Mr. Clark was convicted of Attempted Rape of a Child in the Second Degree for driving to meet a person he believed was a minor for the purpose of engaging in sexual activity, and Communication with a Minor for Immoral Purposes for the texts leading up to the attempted meeting. Mr. Clark successfully argued on appeal that the trial court denied him his right to present a defense by refusing to give an ‘entrapment’ instruction to the jury. He also successfully argued his right of privacy was violated when the State examined him about his refusal to consent to a police cell phone search and used that refusal as substantive evidence of his guilt. Conviction reversed. New trial ordered.
Mr. Clark began messaging a ‘Monica’ on a dating app (‘KIK’). ‘Monica’ was a actually an undercover officer involved in a ‘Net Nanny’ operation by the Washington State Patrol’s Missing and Exploited Children Task Force. ‘Monica’ indicated she was 19 years old and her profile pictures depicted a young Hispanic female. Testimony at trial indicated Mr. Clark was vulnerable to entrapment. He had recently divorced after ten years of marriage due to his inability to cope with the death of his ten-year-old daughter. He testified he liked chatting on social sites. Suffice to say, ‘Monica’ was pushy in her communications with Mr. Clark. Mr. Clark’s trial illustrates how social media has taken over: literally hundred of ‘KIK’ messages were admitted into evidence.
Mr. Clark testified that he did not think ‘Monica’ was real and did not think she was underage. He testified he went to a pre-arranged location because he thought he was meeting someone with a similar name that he also ‘met’ on social media (‘Maria’). He testified that Maria sounded like she was 30 years old in actual phone conversations; an important point since a different female police officer spoke to him on the phone. Mr. Clark argued that an entrapment instruction should be included because of evidence of inducement by ‘Monica.’ The trial court denied this instruction, because Mr. Clark’s defense was that he went to an arranged location to see someone else; not ‘Monica.’
The appellate court reversed, believing Mr. Clark made at least a prime facie showing of the two necessary elements of entrapment; inducement and predisposition (RCW 9A.16.070 (1)).
The State conceded on appeal that the trial court employed the “wrong analysis” because the denial of the entrapment instruction was based solely on Mr. Clark’s testimony that he went to the location to meet ‘Maria’. The appellate court ruled that Mr. Clark was entitled to the benefit of all the evidence, even if the evidence was inconsistent with his own testimony, utilizing State v Fisher, 188 Wn.2d. 836, 849 (2016). “Inducement” and “predisposition’ can come from “whatever source.” Id. There were hundreds of texts, many showing ‘Monica’ re-initiating contact or Mr. Clark stating he “only wanted to meet up and talk.” Mr. Clark testified he felt pressured to text and continue conversations. Predisposition was also not clear: Mr. Clark has no prior criminal record, was recently divorced, and believed he was communicating with an older woman. The trial court’s error in denying the entrapment instruction was considered “not harmless.” Clark, at 26.
On appeal for the first time, Mr. Clark argued that the State’s cross examination concerning his refusal of a search of his cell phone was a constitutional error because “an individual has the right to refuse to consent to warrantless searches.” State v. Gauthier, 174 Wn. App. 257, 263 (2013). Mr. Clark testified he did not allow a search because “he did not know what was on his cellphone.” The State claimed this was “specious.” The State inferred Mr. Clark’s guilt by arguing he could have “cleared up”
unknown things by simply allowing a search. The State introduced cell phone search evidence through a State’s exhibit. Even though this error was not raised by objection at the trial level, the use of Clark’s refusal to allow police to search his cellphone was of constitutional magnitude and not harmless. The appellate court held this was an independent basis for reversal.
Social media has saturated our modern culture. Its evidentiary power to show ‘intent’ of parties knows no bounds. There are several pages of the Clark opinion that are simply reproductions of texts going back and forth between a fake Monica and Mr. Clark. The texts can be argued as to meaning from both sides. Mr. Clark would not have been able to provide “some evidence” of inducement and no predisposition unless he testified. Defendants in these predicaments will not be able to rely on the Fifth Amendment right to remain silent when there’s a trial full of texts that start from initiation of an online relationship to concluding with a physical meetup where sex may be involved.
State v. Clark is a long opinion (32 pages), but it does indicate courts can be persuaded that concepts of entrapment may be present with undercover sting operations.