State v. Pamon

• Decision Date: 07 March 2022
• Docket Number: 83468-1-I
• Parties: STATE OF WASHINGTON, Respondent, v. BRANDON CHRISTOPHER PAMON, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,
v.
BRANDON CHRISTOPHER PAMON, Appellant.

No. 83468-1-I

Court of Appeals of Washington, Division 1

March 7, 2022

UNPUBLISHED OPINION

Chun, J.

The State charged Brandon Pamon with attempted rape of a child in the second degree, attempted promotion of commercial sexual abuse of a minor, and communicating with a minor for immoral purposes. After a bench trial, the trial court found Pamon guilty as charged. It imposed an exceptional downward sentence. Pamon appeals, contending that his defense counsel was ineffective for failing to raise an entrapment defense and, in the alternative, that the court's findings do not support its determination that he took a substantial step toward the commission of attempted promotion of commercial sexual abuse of a minor. For the reasons below, we affirm.

I. BACKGROUND

A. Facts

In August 2018, Pamon received a Facebook "friend request" from a profile with the name Samantha "Sam" Collins. Undercover Washington State Patrol (WSP) Sergeant Carlos Rodriguez managed Sam's profile. Rodriguez used photos of WSP Trooper Jennifer Wilcox as photos of the fictitious Sam.

1

Some photos were edited with filters that made Wilcox appear younger. At the time, Rodriguez worked for the WSP Missing and Exploited Children's Task Force (MECTF), which conducts undercover operations-called "Net Nanny" operations-to identify sexual predators. Rodriguez testified that they targeted Pamon because, according to an FBI agent, Pamon had become Facebook friends with young girls.

Pamon accepted the friend request and messaged Sam, saying that he wanted to get to know her and that she was "hella gorgeous." Sam asked for Pamon's age, and he said that he was 20 years old; after Sam expressed disappointment that he could not buy alcohol, he responded with his correct age of 28. During their text exchange, he suggested that he "come and pick [her] up" and Sam told him she was 13 years old. Pamon responded by trying to video chat with Sam, which attempt Sam ignored. Pamon continued to try to video chat with Sam throughout their text exchanges. He told Sam he "want[ed]" her and that she was "hella sexy." A few days later, he asked Sam for a nude photograph and Sam sent him a photograph of Wilcox clothed. He told her he wanted to "f*** the s*** out" of her and mentioned sexual acts. During an exchange in which Sam alluded to her age by saying she thought her breasts would grow, Pamon responded, "How old are you and don't lie to me." She said, "I already told u. 13" to which he replied, "I know when I'm going to see you." Sam also mentioned that she "hustle[s] up in fed way sumtimes."

Communication between the two temporarily ceased in September and about three weeks later, in October, Sam initiated communication. During the

2

exchange, Pamon said, "You know what I want to do to you" to which she replied, "make paper lol" and "fr Imk." He responded, "Ya and I want to fuck you Hella bad." Throughout their exchanges, Sam alluded to sex work by calling Pamon "daddy," mentioning moving between multiple towns, and talking about "hustling" and "paper."

In December, Wilcox, pretending to be Sam, and Pamon spoke on the phone. During the call, Pamon suggested that he could "sell" Sam and make "good money." The two planned a meeting for December and Sam asked him to bring condoms. The meeting did not occur but the two continued to communicate. In later messages, Pamon asked Sam whether she was "ready to walk" and whether she would do "the track" for him-referencing the solicitation of sex customers on the street.

In January 2019, Pamon travelled by bus to meet Sam in Tacoma. While Pamon was travelling, Sam asked him, "u still wanna f*** me or just wanna make money or both?" and Pamon responded, "I want both." Sam gave him an address, and when Pamon arrived at the house, law enforcement arrested him. He was carrying a condom and the phone used to communicate with Sam.

B. Procedural History

The State charged Pamon with attempted rape of a child in the second degree, attempted promotion of commercial sexual abuse of a minor, and communication with a minor for immoral purposes. His case proceeded to a bench trial.

3

During Rodriguez's testimony, defense counsel moved to have the State disclose exculpatory evidence in the form of Sam's Facebook account. The State responded that defense counsel did not interview Rodriguez and did not request Sam's account before trial despite knowing the case involved Facebook. The State then pointed out that Pamon had not asserted the affirmative defense of entrapment. Defense counsel later moved to amend Pamon's defense to include entrapment, which motion the State opposed as untimely. The court requested briefing on the issue. After the parties rested, the court suggested they could address entrapment in their closing and the State objected. Defense counsel agreed to waive the entrapment defense, noting that he was "sufficiently pleased" with the way things turned out.

During trial, defense counsel contended that Pamon did not believe Sam's stated age and thus did not have the requisite intent for the three charged crimes. Defense counsel argued that Pamon's repeated attempts to video chat with Sam were attempts to verify her age. The defense emphasized Pamon's comment to Sam telling her not to lie to him about her age. The defense noted that the unedited photos of Sam on her Facebook profile appeared to be of a person older than 13 years of age and that some of her language and behavior was unusual for a 13-year-old. The defense contended that Pamon planned to see Sam in person to verify her age when he was arrested.

The trial court found Pamon guilty as charged.

During sentencing, the court noted that the degree to which law enforcement targeted Pamon here was unusual compared to typical MECTF "Net

4

Nanny" operations. The court found by a preponderance of the evidence three mitigating factors justifying an exceptional downward sentence. The first mitigating factor was that law enforcement, as the "complaining witness," was "to a significant degree, an initiator, willing participant, aggressor, or provoker of the incident." The second mitigating factor was that "the Defendant, with no apparent predisposition to do so was induced by others to participate in the crime" and the court found there was no evidence Pamon had been "friending young girls" on Facebook. And the third mitigating factor was that "the Defendant's capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired." The court found that Pamon "has a compromised intellect" and that Sam "initiated discussions of commercial sexual exploitation." The court sentenced Pamon to an indeterminate sentence of 96 months to life in prison.^[1]

The court entered the final judgment and sentence on March 27, 2020. Pamon appeals.

II. ANALYSIS

A. Ineffective Assistance of Counsel (IAC)^[2]

Pamon says that his defense counsel provided ineffective assistance by failing to prepare, raise, and present an entrapment defense when the evidence

5

justified such a defense. The State contends that defense counsel pursued the most viable defense and that Pamon cannot establish prejudice. We conclude defense counsel did not perform deficiently.

We review de novo IAC claims. State v. Feelv, 192 Wn.App. 751, 768, 368 P.3d 514 (2016). The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel. State v. Vazquez, 198 Wn.2d 239, 247, 494 P.3d 424 (2021). "Courts indulge a strong presumption that the counsel is effective." Id.

"To demonstrate ineffective assistance of counsel, a defendant must make two showings: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different."

Id. at 247-48 (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). The defendant bears the burden of establishing that defense counsel's performance was deficient by showing "'the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.'" Id., at 248 (quoting McFarland, 127 Wn.2d at 336). "[W]e are highly deferential to the performance of counsel." State v. Crawford, 159 Wn.2d 86, 98, 147 P.3d 1288 (2006). "'A reasonable probability is a probability sufficient to undermine

6

confidence in the outcome.'" Vazquez, 198 Wn.2d at 248 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed. 2D 674 (1984)).

RCW 9A. 16.070 defines the entrapment defense as such:

(1) In any prosecution for a crime, it is a defense that:

(a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and

(b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.

(2)The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime.

The use of a "normal amount of persuasion" by law enforcement does not suffice for the defense. State v. Trujillo, 75 Wn.App. 913, 918, 883 P.2d 329 (1994). The State can use a variety of evidence to prove intent, such as ready compliance with an illegal request, demonstrated eagerness to commit the crime, and substantial effort in investigating and arranging an illegal transaction. State v. Pleasant, 38 Wn.App. 78, 81, 684 P.2d 761 (1984); State v....