State v. Cartwright

• Court: Idaho Supreme Court
• Writing for the Court: MOELLER, Justice
• Citation: State v. Cartwright, 168 Idaho 802, 487 P.3d 737 (Idaho 2021)
• Decision Date: 27 May 2021
• Docket Number: Docket No. 47440
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas Reese CARTWRIGHT, Defendant-Appellant.

168 Idaho 802

487 P.3d 737

STATE of Idaho, Plaintiff-Respondent,

v.Thomas Reese CARTWRIGHT, Defendant-Appellant.

Docket No. 47440

Supreme Court of Idaho, Boise, April 2021 Term.

Opinion filed: May 27, 2021

Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Ben McGreevy argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth Jorgensen argued.

MOELLER, Justice

Thomas Reese Cartwright ("Cartwright") appeals his judgment of conviction for felony enticing a child through the use of the internet. Police arrested Cartwright outside a 7-11 convenience store, where he was attempting to meet a 14-year-old girl with whom he had been exchanging sexual messages. In reality, the girl was an undercover detective. Cartwright argues the district court erred when it denied his motion to dismiss because Idaho Code section 18-1509A is unconstitutionally overbroad on its face. Cartwright also argues the district court erred when it refused to instruct the jury on entrapment. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Officers with the Internet Crimes Against Children Task force conducted an operation in the Post Falls area to apprehend adults who were "trying to link up with underage people for sexual reasons." Using an undercover profile—a 14-year-old girl named "Kaylee"—Detective Jeff Bickford ("the detective") created a post on the social media app Whisper,¹ showing a stock photo of a feminine face and the superimposed words "Lonely and alone. Can't wait til I'm older and people won't judge." Cartwright replied by private message under the username "Big Bad Wolf 17."

Cartwright and the detective exchanged instant-messages on an app known as "Whisper." The detective tried to use language the way a teenager would; for example, he intentionally misspelled words, used frequent abbreviations, omitted punctuation, and made typos.² The messaged conversation began as follows:

Cartwright: How bored[?]

"Kaylee": Like I wish I want alone

Cartwright: How old are you

"Kaylee": Almost 15

Cartwright: Yikes

Glad I didn't invite you over

"Kaylee": Why...that be fun

But Whatever

Cartwright: What would be fun ?

"Kaylee": Coming over

Cartwright: Talk to me

Send me a face pic please

"Kaylee": Why u said u didn't want me to come over

Cartwright: Maybe I will change my mind

"Kaylee": Whatev

The detective sent Cartwright an age regression photograph of a female detective. "Cute," Cartwright replied and then asked, "And if you came over what we do?" He sent the detective a selfie. The detective suggested they switch to text messaging by cell phone—a technique used to allow law enforcement to identify people by their phone numbers—but Cartwright continued the chat on Whisper:

Cartwright: Where are your parents

"Kaylee": Kennewick

I'm at my ants

...

Cartwright: Are you submissive

You do know I'm 53 right

"Kaylee": Holy shit

The last guy was like 45

Cartwright: What last guy

"Kaylee": Tex please

Cartwright: Your not a cop are you

"Kaylee": Omg I'm sorry, I didn't no u were a cop.

Gotta go...I won't do it again...sorry

Cartwright: No are you

"Kaylee": Lol...totally didn't understand...no

...

"Kaylee": And I'm not into handcuff and freaky weird shit if that's what u want. Im normal

...

"Kaylee" said the Whisper app kept crashing, so Cartwright began texting to the phone number the detective had provided instead. He asked if she had done anything sexually with the 45-year-old man she mentioned before. When "Kaylee" admitted that she had, Cartwright asked for specifics, but she told him she had promised to never tell. Only then did Cartwright ask for her name. Then he asked again, "And if you came over what we do?" before introducing himself by his middle name, Reese, and promising he was "not a creeper." He asked again what she would tell her aunt. "Kaylee" said she did not want to get hurt, and Cartwright answered, "I won't hurt you ... I have done this before but no one as young as you." He noted that the app showed she was only two miles away. He asked if she liked to cuddle and what she had planned for tomorrow. He told her she could come over during the day.

Cartwright next suggested they talk on the phone, so a female officer called Cartwright, pretending to be "Kaylee." On the phone, "Kaylee" sounded uncomfortable, saying quietly that talking was awkward, but Cartwright pressed her with questions about meeting: "Well, it would be fun to have you here. We could hang out. That would be nice. Right?" He asked again if she liked to cuddle and suggested they could watch the Disney movie Beauty and the Beast together. Then Cartwright turned the conversation to the sexual part of their text exchange, saying, "So when I asked you if you were submissive, you thought it was all about handcuffs and all that? No, it's not all about that, but that's okay.... For me it's more of a lifestyle than anything. It's not all that 50 Shades of Gray stuff ...." He said he could send an Uber or Lyft to her house to get her the next day while her aunt was at work. Then "Kaylee" said she felt too awkward on the phone and asked if they could return to texting.

The text conversation resumed with Cartwright suggesting again that 14-year-old "Kaylee" could come over to his place. He described landmarks near his house and suggested they meet. "Kaylee" said she was excited to meet, and when Cartwright offered to meet and talk first, she said, "just meet...that's boring." Cartwright said that he was trying to work with her. He promised again that she would not get hurt and said, "Let's meet and go from there."

"Kaylee" then told Cartwright about a friend of hers who had become pregnant. Cartwright responded:

Cartwright: Well I don't plan on doing that

Where do you want to meet

"Kaylee": how can u be sure

promise me

Cartwright: Maybe we won't even do that

Yes I promise

Where are we meeting

"Kaylee" asked Cartwright, "whats ur fav[?]" Cartwright again replied, "Let's meet somewhere." "Kaylee" told him again she was not "into handcuffs and weird stuff" and he assured her that he did not have any handcuffs and he would not hurt her. Again, he told her, "Well the first step is meeting[.]"

Then, the following exchange took place, in which "Kaylee" made obliquely sexual comments, which Cartwright consistently interpreted as sexual and answered accordingly:

"Kaylee": thats sooo nice...i'm totaly up for anything so long as u dont hurt me

r u big guy?

Cartwright: I should actually get to bed unless you want to meet

"Kaylee": wish i could see

Cartwright: Big as in ?

"Kaylee": u serious...OMG

Cartwright: I'm thick yes

"Kaylee": show me

Cartwright: About 6 inches

"Kaylee": last guy was skiny

Cartwright: And Who was that

I'm not hard at the minute

Are we meeting some where public or what

"Kaylee": that sux

Cartwright: Are you wet

"Kaylee": i was...i had some weird tingles...kinda nice...i like this but just wanna be safe and not fuck my life up

Cartwright: I'm not going to

"Kaylee": OMG i took a good showr tho

An explicit conversation followed in which Cartwright asked "Kaylee" to make a specific sexual request and to say "please, sir" in requesting it. Cartwright then discussed his favorite sexual position and explained to "Kaylee" how it worked. "Kaylee" again expressed concerns about becoming pregnant:

"Kaylee": promis i wont get preg

Cartwright: No I have condoms or I can pull out

If you want to meet in public we need to do it soon

...

"Kaylee" agreed to meet Cartwright outside a convenience store. Around midnight, Cartwright walked nearly a mile in the worst blizzard of the year, sub-zero temperatures, and snow drifts to get to the 7-11. When he arrived, he texted "Kaylee" that he would buy her a hot chocolate. "Just pretend I'm your grandpa," he wrote. Officers met Cartwright outside the store and arrested him. The arresting officer asked if Cartwright knew what this was about, and Cartwright answered, "Yeah I was speaking to a fifteen-year-old girl. Supposedly." After the arrest, the detectives heard him mutter, "Stupid, stupid, stupid." Cartwright was in possession of the cell phone, which was later shown to contain the Whisper app messages and text messages set forth above.

In a subsequent police interview, in which Cartwright was read his rights and consented to be interviewed, Cartwright first claimed he had no sexual intentions behind attempting to meet "Kaylee." However, upon further questioning, he answered, "Would sex have happened? Yes. But it wasn't going to happen right away. Like it, it wasn't going to be as soon as you walk in my door we're having sex. I wouldn't do that." Cartwright also acknowledged that when he had asked "Kaylee" during the text conversation if she was "submissive," he meant the question in a sexual context.

During the trial, Cartwright testified in his own defense, describing his lonely state of mind. He acknowledged previously having met women online for sex, including four times in the past month, though he stated he had never met with anyone underage. He also claimed that he could not actually have had sex with "Kaylee" because he has "low testosterone and erectile dysfunction." Nonetheless, on cross-examination, Cartwright acknowledged that his intention in communicating with people online generally was to meet for sex. Cartwright also admitted that from the beginning of his conversation with "Kaylee" he knew what he was doing was wrong because he intended to talk to a 14-year-old child about sex. Additionally, he conceded that he continually drove the conversation in a sexual direction even though he was aware that "Kaylee" was supposedly a child.

B. Procedural History

The State charged Cartwright by superseding indictment with felony enticing a child through use of the internet, under Idaho Code section 18-1509A. Cartwright entered a plea of not guilty. Prior to trial, Cartwright filed a motion to dismiss on the grounds that section 18-1509A was "overbroad on its face because it targets and criminalizes statements and...