State v. Griffin

• Decision Date: 20 August 2019
• Docket Number: No. 50823-1-II,50823-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DANIEL RYAN GRIFFIN, Appellant.

STATE OF WASHINGTON, Respondent, v. DANIEL RYAN GRIFFIN, Appellant.

No. 50823-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

August 20, 2019

UNPUBLISHED OPINION

LEE, A.C.J. — Daniel R. Griffin appeals his convictions for one count of third degree child molestation and seven counts of communication with a minor for immoral purposes. He challenges the (1) denial of his motion to suppress evidence found on his cell phone, (2) refusal to give his proposed jury instructions, (3) constitutionality of the communication with a minor for immoral purposes statute as applied to him, (4) admission of his internet browsing history into evidence, (5) exclusion of testimony from two defense witnesses, (6) adequacy of the hearing addressing the State's intrusion into his attorney client communications, and (7) imposition of a $200 criminal filing fee at sentencing.

In a statement of additional grounds (SAG), Griffin challenges the constitutionality of the communication with a minor for immoral purposes statute, the language of the charging document, and the sufficiency of the evidence to support his third degree child molestation conviction.

We agree that the evidence found on Griffin's cell phone should have been suppressed because the search warrant was not sufficiently particular. However, we hold that this error was harmless as to the third degree child molestation conviction and six of the communication with a minor for immoral purposes convictions. We are not persuaded by Griffin's other challenges raised on appeal. Accordingly, we affirm Griffin's third degree child molestation conviction and six of his communication with a minor for immoral purposes convictions, vacate one of Griffin's communication with a minor for immoral purposes convictions, and remand to the trial court for further proceedings consistent with this opinion.

FACTS

A. INITIAL INVESTIGATION

S.L.¹ met Griffin in August 2014 through her mother's work. At the time, S.L. was 13 years old and Griffin was around 34 years old. The two exchanged cell phone numbers and regularly text messaged each other for the next 10 months. This communication culminated in a June 2015 incident in which Griffin invited S.L. to his home, tied her up with rope, and touched her bare breast with his hands and mouth.

On June 24, 2015, S.L. got into a fight with her stepmother. As punishment, S.L.'s stepmother took away S.L.'s cell phone. Later that evening, S.L.'s stepmother scrolled through S.L.'s text messages and noticed several messages from Griffin. Some of Griffin's messages encouraged S.L. to throw away her antidepressant medication. Other messages discussedemancipation, moving into an apartment together, and the size of S.L.'s minor girlfriend's breasts. S.L.'s stepmother contacted S.L.'s father.

S.L.'s father confronted S.L. about her relationship with Griffin, and S.L. admitted that she also communicated with Griffin on a mobile software application. S.L.'s father reinstalled the software application onto S.L.'s phone and began receiving messages from Griffin. S.L.'s father, acting as S.L., responded to Griffin's messages. Eventually, Griffin messaged S.L.'s phone the following:

In the fantasy, I tie you to the desk, your leg to the desk leg, on both sides.

. . . .

You would have a shoulder harness that would be tied to the front of the desk, holding you securely in place. Your elbows would be tied behind your back, your arms straight, so that they rested on your a**.

. . . .

I expect you would be a little nervous, as I loomed over you with a perverted smile.

. . . .

I would place a small bottle in one of your hands, and command you to apply the contents to your anus. You would squirm, and insist that *I* be the one to apply it. There would be a moment of silence, followed by several slaps of a flog across your back and thighs.

Exhibit 1 at 7-11 (we quote only appellant's texts for ease of readability).

S.L.'s father photographed the messages and contacted law enforcement. He also gave law enforcement S.L.'s cell phone for forensic examination.

B. SEARCH WARRANTS

Detective Bradley Graham of the Tacoma Police Department was assigned to investigate the case. On July 7, Detective Graham obtained a warrant to search Griffin's house for the following evidence:

Bondage items to include handcuffs, ropes, gags, slings and restraints;

Pictures of the victim that appear in any printed format;

The cell phone of Daniel Griffin—phone number 253-***-****;

Documents showing dominion and control of the residence; and

General crime scene processing to include photographing, videotaping and diagraming of the residence.

Clerk's Papers (CP) at 33. The search of Griffin's home unearthed rope, massage oil, sex toys, and Griffin's cell phone.

On July 9, Detective Graham submitted an application and affidavit in support of probable cause to obtain a warrant to search Griffin's cell phone for evidence of third degree child molestation and communication with a minor for immoral purposes. The application and affidavit stated in relevant part:

On June 25th, 2015, Tacoma Police began a child sexual abuse investigation centering on the sexual abuse of 14 year old [S.L.] by Daniel Griffin (an adult male) who was an acquaintance of the family. The allegations were that Griffin fondled and licked the breasts of the victim, tied her up, and sent her sexually explicit text messages and photographs of his nude body. They communicated via cell phones.

. . . .

In the original search warrant, TPD Detective B. Graham asked that the defendant's cell phone be seized "to be forensically searched for the images and texts sent to the victim[.]"[]

After turning the phone over [to] the TPD Cell Phone Forensics Unit, Detective Graham has learned that the seized phone—a Samsung Galaxy S4—is more than a simple cell phone and gives the user the ability to manipulate the data and images on the phone beyond simple storage in the default texting mode. This phone, according to its manufacturer, has numerous ways in which to convey communications. This includes user installed (downloaded) applications that allow non-traditional means to deliver desired content.

. . . .

The identification of any stored data requires a forensic search of the cell phone for:

Contact/phone list—potentially indicates (confirms) relationship linkage between suspect and victim;

Call history details—potentially indicates communication linkage between suspect and victim during the time frame disclosed by the victim;

Short Message Service (SMS) and Multimedia Message Service (MMS)—potentially could indicate the communication delivery type between the suspect and victim to include attachments (if any) such as video, images or sound files related to the victim's disclosure;

Images—potentially details and/or documents the relationship time frame and supports the charge of communicating for immoral purposes. Note: images can contain data that retains date and time created or accessed;

Video—potentially details and/or documents the relationship time frame and supports the charge of communicating for immoral purposes. Note: videos can contain data that retains date and time created or accessed;

User-installed applications: if installed and implemented, potentially could indicate the delivery of communications between the suspect and victim regarding relationship status to include sexually explicit communication;

Web history and bookmarks—potentially can detail any internet searches which aided in or helped in communicating sexually explicit images or data between the suspect and victim;

Emails—details communications to include attachments which could detail the relationship between the suspect and the victim.

CP at 86-87.

A judge issued a warrant to search Griffin's phone for:

Any and all stored data, to include but not limited to, assigned handset number, call details, images, sound files, text and multimedia messages, voice and sound files, music files, web and internet history, sim and microSD content, proprietary and secondary memory data to include deleted data, contained on: 1 Samsung Galaxy S4, containing a microsd memory card and SIM card, identified as belonging to Daniel Griffin.

CP at 89.

Law enforcement forensically examined Griffin's cell phone and extracted thousands of pages of records, including images, emails, text messages, call logs, GPS location data, and Griffin's internet browsing history. Five of the emails collected were between Griffin and prospective attorneys.

The State charged Griffin with one count of third degree child molestation and four counts of communicating with a minor for immoral purposes.

C. PRETRIAL MOTIONS

Griffin learned that law enforcement had obtained his communications with attorneys through the State's discovery. Griffin informed the trial court at a status conference held on October 25, 2016, that law enforcement had obtained his attorney, client communications. He brought the privileged communications to court and asked the trial court to "review them in-camera today and make a determination and keep the current trial date." Verbatim Report of Proceedings (VRP) (Oct. 25, 2016) at 5.

The trial court conducted an in-camera review of the documents and held a hearing the next day to address the issue. The trial court ruled that the pages were privileged. Griffin addressed the trial court and stated, "So I guess, then, at this point, the question is what to do about it, what the remedy is." VRP (Oct. 26, 2016) at 3. The prosecutor asserted that she had not read the privileged documents. Nonetheless, the trial court ruled that it would "just presume that because they were in [the State's] possession, somebody read them." VRP (Oct. 26, 2016) at 6-7. Based on its review of the documents, the trial court ruled that they were not prejudicial because they did not disclose any work product or trial strategy or tactic. Griffin moved for an order sealing the documents from public view, which the trial court granted.

Griffin subsequently...