State v. Lorenz
| Decision Date | 01 July 2004 |
| Docket Number | No. 74061-5.,74061-5. |
| Parties | STATE of Washington, Respondent, v. Pamela Jean LORENZ, Petitioner. |
| Court | Washington Supreme Court |
Sharon Jean Blackford, Seattle, for Petitioner.
Ian Michael Goodhew, Dennis John McCurdy, King Co Pros Ofc, Pros Attorneys Ofc/Appellate Unit, for Respondent.
In this case we consider whether the trial court erred when it refused to include in the "to convict" instruction a finding of sexual gratification for the crime of first degree child molestation. We also consider whether the trial court erred when it admitted petitioner Pamela Jean Lorenz's written statement after ruling that Miranda1 rights were not required because Lorenz was not in custody. We hold that sexual gratification is properly included in the separate instruction defining "sexual contact" and is not an essential element of first degree child molestation. Further, we hold that Lorenz was not in custody when her written statement was made and no Miranda warning was required. We affirm Lorenz's conviction of first degree child molestation.
The jury convicted Lorenz of committing the following crimes against her five year-old daughter, C.: first degree child rape, first degree child molestation, sexual exploitation of a minor; and conspiracy to commit rape, molestation, and, exploitation of a child. The jury convicted Lorenz of committing the following crimes against a 15 year-old female, Melita: third degree child rape, sexual exploitation of a minor, and conspiracy to commit crimes of dealing in depictions of minors engaged in sexually explicit conduct and promoting juvenile prostitution. Only the child molestation charge is at issue in this proceeding.
South Carolina Detective Jeff Vertisch posed as an internet distributor of child pornography while he conducted an undercover investigation on internet child pornography. A Washington resident communicated with Vertisch over a series of e-mails about the purchase and distribution of child pornography. Eventually, the Washington resident offered Vertisch sex with his child escorts in exchange for Vertisch's marketing of his child pornography collection. The Washington resident stated, in an e-mail to Vertisch, that he operated a child "escort service" with escorts ranging from 5 to 15 years old; that he had a 15 year old escort named Mel; and soon his 5 year old would be ready for "oral-clients." One of the e-mails sent to Vertisch included an image of an unidentified child.
Vertisch passed the information along to the Federal Bureau of Investigation's Seattle office (FBI). FBI Special Agent Bruce Bennett shared the information with the Puget Sound Internet Crimes Against Children Task Force (task force).2 Seattle Police Detective Shannon Anderson headed the investigation. The task force tracked the IP (internet protocol) address that sent the e-mail to Merle "Rick" Holdren, a Federal Way resident.3
The task force contacted the Department of Social and Health Services and learned that Holdren lived at the address with a woman named Pamela Lorenz. Lorenz has two children, C., age five, and L., age nine. The task force also learned that Holdren had two active felony warrants. Based on the information obtained from Vertisch and because C.'s age matched the age of one of the child "escorts" described in the e-mails, a search warrant was obtained to search the premises.
On October 30, 2000, Detective Anderson, Port of Seattle Detective Roling, Special Agent Bennett and other members of the task force served the search warrant on Lorenz's trailer home. The task force members entered a trailer in complete disarray. Holdren was arrested for the outstanding warrants. Holdren was advised of his Miranda rights. Lorenz was also arrested for a drug violation when detectives found her trying to hide methamphetamine under her bed. C. and L. were taken by officers to the prosecutor's office.
After Holdren and Lorenz were taken into custody, the task force searched the trailer. Some of the items found were: (1) books on pedophilia and incest (2) child pornography magazines, (3) several cameras and undeveloped film rolls. The task force also found a document advertising a service entitled "Ultimate Fantasies" which was signed, "Sincerely, Rick & Pam, Service Representatives." In the computer desk the task force found more incest and pedophilia literature. The task force seized the computer found in the trailer. The computer contained approximately 400 sexually explicit images of children, videos of children engaged in sex acts, and numerous articles on pedophilia, incest, and sexual activity.
While the search of the trailer took place, C. was interviewed by Nicole Farrell, a child interview specialist, at the King County Prosecutor's office. C. told investigators she had participated in sex with Lorenz (her mother), and Holdren. C. stated, "we went in to do sex with each other" and "we started doing sex with Mom [Lorenz] and Rick [Holdren], all three of us."
The task force developed film seized from Lorenz's trailer. There were several shots of Lorenz and another young woman having sex, and a shot of a young child holding a man's penis. The child in the photograph was wearing a distinctive shirt, and the man had a distinctive scar. The task force believed that C., Lorenz's daughter, was the child in the picture.
Detective Anderson applied for a second search warrant, hoping to find the distinctive shirt depicted in one of the pictures. On November 3, 2000, the task force returned to the trailer with the second search warrant. Lorenz, who had been released on the drug charges, answered the task force's knock at the front door. Seattle Police Detective Nate Janes asked Lorenz to step out onto the front porch. Janes did not arrest Lorenz and placed only one restriction on Lorenz — that she was not to reenter the trailer while the detectives searched for the shirt.
During the search, Special Agent Bennett and Detective Roling questioned Lorenz out on the porch. Bennett informed Lorenz that she was not under arrest and was free to leave any time, but was not allowed inside the trailer while the search took place. Lorenz claimed that the officers told her "sit here" referring to a chair they placed on the porch. Lorenz told officers that the 15 year old in the photographs was her neighbor and that she took the photograph of C. holding Holdren's penis. Lorenz signed a written statement acknowledging that she was not under arrest and was free to leave at any time; it reads, in relevant part, Clerk's Papers (CP) 42. Lorenz's statement explains that Lorenz educated C. about sex by letting her watch Holdren masturbate (on numerous occasions) and also showing her how to masturbate.
The State charged both Holdren and Lorenz with first degree child rape, first degree child molestation, two counts of sexual exploitation of a minor, third degree rape of a child, conspiracy to commit rape, molestation, exploitation of a child, and conspiracy to distribute pornography. Lorenz and Holdren were tried separately.
Lorenz sought to exclude the statements she made during the November 3rd search, claiming that police did not provide her with a Miranda warning. Prior to trial, the trial court conducted a CrR 3.5 hearing to determine the admissibility of her written statement. At the CrR 3.5 hearing, Lorenz testified that one of the detectives told her that if she stopped before completing her written statement, she would be arrested for obstruction of justice. According to Lorenz, Agent Bennett told her he "was going to fuck me up one side and down the other and keep me from seeing my kids, and Mr. Holdren and I could be pen pals in prison for the next 20 years and I'd never see my kids again." CP 198-99. Lorenz also claimed that she asked the detectives whether or not she needed a lawyer. However, at the hearing, Special Agent Bennett denied making any such statements to Lorenz. Detective Roling, present during the interview and taking of the written statement, testified that he did not hear Special Agent Bennett make such statements to Lorenz.
The trial court determined that Lorenz's testimony was not credible because she admitted to lying several times during the course of the written statement, and because another detective present for nearly all the questioning testified that Special Agent Bennett made no threats. The trial court noted that Lorenz's written statement stated "[she had] not been threatened or promised with anything." It concluded that Lorenz's written statement was voluntary. Further, the trial court concluded that Lorenz's written statement was not a custodial interrogation because at all times as memorialized in her written statement, Lorenz was fully aware that she was not under arrest and was free to leave at any time. The trial court ruled Lorenz's written statement was admissible.
Lorenz proposed "to convict" jury instructions that included "sexual gratification" as an element of first degree child molestation.4 The trial court declined Lorenz's proposal, and gave jury instruction nos. 10-12 patterned after 11 Washington Pattern Jury Instructions: Criminal 44.20-.21, at 544-45; 45.07, at 566 (2d ed.1994).
Jury instruction number 10 read, "A person commits the crime of child molestation in the first degree when that person has sexual contact with another person who is less than twelve years old and who is not married to the person and is at least thirty-six months older than the victim."
The portion of jury instruction number 11 in dispute reads:
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