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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. RYAN DAVID FIROVED, Appellant. NO. 71155-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 9, 2015


### Lau, J. —Adecision authorizing the interception and recording ofprivate 

### communications underthe state privacy act, chapter 9.73 RCW, will be upheld ifthe facts asserted inthe application for such authorization are minimallyadequate to 

### supportthe court's determination. Becausethe facts asserted in the application at issue in this case were adequateto supportthe recording of Ryan Firoved's telephone conversations, we affirmthe trial court's orderdenying his motion to suppress the 

### recordings. Andbecause Firoved's other claim on appeal lacks merit, we affirm his conviction for first degree attempted rape of a child. FACTS On June 25, 2012, KP called the Kirkland Police Department and alleged that her 

### boyfriend, Ryan Firoved, hadexpressed interestin having sex with hernine-year-old71155-5-1/2 daughter. InJuly 2012, Detective Allan O'Neill filed an application in superiorcourt seeking authority to intercept and record telephone conversations between KP and Firoved. The application included the following facts: 

### Several months before KP called the police, Firoved started telling her about his interest in, and prior sexual acts with, young girls. He said he had intercourse several years earlierwith his friend's 12-year-old sister. He also said he had watched his 8-year-old daughter masturbate numerous times and that he masturbated while 

### watching her. He wanted "totouch her and pleasure [her] correctly but she was only eight and they need to be 10-years-old." He said that he likes to watch father and 

### daughter pornography, which "he would like itbetter if itwas real instead ofmade up and that he would have sex with his daughter. On June 10, 2012, Firoved texted KP and said he had been a "bad uncle." KP 

### texted back, asking why he was bad. Firoved replied that he had watched his niece masturbating. He refused to reveal his niece's age by text butthen telephoned KP and said his niece was 14. He then recounted indetail how he and his niece performed oral


### sex on each other. He also said, "[I] was thinking about [your] daughter's 'little tight pussy.'" 

### Aweek later, Firoved and KPwere having sex when Firoved asked if he could 

### "'have her daughter.'" Firoved said he wanted KP to watch while he had sexwith her daughter. He added that both of their daughters could watch or participatewhile he and KP had intercourse. According to KP, Firoved has said "that he loves taking girls' virginities."71155-5-1/3
On June 25, 2012, KP texted Firoved and said she did not like him "'wanting her kid'" and wanting to "'lick'" herdaughter. Firoved responded, '"Idon't know whatyou are talking about.'" On June 26, 2012, the day after she first contacted police, KP texted Firoved, "'So, what's the verdict?'" Firoved replied, '"Iam looking atthis way [i]fyou wantto be 

### with me you will submit Iincharge what says goes.'" KP responded with "'Lol.
.. ok.'" Firoved replied, '"I am serious anything Isays go.'" Laterthat day, Firoved texted KP about "'whatyou asked earlier.'" KP replied, "'[W]ould you honestly be up for it?'" Firoved texted, "'Yes'" and "Thatwould be hot.'" KP texted back, "'[W]hatwould you


### wanna do the most?'" Firoved replied, "'Mmmm lick.'" KP asked, "'What ifshe started to resist?'" Firoved replied, "Told you Iwould stop.'" They then discussed when they could meetfor Firoved to have sex with KP's daughter. On June 27, 2012, KP called Detective O'Neill and said that Firoved called her 

### that morning to set up a time to meet her and her daughter. Firoved said he wanted to 

### lickherdaughter and put his fingers inside her to see if he could have sexwith her. On July 2, 2012, KP received anothercall from Firoved about meeting her and 

### her daughter. KPasked if he reallywanted "tohave sexwith her daughter." Firoved said, "[Y]es, [I do]." That afternoon, Firoved called again to say he was available to 

### meet anytime that week. KP believed that Firoved would meet her at a motelwith the intent of having oral sex and/or intercourse with her daughter. 

### KP told police that "Firoved talks freely overthe telephone aboutwanting to have oral sex with her daughter, and to digitally penetrate her daughter's vagina." She said 

### Firoved wouldhave partialconversations aboutthese topics while texting, but would
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### "usuallytell herto call him and he then discusses
... his past sex crimes or his plans, hopes, and desire to commitfuture felony crimes ofrape of a child." The application also described a 2011 undercover investigation involving Firoved. In that case, Firoved answered an undercover detective's online advertisement 

### indicating that a young girlwas looking for older men to teach her sex. Following a series ofe-mails and a meeting atwhich Firoved agreed to meetthe undercover 

### detective's fictitious 13-year-old daughter at a hotel, Firoved eventually stopped communicating. On July 3, 2012, the superiorcourt granted Detective O'Neil's application for intercept authorization. That same day, KP recorded a telephone conversation with Firoved. They discussed meeting at a hotel so that Firoved could have oral sex with KP's daughter. Firoved was concerned thatthe police might be listening and resisted stating exactly what he planned to do. He confirmed, however, that he would "be there Thursday" and that he was 100 percent sure that he would perform oral sex on KP's daughter if KP
was there to be his "partnerincrime." Ex. 23 at 28. Ina second recorded telephone call, Firoved stated, "I wantto have oral sex with 

### [KP's daughter]." Ex. 25 at 5. He and KP then agreed to meet at a hotel the nextThursday. Police arrested Firoved when he arrived at the hotel. 

### The State charged Firoved with firstdegree attempted rape of a child. Prior totrial, he moved to suppress the recorded telephone conversations. He argued thatthe 

### application forintercept and recording authorization failed to comply with the requirements of the Washington privacy act, chapter9.73 RCW. The trial court denied the motion, stating in part:

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Ithink that the application here does complywith RCW 9.73.130 inthat Ithink it 

### shows that normal investigative procedures would

- do not appear likely to succeed. Ithinkthat inthis case it's critical that you have Mr. Firoved's voice actually in an actual phone call as opposed to justtext messages. There's no way, from a text message, to judge whether he's joking around, whetherhe's serious, what the whole context ofthe discussion is. And that it was -- the application for the warrant makes the appropriate showing underthe statute as to why it's necessary to have the interceptthatwas done here. Report ofProceedings (Sept. 30, 2013) at 64 (emphasis added). The case proceeded to trial, and a jury found Firoved guilty as charged. He appeals. DECISION Firoved first contends the trial court erred indenying his motion to suppress the recordings of his telephone conversations with KP. He claims the recordings were inadmissible because the application for their authorization was insufficient underthe 

### privacy act, chapter9.73 RCW. Specifically, he contends the application "failed to justify why [the] voluminous text messages" between Firoved and KP "were not sufficient and why oral communication was sought." Appellant's Br. at 8. We disagree. 

### An application to intercept and record communications must meetthe requirements ofRCW 9.73.130. Subsection (3) ofthe statute requires a "particular 

### statementofthe facts"justifying interception and recording, including a statementof probable cause, detailed information concerning the offense, the necessityto intercept and record, and facts showing that other investigative procedures have been tried, are 

### unlikelytosucceed, or are toodangeroustoemploy.1 A judge authorizing such

1RCW9.73.130 provides in part that each application forrecording authorization shall include: (3) Aparticularstatement of the facts relied upon bythe applicantto justify his or her beliefthat an authorization should be issued, including: -5-71155-5-1/6 

### recordings has broad discretion to determine whetherthis statute has been satisfied, and we will affirm ifthe facts setforth inthe application are minimally adequate to supportthe court's determination. State v. Constance, 154Wn. App. 861, 880, 226 P.3d 231 (2010). We review de novo a trial court's legal conclusions on a motion to suppress. State v. Roden, 179Wn.2d 893, 898, 321 P.3d 1183 (2014). Contrary to Firoved's assertions, Detective O'Neil's application asserted facts 

### justifying the telephonic recordings. The application recounted specific instances where Firoved refused to give incriminating details in his text messages, choosing instead to convey those details overthe telephone. The application also made this point in more general terms, stating: 

### Firoved has both explicitly said and, inothertext messages to [KP], implied that he does not wantto be too specific inthe texts. . . . [KP] stated that Firoved talks freely overthe telephone aboutwanting to have oral sex with her daughter, and to digitally penetrate herdaughter's 

### vagina. She said he has sent hertext messages with partial conversations about (a) The identity ofthe particular person, ifknown, committing the offense and whose communications or conversations are to be recorded; (b) The details as to the particular offense that has been, is being, or is aboutto be committed; (c) The particulartype ofcommunication or conversation to be recorded and a showing thatthere is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded; (d) The characterand location ofthe particularwire communication facilities involved orthe particular place where the oral communication is to be recorded; (e) Astatement ofthe period of time for which the recording is required to be maintained, ifthe characterofthe investigation is such thatthe authorization for recording should not automatically terminate when the described type ofcommunication or conversation has been first obtained, a particular statement offacts establishing probable cause to believe that additional communications ofthe sametype will occur thereafter; (f) Aparticular statement offacts showing that other normal investigative procedures withrespectto the offense have been tried and have failed orreasonably appearto be unlikely to succeed iftried or to be too dangerous to employ.

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### having sex with her.
. . daughter. [KP] said that Firoved will usually tell herto call him and he then discusses with [KP] his past sex crimes or his plans, hopes, and desire to commitfuture felony crimes of rape of a child. 

### The application also pointed outthatthe nature ofanticipatory offenses often requires a recording to firmlyestablish the defendant's intent: Conspiracy to commit Rape of a Child is a verbal crime, generally proven exclusively upon the words spoken bythe suspect and suspect's intent[,] as expressed inthose words, to promote or facilitate the commission ofintended felony crimes
.... The actual content, tone, inflection, speech patterns, and volume ofthe suspect's and cooperating witnesses' own voices, as well as the context ofthe suspect's statements, because they convey meaning outside that contained inthe spoken words themselves, willbe critical to a determination ofthe suspect's actual plan and intentions regarding the above-described crimes. Only the suspect's own words will provide adequate evidence ofthe suspect's mental state as the suspect discusses the above-described crimes withthe cooperating witness and discusses the prior events and/or conversations that motivate the suspectto plan the described crimes. 

### The delivery is at least as important as the words themselves indetermining whether the suspect genuinely intends to commit the felony crimes thatwere firstsuggested and requested bythe suspect. This can never be adequately conveyed bytestimony about the conversation.
. . . Due to the nature ofthe crimes that the suspect has requested be committed, 

### it is unlikelythere will be physical or documentary evidence which, standing alone, will significantly linkthe suspect to conspiracy. 

### We have previously held that "in deciding whetherto authorize interception and recording, the court must take into account the nature of the crime and inherent difficulties in proving 

### the crime." Constance, 154 Wn. App. at 883. Here, the crime under investigation

### conspiracyto commitrape—required proof that Firoved, "with intent that conduct 

### constituting [rape] be performed,"agreed "toengage in orcausethe performance of such conduct" and took a substantial step toward performance ofthat agreement. RCW 9A.28.040(1). The recordings helped prove that Firoved had the requisite intent. 

### The application also alleged that other methods of obtaining the necessaryevidence had been tried orwere unlikely to succeed and thatthe text messages alone would not make a sufficiently strong case against Firoved:71155-5-1/8
Normal investigative techniques have been tried and failed, reasonably appearto be unlikely to succeed iftried, and reasonably appear to be too dangerous to employ.

. . . Pairing the cooperating witness with an undercover detective, or introducing an undercover detective to replace [KP] would likely erode
... trust [with KP] and chill the suspect's further discussion of his criminal scheme with the cooperating witness
.... Nor is the suspect likely to discuss his intended criminal scheme with the cooperating witness while others are or may be within hearing distance
.... Similarly, and particularly since investigators do not know and cannot predict with accuracy when or where the conversations between the suspect and the consenting person will occur, there is no way that investigators can plan to be in a position to overhear conversations between the suspect and consenting person. Once a location is known, investigators may not have time or legal access so they could survey the location and select a secreted listening position prior to the meeting

. . . This detective has reviewed Firoved's text messages to [KP]. Likely because Firoved is careful in his text messages, they, standing alone, do not adequately flesh out Firoved's intended felony rape of a child. Finally, the application stated that recordings were needed to overcome any claims that Firoved was boasting or joking or that he was entrapped: It is anticipated entrapment may be a defense to any criminal charges that result from this investigation. The suspect may also claim that he was not seriously planning to have sex with a child, but was merely 'fantasizing' or 'kidding' about it; and that he did not actually engage in oral sexwith his 14 year old niece, but that he was merely "talking big" to [KP]. Possession of allthe actual verbal exchanges between the suspect and the cooperating witness, inthe form of a recording, are 

### necessary to resolve these issues. Arecording ofconversations between the suspect and the cooperating witness will provide evidence ofexactly what is said by who, thus providing investigators with evidence thatwill be critical to sorting out who 

### planned or is planning the crimes, and whetherthat person is being encouraged in 

### any way to commit crimes that he wouldn't otherwise commit, or admit to crimes that he hasn't actually committed. 

### Firoved's challenge to this basis forthe recordings is not persuasive. He contends the State can support an attempt charge with writings alone, especially when, as in this case, 

### the writings are personal texts concerning the offense. But the qualitative difference between written and spoken statements will sometimesjustifyrecording the suspect's voice inorderto show a mental state not otherwise captured in writing. As the superiorcourt -8-71155-5-1/9 noted, recorded conversations could help a jury determine whether Firoved wasjoking, fantasizing, or serious about having sex with KP's daughter. In summary, we conclude that, taken together, the above-quoted facts are "minimally adequate" to supportthe court's authorization ofthe recordings. The superiorcourt did not
err indenying Firoved's motion to suppress. Last, Firoved contends the courterred in failing to enterwritten findings of fact and conclusions of law as required by CrR 3.6. The findings and conclusions were filed after Firoved filed his opening briefon appeal. The State argues, and Firoved does not dispute, 

### that the delayed entry of findings is proper so long as there is no resulting prejudice. State
v. Gaddv, 114Wn. App. 702, 705, 60 P.3d 116 (2002). aff'd on other grounds, 152 

### Wn.2d 64, 93 P.3d 872 (2004) (appellate courtwill not reverse for tardy entry offindings unless defendant can establish eitherthat he was prejudiced by the delay or that 

### findings and conclusions were tailored to meetthe issues in his appellate brief). Firoved has not filed a reply brief or shown any specific prejudice resulting from the tardy findings. Accordingly, his claim fails. Affirmed.

WE CONCUR: