       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )      No. 72102-0-1
                     Respondent,          )
                                          )      DIVISION ONE                      CJ"'          -
                                                                                   CD
              v.                          )
                                          )                                          .      I
ALAN JAMES SINCLAIR, II,                  )      UNPUBLISHED OPINION
                                                                                         •y;-\
                                          )
                     Appellant.           )      FILED: December 7, 2015                  \£'

                                          J                                                -*-

                                                                                            o

       Becker, J. —Appellant, convicted of sexually abusing his granddaughter,

contends the trial court improperly admitted a recording of an incriminating

communication obtained without the consent of the participants in the

communication. The recording resulted from an inadvertent "pocket dial" from

appellant's cell phone that went to the recipient's voice mail. Finding that any

statutory violation was harmless, we affirm.

      A jury found appellant Alan Sinclair guilty of two counts of second degree

rape of a child, two counts of third degree child molestation, and one

misdemeanor count of communication with a minor for immoral purposes. All

charges arose from Sinclair's sexual abuse of his granddaughter. According to

her testimony at trial, Sinclair began kissing her "tongue to tongue" when she

was 11 or 12 years old and progressed to oral sex when she was 13 or 14.

      The recording at issue occurred one afternoon when the granddaughter

was home alone and Sinclair was visiting her. The granddaughter testified that
No. 72102-0-1/2


Sinclair kissed her "tongue to tongue" and then she and Sinclair went outside and

continued a conversation. During the conversation, Sinclair unintentionally dialed

the girl's mother with his cell phone. The mother did not answer. Her cell phone

transferred the call to voice mail. The voice mail system recorded Sinclair

saying, "I love that tongue. ... I don't know if you love mine." The conversation

continued with Sinclair making veiled threats that his dead ancestors would inflict

physical injury on the girl for not being "nice." The mother later listened to the

voice mail recording on her phone and heard the conversation. This led to the

filing of the criminal charges against Sinclair.

       Sinclair moved to suppress the voice mail under the Washington privacy

act, chapter 9.73 RCW. The privacy act makes it unlawful for any "individual" to

record any private conversation "withoutfirst obtaining the consent of all the

persons engaged in the conversation." RCW 9.73.030(1 )(b). There is an

exception for conversations "which convey threats," which "may be recorded with

the consent of one party to the conversation." RCW 9.73.030(2). Neither

Sinclair nor his granddaughter consented to the recording.

       Sinclair contends the lack of consent made the recording inadmissible at

trial. The trial court considered a number of issues in connection with Sinclair's

motion to suppress. Was the conversation private? Did an "individual" record it?

Does an individual incur criminal liability for an inadvertent recording, or must

someone be acting with a criminal mens rea to engage the prohibitions of the

act? It was undisputed that the call was made inadvertently. The trial court
No. 72102-0-1/3


denied the motion to suppress, concluding the privacy act did not apply because

of "the absence of any unlawful act by anybody."

       The issues are interesting and novel. But we conclude it is unnecessary

to resolve them in this case because any error was harmless. We refrain from

attempting a "definitive construction" of the statute in a case involving somewhat

"bizarre" facts. State v. Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975).

       Admission of evidence in violation of the privacy act is a statutory

violation, not a constitutional one. An error is not prejudicial unless the

erroneous admission of the evidence materially affected the outcome of the trial.

State v. Courtney. 137 Wn. App. 376, 383-84, 153 P.3d 238 (2007), review

denied. 163 Wn.2d 1010 (2008). Here, there is no reasonable probability that the

outcome of Sinclair's trial would have been different if the recording of the

pocket-dialed voice mail had been excluded.

       The granddaughter's testimony at trial provided independent,

unchallenged evidence of the contents of the inadvertently recorded

conversation. Her account was corroborated by sexually explicit photographs

and a video seized from Sinclair's cell phone and computer. During his closing,

Sinclair admitted guilt as to the charges of child molestation in the third degree

and communicating with a minor for immoral purposes. The only charges

Sinclair disputed were the two counts of second degree child rape. He argued

that the State presented insufficient evidence to prove that he engaged in sexual

intercourse with the girl before her 14th birthday. He does not make this

argument on appeal.
No. 72102-0-1/4


       It is unlikely that the jury's verdict of guilt on the two disputed counts was

affected by the admission of the recorded conversation. There was no allusion in

that conversation either to sexual intercourse or to the age of the granddaughter.

Assuming the recording to be inadmissible, we conclude Sinclair has not shown

that the error materially affected the outcome at trial.

       Affirmed.




                                                           j3tfo(<^^J_
WE CONCUR:
