defendant’s evidence was excluded entirely is a
significant factor in this analysis. See id. at 813.
2. Analysis
Regarding the rule of completeness, both parties and the trial court went through an
exhaustive line-by-line examination of the transcript of Lien’s interrogation, discussing which
portions that Lien sought to admit should be included in the transcript provided to the jury and
which should not. The court allowed some of the portions that Lien requested to be included,
and disallowed others. This undertaking involved the court’s exercise of its discretion, and Lien
has not explained with specificity how the trial court abused that discretion.
In addition, Lien does not identify the specific portions of the interrogation that should
have been admitted under ER 106. He only argues generally that the entire interrogation should
have been admitted. And Lien does not explain how every statement he made in the
interrogation meets the rather stringent requirements of ER 106. Therefore, we are unable to
properly evaluate Lien’s argument.
We hold that Lien has failed to show that the trial court abused its discretion in denying
Lien’s request to admit additional portions of the interrogation under ER 106.
Regarding the right to present a defense, if Lien’s exculpatory statements in the
interrogation were not admissible under ER 106, they were inadmissible hearsay. See State v.
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No. 54146-7-II
Finch, 137 Wn.2d 792, 824, 975 P.2d 967 (1999). In Lizarraga, the court held that the trial court
did not violate the defendant’s right to present a defense by excluding a hearsay statement. 191
Wn. App. at 558. The court emphasized that “the hearsay rule has ‘long been recognized and
respected by virtually every State’ and ‘is based on experience and grounded in the notion that
untrustworthy evidence should not be presented to the triers of fact.’ ” Id. (quoting Chambers,
410 U.S. at 298).
Further, here Lien’s interest in admitting the additional portions of the interrogation did
not outweigh the State’s interest in excluding inadmissible evidence. Lien was able to present
some of the evidence excluded by the trial court through his own testimony, including what he
said in the interrogation. For example, Lien testified that he had a hand tremor when he was
nervous, that he did not think the person he was texting was 13 and he thought she was over 18,
and that the women’s underwear in his vehicle had nothing to do with what was going on.
We hold that the trial court did not violate Lien’s right to present a defense.
E. DETECTIVE’S OPINION OF GUILT
Lien argues that Garden improperly expressed an opinion regarding Lien’s guilt when he
said that all Lien’s communications were about sex with a 13-year-old.2 We decline to address
this issue because Lien did not object.
Lien did not object to or move to strike Garden’s statement. We generally do not
consider evidentiary issues raised on appeal for the first time “because failure to object deprives
the trial court of the opportunity to prevent or cure any error.” RAP 2.5(a); State v. Curtiss, 161
Wn. App. 673, 696, 250 P.3d 496 (2011).
2
Lien also assigns error to Garden’s violation of the trial court’s in limine order by referencing
the MECTF, but he concedes that Garden’s comment is harmless error. Therefore, we do not
address that issue.
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No. 54146-7-II
Lien argues that he did not need to object because Garden’s statement violated the trial
court’s in limine order precluding witnesses giving opinions. But that rule applies only to the
loser of a motion in limine; the prevailing party still must object if a witness violates an in limine
order. State v. Henson, 11 Wn. App. 2d 97, 102, 451 P.3d 1127 (2019). Lien also argues that
raising an objection would have been prejudicial to him. But Lien could have but did not raise
the issue outside of the jury’s presence.
We hold that because Lien did not object to Garden’s statement, he is precluded from
challenging the statement on appeal.
F. ENTRAPMENT JURY INSTRUCTION
Lien argues that the trial court erred by failing to give an entrapment jury instruction for
the communication with a minor for immoral purposes charge because he presented sufficient
evidence to support the instruction. We decline to address this issue because Lien did not object
to the failure to give this instruction.
The State argues that Lien invited any error in not giving the entrapment instruction. The
State points out that the trial court stated that “[e]ntrapment applies to Count I and II only” and
defense counsel replied, “That is correct. We agree with that” and “I think that is our proposed
instructions.” 6 RP at 1014-15. Lien responds that he was merely acknowledging the court’s
oral ruling, not conceding the issue.
However, following that comment Lien never objected to the trial court’s failure to give
an entrapment instruction for the communication with a minor for immoral purposes charge.
The trial court had no notice that Lien did not agree with the court’s decision not to give the
instruction.
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No. 54146-7-II
In general, a party who fails to object to the trial court’s jury instructions waives a claim
of error on appeal. State v. Richardson, 12 Wn. App. 2d 657, 666, 459 P.3d 330 (2020). “Our
refusal to review unpreserved errors encourages parties to make timely and well-stated
objections so the trial court has an opportunity to correct the error.” Id.Because there was no objection, we decline to consider the entrapment instruction issue.
G. SUFFICIENCY OF EVIDENCE
Lien argues that there was insufficient evidence to sustain his convictions of
communication with a minor for immoral purposes and tampering with physical evidence. We
disagree.
1. Standard of Review
The State must provide sufficient evidence to prove each element of a crime beyond a
reasonable doubt in a criminal case. State v. Jones, 13 Wn. App. 2d 386, 398, 463 P.3d 738(2020). The test for determining sufficiency of evidence is whether any rational trier of fact
could find the elements of the charged crime beyond a reasonable doubt after viewing the
evidence in a light most favorable to the State. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d
960 (2019), cert. denied, 140 S. Ct. 834 (2020). In a sufficiency of the evidence claim, the
defendant admits the truth of the evidence and we view the evidence and all reasonable
inferences drawn from that evidence in the light most favorable to the State. Id. Circumstantial
and direct evidence are equally reliable. Id.Credibility claims are not subject to review and are within the purview of the trier of fact.
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). We must defer to the trier of fact
when it concerns issues of testimony, credibility of witnesses, and persuasiveness of the
evidence. Id.23
No. 54146-7-II
2. Communication with a Minor for Immoral Purposes
Lien argues that the evidence was insufficient to support his communication with a minor
for immoral purposes conviction because the evidence is clear that he was role playing and that
he did not believe the person with whom he was communicating was a minor and because he did
not sexualize that person. We disagree.
A person is guilty of communication with a minor for immoral purposes if the person
communicates with someone the person believes to be a minor for immoral purposes. RCW
9.68A.090(1). The offense is a felony if the communication with the minor is by means of
electronic communication. RCW 9.68A.090(2).
Here, Lien was told in the initial email and again later that the person he was talking to
was 13 years old. Lien understood that the person was 13 but still continued to communicate
with her. In the interview, detectives asked Lien “you understood that she was 13, not 18. Is that
correct?” and Lien responded “Mm-hm.” Ex. 31A at 707. Lien admitted in the interrogation he
should have stopped talking to the person when she corrected him about her age, but he did not.
Construing the evidence in a light most favorable to the State, a rational trier of fact could
find beyond a reasonable doubt that Lien knew the person he was talking to was a minor. We
hold there was sufficient evidence to support a conviction of communication with a minor for
immoral purposes.
3. Tampering with Physical Evidence
Lien argues that the evidence was insufficient to support his tampering with physical
evidence conviction because there was no evidence that he had reason to believe that an “official
proceeding” was about to be instituted. We disagree.
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No. 54146-7-II
RCW 9A.72.150(1) states that a person is guilty of tampering with physical evidence if
that person destroys physical evidence without legal authority “having reason to believe that an
official proceeding is pending or about to be instituted.” The question here is whether Lien had
reason to believe an official proceeding was about to be instituted when the police initiated the
traffic stop.
Lien broke his cell phone as several police cars surrounded him. A reasonable inference
from the evidence is that Lien knew that he was about to be arrested and knew that the State
would charge him with a crime for sending sexually explicit texts to a 13-year-old girl.
Although RCW 9A.72.150(1) does not define “official proceeding,” the bringing of criminal
charges that necessarily will involve the court system constitutes an official proceeding.
We conclude that a rational trier of fact could find beyond a reasonable doubt that Lien
broke his cell phone because he had reason to believe that an official proceeding was about to be
instituted. Therefore, we hold that there was sufficient evidence to support a conviction of
tampering with physical evidence.
H. CUMULATIVE ERROR
Lien argues that we order a new trial based on the cumulative error doctrine. Under this
doctrine, the defendant must show that the combined effect of multiple errors requires a new
trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017). Here, Lien has not
demonstrated that any error denied him a fair trial. Therefore, we hold that the cumulative error
doctrine is inapplicable.
CONCLUSION
We affirm Lien’s convictions of communication with a minor for immoral purposes and
tampering with physical evidence.
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No. 54146-7-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is
so ordered.
MAXA, J.
We concur:
LEE, C.J.
GLASGOW, J.
26