State v. Racus

433 P.3d 830
CourtCourt of Appeals of Washington
DecidedJanuary 23, 2019
DocketNo. 49755-7-II
StatusPublished
Cited by18 cases

This text of 433 P.3d 830 (State v. Racus) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Racus, 433 P.3d 830 (Wash. Ct. App. 2019).

Opinion

Sutton, J.

*289¶ 1 Darcy Dean Racus appeals his convictions for attempted first degree rape of a child and communicating with a minor for immoral purposes. Racus argues1 *290that the trial court erred by denying his motion to suppress private communications that he had with an undercover Washington State Patrol (WSP) detective because he did not consent to these communications being recorded as required by the Washington Privacy Act (WPA).2 We disagree.

¶ 2 In the published portion of the opinion, we hold that Racus's communications with the undercover detective that occurred before the authorization to record was issued (referred to as "pre-intercept communications") were private, but that Racus impliedly consented to the communications being recorded, and thus, the trial court did not err by denying the motion to suppress the pre-intercept communications.

¶ 3 In the unpublished portion of the opinion, we reject all additional arguments and hold that probable cause supported the authorization to record Racus's communications; thus, the trial court did not err by denying the motion to suppress Racus's communications with the undercover detective that occurred after the authorization to record was issued (referred to as "post-intercept communications"). We further hold that the trial court did not err by refusing to give an entrapment instruction because the evidence did not support giving the instruction. We also hold that the State presented sufficient evidence to allow the jury to find that Racus took a substantial step toward committing the crime of attempted first degree rape of a child. Lastly, we hold that because Racus did not object at trial and fails to show that any of the prosecutor's arguments were so flagrant and ill-intentioned that they could not have been cured with an instruction, he has waived his claim of prosecutorial misconduct. We affirm.

*291*833FACTS

I. BACKGROUND

¶ 4 On December 17, 2015, WSP Detective Sergeant Carlos Rodriguez (Det. Rodriquez) posted an advertisement on Craigslist as part of an online sting operation by the Washington State Patrol Missing and Exploited Children's Task Force (MECTF). The advertisement was posted in the "casual encounters" section of Craigslist. Det. Rodriguez posed as a female parent seeking others to have sexual contact with her minor children. The advertisement stated, "Looking for a close family connection - 2 dau, [ ] 1 son - w4w (Tacoma)." 4 Verbatim Report of Proceedings (VRP) at 602. The body of the advertisement stated,

I just moved here and looking for someone to connect with my young family. Would like a woman's touch, but open to a man as well, must be discrete, no solicitations, open to presents. No RP.

4 VRP at 605.

¶ 5 Det. Rodriguez later explained at trial that "dau" means daughters and "w4w" means woman for woman. Using an anonymous e-mail address, Det. Rodriguez posed as a fictitious mother named "Kristl," who had three minor children. Det. Rodriguez's computer used Google Hangouts software to preserve the messages received by persons who responded to the advertisement.

¶ 6 On December 17, Racus answered the advertisement. He then engaged in a series of e-mails and text messages with "Kristl," asking about having sex and asking about her children. The next day, Racus reinitiated contact though another series of e-mails and then text messages.

¶ 7 On December 18 at 4:00 PM, Det. Rodriguez obtained an authorization to record communications. The intercept authorization was based on Det. Rodriguez's belief that there was probable cause to believe Racus would engage in *292the commercial exploitation of a minor for sex for a fee later that day when he met "Kristl" and her children. Based on the intercept authorization, Det. Rodriguez recorded all communications with Racus after December 18 at 4:00 PM, including numerous text messages and two telephone calls related to Racus's desire to meet with the mother and her children for sex.

¶ 8 During the two telephone calls with "Kristl," Racus agreed to meet the mother and her children at their house to have sex, and then obtained the address of "Kristl's" house. After arriving at "Kristl's" house and greeting her, Racus was arrested. The State charged Racus with attempted first degree rape of a child and communicating with a minor for immoral purposes.3

¶ 9 Prior to trial, Racus filed a motion to suppress the communications that occurred before the authorization to record based on a lack of consent. Racus also moved to suppress the communications that occurred after the authorization to record based upon a lack of probable cause. The trial court reviewed the transcript of all of the communications both before and after the authorization to record communications, and found that Racus "implicitly or impliedly" consented to the recording of the pre-intercept communications and text messages. Clerk's Papers (CP) at 249-50. Accordingly, the court denied the motion to suppress the pre-intercept text messages. The trial court also ruled that probable cause existed to authorize the intercept and denied the motion to suppress the post-intercept communications.

II. TRIAL TESTIMONY

¶ 10 At trial, Det. Rodriguez testified about the sting operation that resulted in Racus's arrest. Det. Rodriguez *293explained that he completed an online form on Craigslist using a fictitious name and an anonymous e-mail address. Using the name "Kristl" and the e-mail address, Det. Rodriguez then typed the message and posted the advertisement in the "casual encounters" section of Craigslist which is viewed by persons looking for people to engage in sex. He explained that each advertisement on Craigslist is assigned a unique post identification number that lists the date and time of the particular *834posting. He testified that a person responding to the advertisement would contact him using the anonymous e-mail address. Det. Rodriguez would respond via e-mail and then attempt to have the person agree to respond back by text message and then by telephone.

¶ 11 The Craigslist advertisement posted on December 17 contained the phrase "looking for a close family connection." 4 VRP at 602. Det. Rodriguez explained that he used this phrase because "close family ... generally means something dealing with incest." 4 VRP at 585. The advertisement also contained the phrase "open to presents." 4 VRP at 605. Det. Rodriguez explained that he used the words "presents," "gifts," and "donations" in the advertisement because those words are commonly used on Craigslist to suggest payment for a fee or the exchange of money for sex. 4 VRP at 586-87. He also explained that the term "RP" as used in the advertisement means role play. 4 VRP at 605.

¶ 12 Det. Rodriguez testified that Racus responded to the advertisement on Craigslist on the same day it was posted. Racus's full name appeared in the e-mail response.

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Cite This Page — Counsel Stack

Bluebook (online)
433 P.3d 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-racus-washctapp-2019.