State v. Pouncy

1

STATE OF WASHINGTON, Respondent, v. CURTIS POUNCY, Appellant.

No. 54670-1-II

Court of Appeals of Washington, Division 2

November 30, 2021

UNPUBLISHED OPINION

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 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.

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 messages^[2] he exchanged with "Alexis." He claimed that MECTF officers violated the WPA when they intercepted these messages. Further, 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.

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 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 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...