IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 9, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JERRY EUGENE GRIFFITT, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed with directions. (Super.Ct.No. RIF128304)
The opinion of the court was delivered by: Ramirez P.J.
P. v. Griffitt
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jerry Griffitt of attempting to commit lewd and lascivious acts on a minor (Pen. Code, §§ 664 & 288, subd. (a)).*fn1 He was granted probation and appeals claiming his motion to suppress should have been granted, the trial court should have excluded a video and one of his probation conditions is improper. We reject his first two contentions and determine that the inclusion of the probation condition in the minutes of the sentencing hearing was an error by the courtroom clerk, and we order it to be stricken from those minutes. Otherwise, we affirm.
Perverted Justice is an organization of volunteers who posed as
children between the ages of 10 and 15 years old on Yahoo! regional
Internet chat rooms*fn2 and waited to see if adults in
the chat room wanted to talk to them individually via instant message,
and, if so, chatted via instant message, waiting for the adults to
talk about sex and wanting to meet for sex. The Perverted Justice
volunteers were not told by law enforcement what to say during the
chats. Rather, they are trained by Perverted Justice. The
volunteer*fn3 in this particular case (hereinafter, "the
volunteer"), a five-year veteran of Perverted Justice,*fn4
testified that her organization put her and other
volunteers in chat rooms to pose as minors and "whenever they are
approached by someone and they meet prosecution's standards of intent,
then we turn those people over to the police department."
In 2004, Perverted Justice had teamed up with the television show, "Dateline," and the volunteers had engaged adults as described above, culminating in meetings at a "sting" house that had been set up by the two entities in New York and a suburb of Washington, D.C. At the sting house, the "Dateline" investigative reporter had interviewed the adults, who had arrived thinking they were meeting up with the children with whom they had been communicating, and the interviews had been broadcast on the show. The show involving the Washington, D.C. suburb sting house had aired in November 2005 and many viewers had complained to the network because the adults that showed up at the house had not been arrested. Therefore, "Dateline" went looking for law enforcement agencies that would assist them in the sting and arrest the adults and it contacted the case agent in this case, who was an investigator at the Riverside County Sheriff's Department (hereinafter, "the Department").
In December 2005, the volunteer set up on Yahoo! a profile stating that she was 20,*fn5 and under a section entitled "about me" provided other information, including that she was 13 years old. She testified that she had been told by Perverted Justice administration who was handling the sting to use that age. The profile also contained a picture of a child that was between the ages of 12 and 13.*fn6 Using this profile, she entered a regional chat room that was designated for "romance." On January 5, 2006, defendant initiated a chat with the volunteer. During this chat, defendant asked the volunteer if she was single and if she liked older men, telling her that he was 35. She told defendant that she was 13 and he acknowledged this. Defendant sent her a photo of himself during this chat. Defendant said it was too bad she was not a little older, as he was "looking for a good girl to be with." He asked her if she could be with a man his age and she said maybe. He then told her that she was very hot and he was looking for romance. He asked her if she was experienced with boys, even though she was 13 years old. She said she had had a boyfriend. He asked her if she could get out of her house so they could hang out together. When she said she could, he suggested that she come to his home in Long Beach, but she replied that she could not drive. He suggested that he pick her up and she responded favorably. He said he wanted to talk to her on the phone so he could hear her "sexy voice." She told him she could not call him as calls she made appeared on her mother's phone bill. He expressed concern that if he called her, his number would also appear on the bill but she said it would not.
On January 6, during a chat, defendant asked her if she still liked him and when she said she did, he said he liked her too and he hoped they became boyfriend and girlfriend. He added, however, that because of her young age, they could not go out openly and she suggested that they sneak. He asked her if it would be okay with her to make out and "stuff like that" with a man his age. He said he wished he was with her that day. He suggested that they sneak somewhere and be alone. He offered to meet her, but said that it would have to be where no one would see them. He said she could "make out with" him and "cuddle" him. He offered to pick her up and take her to a motel. He said he bet that she was a great kisser. He asked her the age of the oldest guy she had been with and she said 17 years old. He asked her what they did and she said they made out. He asked her if she was still a virgin and she said she was. He asked her if she thought she would ever want to "do it" with him and she said she would. He said he would be gentle and would not get her pregnant. They chatted again two hours later. He gave her his cell phone number. The volunteer then had another volunteer, who, in the opinion of Perverted Justice, had a voice like a child (hereinafter "the decoy"), pose as the girl and call defendant. The decoy*fn7 testified that she had two phone conversations with defendant, one on the 5th and one on the 6th.*fn8 Another internet chat followed the phone call. During it, defendant said he really wanted to meet her and she volunteered that her parents would be away from the family home for the weekend, beginning that night, and he offered to go to her home the next day and spend that night there with her. He suggested that they might "go farther" than "making out" and he volunteered to bring birth control gel and condoms. She asked him to bring some beer and he said he would. He warned her not to have any friends over, as that would be "too risky." She gave him the address of the sting house, which had been provided to her by Perverted Justice. He offered to bring her a present and she said she liked pie. He said he would bring pie and whipped cream, and he would put the latter on her body and lick it off. He also suggested that they shower together, by candlelight. He asked her if she had relatives who lived nearby and when she said she did not, he said that was good, as no one would be dropping in on them. He asked her if she wanted to make love to him. He commented that she had "very kissable lips" according to the picture she had posted on her profile. He promised to show her how to have sex and he suggested that she masturbate to prepare herself. There was another chat two hours later, during which he discussed her "giving [her] virginity to" him. During a subsequent chat that day, they decided to meet that night. He asked her if she still had the phone number he had given her during an earlier chat and he asked her if she had messaging archives.*fn9 She replied that she did and had found the phone number on it. She testified that she had never represented to defendant during her chats with him that she was 22 years old, that her name was Arianna, that she was an adult poising as a 13 year old or that she was engaged in role-playing or sexual fantasy. On February 14, defendant sent her a message saying, "Fuck you. Leave me alone you bunch of liars."
At a time not specified before January 6, for security reasons, the
case agent and his supervisor chose a couple of homes that were for
rent that could be used as the sting home, and "Dateline" rented one
of them. From January 6 through 8, 2006, the Department maintained a
command center*fn10 a few miles from the sting house and
kept its arrest team in a recreational vehicle parked outside the
house next door to the sting house. When adults came out of the sting
house, the arrest team detained them, looked through the chat logs
that had been provided by the Perverted Justice volunteers and
determined if there was probable cause to arrest the adults, and, if
so, effectuated arrests. The Department also kept at least two units
of two plain clothes officers driving around the area looking for the
adults that were on their way to the sting house so they would know
the type of cars being driven by the adults. No Department officers
or employees entered the sting house during the stings.*fn11
Only the "Dateline" investigative reporter interviewed
the adults inside the sting house and, occasionally, a Perverted
Justice volunteer would be in the sting house, hidden from view of the
adults (who could see that the volunteer was not a child), and she
would disguise her voice to pose as the person with whom the adults
had been communicating. The Department had not instructed this
volunteer or the "Dateline" investigative reporter what to say.
On January 6, defendant entered the sting home and began talking to a Perverted Justice volunteer who was out of his sight and was posing as the child with whom defendant had been communicating. He told her that he had brought an apple pie and some whipped cream. Suddenly, the "Dateline" investigative reporter entered the room where defendant was and began questioning him. Defendant claimed that a 22-year-old lady had told him over the Internet to come to the home. After having some trouble, he recalled that her name was Adrianna and she was the aunt of the child to whom the investigative reporter was referring. He admitted that he brought apple pie, whipped cream, lubricant, contraceptives and beer. He admitted he had chatted for some time with Adrianna over the Internet. The investigative reporter read from the chat log a portion of a chat in which the person with whom defendant had been chatting said that she was 13. Defendant acknowledged talking to the girl but insisted that it was with her aunt that he made plans to meet. The investigative reported then confronted defendant with another statement he had made during a chat in which he acknowledged that the person with whom he was chatting was 13 and another statement by her that she was 13. When the investigative reported confronted defendant with more things that had been said during the chats, defendant suggested that he had been entrapped, but he insisted that he thought he was talking to 22-year-old Adriana. He was unable to explain why the name Adriana and the age, 22, did not appear in any of the chats. The investigative reporter then told defendant who he was and that he was with "Dateline." Defendant said, "Don't show my face" three times and left. He left behind, inter alia, a bottle of beer, vaginal contraceptive jelly, KY lubricant, a pie and a can of whipped cream. In defendant's car was a MapQuest map to the sting house.
During an interview with another investigator from the Department after he was arrested and Mirandized, defendant continued to insist that he had come to the sting house to meet 22-year-old Adriana. When the investigator confronted defendant with statements he had made during the chats showing that he was aware that the girl with whom he was chatting was 13, he said that he had not been thinking clearly lately as he had been under a lot of stress. He then said that this was "one time in my life I ever fucked up." He explained that even if he didn't believe that she was underaged or that she was 22, he had a wife and should have been at home trying to resolve the problems he had in his marriage. Defendant also denied knowing that he was going to have sex when he got to the house. When confronted with the fact that during the chats, it was planned that they would have sex, he did not deny this.
ISSUES AND DISCUSSION
1. Trial Court's Refusal to Suppress the Chat Logs*fn12
Before trial, defendant unsuccessfully sought to have, inter alia, the chat logs suppressed on a number of grounds. First, the trial court concluded that defendant had no reasonable expectation of privacy in the chat logs. Specifically, the trial court reasoned, " . . . [D]efendant entered a chat room, engaged in the transmission of electronic communications to an individual he had never met, seen, or spoken to prior to the commencement of the communications. [¶] [He] had no knowledge, whatsoever, with whom he was communicating. . . . It was as possible as not that he was communicating with law enforcement or, as it turned out . . . it was Perverted Justice, who was monitoring the chat room. As opposed to and distinguished from telephonic communication, it is believed . . . that any individual who utilizes a computer and communicates with others is aware that their computers store information and data and create internal reports that can be reviewed by anyone who has access to the computer and possesses the skills to access those . . . . It [is] equally clear . . . that the recipient to any communications had the ability to read, print, forward, copy or disseminate in any fashion they choose communication or any part of it to anyone they desired. [¶] . . . [N]o person could hold a reasonable expectation that an individual he has never met, seen, or spoken to would necessarily hold this defendant's communications privately . . . ."
Defendant begins his attack on this aspect of the trial court's ruling by citing federal case law and federal statutes that he asserts supports a non-contextual, overarching reasonable expectation of privacy in the contents of chat room logs. They do not. First, defendant cites Williams v. Poulous (1st Cir. 1993) 11 F.3d 271, 287, which he asserts addresses "federal provisions [that] define the scope of the reasonable expectation of privacy in internet communications afforded under the Fourth Amendment." However, that case involved telephone, not Internet communications, and it says nothing on page 287 about the latter.
Next, defendant cites the Federal Stored Communications Act (18 U.S.C.S. §§ 2701-2712) and federal law limiting eavesdropping on wireless communications (18 U.S.C.S. §§ 2510 et seq.). However, the case commenting on the former which defendant cites, O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423 makes clear that it applies only to service providers concerning communications while in electronic storage by that server and not to individuals, particularly individuals who are recipients of such communications. (Id. at p. 1440.) In fact, as to the latter, O'Grady commented, " . . . [I]t would be far from irrational for Congress to conclude that one seeking disclosure of the contents of e-mail, like one seeking old-fashioned written correspondence, should direct his or her effort to the parties to the communication and not to a third party who served only as a medium and neutral repository for the message." (Id. at p. 1446.) Equally, the cases defendant cites concerning the limitation on eavesdropping on wireless communications involve service providers. (Blumofe v. Pharmatrak, Inc. (First Cir. 2003) 329 F.3d 9; United States v. Councilman (First Cir. 2005) 418 F. 3d 67) Defendant's reliance on Quon v. Arch Wireless Operating Company (9th Cir. 2008) 529 F.3d 892 is unfortunate because it was reversed by the United States Supreme Court. (City of Ontario v. Quon (2010) ___ U.S. ___[130 S.Ct. 2619].) United States v. Finley (5th Cir. 2007) 477 F.3d 250, which defendant also cites, involved the search, by police, of an arrestee's cell phone and its text messages. The court held that even though the arrestee's cell phone was issued by his employer, he had a reasonable expectation of privacy in it because he "had a right to exclude others from using the phone, exhibited a subjective expectation of privacy in [it], and took normal precautions to maintain his privacy in the phone. . . . [¶] . . . [¶] . . . That [the arrestee's] employer could have read the text messages once he returned the phone does not imply that a person in [his] position should not have reasonably expected to be free from intrusion from both the government and the general public." (Id. at pp. 258-259.) None of these cases supports the existence of a reasonable expectation of privacy in chat room logs irrespective of who is revealing their contents and defendant fails to carry his burden of demonstrating such an expectation. (People v. Rivera (2007) 41 Cal.4th 304, 308 fn. 1.) Additionally, a number of courts have held that there is no reasonable expectation of privacy in any transmission over the Internet or e-mail after it arrives at the recipient. (United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173, 190; Guest v. Leis (6th Cir. 2001) 255 F.3d 325, 333; United States v. Charbonneau (S.D. Ohio 1997) 979 F. Supp. 1177, 1184; Commonwealth v. Proetto (Pa. 2001) 771 A. 2d 823, 831.)
Next, defendant asserts that the California Constitution and statutes support his claim that he had a reasonable expectation of privacy in the chat logs. Defendant cites the California Constitution's reference to the right of privacy, yet he cites no authority applying that right to conclude that he had a reasonable expectation of privacy here.
Next, defendant refers us to section 632, which prohibits eavesdropping on or recording any confidential communication without the consent of both parties to the communication. However, in Nakai, supra, 183 Cal.App.4th 499, this court rejected the application of section 632 in an almost identical case involving Perverted Justice, "Dateline" and the Department because "the circumstances of the communication were such that defendant could reasonably expect that the communication might be overheard or recorded. . . . [D]efendant was communicating online with a person whom he did not know, via writing . . . . Computers that are connected to the Internet are capable of instantaneously sending writings . . . to thousands of people. . . . [I]t was not reasonable for defendant to expect the communications to be confidential because the circumstances reflect that the communications could have easily been shared or viewed by . . . any computer user with whom [the decoy] wanted to share the communication. (Id. at p. 518.) Just as the trial court here concluded, the circumstances of the chats demonstrated that they were not confidential communications.*fn13 We do not agree with defendant's contention in his reply brief that Nakai is distinguishable because the policy of the server the defendant there was using, Yahoo!, stated that chat dialogues may be shared for the purpose of investigating or preventing illegal activities and users of the server had been warned that chat dialog can be archived, printed and saved.*fn14 (Ibid.) Everyone who uses a computer knows that the recipient of e-mails and participants in chat rooms can print the e-mails and chat logs and share them with whoever they please, forward them or otherwise send them to others. Moreover, the chats in this case also took place on Yahoo! during the same time period as the chats in Nakai, so, presumably, the Yahoo! policy and warnings mentioned in Nakai were also in effect here. Finally, during trial,*fn15 one of the chats defendant and the volunteer had on January 6 was introduced into evidence and during it, defendant asked the volunteer if she had had utilized message archive, and, thus, could retrieve the phone number he had given her during an earlier chat.
In denying defendant's motion to suppress, the trial court also concluded that Perverted Justice was not an agent of the Department. According to the People's written motions in limine, in early January 2006, the Department's investigator received email messages and chats from a volunteer at Perverted Justice, indicating that she was on the Internet posing as a 13-year-old Riverside-area girl who had been contacted by defendant to have sexual relations with him. Perverted Justice was described as "a non-profit website of volunteer citizen-contributors who enter regional internet chat room posing as underage children and wait for contact from adults soliciting sex. The volunteers are trained not to initiate any conversation and allow the adult to initiate the first contact." As was Perverted Justice's practice, the decoy phoned defendant to confirm that he was the person who had been chatting with the volunteer. During chats, defendant was provided the address of the sting house, where he appeared on January 6, with KY Lubricant, vaginal contraceptive gel, a bottle of beer, a pie and a can of whipped cream.
The investigator testified at a hearing on the motion that he became involved with Perverted Justice in February 2005. He described his involvement as follows, " . . . [W]hen a volunteer establishes a profile . . . th[e law enforcement] agency [in the community where the profile has been established] gets the first choice of whether to prosecute, or . . . , if they want to do an investigation. If there is no law enforcement agency involved, and they have a suspect [Perverted Justice] . . . will put that information on their website."*fn16 The chats between the volunteer and defendant began in mid-December 2005.*fn17 The volunteer and decoy were not compensated. Law enforcement did not tell the volunteer and the decoy what to say and did not instruct them how to chat, however, when the investigator had first become involved with Perverted Justice, he had requested that the potential victims the volunteers disguised themselves as claim that they were under the age of 14, the outer age limit of section 288. When the chats began, the investigator was not aware that Perverted Justice was having contact with Riverside County people for the purpose of investigating sexual contact with minors. However, the volunteer emailed the chats to him as they were taking place.*fn18 A "Dateline" producer had contacted the investigator at the end of November 2005, concerning the filming of the sting operation, then "Dateline" contacted Perverted Justice to "set up" the sting.*fn19 "Dateline" had contacted the investigator because he had been working with Perverted Justice and Perverted Justice had recommended him to "Dateline."*fn20 The investigator then "went up [the] chain of command" in the Department and eventually, the Department contacted the District Attorney's Office, who talked to the attorneys at "Dateline."*fn21 To ensure the safety of all involved, the Department located a couple of different sting houses "Dateline" could use, but "Dateline" rented the sting house that was used. Members of the Department were not allowed to be in the sting house during the sting operation, but waited in a motor home parked at the house next door, and arrested defendant when he walked out of the house. The Department provided no instructions to the "Dateline" people who were inside the sting house. The decision to arrest defendant was made solely by the Department--Perverted Justice was not involved.
The trial court ruled, " . . . Perverted Justice seems to be a private organization of citizen volunteers and is not an agent for the government. . . . Perverted Justice [volunteers] . . . present themselves on the Internet as . . . underage minor[s] . . . and simply wait for individuals to contact them for purposes of making sexual contact with them. [¶] I have no evidence if . . . the [D]department or Perverted Justice in any way interact with each other or on behalf of each other to achieve that goal. It seems to be simply the acts of volunteers with Perverted Justice. [¶] . . . [T]he [sting] ho[use] . . . was . . . rented . . . by . . . ["Dateline"] and . . . the only involvement with the . . . [D]department was making sure that the site of whatever home ["Dateline"] decided to rent provided [the Department] with confidence in terms of their security concerns. [¶] . . . [T]he information garnered by the Perverted Justice volunteer was simply transmitted to the investigator . . . . [A]t the end of November of 2005, . . . ["]Dateline["] . . . contacted the . . . Department and . . . it was . . . ["Dateline's"] actions that initiated this sting. [¶] . . . ["]Dateline["] . . . , not the . . . [D]department, contacted Perverted Justice . . . [and] 'Set it up[.]' . . . [T]he only involvement of [the] . . . [Department] was suggesting that the volunteer pose as a child under the age of 14 in order to comply with . . . Penal Code section 288 . . . . And they were only concerned about security . . . [in the] neighborhood. [¶] Other than that, I don't see any involvement by the . . . Department. . . . Perverted Justice volunteers put out the information on the website, alleged sexual predators made the contact, initiated the discussions. And as . . . chats were ongoing, they were being transmitted to the . . . [D]department. [¶] . . . [I]t was the . . . [D]department['s] sole determination as to who would be . . . detained or arrested and . . . Perverted Justice had nothing to do with that nor did ["]Dateline["] . . . . [¶] . . . Perverted Justice has, as its primary function, . . . monitor[ing] the Internet for sexual predators whether or not law enforcement was involved. . . . [L]aw enforcement makes a choice whether they're going to involve themselves or not."
The parties agree that defendant bears the burden of proving an agency relationship between law enforcement and a private party in order to assert a violation of his Fourth Amendment rights by that party. Among the factors to be considered in determining whether an agency relationship exists are "'the extent of [law enforcement's] role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help [law enforcement] or to serve its own interests.' [Citation.]" (United States v. Silva (1st Cir. 2009) 554 F.3d 13, 18.) Mere authorization of a particular type of search, without more, is insufficient. (United States v. Walther (9th Cir. 1981) 652 F. 2d 788, 792.) Law enforcement "'must have instigated, encouraged, or participated in the search, and [the private party] must have engaged in the search with the intent of assisting [law enforcement] in their investigative efforts.' [Citation.]" (United States v. Robinson (6th Cir. 2004) 390 F. 3d 853, 871, 872.)
The cases the People cite in support of their contention that there was no agency relationship between the Department and Perverted Justice such that the e-mailing of the chats to the former by the latter should be deemed a search by the former are more akin to the facts here than the cases defendant cites. In State v. Lasaga (2004) 269 Conn. 454 [848 A. 2d 1149] a systems administrator, working on information supplied by a student, monitored a professor's computer and discovered that the latter was downloading child porn. (Id. at pp. 456-457.) After speaking with his supervisor and the university's lawyer, the administrator went to the police, and a search warrant was obtained based on the information the administrator had gathered before going to the police. The Connecticut Supreme Court concluded that the administrator was not an agent for the police because the police did not seek him out and were not involved in his decision to monitor the professor's downloads, and he had not had a previous relationship with the police and was not being compensated by them for his efforts. (Id. at p. 466.) Here, similarly, as the trial court found, Perverted Justice's primary activity was to monitor chat rooms for the kind of activity that occurred here and to see that something was done about it either by notifying law enforcement, or by posting the information on its website if law enforcement chose not to get involved. Thus, Perverted Justice functioned without regard to the activities of law enforcement. The trial testimony established even more strongly than the evidence produced for the suppression and in limine motions that Perverted Justice had been in operation long before planning for this particular sting even began and continued on long afterward. The Department did not approach Perverted Justice--Perverted Justice approached the Department. Although Perverted Justice had a prior relationship with the Department, they were not compensated for their activity in this case or any other.
Similarly, in United States v. Poe (10th Cir. 2009) 556 F. 3d 1113 the appellate court found no agency relationship between bounty hunters who discovered drugs and firearms when apprehending the defendant and the law enforcement agency to whom they reported their discovery. (Id. at pp. 1123-1124.) The Poe court concluded that the police both had to know of or acquiesce in the bounty hunters' search and the bounty hunters had to intend to assist law enforcement, rather than further their own ends. (Ibid.) Here, according to the evidence presented pre-trial, the Department neither knew nor acquiesced in the beginning of the monitoring of the chats and the initial e-mailing of the chat logs and it is reasonable to conclude that they would have continued monitoring the chats and putting them on their web site had the Department decided to do nothing. Additionally, there was evidence supporting a finding that Perverted Justice was running its own agenda, which had nothing to do with law enforcement, who could either participate or not, and Perverted Justice would continue its operation, regardless. As the People correctly point out, Perverted Justice was in existence long before December 2005. There was no specific information about when the sting house was reviewed by the Department or when it participated in the planning of the actual sting.*fn22 Even if the trial court erred in concluding that Perverted Justice was not an agent of the Department, our conclusion that defendant had no reasonable expectation of privacy in the chats defeats his claim that the trial court should have suppressed the chat logs. (Minnesota v. Carter (1998) 525 U.S. 83, 88.)*fn23
2. Admission of the Videotape of the Investigative Reporter's Interview with Defendant
During a motion in limine, defendant contended that the video of the investigative reporter's interview of defendant at the sting house be excluded under Evidence Code section 352 because it was more prejudicial than probative and its introduction would involve the undue consumption of time. The trial court denied the motion, ruling that the video was "far more probative than prejudicial." The video is 12 minutes long. It shows defendant entering the sting house with a grocery bag of items and briefly talking with whom he apparently believes is the young lady he has been chatting with on the Internet. He tells her that he has brought an apple pie and whipped cream as he begins to remove items from the bag and put them onto the kitchen island counter. The investigative reporter then appears and asks defendant what he has brought and defendant replies that he has brought apple pie, which is shown, whipped cream, which is shown, contraception, which is shown, as is a bottle of beer that defendant apparently removed from the bag out of camera shot. The investigative reporter then points out that defendant has also removed lubricant from the bag, which is shown. As already stated, the investigative reporter asks defendant what he is doing there and defendant fragmentally tells the story about 22-year-old Adriana. The video shows defendant's face as tells this story and when he is confronted by the investigative reporter with excerpts from the chats that contradict that story and the fact than an Adriana or a woman who is 22 years old is not mentioned in the chats. The video also shows defendant not looking the investigative reporter in the eye when he answers questions, a matter upon which the reporter comments. Finally, when the investigative reporter reveals his identity and makes it apparent to defendant that he is being filmed, the video shows defendant hiding his face from the camera before leaving the house.
Defendant here contends that the trial court abused its discretion in admitting the video because it was cumulative of the chat logs and defendant's post arrest interview with the police. We disagree. Had the video been excluded, there would have been no evidence that defendant arrived at the house with the items he told the volunteer he would bring, unless the People were able to secure the attendance at trial of the investigative reporter.*fn24 Moreover, nothing in the chat logs or defendant's post arrest interview showed defendant's facial expressions and attempts to cover his face when first confronted with the fact that he had been caught, before he had a chance to think about what he was going to say. The video was not, therefore, cumulative.
Next, defendant asserts that the video was more prejudicial than probative because it involved a "national celebrity" (the investigative reporter) grilling defendant about his activities, including reading parts of the chats. However, the trial court did not act unreasonably in concluding that the probative value of the video outweighed its prejudicial impact, for the reasons we have already discussed in relation to the fact that it was not cumulative. Defendant also complains that towards the end of the video, the investigative reporter states that the purpose of the show was to catch computer predators, thus implying that defendant is one. However, defendant could have moved to redact this comment. His failure to do so forecloses his claim now.
3. Condition of Probation
The parties agree that alcohol testing is not a proper condition of defendant's probation. The trial court orally stated that it was not relevant and it noted that it was striking it from the written conditions stated in the probation report, and did so. However, when preparing the minutes of the sentencing hearing, the clerk erroneously did not omit it from the conditions of probation. Therefore, we will order the trial court to amend the minutes to reflect its order.
The trial court is directed to strike from the conditions of probation stated in the minutes of the sentencing hearing condition number five, which relates to alcohol testing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: McKINSTER J. MILLER J.