Opinion
No. 30714-6-II
Filed: December 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 03-1-00591-4. Judgment or order under review. Date filed: 08/01/2003. Judge signing: Hon. Leila Mills.
Counsel for Appellant(s), Thomas E. Jr Weaver, Attorney at Law, 569 Division St Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Cami Gayle Lewis, Kitsap County Prosecutors Office, Ms 35, 614 Division St, Port Orchard, WA 98366-4681.
Jack Leck appeals his convictions for 46 counts of possession of depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.070. Leck argues that (1) the police officer's warrantless search of an office computer violated his Fourth Amendment rights; (2) his convictions lack sufficient evidence; and (3) the trial court violated his allocution rights and erroneously defined his crimes as sex offenses under RCW 9.94A.030(38) based on a sexual motivation finding. Finding no error, we affirm.
FACTS
Leck volunteered at an organization called the World Peace Ambassadors (WPA) for approximately one week from April 11 to April 18, 2003. During this time he worked in the office's common area that did not require a key, and used a WPA computer primarily for volunteer tasks but also to search for a job. The chief executive officer of WPA, Ryan Malane, used this same computer to print documents; however, Leck was the primary user of the computer. Although Leck spent one night in the office, Malane told him that the office was not a residence.
On April 18, 2003, police officers came to the WPA office and requested Malane's permission to look at the computer Leck was using. Leck was not present and Malane consented to the officer's request to run a search program on the computer. Malane also allowed the officers to remove the computer for further investigation.
Leck entered the WPA office while an officer was running the search program on the WPA computer. As the officers questioned Leck, they discovered that the computer contained pornographic images of minors. The officers arrested Leck because of these images. Leck then stated, 'I have been trying so hard to stay away from this.' Clerk's Papers (CP) at 100.
The Washington State Patrol Crime Lab located numerous digital images of minors engaged in sexually explicit conduct that were created the week of April 11-18, 2003, on the WPA computer. The Crime Lab also identified extensive internet searches for preteen boys and girls during this same time period, as well as email records from Leck's 'hotmail' account that identified Leck's membership in groups that collect pornographic photos of minors. CP at 100.
The State charged Leck with 50 counts of possession of depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.070, and also separately charged him with sexual motivation under RCW 9.94A.835 for each count. The trial court denied Leck's suppression motion.
Leck stipulated to a bench trial on whether he was guilty of 'Possession of Depictions of Minors Engaged in Sexually Explicit Conduct [with sexual motivation] (50 counts) in violation of RCW 9.68A.070.' CP at 101. Leck also stipulated that his standard range sentence was '0 to 12 months confinement' and that the judge 'must impose a sentence within the standard range unless the parties agree to recommend an exceptional sentence under State v. Hilyard, [ 63 Wn. App 413, 819 P.2d 809 (1991)] or unless the Judge finds substantial and compelling reasons to impose an exceptional sentence.' CP at 101-02. Leck's stipulation recommended an exceptional sentence of 12 months and one day. His stipulation also acknowledged that the prosecutor would recommend an exceptional sentence of 48 months if he were found guilty on any or all of the counts.
The trial court found Leck guilty on 46 counts under RCW 9.68A.070. Based on Leck's stipulated facts, the court also found beyond a reasonable doubt that all 46 counts were sexually motivated under RCW 9.94A.835. Consequently, the trial court imposed an exceptional sentence of 48 months as requested by the State.
The trial court based its exceptional sentence on three independent conclusions; however, Leck's challenge is limited to the sentencing court's definition of his crimes as sex offenses under RCW 9.94A.030(38)(c).
Leck timely appealed, asserting that the search violated his Fourth Amendment rights, insufficient evidence supported his convictions, and the trial court erred at sentencing by defining his crimes as sex offenses under RCW 9.94A.030(38).
ANALYSIS I. Fourth Amendment
Leck contends that the police search of the WPA computer violated the Fourth Amendment under the state and federal constitutions.
The Fourth Amendment to the United States Constitution protects against unreasonable searches. Article 1, section 7 of the Washington State Constitution provides: 'No person shall be disturbed in his private affairs, or his home invaded, without authority of law.'
Although the parties do not argue automatic standing, the State first implicitly argues that Leck does not have standing to contest the search because he does not have a privacy interest in the computer. But the State ignores that, notwithstanding Leck's expectation of privacy, Leck has automatic standing to challenge the search because the State's charge involves a possession element and the State used the evidence obtained in the search against him. State v. Jones, 146 Wn.2d 328, 334-35, 45 P.3d 1062 (2002).
The State next argues that the warrantless search was valid because Malane consented to the search of the WPA office and computer. Leck contends that he had equal authority that required the police officers' to obtain his consent before the search and that he had a reasonable expectation of privacy in the computer's contents.
Our Supreme Court recently upheld a consensual warrantless search in State v. Thompson, 151 Wn.2d 793, 92 P.3d 228 (2004). In Thompson, the court held that consent is an exception to the warrant requirement and that the State demonstrates lawful consent when the consent is voluntary, the search does not exceed its scope, and the consenting person has authority to consent to the State's search. 151 Wn.2d at 803. In Thompson, the court held that the defendant did not have equal control, access, or authority of the area searched because he did not own or have exclusive use of the searched premises; rather, his use of the premises 'was contingent upon his parents' permission.' 151 Wn.2d at 806-07. Thus, '[b]ecause he lacked the authority to do so, [the defendant] could not have permitted the search in his own right. Therefore, we find that [the defendant] did not possess common authority over the boathouse and that his consent was not necessary to the validity of the search.' Thompson, 151 Wn.2d at 807.
In reaching this conclusion, the Thompson court discussed State v. Mathe, 102 Wn.2d 537, 688 P.2d 859 (1984) and State v. Leach, 113 Wn.2d 735, 782 P.2d 1035 (1989). 151 Wn.2d at 804-05.
Here, Leck does not challenge the voluntariness of Malane's consent or the search's scope, rather he focuses on Malane's lack of authority to solely consent to the search of the office and WPA computer. But like the defendant in Thompson, Leck did not share equal authority with Malane over the WPA office or computer, thus, Leck's consent to the State's search was not necessary.
Leck was a volunteer for one week, not an employee. Malane gave Leck permission to use the WPA computer. And although Leck spent a night in the office, Malane clarified to Leck that the office was not a residence. Thus, Leck did not have a property interest in either the WPA office or computer. Accordingly, Malane, as WPA's director, had control of both the WPA's office and computer and could solely consent to the search. There was no violation of Leck's Fourth Amendment rights.
We also question Leck's assertion that he has a subjective and reasonable expectation of privacy in the WPA computer. A defendant's subjective expectation of privacy must be reasonably recognized by society. State v. Boot, 81 Wn. App. 546, 550, 915 P.2d 592 (1996). Here, Leck spent one night in the WPA office with the understanding that it was not a residence, his office space could not be locked, and he was not a WPA employee, but a volunteer for one week. Further, he did not have a password to the WPA computer and he shared access to it with Malane. Given these circumstances, it is doubtful that society would recognize that Leck had a reasonable expectation of privacy in the WPA computer. Leck's argument relies primarily on O'Connor v. Ortega, 480 U.S. 709, 721-26, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), which we do not find persuasive under the facts here.
II. Sufficiency of the Evidence
Leck argues that his convictions under RCW 9.68A.070 lack sufficient evidence.
To prove a violation of RCW 9.68A.070, the State must prove that the defendant 'knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct.' Regarding this statute's knowledge element, the State need only prove 'the general nature of the material he or she possessed.' State v. Rosul, 95 Wn. App. 175, 185, 974 P.2d 916 (1999). A defendant's possession of illegal images can be actual or constructive. We evaluate constructive possession by evaluation of the totality of the circumstances. State v. Summers, 107 Wn. App. 373, 384, 386-87, 28 P.3d 780 (2001). Our analysis focuses on the quality and nature of the defendant's possession of illegal images, such as the defendant's ability to eventually possess the item, his or her knowledge and awareness that the item is nearby or present, and the defendant's motive to hide an illegal item from police. Summers, 107 Wn. App. at 386. Consequently, the length of time of the defendant's possession is rarely dispositive. Summers, 107 Wn. App. at 386.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). 'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citation omitted). This court considers circumstantial evidence to be as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Leck's argument focuses on the State's ability to prove his possession of the child pornographic images found on the hard drive of the WPA computer. He asserts that he did not have constructive possession of the illegal images because he did not affirmatively download the images, rather the images were automatically gathered in the computer's temporary internet folder.
But Leck's argument is unpersuasive given the totality of the circumstances and the context of his actions. The record demonstrates that Leck methodically and intentionally searched for images of child pornography on various internet websites. Indeed, more than 85% of over 500 internet searches concerned terms associated with child pornography. Additionally, Leck downloaded the majority of these illegal images in the evening when there was no one in the office and he was the primary user of the WPA computer. When he was placed under arrest for obtaining pornographic images of minors, Leck stated, 'I have been trying so hard to stay away from this.' CP at 100. This statement indicates a clear awareness of the illegal images on the WPA computer. And the legislature intended courts to broadly interpret violations under RCW 9.68A.070. See State v. Cannon, 120 Wn. App. 86, 91, 93, 84 P.3d 283 (2004) (discussing RCW 9.68A's legislative history and approving the broad interpretation of this statutory scheme in Rosul, 95 Wn. App. at 180).
Thus, given Leck's intentional conduct, the totality of circumstances, and viewing the evidence in the light most favorable to the State, we hold that sufficient evidence supports Leck's convictions under RCW 9.68A.070.
III. Sentencing
Leck challenges two issues related to his exceptional sentence, the trial court's failure to allow him an opportunity for allocution and the trial court's definition of his convictions as sex offenses under RCW 9.94A.030(38).
A. Allocution
Leck claims that he is entitled to resentencing because the court did not directly ask him if he wished to address the court before the imposition of his sentence. But Leck failed to raise allocution as an issue during a two day sentencing hearing. The right to allocution is statutory, not constitutional. In re Personal Restraint of Echeverria, 141 Wn.2d 323, 338, 340, 6 P.3d 573 (2000). Consequently, Leck has waived this issue and RAP 2.5(a)(3) precludes appellate review.
We also note that to satisfy RCW 9.94A.500(1), the sentencing court must consider the defendant's 'arguments' before imposing its sentence. Echeverria, 141 Wn.2d at 340-41. Here, Leck voluntarily stipulated to the facts underlying the State's allegations under RCW 9.68A.70 and RCW 9.94A.835 and an exceptional sentence recommendation. For two days, Leck's counsel advanced numerous sentence reduction arguments not challenged on appeal. And Leck's stipulated facts supported the court's sexual motivation finding that was an aggravating factor and independent reason for the court's exceptional sentence. Given these circumstances, remand for resentencing appears 'a waste of judicial resources.' State v. Canfield, 120 Wn. App. 729, 736, 86 P.3d 806 (2004) (Sweeny, J., dissenting).
B. Sex Offense Definition
Leck contends that the trial court may not find sexual motivation under RCW 9.94A.835 in order to define his crimes as sex offenses under RCW 9.94A.030(38)(c). We disagree.
Leck asserts that the trial court's sexual motivation finding here is an equal protection violation; however, we do not review this contention because he fails to meaningfully cite to the record to support his claim of discrimination. Further, his argument lacks sufficient legal authority because he cites only one case with little explanation. RAP 10.3(a)(5). But we briefly note that we agree with the sentencing court's analysis that there are circumstances when a defendant could violate RCW 9.68A.70 without sexual motivation, such as possession of child pornography 'out of sheer nonsexual curiosity.' Report of Proceedings (Aug. 1, 2003) at 20; see also RCW 9.68A.011(3) (providing definitions of '[s]exually explicit conduct' that do not require sexual stimulation); RCW 9.68A.70 (employing the phrase 'sexually explicit conduct').
A sex offense is defined as:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(11);
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.070 or 9.68A.080; or
. . . .
(c) A felony with a finding of sexual motivation under RCW 9.94A.835
. . . .
RCW 9.94A.030(38)(a), (c) (emphasis added).
Subsection (c) includes as a sex offense '[a] felony with a sexual motivation under RCW 9.94A.835.' A plain reading of this language broadly encompasses any felony that the State has proven to be sexually motivated under RCW 9.94A.835. Further, an offense that is expressly excluded from the sex offense definition under RCW 9.94A.030(38) is inherently non-sexual and the State may make a special allegation of sexual motivation. State v. Thomas, 138 Wn.2d 630, 637-38, 980 P.2d 1275 (1999).
We reject Leck's rule of lenity argument because the contested statutes' plain language is unambiguous. State v. Oakley, 117 Wn. App. 730, 734, 72 P.3d 1114 (2003).
Here, RCW 9.94A.030(38)(a) expressly excludes Leck's crime as a sex offense. But the State filed a special allegation under RCW 9.94A.835 that Leck's offenses were sexually motivated. Based on Leck's stipulated facts, the sentencing court found beyond a reasonable doubt that Leck's misconduct was sexually motivated under RCW 9.94A.835 on each of the 46 charges of possession of depictions of minors engaged in sexually explicit conduct. After making this sexual motivation finding, the court defined Leck's crimes as sex offenses under RCW 9.94A.030(38)(c). Consequently, the sentencing court did not err.
The stipulated facts supporting the court's sexual motivation finding include, inter alia, Leck's 'repeated use of internet searches for child pornographic materials' and Leck's 'email messages indicating his involvement in groups collecting images of minors.' CP at 193.
We note that Leck did not appeal the exceptional sentence, except in that it was imposed due to the finding of sexual motivation. But even under Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), Leck stipulated to the relevant facts and also consented to judicial factfinding of the sexual motivation finding, and the trial court found sexual motivation beyond a reasonable doubt.
Finding no error, we affirm Leck's convictions and sentence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.