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State of Washington v. Townsend (page 1 of 2)

Court of Appeals Division III
State of Washington
Opinion Information Sheet

Docket Number: 19304-7-III
Title of Case: State of Washington
Donald T. Townsend
File Date: 04/05/2001

Appeal from Superior Court of Spokane County
Docket No: 99-1-01239-0
Judgment or order under review
Date filed: 04/19/2000
Judge signing: Hon. Michael E. Donohue

Authored by Kenneth H Kato
Concurring: Frank L. Kurtz
Dennis J. Sweeney

Counsel for Appellant(s)
Paul J. Wasson Ii
Attorney At Law
2521 W Longfellow Ave
Spokane, WA 99205-1548

Counsel for Respondent(s)
Kevin M. Korsmo
Spokane County Prosecutor's Office
W. 1100 Mallon
Spokane, WA 99260


STATE OF WASHINGTON,               )
                                   ) No. 19304-7-III
Respondent,                        )
                                   ) Division Three
v.                                 ) Panel Nine
Appellant.                         ) FILED

KATO, J. -- Donald T. Townsend appeals his conviction for attempted second degree rape of a child. He contends the trial court erroneously admitted into evidence copies of e-mail and client-to-client computer messages between himself and a fictitious 13-year-old girl with whom he corresponded. He also contends the conviction is unlawful because it is impossible to attempt to rape a fictitious child and because the State failed to prove he took a substantial step toward commission of child rape. We affirm.

Based on tips from two citizen informants, Spokane Police Detective Jerry Keller suspected that Mr. Townsend was attempting to set up sexual liaisons with minor girls on the computer. To investigate the matter, the detective created a fictitious 13-year-old girl named 'Amber.' He established a Hotmail Internet e-mail account for 'Amber.' He also created an account for 'Amber' on ICQ, an Internet discussion software program that allows real-time client-to-client communications.

Beginning in May 1999, 'Amber' had several e-mail and ICQ discussions with Mr. Townsend. These communications were saved automatically on Detective Keller's computer, so he was able to store and print them for use as evidence in this case. The e-mail messages pertained to having a face-to-face meeting. The ICQ communications contained very graphic discussions about sex. Mr. Townsend explained to 'Amber' how one gets pregnant and how they could avoid getting her pregnant. The details of what he intended to do with 'Amber' when they met became increasingly graphic and described sexual intercourse and oral sex. 'Amber' eventually told Mr. Townsend she would meet him in a room at a Spokane motel on June 4, 1999. The night before the planned meeting, Mr. Townsend stated in an ICQ message that he wanted to have sex with her the next day. The last ICQ communication was on June 4, 1999, and lasted from 4:57 p.m. to 5:20 p.m. During this communication, Mr. Townsend indicated that he still wanted to have sex with SAmber.'

About an hour later, Mr. Townsend knocked on the motel room door, identified himself as Donald, and said he was looking for 'Amber.' After Detective Keller arrested him, Mr. Townsend admitted he left his apartment to come to the motel to have sex with 'Amber,' who he believed to be 13 years old, but he had changed his mind. Mr. Townsend admitted sending the ICQ message on June 3, in which he said he wanted to have sex with 'Amber' the next day.

Mr. Townsend was charged with attempted second degree rape of a child.1 Mr. Townsend moved to dismiss, arguing (among other things) that the e-mail and ICQ evidence violated the Washington Privacy Act and there was insufficient evidence of an attempt. The court denied the motion in a memorandum decision that later was incorporated into formal findings of fact and conclusions of law. The court then found Mr. Townsend guilty after a bench trial.

We first consider whether Detective Keller violated the Washington Privacy Act by recording or printing the e-mail messages and ICQ discussions. The statute makes it unlawful to record2 a {p}rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication{.}

RCW 9.73.030(1)(a). 3
This statute is 'one of the most restrictive in the nation.' State v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996). Evidence obtained in violation of the statute is inadmissible for any purpose. Id. at 488.

The State first contends it is unclear whether the communications here were private, because Mr. Townsend was aware that e-mail and ICQ messages are not secure from interception. Whether particular communications are private generally is a question of fact, but the question may be decided as a matter of law if the facts are undisputed and reasonable minds could not differ. State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996). The Supreme Court has adopted the dictionary definition of the word 'private': ''belonging to one's self . . . secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly: not open or in public.'' Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992) (quoting Webster's Third New International Dictionary (1969) and State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978), review denied, 92 Wn.2d 1006 (1979)).

The subjective intentions of the parties to the communication are among the factors to be considered, as well as other factors bearing on the reasonableness of the participants' expectations, such as the duration and subject matter; the location of the communication and the presence of potential third parties; and the role of the nonconsenting party and his or her relationship to the consenting party. Clark, 129 Wn.2d at 225-27. The mere possibility that interception is technologically feasible does not render public a communication that is otherwise private. Faford, 128 Wn.2d at 485 (Privacy Act protects cordless telephone conversations).

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