Pick v. Commonwealth, 011221 VACA, 1945-19-2

Docket Nº:1945-19-2
Opinion Judge:MARY GRACE O'BRIEN JUDGE
Party Name:RYAN THOMAS PICK v. COMMONWEALTH OF VIRGINIA
Attorney:Vaughan C. Jones (Vaughan C. Jones Attorney at Law, on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Judge Panel:Present: Judges Beales, O'Brien and Malveaux Argued by videoconference
Case Date:January 12, 2021
Court:Court of Appeals of Virginia

RYAN THOMAS PICK

v.

COMMONWEALTH OF VIRGINIA

No. 1945-19-2

Court of Appeals of Virginia

January 12, 2021

FROM THE CIRCUIT COURT OF HANOVER COUNTY J. Overton Harris, Judge

Vaughan C. Jones (Vaughan C. Jones Attorney at Law, on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, O'Brien and Malveaux Argued by videoconference

OPINION

MARY GRACE O'BRIEN JUDGE

In August 2018, police officers arrested Ryan Thomas Pick ("appellant") for felony charges relating to two internet chats during which he made sexual overtures and sent a sexual video to a police officer posing as an underage girl. Appellant was charged with four counts of using a communications system to procure a minor, in violation of Code § 18.2-374.3(B), and one count of using a communications system to solicit a child believed to be less than fifteen years old, when the accused is seven or more years older, in violation of Code § 18.2-374.3(C)(1).

Appellant filed a pre-trial motion to suppress the contents of the chats, arguing it was an electronic communication obtained without a warrant in violation of the Virginia Wiretap Act, Code § 19.2-61 to -70.3 ("the wiretap act"). He also moved to suppress statements he made during a police interview before his arrest. The court denied both motions.

During a jury trial, at the conclusion of the Commonwealth's evidence, the court granted appellant's motion to strike two of the four charges of violating Code § 18.2-374.3(B), because appellant engaged in only two distinct internet chats with the officer. The jury convicted appellant of the remaining charges and sentenced him to seven years of incarceration. On appeal, appellant contends that the court erred by denying his motions to suppress, and he also argues that the evidence was insufficient to establish that he "[e]xpose[d] his sexual or genital parts to any child" in violation of Code § 18.2-374.3(C)(1).

BACKGROUND

In July 2018, Investigator Troy Payne of the Hanover County Sheriff's Office initiated an "undercover chat investigation" on the website Omegle, where users communicate anonymously with randomly selected strangers. Omegle allows users to "import [their] likes and interests from Facebook or . . . enter terms that [they] want to pair to chat with someone else," but users are unable to choose with whom they communicate.

For this investigation, Payne posed as a thirteen-year-old girl named "Lilly." At trial, Payne explained that the sheriff's office creates fake profiles for online investigations as "entire character[s]" complete with "name, appearance, clothing sizes, family things, things that someone online might ask[.]" The fake "Lilly" profile included "geomorph[]" pictures depicting a clothed female approximately twelve or thirteen years old.1

Initially, Payne was not targeting any specific individual. He listed Lilly's "interests" as "Richmond, Virginia[, ] and Mechanicsville," and Omegle randomly paired him with another person who was later identified as appellant. Payne testified that because the chat was anonymous, he was listed as "You" and appellant was listed as "Stranger." Payne recorded the contents of the chat by taking "screenshots" of his computer screen.

Appellant started a conversation by sending the message "M," which Payne understood to mean "male," and Payne responded "f" to indicate "female." Appellant asked for an age. Payne, posing as Lilly, answered that he was thirteen and named Lilly. Appellant stated that his name was Ryan and he was forty.

Appellant asked if Lilly wanted to "kik."[2] Payne responded as Lilly: "[P]arents took my phone for sneaking out lol[.]" Appellant stated that it was "probably just as well" because he was on the couch "being dirty" and "[j]erking off." He asked Lilly if she had a webcam so she could watch him and requested that she send him a picture of herself via email. Payne sent appellant a geomorph picture of Lilly via a Dropbox link.

Appellant commented that Lilly was gorgeous, asked, "Any more [I] can see?" and asked Lilly if she liked phone sex. Payne sent another geomorph picture of Lilly via a Dropbox link. Subsequently, the chat between Payne and appellant disconnected on Omegle.

Payne started a new Omegle chat and was randomly reconnected with appellant. At trial, Payne testified that he knew he reconnected with appellant because "[w]e both shared names again. I said I was Lilly, he said he was Ryan[, ] and we both commented on the odds of us getting reconnected in a chat because it was anonymous." In the second chat with appellant, Payne again stated that Lilly was thirteen years old.

Appellant told Lilly that he "jerked off" while looking at her picture, and he complimented her legs, stating, "Wish [I] could see more of them[.]" He explained that he was nervous about sending a picture of himself because of his age; however, he continued to send explicit messages, discussing his desire to engage in oral sex with Lilly and describing the size of his penis. He also asked about the size of her breasts and stated that he would like to see them.

Appellant stated that he was a professional musician and music teacher who sang, played the flute, and composed. He also gave Lilly information about his ten- and six-year-old daughters.

Appellant sent additional sexually explicit messages and stated that he wanted to show Lilly his genitals. He sent a link to a Dropbox folder. At trial, Payne testified that the folder contained a video depicting an adult male with . . . kind of stocky forearms, strawberry blond arm hair, strawberry blond pubic hair holding his erect penis in his left hand masturbating while it appeared from the camera angle holding a phone in his right hand, had a blue wristband on his left arm holding his penis.

Payne testified that the video was approximately fifteen seconds long, and although he "tried to screenshot it[, ]" it was "so short in length [that he] couldn't get the screenshot in time."

Appellant asked if Lilly liked the video and whether it got her "hot." He said he would take pictures "[w]hen we snapchat," alluded twice to the fact that he was masturbating, and stated, "I wish I could see parts of you naked." He asked, "How do I know you're not a cop LOL[?]" and indicated that he was "ne[r]vous after sending my vid you [know]?" Appellant ended the chat shortly thereafter.

Payne then performed Google searches to determine appellant's identity. Payne found the website PickMusic.org, "which was [appellant's] page advertising music services[.]" The website listed appellant's full name and described him as a music teacher, church music director, private music instructor, composer, and vocal and flute performer in the northern Virginia area.

Payne also found a Facebook photograph of appellant with his wife and two daughters at Disney World. The photograph depicted an adult male wearing a blue wristband who had the same physical characteristics as the man in the Dropbox video. At trial, Payne testified that the blue wristband in the photo was "similar" to the wristband in the video.

In August 2018, a Virginia State Police SWAT team executed a search warrant at appellant's residence. Initially, appellant was handcuffed, but when Payne arrived, the SWAT team leader removed appellant's handcuffs, and appellant was told that he was not under arrest. Payne asked appellant if he could "speak to him privately in the rear of the command post, "3 and he explained that the officers wanted to discuss "personal things about the internet."

Payne and appellant entered the command post, and Payne told appellant that he was free to sit wherever he wanted. Appellant was shown that the door was unlocked and instructed on "how the door of the command post operated." Appellant's access to the door was unobstructed. Two other officers were also in the command post. None of the officers was in uniform, and although they carried firearms and badges of authority, "everything [was] covered with a jacket."

Payne told appellant, "[Y]ou're free to leave the command post and not talk with us if you want to." Appellant, who was agitated, questioned why the police were there. When Payne "started speaking, [appellant] calmed down[, ] but he was still somewhat hyperventilating."

The interview was recorded. Payne asked appellant if he "gets on any [i]nternet sites." Appellant answered, "The only site I ever go on is Omegle" and explained that he chatted on Omegle when he was bored or could not sleep. Payne explained that the police were at appellant's house because of his activity on Omegle. Payne indicated that someone with appellant's first name, and who said he was a music teacher, had an Omegle conversation in July with a young woman from the Richmond area named Lilly. Appellant indicated that he remembered the name "Lilly" but did not remember the conversation.

Maintaining that Lilly was a real person, Payne summarized appellant's Omegle chats with her, including appellant's comments about masturbation. Appellant responded, "[Y]eah, I was just being dirty." Payne continued the summary, and appellant stated, "[I]t's jogging my memory."

Approximately eleven minutes into the interview, appellant said, "I'd like to get an attorney, please." Payne stopped questioning appellant. He told appellant that the police had five arrest warrants for him. Appellant subsequently volunteered statements about his wife and the potential charges, and he stated that his "life [was] over, he'd never teach again . . . and that he needed help with texting and chatting issues."

The police seized a cell phone, iPad, and desktop computer from appellant's home...

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