State v. Robins, 00-2841-CR.
| Decision Date | 21 June 2002 |
| Docket Number | No. 00-2841-CR.,00-2841-CR. |
| Citation | 253 Wis.2d 298,2002 WI 65,646 N.W.2d 287 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Brian D. ROBINS, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs by Craig W. Albee and Glynn, Fitzgerald & Albee, S.C., Milwaukee, and oral argument by Craig W. Albee.
For the plaintiff-respondent the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the brief was James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.
¶ 1.
This is a prosecution for attempted child enticement arising out of an internet "sting" operation by the Department of Justice (DOJ). The primary issue is whether the child enticement statute is violated when there is no actual child victim, but, rather, an adult government agent posing online as a child. The defendant also challenges the sufficiency of the allegations in the complaint and the evidence at the preliminary hearing. Finally, the defendant raises a First Amendment challenge to the statute as applied to child enticements initiated over the internet.
¶ 2. The defendant raised these issues in various motions to dismiss in the Outagamie County Circuit Court. The Honorable Michael W. Gage denied the motions, and the court of appeals granted interlocutory appeal. We accepted the defendant's petition to bypass, and now affirm.
¶ 3. We conclude that an attempted child enticement under Wis. Stat. § 948.07 (1999-2000)1 may be charged where the intervening extraneous factor that makes the offense an attempted rather than completed crime is the fact that unbeknownst to the defendant, the "victim" is not a child at all, but an adult posing as a child. We further conclude that the allegations in the complaint and the evidence at the preliminary hearing were sufficient to establish probable cause in this case. Finally, because the child enticement statute regulates conduct rather than speech or expression, the First Amendment is not implicated by this prosecution.
¶ 4. The defendant Brian Robins was charged with attempted child enticement contrary to Wis. Stat. § 948.07(1), stemming from a DOJ internet "sting" operation.2 Beginning on January 31, 2000, Robins, using the screen name "W14Kink," had a series of online conversations with "Benjm13," initially in an internet chat room known as "Wisconsin M4M."3 Unbeknownst to Robins, "Benjm13" was Thomas Fassbender, a 42-year-old DOJ agent posing online as a 13-year-old boy named Benjamin living in Little Chute, Wisconsin.
¶ 5. The subject of "Benjamin's" age came up within the first 12 minutes of the first online conversation between Robins and "Benjm13." "Benjamin" told Robins that he was 13 years old.4 The initial and subsequent online conversations and e-mails between Robins and "Benjm13" centered on explicit sexual matters (including, among other things, oral sex, masturbation, ejaculation, and penis size), and were recorded by Fassbender.5
¶ 6. Robins, who was 46 years old and lived in Wauwatosa at the time of the offense, suggested that the two meet:
WI4kink: So you ever get to Milwaukee?
¶ 7. Robins acknowledged that what he was proposing to do was illegal:
¶ 8. The second online conversation between Robins and "Benjamin" took place the next evening, February 1, 2000. Again it involved mostly sexual topics, and Robins was persistent in setting up a meeting between the two on the following Saturday. The conversation makes clear that Robins was planning to find a motel room:
¶ 9. Robins also asked "Benjamin" for his telephone number. "Benjamin" appeared to be reluctant to give it to him. After Robins assured "Benjamin" that he would only use the number to call on Saturday to confirm their meeting, "Benjamin" replied, "ok."
¶ 10. On February 2 and 3, Robins and "Benjamin" "missed" each other online, and instead exchanged e-mail messages. In one e-mail, "Benjamin" informed Robins that he had directions to Little Chute and that they could probably meet at the Burger King just off the highway. Robins e-mailed "Benjamin" and asked him to send the directions. He also told "Benjamin" that he was "still a little nervous" because he "would not want to get scammed." "Benjamin" sent the directions, together with the message, "i'm a little scared to [sic]. u have to promise me not to tell anyone and to be nice ok. my mom would kill me." In another e-mail, Robins advised that he would arrive in Little Chute around noon, but that "Benjamin" should give Robins his telephone number so that Robins could call on Saturday morning with an exact time. Robins closed the e-mail by saying:
¶ 11. On Friday, February 4, 2000, Robins and "Benjamin" met online and engaged in another instant message conversation. This conversation confirmed that the two would meet the following day for the purpose of having sex. Robins expressed his hope that "Benjamin" was "saving" himself for the following day (that is, he hoped "Benjamin" would not masturbate before their meeting) and that he (Robins) was "getting hard just talking to" him ("Benjamin"). Robins again asked Benjamin for his telephone number because Robins "want[ed] to make sure that ["Benjamin" was] serious." Because "Benjamin" appeared to be nervous about Robins calling his house, they decided to meet online again in the morning before Robins made the telephone call.6
¶ 12. At a little after 10 a.m. on Saturday, February 5, 2000, Robins and "Benjamin" met online for the fourth and final time. "Benjamin" said he was "exited [sic] about goin to a motel." Robins replied that it "should be hot." "Benjamin" gave Robins his telephone number and they both signed off the internet.
¶ 13. Soon after they signed off, Robins called the number "Benjamin"—Fassbender—had given him. Officer Ray Lee of the Fox Valley Metro Police Department posed as "Benjamin" during the telephone conversation. The conversation was recorded and Fassbender testified at the preliminary hearing that the content of the telephone conversation consisted mainly of setting the final arrangements for the meeting—what Robins would be wearing, what kind of car Robins would be driving, what "Benjamin" would be wearing and what he looked like. Fassbender testified that "Mr. Robins said, we'll have to find a motel when I get up there, something to that effect."
¶ 14. In the meantime, Fassbender had determined through America Online that the screen name "WI4kink" belonged to Robins. The DOJ set up surveillance outside Robins' home in Wauwautosa. Shortly after Robins' telephone conversation with "Benjamin" on Saturday, February 5, 2000, Robins left his house. He was surveilled from his home to the Burger King in Little Chute. Robins parked in the Burger King parking lot, got out of his car, and was arrested as he walked towards the restaurant.
¶ 15. Robins admitted in a statement to police that he had met "Benjm13" in an internet chat room, that "Benjm13" told Robins that he was a 13-year-old boy, that they'd had sexually explicit conversations, and that Robins had e-mailed sexually explicit materials to "Benjm13". Robins further admitted that he had set up the meeting with "Benjm13" for the purpose of having sex with him. Robins also stated that he had told "Benjm13" that they would go to a motel room for that purpose.
¶ 16. Just before the preliminary hearing, Robins filed a motion to dismiss the complaint for lack of probable cause. Because of the short notice, the motion was not immediately decided. The preliminary hearing was held, and the State's motion for bindover was granted, over Robins' objection.
¶ 17. Following arraignment, Robins moved to dismiss, alleging insufficient evidence to support the bindover. He also challenged the constitutionality of Wis. Stat. § 948.07 as applied to child enticements initiated over the internet.
¶ 18. The circuit court denied the motions, finding sufficient evidence to establish probable cause and rejecting Robins' constitutional attack on the statute. The circuit court was not persuaded by Robins' argument that the statute as applied here impermissibly infringed First Amendment rights. The circuit court held that the child enticement statute "does not ban expression, but a particular type of conduct involving children that may or may not flow from protected speech."
¶ 19. Robins petitioned the court of appeals for leave to appeal the circuit court's non-final orders, which the court of appeals granted. Robins then petitioned this court for permission to bypass the court of appeals. The State joined in the request, citing the substantial number of pending child enticement prosecutions involving internet "sting" operations in which government agents pose online as children. We granted bypass.
[1-4]
¶ 20. The applicability of the child enticement statute to an internet "sting" operation that involves an adult undercover officer posing online as a child is a question of law that we review de novo. State v. Jensen, 2000 WI 84, ¶ 12, 236 Wis. 2d 521, 613 N.W.2d 170. The sufficiency of the...
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