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E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON May 07 2012 9:03 AM KEVIN STOCK COUNTY CLERK

NO: 11-1-03893-1

IN THE SUPERIOR COURT OF THE STATE OF WASHJNGTON

IN AND FOR THE COUNTY OF PIERCE STATE OF WASHINGTON,


Plaintiff,
VS.

STEVEN POWELL,
Defendant.

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MOTION

NO. 11-1-03893-1

DEFENDANT'S MOTION TO DlSMISS COUNT XV

COMES NOW the above-named defendant by and through his attorneys of record, Mark

T Quigley and Travis R. Currie, and respectfully moves this court under CrR 8.3, and pursuant
to Stvie
i1 Knupstad,

107' Wn.2d 346,729 P 2 d 18 ( 1 9861, for dismissal of Count XV, Pussession

of Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree, because

there i s insufficient evidence, as a matter of law, to sustain the charge.

Our Supreme Court has set forth the following procedure for a Knupssad motion:
Under [ S m t ~1:. Knapstad, 1 0 7 Wash.Zd [3 16[ 356,719 P. Zd 48 ] [1986], such a motion should be initiated by a sworn afildavit "alleging there are no material disputed facts and the undisputed facts do not
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POWELL- MOTION TO DISMISS COUNT XV-1

Dcpart~nuntof Assignud Counsul 014 Market Street, Suite 334 T s c r m a , Washingtun 98402-36Yk Telephr~nt. 1 2 5 7 r 798-6062

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establish a prima facie case of guilt." Then "[tlheState can defeat the motion by filing an affidavit which specifically denies the material facts alleged in the defendant's affidavit. If material factual allegations in the motion are denied or disputed by the State. denial of the motion to dismiss is mandatory." [Knapsrad, 107 Wn.2d at 3 56, 729 P.2d 481 On the other hand, "[ilf the State does not deny the undisputed facts or allege other material facts," the court must decide "whether the facts which the State relies upon, as a matter of law, establish a prima facie case of guilt." [Knapsfad, 107 Wash.2d at 356-57, 729 P.2d 481. "Since the court is not to rule on factual questions, no findings of fact should be entered." [Knapsfad,107 Wash.2d at 357,729 P.2d 48.1
State v. Van Woerden, 93 Wn.App. 110, 967 P.2d 14 (Div. 2 1998j, at FN?, citing State v. Groom, 133 Wn.2d 679, 684, 947 P.2d 240 (1997).

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DECLARATION OF COUNSEL
1 HEREBY DECLARE, UNDER PENALTY OF PERJURY PURSUANT TO THE LAWS OF THE STATE OF WASHINGTON, THAT THE FOLLOWING IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF:

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My name is Mark T. Quigley, WSB#14496. I am one of the attorneys assigned to


represent Steven Powell, the defendant herein. A summary of the facts, taken jn the light most
favorable to the State, and taken from various police reports and the affidavit of probable cause

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are stated below. The following summary is for the purposes of this Motion only and are not a

stipulation for trial. These materially undisputed facts, for the purposes of this Motion only, do
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not support a prima facie case for Count XV.


On August 25,201 1. a photo disc was recovered from the bedroom of Steven Powell

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pursuant to a search warranl. The disc contained numerous photos of two girls, ages 8 and 10
years old. The photos depict both girls' exposed breasts, buttocks, and genital areas while they
were taking baths, getting dressed and using the toilet. The State alleges the photos were taken
by Steven Powell through an open window in the house looking into an open window of his
POWELL- MOTION TO DISMISS COUNT XV-2

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Dcpartmunr ofAssigried Counsel 949 Market Street. Suite 334 Tacoma. Washington 9F1302-3696 Tcluphonu: ( 2 5 3 ) 798-6062

1 neighbor's house. The State alleges that girls' mother never thought someone would be
photographing them from outside the house. The State alleges that no one was given permission
to photograph the girls on these occasions and that the two girls had no knowledge they were

being photographed. I am unaware of any allegation that Steven Powell influenced or caused the
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actions of the t ~ girls in any way during the alleged incidents. o

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SIGNED UNDER PENALTY OF PERJURY, PURSUANT TO THE LAWS OF THE STATE OF WASHWGTON, AT ThC.OMA, WASHING

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MOTION TO DISMISS
The appropriate test for determining the sufficiency of the evidence is whether, after

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viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of r crime beyond a reasonable doubt. Stare v IVutle, 92 Wn.App. b
885, (reversed on other grounds Stare v. Wade, 1 3 8 Wn.2d 460) citing Slate v. Green, 94 Wn.2d

'1I 216. A claim of insufficiency admits the truth of the State's evidence and all inferences that

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il reasonably can be drawn there from. Wade, citing Sfnre v. Salinas, 1 19 Wn.2d 192.20 1, 829

P.2d 1068 (1 997).

The central issue at hand is the definition of "sexually explicit conduct" in the context of

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the elements of Count XV, Possession of Depictions of Minors Engaged in Sexually Explicit
Conduct Second Degree. The term '.sexually explicit conduct': as alleged in relevant part of

POWELL- MOTION TO
DISMISS COUNT XV-3

Depart~ncnt Ass~gnedCounsel of 949 M a r k e t Strcct, Suite 334 Tacoma. Wa5h1ngtcm 98402-3696

Telcpllonc ( 2 5 11 798-6062

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Count XV, is defined in RCW 9.68.01 1 (4)(f) as follows:

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Depiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer. For the purposes of this subsection (4)(f), it is not necessary that the minor know that he or she is participating in the described conduct, or any aspect of it.
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' 1 prior statute defining "sexually explicit conduct" read, in relevant pan as follows:
Exhi bition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer.
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This statute, defining sexually explicit conduct, was amended to its present form in 20 10. The

,:I The legislature in 20 10 substituted the word .'depiction" for "exhibition" and added the last
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sentence regarding knowledge of the minor. In all other respects the two versions of the statute
are identical.

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In considering facts virtually identical to the facts alleged here, the Court of Appeals,

1 Division Two. found the evidence


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was insufficient to establish sexually explicit conduct. State v.

Whjpple, 144 Wash. App. 654, 183 P.3d 1105 (2008).


In Wlipple. supra, the defendant was charged with Possession of Depictions of a Minor

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Engaged in Sexually Explicit Conduct in 2006. The Court therefore analyzed the definition of
iLrcxullycxplicil conduct" under the terms of the farmer RCW 9.68A.011, ref'erenced above.

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However, the change of statutory language does not affect the Court's reasoning. The decision in
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W h i ~ ~ lsupra, has not been overturned or modified, and remains controlling herc. e,

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1 1 Whipple, 1

supra, the defendant secretly photographed and filmed a minor female, in

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undress and naked, without the minor's knowledge she was being filmed.

POWELL- MOTION TO DISMISS COUNT XV-4

1)eparlmcnt rf r \ s ~ e n c d Counsel 949 M3rker Slreet, Suite 334 T~coir~a, l\-ash~ngton9EJnZ-36Yb

Tctrphune: 12531 740-oOhZ

These images were discovered on the defendant's laptop computer. In analyzing whether there
was sufficient evidence of "sexually explicit conduct", the Court relied on Stale v. Grannis, 83

Wn.App. 546, 930 P.2d 327 (1 997), in interpreting the language of the statute. The Court, in Grannis, supra, held that since there was no evidence that the defendant (emphasis supplied)

initiated, contributed to, or in any way influenced the victim's conduct, the evidence did not
establish the victims were engaged in "sexually explicit conduct". State v. Grannis, supra at 55 1 .

The Washington Supreme Court examined the definition of sexually explicit conduct in
Stale v. Chester, 133 Wash. 2d 15,940 P.2d 1374 ( 1 997) and held that the legislature did not

intend to criminaliix the photographing of a child where there is no influence by the defendant

(emphasis supplied) which results in sexually explicit conduct. State v. Chester, supra at 23.
Because there was no evidence that the defendant (emphasis supplied) aided, invited, employed,

authorized or caused the minor to engage in sexually explicit conduct, he could not be found
guilty of Sexually Exploiting a Minor ( a separate crime which also has an element of sexually explicit conduct). State v. Chester, supra, at 23.

Applying the above reasoning, the Court in State v . Whipple, supra, held that on facts

virtually identical to those here, that insufficient evidence was present to support conviction of Unlawful Depictions of Minors Engaged in Sexually Explicit Conduct. The Court focused on
the actions (or inactions) of the defendant, specifically whether the defendant did anything to aid,

invite, or cause the conduct of the minor victim. Where, as here, the minors were unaware they
were being photographed, the defendant could not have contributed to or influenced their
conduct. Therefore the evidence does not establish "sexually explicit conduct" as defined in

POWELL- MOTION TO DISMISS COUNT XV-5

Uepar~lncntof A~signec! C'rjunsel ')JQ Market S t r c c ~Suite 334 ,


Tacoma, H ' u s l ~ i ~ ~ g t c r8 3 0 2 - 3 N 6 9o

Telephone (153) 798-6062

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RCW 9.68A.011, either pre or post 201 0 amendment.

In evaluating whether the amendment of RC W 9.68A.01 I would affect the reasoning of

the cases cited above, the added language should be analyzed. The substitution of the word
"depjctiun" for "cxhibi tion" refers to the content of the images and does not address the conduct,

if any: of the defendant or a third person other than the minor victim. The addition of the final

sentence refers to the knowledge, if any, of the minor victim and does not address any action of the defendant or any third party. The emphasis on the Court's reasoning in Chester. supra,
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Gramis, supra, and Whippk, supra is on the actions of the defendant. The amendment of RC W

9.68.01 1 defining "sexually explicit conduct" after those decisions does not change their
rationale. The charge of Possession of Uepictions of a Minur Engagcd in Sexually Explicit
to,

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1 Conduct requires proof that the dcfcndmt initiated, contributed


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or in any way influenced the

victim's conduct. The facts alleged herein, taken in the light most favorable to the State, fail to

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show such action by the defendant Steven Powell. Therefore Count XV must be dismissed.

Respectfully submitted this

'3 of May 20 day

/X
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~ttofney Defendant for

VTS

RRIE, WSBA#29298

ttorney for Defendant

1 POWELL1

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MOTION 1'0 DISMISS COUNT XVd

lleparrmenr o f Ass~snrdCounsel 319 Market Strcct. Suile 334 tacor~>a, Wa?h~ngtcm 93102-3 696

Telephone: (253) 798-6062