Opinion
No. 60107-5-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for Island County, No. 07-8-00091-3, Alan R. Hancock, J., entered May 25, 2007.
Reversed by unpublished per curiam opinion.
D.S. appeals his juvenile court adjudication that he committed attempted possession of depictions of minors engaged in sexually explicit conduct. D.S. argues that substantial evidence does not support the court's findings of fact that he (1) knowingly possessed images of minors engaged in sexually explicit conduct and (2) kept those images because he enjoyed them. He also claims that sufficient evidence does not support the court's adjudication because the State failed to prove that he intended to possess images of minors, rather than images of adults or virtual minors. While we uphold the court's findings of fact, we agree that the State failed to prove that D.S. intended to possess images of actual rather than virtual minors. Therefore, we reverse.
Background
D.S. was the 15-year-old foster child of Francis and Judy Campbell. On April 15, 2007, Ms. Campbell found computer printout images of naked "small children" and "under [sic] aged girls" in the bottom drawer of D.S.'s dresser. Alarmed, she contacted the Island County Sheriff's Office and filed a report. Deputy Leif Haugen arrived a short while later at the Campbell home, where Ms. Campbell showed him 19 pages of images. Haugen then advised D.S. of his Miranda rights and interviewed him in the kitchen with Mr. and Ms. Campbell present. Haugen recorded the following questions and answers.
Last Febuary [sic] I was looking on the Internet at naked girls. I printed the photographs on our computer at the house.
Q: Did you look at these pictures and print them at your house?
A: Yes.
Q: Did you look at these pictures or print your pictures anywhere else?
A: No.
Q: Did anyone else look at these pictures?
A: No.
Q: Do you know it is illegal to possess these types of pictures? A: Kind of, now I do. Q: Were you aware that some of these girls in the photos appear to be under the age of 18?
A: Yes.
The computer that I used was my computer.
Haugen did not ask D.S. if he sought pictures of actual girls.
At D.S.'s bench trial, Ms. Campbell testified that at the interview she was concerned with some of the answers D.S. had given to Haugen. First, she stated that D.S. had lied when he told Haugen that he had never before accessed pornography. Ms. Campbell also testified that D.S. had told Haugen that he "liked" the pornographic images.
On May 25, 2007, the court issued an oral ruling, consisting of several findings of fact and conclusions of law. Based on these findings, the juvenile court acquitted D.S. of possession of depictions of minors engaged in sexually explicit conduct because it could not determine whether the images were of actual or virtual minors. However, the court convicted D.S. of attempted possession of depictions of minors engaged in sexually explicit conduct.
These oral rulings were entered as written findings of fact and conclusions of law on July 23, 2007.
Standard of Review
In determining the sufficiency of the evidence, we "`view the evidence in the light most favorable to the State and decide whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.'" A sufficiency claim "admits the truth of the State's evidence." We will uphold a challenged finding "if supported by substantial evidence in the record . . . viewing the evidence and the inferences therefrom most favorably to the State." In addition, we will affirm a conviction against a sufficiency claim when "`[t]he findings of fact . . . support the elements of the crime beyond a reasonable doubt.'"
State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205 (2006) (quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)).
Luther, 157 Wn.2d at 77-78.
Luther, 157 Wn.2d at 78 (citation omitted).
Luther, 157 Wn.2d at 78 (quoting State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001)).
Discussion
1. Findings of Fact
D.S. challenges the juvenile court's findings of fact 8 and 9, in which the court found that D.S. knowingly possessed the images found in his bedroom and kept these images because he enjoyed them. He argues that substantial evidence does not support finding of fact 8 because "the evidence demonstrates only that D.S. lied about possessing pornography previously, and not that he had possessed `pictures of naked minor children' in the past." D.S. also contends that substantial evidence does not support finding of fact 9 because "it is unclear from [D.S.'s] statement what, much less which images, D.S. `liked.'"
In finding of fact 8, the court held:
Ms. Campbell testified that [D.S.] said, in response to questions from Deputy Haugen, that he, [D.S.], had never done this before, that is, possessing pictures of naked minor children. Ms. Campbell testified that she knew that that wasn't true because she was aware that he had previously accessed pornography on the computer that he had access to.
In finding of fact 9, the court held, "The officer asked [D.S.] why he had done this. He said that he liked it; that he enjoyed it, the viewing of pictures of naked minor children."
Ms. Campbell's testimony, however, supports both of these findings. At trial, the prosecutor asked Ms. Campbell if she was concerned about any of the answers D.S. gave to Haugen's questions. She stated:
When [D.S.] said that he had never done that before, never got on the Internet and looked for pornography. I knew that he had done that sometime last year and at that point if it wasn't child pornography it was questionable but it was like, okay, you can't do this anymore and he did lie saying he had never done that before.
When the prosecutor asked Ms. Campbell if any other of D.S.'s answers disturbed her, she said, "Well [Haugen] asked [D.S.] why he did that and [D.S.] said because he liked it, he enjoyed it." When viewed in the light most favorable to the State, Ms. Campbell's testimony supports both findings of fact. D.S. improperly reads Ms. Campbell's statements in isolation and fails to draw inferences in favor of the State. We hold that substantial evidence supports the juvenile court's findings of fact 8 and 9, which reflect that D.S. knowingly possessed the images and kept them because he enjoyed them.
2. Sufficiency of the Evidence
D.S. next argues that sufficient evidence does not support the court's conclusion that he attempted to possess images of minors, rather than adults, or images of actual minors, rather than virtual ones.
Under RCW 9.68A.070, "[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class B felony." To be found guilty of an attempt to commit this felony, the defendant must (1) have the intent to commit the underlying offense of knowingly possessing depictions of minors engaged in sexually explicit conduct and (2) take a substantial step towards possessing those depictions.
Luther, 157 Wn.2d at 78; RCW 9A.28.020(1).
D.S. incorrectly asserts that the State was required to prove that the persons in the images he possessed were, in fact, minors. The relevant question is whether D.S. "intended to obtain child pornography containing images of actual minors and took a substantial step towards doing so." The court here addressed this question in its conclusions of law rather than in its findings of fact. In conclusion of law 11, the court found beyond a reasonable doubt that the persons in some of the images were children under the age of 18. In conclusion of law 12, the court stated, without further explanation, that D.S.'s possession of these images "strongly indicates an attempt on his part to have possession of images of actual minors engaged in sexually explicit conduct." Finally, in conclusions of law 13 through 15, the court reasoned that sufficient evidence supported the conclusion that D.S. attempted to obtain images of actual minors based on his admissions that he (1) believed that the girls in the images appeared to be under 18 years old, (2) knew that it was illegal to possess such images, and (3) kept the images because he enjoyed them.
Luther, 157 Wn.2d at 81.
However, D.S. correctly points out that the State failed to present sufficient evidence as to whether he attempted to possess images of actual minors, rather than virtual ones. As "Washington's child pornography prohibition does not permit a conviction for possession of virtual images of children engaged in sexually explicit conduct," our courts require that sufficient evidence supports the conclusion that the defendant attempted to possess images of actual minors, not virtual ones.
Luther, 157 Wn.2d at 73.
For example, our Supreme Court in State v. Luther determined that sufficient evidence supported the conclusion that the defendant attempted to possess depictions of actual minors. In Luther, the defendant participated in an on-line chat with "eric16," in which the defendant asked "eric16" to send sexual photos of himself and cautioned him to be careful because he was "underage." The police obtained the logs of these on-line chats and also printed out images from the defendant's computer appearing to show minors participating in sexual activity.
157 Wn.2d 63, 134 P.3d 205 (2006).
Luther, 157 Wn.2d at 81.
Luther, 157 Wn.2d at 68.
Luther, 157 Wn.2d at 67-68.
At trial, the State failed to introduce evidence that the persons in the images were minors so the defendant was acquitted of possession of depictions of minors engaged in sexually explicit conduct. However, the defendant was found guilty of attempted possession of depictions of minors engaged in sexually explicitly conduct based on the images and online chats.
Luther, 157 Wn.2d at 69-70.
On appeal, the defendant argued that sufficient evidence did not support the conclusion that he attempted to possess images of actual minors, as opposed to virtual ones. Our Supreme Court disagreed. The court first pointed out that the trial court had only been unable to find beyond a reasonable doubt that the images were of minors, as opposed to adults. The court further determined that the content of the defendant's on-line chats with "eric16" evidenced his intent to possess images of actual minors.
Luther, 157 Wn.2d at 81.
Luther, 157 Wn.2d at 82.
Luther, 157 Wn.2d at 81.
Luther, 157 Wn.2d at 79.
Here, unlike the trial court in Luther, the juvenile court expressly found that it could not determine beyond a reasonable doubt that the images were of actual minors, as opposed to virtual minors. In conclusion of law 4, the court stated:
Exhibits 3 through 6 are photographs of images taken from a computer. . . . There was no expert testimony in this case as to how these images were generated; whether they were the actual pictures of actual children or whether they were somehow pictures generated from a computer or by other mechanical means. . . . [T]he court cannot find beyond a reasonable doubt that these were images of actual children in Exhibits 3 through 6.
Moreover, unlike the on-line chats in Luther, nothing in the record here evidences D.S.'s intent to possess images of actual minors. Yet, the court concluded that D.S.'s admissions evidenced his intent, reasoning:
There was no indication . . . that [D.S.] was only attempting to possess pictures of virtually-generated minor children as opposed to actual children. And, quite frankly, it would be preposterous to think that a 15-year-old boy would make a distinction in his mind between images of actual children and images of computer-generated children for purposes of his intention with regard to the possession of these pictures.
However, by the court's own reasoning, D.S.'s admissions cannot evidence his intent to possess images of actual rather than virtual minors because the admissions show that this distinction was of no consequence to D.S. At best, D.S.'s admissions reflect that he did not care whether he possessed images of actual minors or virtual minors. Without any further evidence of D.S.'s intent to possess images of actual minors — such as communications of the type identified in Luther — we hold that sufficient evidence does not support D.S.'s conviction of attempted possession of depictions of minors engaged in sexually explicit conduct.
Reversed.