Opinion
No. 22814-2-III.
Filed: April 27, 2006.
Appeal from Superior Court of Okanogan County. Docket No: 03-1-00298-2. Judgment or order under review. Date filed: 02/11/2004. Judge signing: Hon. John E. Bridges.
Counsel for Appellant(s), Tanesha La Trelle Canzater, Lummi Tribal Court Child Support, 2616 Kwina Rd, Bellingham, WA 98226-9291.
Counsel for Respondent(s), Stephen Michael Bozarth, Okanogan County Prosecutors Office, PO Box 1130, Okanogan, WA 98840-1130.
Karl F. Sloan, Okanogan County Prosecuting Attorney, PO Box 1130, Okanogan, WA 98840-1130.
UNPUBLISHED OPINION
Michael J. Hogan challenges his convictions for 11 counts of possession of sexually explicit depictions of minors. This prosecution came several years after an earlier prosecution (for child rape) was dismissed. Both prosecutions resulted from the same investigation. Mr. Hogan claims that the delay in filing the depictions charges requires dismissal. We disagree. He also claims that the evidence was insufficient to show that the depictions were produced for purposes of sexual stimulation or that he knowingly possessed the illegal images, given the large quantity of material seized. Again, we disagree and therefore affirm his convictions.
FACTS
In July 2001, Okanogan detectives received a report of possible child sexual abuse. A four-year-old girl alleged that Michael J. Hogan touched her and took pictures of her privates. The child's mother alleged that Mr. Hogan had downloaded pornographic material from the Internet onto her computer.
On August 1, the police executed a warrant to search Mr. Hogan's home for child pornography. They seized a large amount of material, including hundreds of compact discs (CDs), hard drives, and floppies. One CD contained sexually explicit pictures, mostly of adults. But investigators found seven images on this CD of nude minor females. A second CD contained pictures of `barely legal' subjects — of legal age but looking very young. The State charged Mr. Hogan with the first degree rape of the four-year-old. The affidavit of probable cause included the mother's statement about the Internet pornography, the execution of the search warrant, and the discovery of the seven images. Mr. Hogan was arraigned for child rape on August 9. On October 29, the court dismissed the charge on the State's motion.
Two years later, on September 12, 2003, the State filed a new information alleging 14 counts of possessing sexually explicit depictions of minors. The State later amended the information to replace one of two identical images with a different image. The State eventually dismissed three counts, leaving 11. Mr. Hogan stipulated that the subjects were all under age 18.
Mr. Hogan moved to dismiss the charges. He argued that the charging delay amounted to arbitrary action or misconduct that deprived him of a fair trial. He alleged that the delay violated his constitutional right to a speedy trial and also violated his speedy trial rights under CrR 3.3. The judge concluded that no actual prejudice was caused by the delay because no element of Mr. Hogan's defense had been compromised. And the court denied his motion. The case proceeded to trial, and a jury found Mr. Hogan guilty on all 11 counts.
DISCUSSION Joinder
Mr. Hogan notes that the State's affidavit of probable cause for the rape charge included references to the images on a computer, CDs, and floppy disks. From this he argues that the possession of sexually explicit depictions of minors could have and therefore should have been joined with the rape charge.
Mr. Hogan does not contend that possession of depictions is sufficiently related to the charge of child rape as to require mandatory joinder. But he says the State must have thought the possession was somehow related, otherwise it would not have mentioned it in the affidavit of probable cause. Mr. Hogan suggests that alluding to the depictions in the probable cause affidavit was the functional equivalent of charging him with possession of the images. And this constituted permissive joinder of the depictions charges with the child rape charge. Therefore, the CrR 3.3 speedy trial period for the depictions charges started with his arraignment on the child rape charge. He then invokes the Striker line of constructive arraignment cases (requiring an implied arraignment date for speedy trial when there is an unexcused delay between the filing of charges and bringing the accused before the court). State v. Striker, 87 Wn.2d 870, 875, 557 P.2d 847 (1976).
The State responds that possession of depictions of minors engaged in sexually explicit acts is not similar to child rape. The offenses do not arise out of the same criminal conduct. One is a crime against a person. The other involves possession of contraband.
Dismissal under authority of CrR 8.3(b) is a matter of trial court discretion. And so our review is for abuse of discretion. State v. Moore, 121 Wn. App. 889, 895, 91 P.3d 136 (2004), review denied, 154 Wn.2d 1012 (2005); State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). Reversal requires that we conclude the judge's decision was manifestly unreasonable or based on untenable grounds. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997). The trial court may dismiss a criminal prosecution if two conditions are satisfied. The prosecution must have involved `arbitrary action or governmental misconduct.' CrR 8.3(b). And the court must find `prejudice to the rights of the accused which materially affect the accused's right to a fair trial.' Id.
Mr. Hogan cannot meet that standard. He concedes that possession of depictions and rape of a child are not related, and that mandatory joinder does not apply. And he does not dispute the trial court's further conclusion that the State does not have to join a charge, even under mandatory joinder, if it lacks sufficient evidence or if the ends of justice otherwise would not be served. CrR 4.3.1(b)(3). The court considered the particular circumstances of Mr. Hogan's previous arraignment for child rape and the current charges for possession. Based on the facts and the law, the court found no arbitrary action or malfeasance by the State. The court also gave Mr. Hogan the opportunity to show prejudice to his ability to mount a defense. He could show none.
Mr. Hogan cites to the Striker speedy trial line of cases for the proposition that the delay here was inherently prejudicial and violated his constitutional right to a timely trial. Striker and its progeny are not on point. Striker holds that, once a person is either charged or otherwise `held to answer' for illegal conduct, the prosecution must proceed in a timely manner. Striker, 87 Wn.2d at 872-73. Being held to answer means being in custody, on bail, or on recognizance for that offense. A charge is a written accusation that is filed with the court and that is sufficient to support a prosecution. Id. at 872-73 n. 2.
Mr. Hogan was not previously held to answer for possession of depictions. No charge was filed or even contemplated. The reference to the suspected child pornography in the probable cause affidavit tended to corroborate the allegations both of the mother and the child that pictures were taken of this victim. This strengthened the probable cause for the child rape charge. But that did not prompt any obligation to join the charges, nor did it start a speedy trial clock.
The evidence presented at the dismissal hearing supports the court's findings that the State did not have sufficient evidence to go forward with the depictions charges at Mr. Hogan's arraignment and that he was not prejudiced by the delay.
Proof of Sexual Stimulation as Motive
The images at issue here do not show sexual activity — only nudity. Mr. Hogan argues that nudity is not necessarily sexually explicit or for the purpose of sexual gratification. State v. Grannis, 84 Wn. App. 546, 549-50, 930 P.2d 327 (1997). The statute here defines sexually explicit conduct as the exhibition of the body of a minor `for the purpose of sexual stimulation of the viewer.' RCW 9.68A.011(3)(e).
Mr. Hogan argues that this refers to the purpose of the producer of the images, not that of the viewer. He contends that the State's only evidence as to the motivation for producing these pictures was opinion testimony from a federal agent who was a child pornography expert. This opinion, Mr. Hogan argues, has meaning only as to the general nature of such images. On the specifics of any particular picture, the witness could only speculate.
The State responds that the opinions of the child pornography expert are sufficient to support the jury's finding that these pictures were created for the purpose of sexual stimulation. The witness discussed each exhibit. Mr. Hogan did not offer any rebuttal evidence.
We review the sufficiency of the evidence to support a guilty verdict by viewing it in the light most favorable to the prosecution and asking whether a rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). We do not substitute our own judgment for that of the jury on issues of fact. State v. Farmer, 116 Wn.2d 414, 425, 805 P.2d 200, 812 P.2d 858 (1991).
Here, the State's expert, Darrel Cosme, had 33 years of experience as a federal investigator of sexual exploitation, child pornography, and cyber crimes. He recognized the subjects of several of these pictures from prior investigations. He testified that the same or similar images of the same young females frequently turned up in pornography collections. He discussed the images one by one, pointing out to the jury how the subjects were posed and the shots staged to exhibit the breasts and genitals. He compared these to `candid' shots of children playing or bathing. He testified that when children are posed to display their nudity, this is done for the sexual stimulation of the viewer and for no other purpose. Agent Cosme's testimony was uncontroverted. Mr. Hogan presented no evidence on this point.
Viewing this evidence in the light most favorable to the prosecution, a reasonable jury could find that the images were produced for purposes of sexual stimulation.
Evidence of Knowing Possession
The State's case for knowing possession rested on the fact that the CD was present in Mr. Hogan's home.
Sheriff's Detective Craig Sloan testified that the CD was in one of several piles of hundreds of CDs on the computer table. Mr. Hogan was the only resident of the home. Three of the four directories on the CD containing the pictures had `erotica' in the title. All the images on the CD were downloaded at the same time using a CD burner. There were several blank CDs of the same brand.
Mr. Hogan testified that he did not know what was on the CD. He said he did not make it and denied knowing it was in his possession. But he did not assert the affirmative defense of unwitting possession. Defense counsel included an unwitting possession instruction in his proposed instructions. But it was not included in the court's instructions to the jury. The record contains no discussion as to why. The defense did not object to the instructions as given, except for the denial of a Grannis instruction — that the State had to prove the purpose of the initiator.
Grannis, 84 Wn. App. at 549-50.
On appeal, Mr. Hogan does not allege ineffective assistance or challenge the lack of an unwitting possession instruction. And this suggests a deliberate trial strategy. The 11 images were on a CD containing 6,600 images of adult pornography. These images were not illegal, but certainly Mr. Hogan did not want to talk about them in front of the jury. He also had another CD containing mostly the `barely legal' images. If he had affirmatively asserted unwitting possession, the court may well have admitted these. As it was, the court excluded them.
The State presented direct evidence that the CD was in Mr. Hogan's possession and sufficient circumstantial evidence for the jury to find he knew he had it.
We affirm these convictions.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN and KULIK, JJ., concurs.