State v. Borseth

STATE OF WASHINGTON, Respondent, v. JASON LEE BORSETH, a/k/a JASON LEE FISHEL, Appellant.

No. 36230-2-III

Court of Appeals of Washington, Division 3

May 5, 2020

UNPUBLISHED OPINION

Siddoway, J.

Jason Borseth responded to an advertisement for sexual conduct with a minor placed by officers engaged in a "Net Nanny" sting operation, and was convicted of attempted first degree rape of a child, attempted commercial sexual abuse of a minor, and possession of a controlled substance. He challenges the legality of the Net Nanny operation, the sufficiency of evidence for the attempted commercial sexual abuse charge, ineffective assistance of counsel prosecutorial misconduct, and sentencing error. The State concedes that a sentencing enhancement and criminal filing fee should not have been imposed. We accept the State's concessions and otherwise affirm. We remand with directions to strike the sentencing enhancement and criminal filing fee.

FACTS AND PROCEDURAL BACKGROUND

Jason Borseth answered an advertisement on the Spokane Craigslist "casual encounters" page placed by undercover police officers, who posed as a mother offering sexual conduct with her minor children. Law enforcement recorded Mr Borseth's e-mails, text messages, and phone calls with officers who posed as "Jay," the fictional mother of three children, including a fictional 11 year old named "Anna."

After officers engaged Mr. Borseth in enough distasteful discussion about what he might do with Anna to make a case against him including getting his assurances that he would bring condoms cash, and methamphetamine, Jay gave him an address for her fictitious home. When he arrived, Mr. Borseth was arrested.

Mr. Borseth was read Miranda^[1] warnings and agreed to be interviewed. Throughout an almost two-hour interview, he repeatedly denied that he was there to have sex with Anna, insisting he was only interested in Jay. He would later testify that he gave police permission "to look through my car, my phone, my tablet, all my Internet history. I gave them my passwords. I gave them everything to look forward to see if there's anything about children in any of my e-mails or anything, any of my computer history." Report of Proceedings (RP)^[2] at 636. He told the officers interviewing him that he had used Craigslist before and had made Craigslist posts seeking men. He said he was "curious about guys" although so far he had not "done nothing." Ex. P12 at 139.

Mr. Borseth was charged with attempted first degree rape of a child, attempted commercial sexual abuse of a minor, and possession of a controlled substance (methamphetamine).

In discussion of motions in limine before trial, the prosecutor told the court that the State anticipated presenting evidence that Mr. Borseth had previously arranged sex online and posted his interest in sex with men, as disclosed in the interview following his arrest. Defense counsel responded, "We can kind of shorten this down. We're not going to be seeking to suppress the fact that Mr. Borseth has used Craigslist for other liaisons. We don't have any objection to that." RP at 92. Asked by the prosecutor if he was referring to Mr. Borseth's confession, defense counsel answered, "Correct." Id.

During the four-day jury trial, the State called as witnesses eight law enforcement officers and a forensic expert from the Washington State Patrol Crime Laboratory, to testify that the controlled substance found in Mr. Borseth's possession was methamphetamine. In the defense case, Mr. Borseth testified on his own behalf.

Mr. Borseth testified that he was only interested in Jay and expressed that interest many times in their communications. He testified that when he realized Jay was offering sex with her children, he did not stop the conversation because he wanted to "buy them some food or whatever, talk to her about what she's trying to do, tell her it ain't the right way to make money." RP at 655. He claimed he offered methamphetamine to her because she could sell it to make money. Mr. Borseth agreed to the terms Jay set out to have sex with Anna because he was trying to "get in the door" with Jay. RP at 680.

During cross-examination, the prosecutor asked Mr. Borseth about his experience posting ads on Craigslist, asking whether they included offers to perform different sexual acts with men. Mr. Borseth disavowed offering anything, stating "I was just curious, and I didn't do nothing with nobody." RP at 716.

During closing argument the prosecutor attacked Mr. Borseth's credibility, telling jurors that the only time Mr. Borseth told the truth during his testimony was when he was going through the text messages, the phone call, and the e-mails. When the defense objected, the judge reminded the jury that the attorneys' statements were not evidence.

Defense counsel argued to jurors that Mr. Borseth was only interested in Jay. He urged them to consider that when interviewed by police, Mr. Borseth admitted that he had methamphetamine and revealed that he was curious about same-sex activities, but throughout what was a two-hour interrogation he never conceded interest in Anna.

The jury found Mr. Borseth guilty as charged. At sentencing, the court rejected the defense argument that his three crimes were the same criminal conduct. Noting that Mr. Borseth had no prior felonies, the trial court imposed a low end sentence. It imposed a one-year sentence enhancement to the rape count provided by RCW 9.94A.533(9) because it involved sexual conduct with a child for a fee. The court ordered Mr. Borseth to pay legal financial obligations that included a $200 criminal filing fee and a $1, 650 assessment for commercial sexual abuse.

Mr. Borseth appeals.

ANALYSIS

I. Reliance on text messages and e-mails in the Net Nanny operation did not violate the "Privacy Act." Mr Borseth's alternative arguments that (1) his trial lawyer provided ineffective assistance of counsel and (2) the violation constituted outrageous government misconduct fail

Mr. Borseth identifies provisions of the Privacy Act that permit law enforcement recording of conversations with one-party consent and persuasively argues that the officers did not comply with those provisions in connection with the e-mail and text communications. The problem with his argument is that with e-mails and text messages (unlike telephone conversations) the government had no need to rely on the one-party consent provisions. Like other users of e-mail and text messaging, Mr. Borseth impliedly consented to the recording of his e-mail and text communications.

A violation of the Privacy Act requires "(1) a private communication transmitted by a device, that was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication." State v. Roden, 179 Wn.2d 893, 899, 321 P.3d 1183 (2014). While the first three elements of a violation are generally true of e-mails, the fourth is not. The recipient of an e-mail does not violate the Privacy Act because the sender, as a user of e-mail, will understand that his e-mail messages will be recorded on the computer of the recipient. State v. Townsend, 147 Wn.2d 666, 676, 57 P.3d 255 (2002). The sender "is properly deemed to have consented to the recording of those messages." Id. The same is true of text messages. State v. Racus, 7 Wn.App. 2d 287, 299-300, 433 P.3d 830 (2019). If the parties consent to the recording, there is no violation of the Privacy Act and the recording is admissible. Id. at 300.

Mr. Borseth recognizes that we could have refused to address this alleged error since it was not raised in the trial court, see RAP 2.5(a), so he makes the alternative argument that his trial lawyer provided ineffective assistance of counsel by failing to move to suppress the e-mail and text communications. To prevail on his ineffective assistance of counsel claim, Mr. Borseth must establish that his trial lawyer's representation was deficient and the deficient representation prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to establish one prong, the court need not consider the other. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Because law enforcement's reliance on e-mails and text messages did not violate the Privacy Act, deficient representation is not shown.

Finally, a court may dismiss a criminal charge where the State is found to have engaged in outrageous misconduct in violation of a defendant's due process right to fundamental fairness, and Mr. Borseth argues that the officers' conduct (including the asserted violation of the Privacy Act) constitutes outrageous misconduct warranting dismissal of the charges against him. See State v. Solomon, 3 Wn.App. 2d 895, 909-16, 419 P.3d 436 (2018). A claim of outrageous government conduct may be raised for the first time on appeal. State v. Lively, 130 Wn.2d 1, 18-19, 921 P.2d 1035 (1996).

In assessing whether there has been a violation of due process, courts review the totality of the circumstances. Id. at 21. The Lively court identified the following factors for consideration:

[(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 . . . 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; [(5)] whether the government conduct itself amounted to criminal activity or conduct "repugnant to a sense of justice."

State v. Markwart, 182 Wn.App. 335, 351, 329 P.3d 108 (2014) (quoting Lively, 130 Wn.2d...