State v. Majeed
| Decision Date | 27 October 2020 |
| Docket Number | No. 36591-3-III,36591-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Yasir M. MAJEED, Appellant. |
Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant.
Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutors Office, 7122 W Okanogan Pl Bldg. A, Kennewick, WA, 99336-2359, for Respondent.
OPINION PUBLISHED IN PART
Fearing, J. ¶ 1 After jury findings of guilt, the trial court convicted Yasir Majeed with the crimes of commercial sexual abuse of a minor and communication with a minor for immoral purposes. On appeal, he seeks reversal of both convictions on the ground that the trial court commented on the evidence. He seeks reversal of his conviction for commercial sexual abuse of a minor on the grounds that the information did not charge a crime and insufficient evidence supported the conviction. Finally, he seeks reversal of his conviction for communication with a minor for immoral purposes on the basis that the to-convict jury instruction allowed a conviction if he communicated with someone other than the minor victim. We reverse Majeed's conviction for commercial sexual abuse of a minor. We affirm his conviction for communication with a minor for immoral purposes.
FACTS
¶ 2 The prosecution of Yasir Majeed arises from a sting operation aimed at men seeking sex with girls. In July 2017, Sergeant Carlos Rodriguez of the Washington State Patrol Missing and Exploited Children's Task Force posted an advertisement on the website Craigslist in its Casual Encounters section. Sergeant Rodriguez adopted the persona of a 13-year old runaway, Denise Collins. The posting was titled "young looking for older daddy – w4m" and stated:
I am young looking for older daddy to take care of this young baby girl. Be real. Be nice, your pic gets mine. let's get lit! I have a daddy fetish and love to take showers, very clean. let's talk. DDF.
Br. of Resp't App. A at 3 (). "W4m" means woman looking for a man. "DDF" is shorthand for disease and drug free, and "let's get lit" indicates that the advertiser wants to get high or drink.
¶ 3 Yasir Majeed responded by e-mail to the posting: See Br. of Resp't App. B at 5. During his communications in response to the Craigslist ad, Majeed employed the alias "Jay." Report of Proceedings (RP) at 524. During trial, he explained that he used the name because he did not know to whom he was writing.
¶ 4 The ersatz Denise Collins replied to Yasir Majeed's first e-mail message:
RP at 370 ().
¶ 5 With Denise Collins’ response, Sergeant Carlos Rodriguez attached a photograph. Washington State Patrol (WSP) standard operating procedure disallows use of photos of real children. Sergeant Rodriguez used a photo of Trooper Anna Gasser, who was in her mid-twenties. Law enforcement used a filter, available through the social media application Snapchat, to render Trooper Gasser's appearance younger.
¶ 6 The rest of the e-mail messages progressed as follows:
See Br. of Resp't App. B at 5-7 (). Sergeant Carlos Rodriguez, as Denise Collins, sent Yasir Majeed, as Jay, a phone number at which to continue communicating by text message. Majeed sent a text to that number stating "Camping ... Jay." Br. of Resp't App. C at 9.
¶ 7 Once the conversation moved to texting, Detective Kristl Pohl, also with the WSP task force, continued to communicate as Denise Collins with Majeed. During these texts, Majeed requested a "sexy pic" and said "I want u in my arms and to have you ...." Br. of Resp't App. C at 9. Detective Pohl sent Majeed another picture of Trooper Anna Gasser posing as a 13 year-old.
¶ 8 The imaginary Denise Collins told Yasir Majeed, aka Jay, that she resided at a friend's home in Richland, but that her friend would be gone for the weekend. Majeed asked what he could bring when they met, and the following conversation ensued:
See Br. of Resp't App. C at 10 ().
¶ 9 On the morning of July 8, 2017, Yasir Majeed initiated more texts with Detective Kristl Pohl, still acting as Denise Collins, and asked what she was doing that evening. Detective Pohl responded that she was looking for a date. Majeed replied: "I want u, and [sic] will give u 100[.]" Br. of Resp't App. C at 11. Pohl emphasized that Majeed must bring condoms. The two agreed to meet. Detective Pohl, however, did not yet give an address. She told Majeed that she wanted a picture in order to identify him. Majeed described himself to her, and she told him to go to the Liberty Car Wash, from where they would walk to the residence in the Shoreline Apartments. Pohl also asked Majeed to describe his vehicle, and he wrote that he drove a silver truck.
¶ 10 Yasir Majeed drove ten minutes from his house to the carwash designated by Detective Kristl Pohl. Law enforcement officers positioned themselves near the carwash and the apartment complex. Majeed then drove through the apartment complex parking lot and exited the lot onto the street. Law enforcement stopped Majeed's silver truck on the road. Officers arrested Majeed. He possessed condoms and $100 in his pocket.
¶ 11 Detective Kristl Pohl sent a text message to Yasir Majeed's cellphone after his arrest. Pohl routinely sends a message to a suspect's phone after law enforcement detains the person, and the arresting officer watches the phone to determine if the phone receives a message from Pohl's phone number. One of Majeed's arresting officers noticed a text arrive from Pohl's number on Majeed's mobile phone. Pohl's text linked Majeed to the earlier sexual communications.
PROCEDURE
¶ 12 The State of Washington charged Yasir Majeed, by third amended information, with attempted rape of a child in the second degree, commercial sexual abuse of a minor, and communication with a minor for immoral purposes. Count II of the information, which charged commercial sexual abuse of a child, read:
That the said YASIR M MAJEED in the County of Benton, State of Washington, during the time intervening between the 7th day of July, 2017, and the 8th day of July, 2017, in violation of RCW 9.68A.100(1)(b), did pay or agree to pay a fee to a minor or a third person pursuant to an understanding that in return therefore such minor will engage in sexual conduct with him, to wit: did agree to pay a person the defendant believed was a thirteen (13) year old female $100 for sexual conduct, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.
Clerk's Papers (CP) at 15 (emphasis added). Count III of the information, which charged communication with a minor, alleged:
That the said YASIR M MAJEED in the County of Benton, State of Washington, during the time intervening between the 7th day of July, 2017, and the 8th day of July, 2017, in violation of RCW 9.68A.090(2), did communicate with a person the defendant believed was thirteen year old "Denise," a minor, for immoral purposes, to wit: email and text message regarding sexual intercourse, and that communication was through the sending of an electronic communication, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.
CP at 16. Yasir Majeed did not challenge the sufficiency of the information before the trial court.
¶ 13 During jury selection, the State inquired about attitudes toward law enforcement acting in an undercover capacity and attitudes toward proactive rather than reactive action on the part of officers. One juror stated that he approved of law officers engaging in proactive actions provided the officers were acting within the law.
¶ 14 At trial, Sergeant Carlos Rodriguez testified regarding exchanged emails, and Detective Kristl Pohl testified regarding text messages. During trial, Yasir Majeed testified that he believed "Denise" was an adult role playing as a minor. He argued that the fictitious Denise used words and described items related to sex that demonstrated...
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