State Of Washington, V. Curtis Pouncy

Filed
Washington State
Court of Appeals
Division Two
November 30, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54670-1-II
Respondent,
v.
CURTIS POUNCY, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Curtis Pouncy appeals his convictions for attempted second degree rape of a
child and communication with a minor for immoral purposes. Pouncy argues that (1) the State
failed to provide sufficient evidence in proving that he committed the charged crimes, (2) the trial
court violated his constitutional right to present a defense by refusing to instruct the jury on
entrapment, (3) the trial court erred by denying Pouncy’s motion to suppress evidence because law
enforcement violated his privacy rights, and (4) the trial court erred in denying his motion to
dismiss because the Missing and Exploited Children Task Force (MECTF) engaged in outrageous
government conduct.
We find no error and affirm.
FACTS
Pouncy was arrested during a Net Nanny operation run by MECTF. Net Nanny is an
undercover law enforcement operation where the Washington State Patrol (WSP) investigates
people looking to have sexual relations with minors. As part of the Net Nanny operation, Detective
No. 54670-1-II
Jake Klein created a fictitious female profile using the name “Alexis” and posted the profile on an
online dating app.
Pouncy responded to “Alexis’” profile on the app. The conversation between Pouncy and
“Alexis” quickly moved to text messaging, where “Alexis” revealed that she was a 13-year-old
girl. After being told “Alexis” was 13 years old, Pouncy continued to engage in conversation with
“Alexis” through text messaging and phone calls. Detective Klein played the role of “Alexis” in
text messages and the app.
Pouncy requested photographs from “Alexis,” discussed what he was planning to do with
“Alexis” when they eventually met up, and asked “Alexis” repeatedly to send him her address.
After two days of communicating with “Alexis” by text and phone,1 Pouncy drove to meet
“Alexis” at her house. When Pouncy arrived at “Alexis’” house, Trooper Wilcox opened the door.
Pouncy entered the house, attempted to kiss “Alexis,” and was arrested.
The State charged Pouncy with attempted second degree rape of a child and communication
with a minor for immoral purposes.
A. MOTION TO DISMISS AND MOTION TO SUPPRESS EVIDENCE
Prior to trial, Pouncy filed a motion to dismiss the charges, arguing for dismissal due to
outrageous government conduct by MECTF. Pouncy also moved to suppress the electronic
messages he exchanged with “Alexis,” arguing that his privacy rights were violated under the
Washington Privacy Act chapter 9.73 RCW (WPA) and article I, section 7 of the Washington
Constitution.
1
WSP Trooper Jennifer Wilcox played the role of “Alexis” in phone calls.
2
No. 54670-1-II
In his motion to dismiss, Pouncy claimed that MECTF engaged in outrageous government
conduct because the program was funded by a private organization, Operation Underground
Railroad (OUR). Pouncy alleged that this funding was used to pay the overtime hours of MECTF
agents engaged in Net Nanny operations. He argued this affected the agents’ ability to remain
impartial in their law enforcement activities and created a private interest in the arrest and
prosecution of any person through these operations.
Pouncy also argued that MECTF improperly solicited funds from OUR. Pouncy contended
that while the statute allows for the state patrol chief to solicit funding from private organizations,
this authority is non-delegable. As a result, Pouncy believed the solicitation of funds from OUR
by WSP Sergeant Carlos Rodriguez was outside the statutory bounds.
Further, Pouncy claimed that MECTF engaged in outrageous government conduct based
on the totality of circumstances. Pouncy argued that the officers instigated the charged crimes
when they created and posted a profile of a fictitious 13-year-old girl and then controlled the
ongoing activity once Pouncy engaged in conversation with “Alexis.” Pouncy questioned
MECTF’s motive in preventing crime or protecting the public in light of the money they received
from OUR. Finally, Pouncy argued that MECTF was engaged in activity that was repugnant to a
sense of justice and violated the law.
Pouncy also moved to suppress the electronic messages2 he exchanged with “Alexis.” He
claimed that MECTF officers violated the WPA when they intercepted these messages. Further,
2
Electronic messages included the messages exchanged between Pouncy and Detective Klein
posing as “Alexis” on the dating app, as well as text messages exchanged between Pouncy and
“Alexis” over the phone.
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No. 54670-1-II
Pouncy argued that the interception of his electronic messages violated article I, section 7 of the
Washington Constitution.
At the evidentiary hearing on Pouncy’s motions to dismiss and suppress evidence, Sergeant
Rodriguez provided testimony about the Net Nanny operations and OUR. He testified that he
previously supervised MECTF. The purpose of Net Nanny operations is to recover minors who
may be exploited for sexual services, arrest people who are exploiting children, and arrest people
who are seeking those types of services from minors. MECTF officers are responsible for setting
up accounts on dating applications. These accounts are attempts to stop individuals from
committing sexual crimes against children.
Sergeant Rodriguez personally solicited donations for MECTF from OUR. While
soliciting donations, he kept others at WSP apprised of his actions and involved his command staff
in the process. Others also solicited donations for MECTF, and the WSP website has a link where
people can donate to MECTF. Potential donors were directed to go to the WSP website in order
to donate to MECTF.
OUR provided equipment and monetary funding to MECTF. However, OUR was not
responsible for writing the paychecks for law enforcement officers that participated in Net Nanny
operations. In fact, OUR had no control over any aspect of the Net Nanny operations.
In addition to testimony, exhibits were entered as evidence at the hearing. This included
the MECTF Standard Operating Procedures Manual, the messages exchanged between “Alexis”
and Pouncy on the dating app, and the text messages exchanged between “Alexis” and Pouncy.
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No. 54670-1-II
The electronic messages exchanged between Pouncy and “Alexis” show that Pouncy
initiated the conversation with “Alexis.” Further, Pouncy continued to have conversations with
“Alexis” after learning that she was a 13-year-old girl.
Pouncy asked “Alexis” for photos of herself. He also asked “Alexis” if she was a virgin,
if she lived at home, and if her parents were around. On two occasions, Pouncy asked “Alexis” to
call him on the phone. Pouncy also asked “Alexis” to send him her address on at least five separate
occasions.
The electronic text messages show that on two separate occasions, Pouncy decided to stop
talking to “Alexis.” On the first occasion Pouncy texted, “Hey I am not coming.”3 Hearing Ex. 2
at 5. “Alexis” responded with “aww” and a sad face emoji. Hearing Ex. 2 at 5. Six minutes later,
Pouncy asked “Alexis” to call him, which “Alexis” did. They continued to text after the phone
call ended. On the second occasion, Pouncy texted, “But it feels like you dont want to do anything
so I will let you move on.” Hearing Ex. 2 at 6. “Alexis” responded with “ur bein a jerk.” Hearing
Ex. 2 at 6. Without any prompting, Pouncy then texted, “Want me to come over . . . We can do it
right now.” Hearing Ex. 2 at 6.
The trial court denied Pouncy’s motion to dismiss and motion to suppress evidence. The
trial court entered findings of fact and conclusions of law. In finding of fact 9, the trial court found
that Pouncy “impliedly consented to the recording of his [dating app] and text communications on
the recipient’s device given his reasonable knowledge that communications may be retained by
the recipient and shown to other people.” Clerk’s Papers (CP) at 105. In finding of fact 10, the
3
We retain the original spelling, punctuation, and grammar in all quoted text messages.
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No. 54670-1-II
trial court found that Pouncy “voluntarily disclosed information to the intended recipient and
assumed the risk of being deceived about the recipient’s identity.” CP at 105. In finding of fact
11, the trial court found that “[t]here was no interception of [Pouncy’s] communications with
undercover officers in this case because [Pouncy] communicated directly with law enforcement.”
CP at 105.
The trial court concluded that MECTF did not engage in outrageous government conduct
based on a review of the totality of circumstances. Specifically, the trial court concluded that there
was no interception of Pouncy’s communications and, while the chief of WSP is tasked with
soliciting donations for MECTF, there is no authority prohibiting the chief from delegating this
responsibility. The trial court denied Pouncy’s motion to dismiss for outrageous government
conduct.
The trial court also concluded that Pouncy’s privacy rights were not violated because there
was no interception of Pouncy’s communications; instead, Pouncy had impliedly consented to the
recording of his electronic messages when he sent them to “Alexis.” The trial court also rejected
Pouncy’s article I, section 7 argument because nothing was searched or seized in this case, and
any electronic communications that were “arguably ‘seized’” did not give rise to an article I,
section 7 argument because Pouncy “waived that interest when he voluntarily provided the
communications to law enforcement.” CP at 106. Accordingly, the trial court denied Pouncy’s
motion to suppress the electronic messages he exchanged with “Alexis.”
B. EVIDENCE AT TRIAL
At Pouncy’s jury trial, the State presented the following evidence. Detective Klein testified
about the dating app and his involvement with Pouncy. To communicate with others on this dating
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No. 54670-1-II
website, a person must sign up for an account. Users must be 18 years or older to sign up. Further,
the app requires that users not be a convicted felon or a sex offender. The app does not run any
background checks to confirm that users are conforming to the rules.
Detective Klein created a fictitious profile for a 13-year-old girl named “Alexis” and posted
the profile on the dating app. He used a photo of an undercover WSP trooper as “Alexis’” profile
picture.4 Detective Klein stated that he would generally include a statement such as “‘young bored
HMU’”5 in the “‘about me’” section.6 1 Verbatim Report of Proceedings (VRP) (Jan. 29, 2020)
at 232.
Pouncy, who was 59 years old at the time, responded to “Alexis’” profile on the app.
“Alexis” quickly directed the conversation to text messaging. Once the text messaging began,
“Alexis” revealed her age as 13 years old. “Alexis” wrote, “13 but im mature.” Trial Ex. 3 at 1.
Pouncy responded, “That is young.” Trial Ex. 3 at 1. “Alexis” reassured Pouncy that no one
would find out if they had sexual relations.
After being told that “Alexis” was 13 years old, Pouncy continued the conversation by
asking “Alexis” if she had “done this before,” then subsequently asked her to send him a
photograph. Trial Ex. 3 at 1. “Alexis” sent Pouncy photographs of Trooper Gasser that were
altered to give Trooper Gasser a younger appearance. After receiving the photographs, Pouncy
4
WSP Trooper Anna Gasser played the role of “Alexis” in photographs.
5
“HMU” is an acronym for “hit me up.” 1 Verbatim Report of Proceeding (VRP) (Jan. 29,
2020) at 232.
6
Detective Klein was unable to capture a screenshot of the contents of “Alexis’” profile. The app
banned the “Alexis” profile before he was able to do so. Therefore, we do not know the exact
content of the “about me” section.
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No. 54670-1-II
asked if “Alexis” was a virgin and whether she lived at home. Pouncy then texted, “I dont want
to get you in trouble and I really dont want trouble.” Trial Ex. 3 at 2.
At this point, Pouncy asked to speak with “Alexis” on the phone. Trooper Wilcox posed
as “Alexis” on the phone call. During the phone call, Pouncy stated that he was “scared this is
some Joe Walsh s[**]t.” 1 VRP (Jan. 30, 2021) at 326. Trooper Wilcox testified that Joe Walsh
is the host of the television show America’s Most Wanted. “Alexis” and Pouncy then talked about
meeting up at “Alexis’” home. Pouncy asked whether “Alexis’” mother would be there. “Alexis”
asked Pouncy to bring condoms because she didn’t want to get pregnant. Pouncy agreed that it
would be bad if she got pregnant. He stated that he would bring condoms and alcohol.
Pouncy and “Alexis” continued to text after their phone call. When “Alexis” asked if
Pouncy was going to come over, he answered yes and asked for an address. “Alexis” ignored this
request. Pouncy asked “Alexis” for her address two more times that night. “Alexis” did not give
Pouncy her address, but told him she was too tried and asked if they could meet up the following
day instead.
The next day Pouncy texted, “So r we going to meet to night.” Trial Ex. at 4. “Alexis”
asked if he was going to bring condoms and alcohol like they had discussed. Pouncy answered
yes.
“Alexis” then texted, “so i know we kinda tlked about it in the call but like wut r we gonna
do when u get here?” Trial Ex. at 4. Pouncy responded that they would “see what happens.” Trial
Ex. at 4. “Alexis” responded, “im lookin 2 hookup 2nite lol i dont want 2 jst waist my time.” Trial
Ex. at 4. Pouncy assured “Alexis” that she wouldn’t be wasting her time.
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No. 54670-1-II
Pouncy texted “Alexis,” “I dont even know where I am going.” Trial Ex. at 4. “Alexis”
told him that she lived on the west side of Olympia. He then asked “Alexis” to call him. When
“Alexis” stated that she could not talk because her mother was in the house, Pouncy responded,
“Hey I am not coming.” Trial Ex. at 5. Alexis responded with “aww” and a sad face emoji. Trial
Ex. at 5. Without prompting, Pouncy texted, “Call me.” Trial Ex. at 5.
During that second phone call, Pouncy again asked “Alexis” for her address. “Alexis” told
him to go to the gas station close to her. She then asked if he was going to bring condoms, to
which he responded, “[Y]es.” 1 VRP (Jan. 30, 2020) at 331. When asked what he wanted to do,
Pouncy said, “[Y]ou know what I want to do.” 1 VRP (Jan. 30, 2020) at 332. Pouncy stated that
he would teach “Alexis.” Before the conversation ended, Pouncy again asked “Alexis” for her
address.
“Alexis” and Pouncy resumed texting after the second phone call. “Alexis” texted that she
was worried—she wrote that there were things she didn’t want to do because of her size and she
didn’t want to be in pain. Pouncy assured “Alexis” that she could control the pace. Pouncy then
texted, “But it feels like you dont want to do anything so I will let you move on.” Trial Ex. 3 at 6.
“Alexis” responded, “i do but i jst dont know wut were gonna do unless u tell me.” Trial Ex. 3 at
6. Pouncy texted, “Anything you want.” Trial Ex. 3 at 6. When “Alexis” didn’t respond
immediately, Pouncy texted, “Still nothing,” then, “Night.” Trial Ex. 3 at 6. “Alexis” responded,
“ur bein a jerk.” Trial Ex. 3 at 6.
Without any prompting, Pouncy continued his conversation with “Alexis,” texting, “We
can do it right now.” Trial Ex. 3 at 6. He again asked “Alexis” for an address. “Alexis” asked
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No. 54670-1-II
Pouncy what was going to happen when he came over. Pouncy responded, “I teach you what I
can . . . Slow and easy.” Trial Ex. 3 at 6. “Alexis” then suggested they have another phone call.
During the third phone call, “Alexis” again asked Pouncy what he was going to do. Pouncy
responded, “I will go slow. I will taste you, and you will taste me.” 1 VRP (Jan. 30, 2020) at 334.
When “Alexis” asked if they needed lube, Pouncy responded, “[N]o, the condoms have lube on
them.” 1 VRP (Jan. 30, 2020) at 335. Pouncy then stated, “I want to do this with you.” 1 VRP
(Jan. 30, 2020) at 335. He also stated, “[Y]ou will taste my juice and I will taste yours.” 1 VRP
(Jan. 30, 2020) at 335. Pouncy asked “Alexis’” to text him the address. “Alexis” did not text the
address at that time.
“Alexis” and Pouncy again resumed texting after the phone call ended. Pouncy reassured
“Alexis” when she asked, “if it hurts, u promise ull go slower?” Trial Ex. 3 at 7. Pouncy also
agreed to bring condoms and alcohol. “Alexis” sent Pouncy an address for a gas station near her
house.
Pouncy drove two hours to the gas station. “Alexis” then gave him an address to her house.
Pouncy left the gas station and drove to the address “Alexis” provided. When he arrived, Pouncy
parked down the block from the address and walked up to the house.
Trooper Wilcox, posing as “Alexis,” opened the door when Pouncy arrived. When Pouncy
entered the residence, he embraced “Alexis” and attempted to kiss her. Pouncy was then arrested.
Pouncy did not have condoms or alcohol on him when he was arrested.
The State offered and the trial court admitted the messages exchanged between Pouncy and
“Alexis” on the dating app, as well as the text messages exchanged between Pouncy and “Alexis.”
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No. 54670-1-II
Pouncy testified on his own behalf at trial. He stated that he believed “Alexis” to be an
adult woman when he responded to her dating profile. When “Alexis” revealed that she was
actually 13 years old, Pouncy did not believe her. He asked “Alexis” to send him pictures in order
to confirm that she was not actually 13 years old. He also asked “Alexis” to call him in order to
further confirm she was not a child. Based on this, Pouncy determined that “Alexis” was actually
engaging in roleplay or acting out a fantasy and was not really a 13-year-old girl.
Pouncy further testified that he did not necessarily intend to have sexual intercourse with
“Alexis,” but only wanted to get to know her. When he stated, “I’ll taste you and you will taste
me,” he was only referring to kissing and not oral sex. 1 VRP (Jan. 30, 2020) at 424. He denied
that he said that they would taste each other’s juices. And he testified that generally, when they
talked about sexual acts, he was referring to the future and not necessarily that night.
Pouncy also testified that he did not bring condoms or alcohol when he arrived to the house
because he was not planning on having sexual intercourse with “Alexis.” And he testified that he
did not attempt to kiss Trooper Wilcox on the mouth, but instead, he was trying to kiss her on the
cheek.
C. PROPOSED JURY INSTRUCTION ON THE DEFENSE OF ENTRAPMENT AND VERDICTS
Pouncy requested a jury instruction on the defense of entrapment. The trial court found
that the record did not provide evidence showing that Pouncy was not inclined to commit the
offense or that there was persuasion or efforts by law enforcement to induce or convince Pouncy
to commit the crime. The trial court denied Pouncy’s request for a jury instruction on entrapment.
The jury found Pouncy guilty as charged. The jury was then presented with evidence
regarding Pouncy’s prior convictions. After deliberations, the jury found that Pouncy was
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No. 54670-1-II
previously convicted of a felony sex offense in the state of Washington. Because of his prior
felony sex offense, the conviction for communication with a minor for immoral purposes was
elevated to a felony.
Because Pouncy had previously been convicted of felony sex offenses, the trial court
sentenced him as a persistent offender to life in prison without parole.7 The trial court also ordered
that Pouncy not have internet access unless approved by the Department of Corrections and that
he could not have contact with minors.
Pouncy appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Pouncy argues that there was not sufficient evidence to support the jury’s verdicts for
attempted second degree rape of a child and communication with a minor for immoral purposes.
We disagree.
Evidence is sufficient to support a conviction if any rational trier of fact can find the
essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). The evidence must be viewed in the light most favorable to the State and
interpreted most strongly against the defendant. Id. Circumstantial and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A claim of insufficiency of
evidence admits the truth of the State’s evidence and all inferences that reasonably can be drawn
7
Pouncy was previously convicted of first degree rape and second degree rape.
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No. 54670-1-II
therefrom. Salinas, 119 Wn.2d at 201. We do not review credibility determinations made by the
trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
1. Attempted Second Degree Rape Of A Child
To convict a defendant of attempted second degree rape of a child, the State must prove
beyond a reasonable doubt that the defendant took a substantial step toward having “sexual
intercourse with another who is at least twelve years old but less than fourteen years old.” Former
RCW 9A.44.076(1) (1990); RCW 9A.28.020(1). Further, the victim must not be married to the
perpetrator and the perpetrator must be at least thirty-six months older than the victim. Former
RCW 9A.44.076(1). “Sexual intercourse” has its ordinary meaning. RCW 9A.44.010(1)(a). This
includes any penetration of the vagina or anus. RCW 9A.44.010(1)(b). This also includes any act
of sexual contact between persons involving the sex organs of one person and the mouth of another.
RCW 9A.44.010(1)(c).
A person is guilty of attempting to commit a crime 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). A substantial step is an act that is strongly corroborative of the actor’s
criminal purpose. State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995). Mere preparation
is not a substantial step. State v. Workman, 90 Wn.2d 443, 449, 584 P.2d 382 (1978).
Attempt also requires the specific intent to have sexual intercourse with a child. State v.
Johnson, 173 Wn.2d 895, 908, 270 P.3d 591 (2012). Where only a fictitious victim exists within
the context of a sting operation, the State must show that the defendant knew the perceived victim’s
age. Id. This can be done by proving the perceived victim communicated her age and the
defendant received the information. Id. The State must then make the same proof that the
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No. 54670-1-II
defendant intended to have sexual intercourse with this victim. Id. Factual impossibility is not a
defense to a crime of attempt. RCW 9A.28.020(2); State v. Townsend, 147 Wn.2d 666, 679, 57
P.3d 255 (2002).
Pouncy argues that the State did not prove that he intended to engage in sexual intercourse
with a child. Pouncy claims that he believed “Alexis” was an adult woman who was role playing.
But when Pouncy initiated the conversation with “Alexis,” “Alexis” immediately revealed that she
was 13 years old, and Pouncy acknowledged receipt of this information by responding “That is
young.” Trial Ex. 3 at 1. Thus, there is substantial evidence that Pouncy knew “Alexis’” was 13
years old. See Johnson, 173 Wn.2d at 908.
Pouncy also argues that he only wanted to get to know “Alexis,” and therefore, he did not
have the required intent to engage in sexual intercourse. He contends that when they talked about
sexual acts, he was referring to the future and not necessarily that night, and he points to the fact
that he did not bring condoms to the house as proof that he did not actually want to have sexual
intercourse.
Here, the State presented evidence that Pouncy asked “Alexis” if she was a virgin. Pouncy
also told “Alexis” that she could control the pace. He told “Alexis,” “I teach you what I can . . .
Slow and easy.” Trial Ex. 3 at 6. Pouncy also discussed his plans for engaging in sexual acts
during the three phone calls he had with “Alexis.” He agreed with “Alexis” when she said it would
be bad if she got pregnant and said that he would bring condoms. And when “Alexis” asked if
they needed lube, Pouncy assured “Alexis” that the condoms had lube on them. When “Alexis”
asked what they were going to do, Pouncy said, “I will go slow. I will taste you, and you will taste
me.” 1 VRP (Jan. 30, 2020) at 334. He also stated, “[Y]ou will taste my juice, and I will taste
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No. 54670-1-II
yours.” 1 VRP (Jan. 30, 2020) at 335. Thus, contrary to Pouncy’s argument, substantial evidence
exists to show he had the intent to engage in sexual intercourse with “Alexis.”
Also, the jury determines credibility. Camarillo, 115 Wn.2d at 71. Although Pouncy
testified that he did not intend to have sexual intercourse, the jury verdict shows that the jury
rejected Pouncy’s testimony. We do not review credibility determinations. Id.Pouncy further argues that the State did not prove that he took a substantial step towards
having sexual intercourse with “Alexis.” Pouncy contends that every act he took was mere
preparation.
Here, the State presented evidence that Pouncy drove two hours to a gas station by
“Alexis’” house. He then drove to “Alexis’” house once she gave him her address. When “Alexis”
opened the door, Pouncy embraced her and attempted to kiss her. Thus, substantial evidence shows
that Pouncy took a substantial step towards having sexual intercourse with “Alexis.”
Although Pouncy argues that his testimony shows that he simply went to an address given
to him by someone he believed was an adult, the jury verdict shows that the jury rejected Pouncy’s
testimony. We do not review a jury’s credibility determinations. Camarillo, 115 Wn.2d at 71.
The State presented sufficient evidence for a rational trier of fact to find beyond a
reasonable doubt the essential elements of second degree rape of a child beyond a reasonable
doubt. Therefore, Pouncy’s sufficiency of the evidence challenge on this conviction fails.
2. Communication With A Minor For Immoral Purposes
A defendant is guilty of a gross misdemeanor if they communicate with a minor, or
someone the defendant believes to be a minor, for immoral purposes. RCW 9.68A.090(1).
“Communicate” includes conduct as well as words. State v. Hosier, 157 Wn.2d 1, 11, 133 P.3d
15No. 54670-1-II
936 (2006). Further, communication with a minor for immoral purposes requires that the
communication be both transmitted and received by the minor or person the defendant believed to
be a minor. Id. at 9.
“Immoral purpose” refers to sexual misconduct. Id. at 11. “The statute prohibits
communication with children for the predatory purpose of promoting their exposure to and
involvement in sexual misconduct.” State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358(1993). This reflects the “legislative concern with adults who exploit children for personal
gratification.” Hosier, 157 Wn.2d at 11.
Pouncy argues that the State did not prove that he believed he was communicating with a
minor. Pouncy claims that he believed “Alexis” was an adult engaged in role play.
Here, the text messages and phone calls Pouncy exchanged with “Alexis” show that
Pouncy believed he was talking with a 13-year-old girl. Once the text messaging began, “Alexis”
revealed her age as 13 years old, and Pouncy acknowledged “Alexis’” age by texting, “That is
young.” Trial Ex. 3 at 1. During Pouncy’s first phone call with “Alexis,” he stated that he was
“scared this is some Joe Wash s[**]t.” 1 VRP (Jan. 30, 2020) at 326. Joe Walsh is the host of the
television show America’s Most Wanted. Thus, substantial evidence shows that Pouncy knew
“Alexis” was a 13-year-old.
Although Pouncy testified that he believed “Alexis” was an adult engaged in role play, the
jury verdict shows that the jury rejected Pouncy’s testimony as not credible. We do not review a
jury’s credibility determinations. Camarillo, 115 Wn.2d at 71.
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No. 54670-1-II
We hold that any rational trier of fact could find that the essential elements of
communication with a minor for immoral purposes was proved beyond a reasonable doubt.
Therefore, Pouncy’s sufficiency of the evidence challenge to this conviction fails.
B. JURY INSTRUCTION ON THE DEFENSE OF ENTRAPMENT
Pouncy argues that the trial court erred when it denied his request to instruct the jury on
the defense of entrapment. We disagree.
1. Legal Principles
We review a trial court’s factual determination of whether a jury instruction should be
given for an abuse of discretion. State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015).
A defendant is entitled to a jury instruction on the defense of entrapment if they establish the
defense by a preponderance of the evidence. State v. Trujillo, 75 Wn. App. 913, 918, 883 P.2d
329 (1994), review denied, 126 Wn.2d 1008 (1995). RCW 9A.16.070 defines the defense of
entrapment:
(1) In any prosecution for a crime, it is a defense that:
(a) The criminal design originated in the mind of law enforcement officials,
or any person acting under their direction, and
(b) The actor was lured or induced to commit a crime which the actor had
not otherwise intended to commit.
(2) The defense of entrapment is not established by a showing only that law
enforcement officials merely afforded the actor an opportunity to commit a crime.
Entrapment is an affirmative defense, and the defendant bears the burden of proving entrapment
by a preponderance of the evidence. State v. Lively, 130 Wn.2d 1, 13, 921 P.2d 1035 (1996).
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No. 54670-1-II
“Defendants should ultimately be responsible for demonstrating that they were improperly induced
to commit a criminal act which they otherwise would not have committed.” Id.8
The affirmative defense of entrapment “will not be allowed when the evidence indicates
merely that the defendant was given an opportunity to commit the crime with which he was
charged.” State v. Morgan, 9 Wn. App. 757, 759, 515 P.2d 829, review denied, 83 Wn.2d 1004(1973). Further, the use of a “normal amount of persuasion to overcome the defendant’s expected
resistance” is not entrapment. Trujillo, 75 Wn. App. at 918. A normal amount of persuasion may
include deception, trickery, or artifice. Id. It may also include solicitations “‘made in connection
with an appeal to sympathy or to friendship’ does not, by itself, constitute entrapment.” State v.
Smith, 101 Wn.2d 36, 43, 677 P.2d 100 (1984) (quoting State v. Swain, 10 Wn. App. 885, 889,
520 P.2d 950, review denied, 84 Wn.2d 1004 (1974)). “In order to show entrapment, a defendant
must show more than mere reluctance on his or her part to violate the law.” Trujillo, 75 Wn. App.
at 918.
2. No Evidence Of Entrapment
Pouncy argues that law enforcement initiated the crime. But there is no evidence that law
enforcement officers instigated the crime. The officers merely gave Pouncy the opportunity to
commit the crime when they created “Alexis’” profile and posted it on a dating app. Pouncy
8
This is significantly different than the burden of proof for entrapment under federal law. As our
Supreme Court has recognized, “Under federal common law, the State ultimately has the burden
of proving beyond a reasonable doubt that the defendant was ‘disposed to commit the criminal act
prior to first being approached by Government agents.’” Lively, 130 Wn.2d at 13 (quoting
Jacobson v. United States, 503 U.S. 540, 549, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992)). Due to
the different burdens of proof, federal case law addressing whether the State met its burden to
prove the absence of entrapment beyond a reasonable doubt has no bearing on whether Pouncy
met his burden under Washington law.
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No. 54670-1-II
himself decided to respond to “Alexis’” profile and was the one who initiated contact with
“Alexis.”
Pouncy further asserts that he was not predisposed to commit the crimes at hand and was
induced to consider illegal acts by pressure from law enforcement. He claims that he was only
seeking to connect with a woman, not a child. But, again, there is no evidence that law enforcement
officers induced Pouncy to respond to the “Alexis” profile or continue communicating with
“Alexis” after he learned she was only 13 years old.
Instead, the evidence shows that Pouncy voluntarily initiated contact with “Alexis” on the
dating app. When “Alexis” revealed she was only 13 years old, Pouncy acknowledged that “That
is young” and continued to communicate with her, asking her if she had “done this before.” Trial
Ex. 3 at 1. He asked “Alexis” to send her photographs. After receiving “Alexis’” photographs,
Pouncy asked “Alexis” if she was a virgin.
On two occasions, Pouncy said he would no longer talk or meet up with “Alexis,” but he
resumed communications with “Alexis” with no prompting from “Alexis.” On the first occasion
he told “Alexis” he would no longer speak with her, she responded with “aww” and a sad face
emoji. Trial Ex. 3 at 5. Without any prompting, Pouncy then asked “Alexis” to call him. On the
second occasion he told “Alexis” he would no longer speak with her, she texted, “ur bein a jerk.”
Trial Ex. 3 at 6. Again, without any prompting, Pouncy continued his conversation with “Alexis.”
Pouncy fails to show that there was any evidence to support his argument that law
enforcement lured or improperly induced him to commit a crime. Instead, the evidence in the
record shows that law enforcement merely afforded Pouncy the opportunity to commit a crime.
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No. 54670-1-II
Thus, there is no evidence to support giving an entrapment instruction, and the trial court did not
abuse its discretion by not giving an entrapment instruction.
C. MOTION TO SUPPRESS ELECTRONIC MESSAGES FOR VIOLATIONS OF THE WPA AND ARTICLE
I, SECTION 7 OF THE WASHINGTON CONSTITUTION
Pouncy argues that the trial court erred when it denied his motion to suppress his electronic
messages to “Alexis” under the WPA and article I, section 7 of the Washington Constitution. We
disagree.
In reviewing the denial of a motion to suppress, we consider whether substantial evidence
supports the trial court’s findings of fact. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266(2009). Substantial evidence exists when a fair-minded person is persuaded of the truth of the
stated premise. Id. We then analyze whether those findings support the trial court’s conclusions
of law. Id. Conclusions of law are reviewed de novo. State v. Scherf, 192 Wn.2d 350, 370, 429
P.3d 776 (2018).
1. Washington Privacy Act
The WPA prohibits an agency from obtaining communications between individuals if a
private communication transmitted by a device was recorded or intercepted by a recording or
transmittal device without the consent of all parties. Former RCW 9.73.030 (1986); Townsend,
147 Wn.2d at 672-73. Private communications include conversations transmitted through
telephones, computers, and other devices that are designed to record or transmit communication.
Former RCW 9.73.030(1)(a); Townsend, 147 Wn.2d at 672. A message is not “intercepted” if the
individual sends it directly to a law enforcement officer, regardless of whether the individual
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No. 54670-1-II
believed it was sending the message to that particular person. State v. Glant, 13 Wn. App. 2d 356,
366, 465 P.3d 382, review denied, 196 Wn.2d 1021 (2020).
Also, law enforcement officers may lawfully record conversations when a person impliedly
consents. Townsend, 147 Wn.2d at 675-76. A person impliedly consents by choosing to
communicate through a device in which the person knows the information will be recorded. State
v. Racus, 7 Wn. App. 2d 287, 299-300, 433 P.3d 830, review denied, 193 Wn.2d 1014, 441 P.3d
828 (2019). When a person sends an electronic message, they do so with the understanding that
the message is then available to the receiving party for recording. Id. at 299.
Pouncy argues that the trial court erred in its finding of fact 11 because law enforcement
violated the WPA when they intercepted his electronic messages. But here, the evidence shows
that Pouncy sent the messages directly to “Alexis.” It does not matter that Pouncy believed he was
sending these messages to “Alexis” rather than directly to Detective Klein. See Glant, 13 Wn.
App. 2d at 366 (finding no interception where the defendant was text messaging a law enforcement
officer personifying the victim). Therefore, substantial evidence supports the trial court’s finding
that law enforcement did not “intercept” the electronic messages.
Pouncy also argues that the trial court erred in findings of fact 9 and 10 when it found that
he voluntarily disclosed information to “Alexis” and impliedly consented to the recording of his
communications with “Alexis.” But the evidence shows that Pouncy voluntarily chose to
communicate with “Alexis,” first through the dating app and then over text messaging. Because
Pouncy chose to communicate with “Alexis” through such means, “understanding that the
messages would be available to the receiving party for recording,” he impliedly consented to his
communication being recorded. Glant, 13 Wn. App. 2d at 365. Therefore, substantial evidence
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No. 54670-1-II
supports the trial court’s finding that Pouncy impliedly consented to his communications being
recorded.
2. Article I, Section 7 of the Washington Constitution
“No person shall be disturbed in his private affairs, or his home invaded, without authority
of law.” WASH. CONST. art. I, §. 7. This provides citizens with protection from government
intrusion into their private affairs without legal authority. State v. Hinton, 179 Wn.2d 862, 868,
319 P.3d 9 (2014). In deciding whether a violation occurred, we conduct a two-step inquiry. State
v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007). First, we ask whether there was a government
intrusion into someone’s private affairs. Id. If there was intrusion, we then ask whether that
intrusion was authorized by law. Id.Emails and text messages are private communications. State v. Roden, 179 Wn.2d 893,
900, 321 P.3d 1183 (2014). However, when a person voluntarily communicates with a stranger,
that person assumes the risk that the conversation will not be confidential. State v. Goucher, 124
Wn.2d 778, 786-87, 881 P.2d 210 (1994). A defendant does not have a reasonable expectation of
privacy after replying to a stranger’s advertisement and then exchanging text messages with that
stranger. Glant, 13 Wn. App. 2d at 369.
Here, the evidence shows that Pouncy voluntarily responded to “Alexis’” dating profile,
then proceeded to exchange text messages with “Alexis.” Because Pouncy responded to a
stranger’s profile on a dating app and then exchanged text messages with that stranger, he did not
have a reasonable expectation of privacy in the electronic messages he exchanged with “Alexis.”
See Glant, 13 Wn. App. 2d at 369 (finding the defendant did not have a reasonable expectation of
privacy when sending text messages to a stranger and assumed the risk that his conversation would
22
No. 54670-1-II
not be confidential). And because Pouncy did not have a reasonable expectation of privacy in his
electronic messages to “Alexis,” there was no intrusion into Pouncy’s private affairs. Further,
because there was no intrusion into Pouncy’s private affairs, we not need to analyze whether the
intrusion was authorized by law.
We hold that the trial court did not err in denying Pouncy’s motion to suppress his
electronic messages.
D. MOTION TO DISMISS BASED ON OUTRAGEOUS GOVERNMENT CONDUCT
Pouncy argues that because MECTF engaged in outrageous government misconduct, the
trial court erred when it denied his motion to dismiss. We disagree.
1. Legal Principles
We review a denial of a motion to dismiss based on outrageous government conduct for an
abuse of discretion. Athan, 160 Wn.2d at 375. A trial court abuses its discretion when its decision
is manifestly unreasonable or based on untenable grounds. Id. at 375-76.
Government conduct is outrageous if it is so shocking that it violates fundamental fairness.
Lively, 130 Wn.2d at 19. On the other hand, government conduct in the form of deceit or a
violation of criminal laws is not outrageous when it is done in order to detect and eliminate crime.
Id. at 20. Proper law enforcement objectives, preventing crime, and apprehending violators must
drive the law enforcement officer’s conduct. Id. at 21. The trial court reviews claims of outrageous
government conduct based on the totality of circumstances. Id. at 21. In evaluating the totality of
circumstances, we consider several factors, including:
[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
23
No. 54670-1-II
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, 521, 378 N.E.2d 78, 406
N.Y.S.2d 714 (1978)).
We reviewed the Lively factors in a recent decision involving another Net Nanny operation.
See Glant, 13 Wn. App. 2d at 370. In Glant, law enforcement posted an advertisement on
Craigslist for a family looking to sexually exploit their children. Id. at 361. The defendant, Glant,
responded to the advertisement through email, and an MECTF agent, pretending to be the mother
who posted the ad, began communicating with Glant. Id. Glant then began texting with “the
mother.” Id. The texting included conversations about sexual acts that Glant wanted to perform
with the children. Id. Glant drove from Mercer Island to Thurston County to meet “the mother,”
where he was arrested. Id.
Glant argued that MECTF engaged in outrageous government conduct because it solicited
funding from OUR, a private source. Id. at 371. We rejected the argument, concluding that private
funding of law enforcement operations is not improper unless the private entity attempts to
“overrule or commandeer” the investigations and there was nothing in the record that showed OUR
attempted to overrule or commandeer the Net Nanny operations over MECTF’s objections. Id.
2. No Outrageous Government Conduct
Pouncy makes two arguments regarding outrageous government conduct. First, he argues
that the government’s conduct was outrageous because MECTF obtained private funding for its
Net Nanny operations. Second, he argues that MECTF engaged in outrageous government conduct
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No. 54670-1-II
under the totality of circumstances. We hold that MECTF did not engage in outrageous
government conduct under either theory.
First, Pouncy argues that the government’s conduct was outrageous because the MECTF
obtained private funding for its Net Nanny operation. However, private funding of law
enforcement operations is not improper unless the private entity attempts to overrule or
commandeer the investigations. Glant, 13 Wn. App. 2d at 371. Here, Pouncy does not identify
any evidence that OUR attempted to overrule or commandeer the Net Nanny operation. Because
Pouncy does not show that OUR attempted to overrule or commandeer the investigation, he has
failed to demonstrate outrageous government conduct.
Second, Pouncy argues that law enforcement officers engaged in outrageous government
conduct under the totality of circumstances. As discussed above, we review the totality of
circumstances using five factors outlined in Lively.
The first Lively factor looks to whether police misconduct instigated the crime or infiltrated
the ongoing activity. 130 Wn.2d at 22. Posting an advertisement does not instigate a crime when
it is posted to the general public and not aimed at a specific individual. Glant, 13 Wn. App. 2d at
373.
Here, there is no evidence MECTF instigated the crime because Detective Klein posted
“Alexis’” profile to a dating app. Anyone is able to look at and respond to the profile. The record
shows that Pouncy voluntarily responded to “Alexis’” profile and continued to communicate with
“Alexis” even after he learned that she was 13 years old.
The second Lively factor looks to whether the defendant’s reluctance to commit a crime
was overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation. 130
25
No. 54670-1-II
Wn.2d at 22. Pouncy argues that “Alexis” continually pressed for Pouncy to come over to her
house and encouraged him to discuss sex acts, even when Pouncy expressed reluctance. But the
defendant must show more than just some reluctance. Glant, 13 Wn. App. 2d at 373.
Although Pouncy did say at some point during his communications with “Alexis” that he
no longer wanted to meet with “Alexis,” “Alexis” did not plead with Pouncy, promise anything to
Pouncy, or persistently solicit Pouncy. Instead, the evidence shows that on two separate occasions,
Pouncy decided to stop talking to “Alexis.” Yet, he voluntarily began speaking with “Alexis”
again after no prompting. On the first occasion Pouncy texted, “Hey I am not coming.” Hearing
Ex. 2 at 5. “Alexis” responded with “aww” and a sad face emoji. Hearing Ex. 2 at 5. Six minutes
later, Pouncy asked “Alexis” to call him. They continued to text after the phone call ended. On
the second occasion, Pouncy texted, “But it feels like you dont want to do anything so I will let
you move on.” Hearing Ex. 2 at 6. “Alexis” responded, “ur bein a jerk.” Hearing Ex. 2 at 6.
Pouncy then wrote, without any prompting from “Alexis,” “Want me to come over . . . We can do
it right now.” Hearing Ex. 2 at 6.
Further, the evidence shows that Pouncy repeatedly asked “Alexis” for her address.
Pouncy then drove almost two hours to meet up with “Alexis.” The fact that a defendant drives a
long distance to meet with the persona favors a finding that the defendant was not reluctant. See
Glant, 13 Wn. App. 2d at 373.
The third Lively factor asks whether the government controls the criminal activity or simply
allows it to occur. 130 Wn.2d at 22. Pouncy argues that MECTF controlled every detail of the
crime. But a defendant controls the criminal activity when they choose to engage with a person
they were informed is a child. See Glant, 13 Wn. App. 2d at 373-74.
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No. 54670-1-II
Here, law enforcement did not control the criminal activity because Pouncy initiated the
conversation with “Alexis” and chose to continue talking with “Alexis” even after learning she
was a 13-year-old girl. Further, Pouncy asked “Alexis” on several occasions to send him her
address so he could drive to her. Pouncy then decided on his own to drive two hours to meet with
“Alexis.” And Pouncy was free to stop his conversation with “Alexis” at any point, but instead,
he continued to talk with “Alexis” about sexual acts. Therefore, the evidence fails to show that
the government controlled every detail of the crime.
The fourth Lively factor looks to whether or not the police motive was to prevent crime or
protect the public. 130 Wn.2d at 22. Pouncy argues that, even if the agents were motivated to
protect the public, they were also motivated by personal monetary compensation that calls into
question the overall purpose of the Net Nanny operations.
At the hearing on the motion to dismiss, Sergeant Rodriguez testified that the purpose of
the Net Nanny operations was to recover minors who may be exploited for sexual services, arrest
people who are exploiting children, and arrest people who are seeking those types of services from
minors. He further testified that OUR was not responsible for writing the paychecks for law
enforcement officers that participate in the Net Nanny operations. In fact, OUR had no control
over any aspect of the Net Nanny operations. There is no evidence that law enforcement was
motivated by monetary compensation to call into question MECTF’s or law enforcement
personnel’s purpose in the Net Nanny operation at issue.
The fifth Lively factor asks whether the government conduct itself amounted to criminal
activity or conduct that is repugnant to the sense of justice. 130 Wn.2d at 22. Pouncy argued that
MECTF engaged in criminal activity by offering up fictional children for assault, by recording or
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No. 54670-1-II
intercepting private conversations without legal authority, and by soliciting donations improperly.
This same argument was rejected in Glant and is rejected here. Glant, 13 Wn. App.2d at 375.
The evidence here shows that law enforcement, by creating fictitious dating profiles, did
not engage in conduct repugnant to the sense of justice because using fictitious children in a sting
operation is not sufficient to justify dismissal when officers do so in order protect the public and
prevent crime against children. Id. In addition, as discussed above, the officers did not engage in
criminal activity under the WPA. Further, MECTF did not engage in criminal activity when it
solicited funding from the OUR because the statute that dictates how funds can be solicited is not
a criminal statute. See RCW 13.60.110; Glant, 13 Wn. App. 2d at 375 (stating RCW 13.60.110 is
not a criminal statute). Therefore, Pouncy fails to show that MECTF’s conduct itself amounted to
criminal activity or conduct that is repugnant to the sense of justice.
The evidence in the record shows that MECTF did not engage in conduct that is so shocking
that it violates fundamental fairness and that MECTF’s conduct was driven by the goals of
preventing crime and apprehending persons who intend to commit sex crimes against minors. The
totality of circumstances do not support a finding of outrageous government conduct. Therefore,
the trial court did not abuse its discretion by denying Pouncy’s motion to dismiss.
CONCLUSION
We hold that (1) sufficient evidence supports Pouncy’s convictions, (2) the trial court did
not err by not instructing the jury on entrapment because there was no evidence of entrapment, (3)
the trial court did not err in denying Pouncy’s motion to suppress evidence, and (4) the trial court
did not err in denying his motion to dismiss. Therefore, we affirm.
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No. 54670-1-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 in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Worswick, J.
Cruser, J.
29