Opinion
No. 22361-2-III
Filed: April 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kittitas County. Docket No: 03-8-00032-3. Judgment or order under review. Date filed: 08/25/2003. Judge signing: Hon. Scott Roger Sparks.
Counsel for Appellant(s), James Elliot Lobsenz, Carney Badley Spellman, 700 5th Ave Ste 5800, Seattle, WA 98104-5017.
Counsel for Respondent(s), Douglas Robert Mitchell, Kittitas Cnty Pros Attny, Kittitas Co Cths Rm213, 205 W 5th Ave, Ellensburg, WA 98926-2890.
August Anthony Vezzoni appeals his convictions for dealing in depictions of a minor engaged in sexually explicit conduct, RCW 9.68A.050, and possession of depictions of a minor engaged in sexually explicit conduct, RCW 9.68A.070. He contends the statutes are unconstitutional; they do not encompass his conduct; and the depictions are protected by the First Amendment. We affirm.
Between June and September 2002, Mr. Vezzoni and T.N. were boyfriend and girl friend. Both were 16 years old. In early September, T.N. visited Mr. Vezzoni at his home. After watching a movie, they had sex. Immediately thereafter, he asked T.N. if he could take pictures of her. She agreed; Mr. Vezzoni took the pictures. One week later, the two broke up.
In January 2003, Mr. Vezzoni developed the film. The pictures depicted T.N. in various stages of undress and included pictures of her unclothed breasts and genitals. He took the pictures to school and showed them to several classmates. Mr. Vezzoni was charged with one count of sexual exploitation of a minor, one count of dealing in depictions of a minor engaged in sexually explicit conduct, and one count of possession of depictions of a minor engaged in sexually explicit conduct. After a bench trial, the court found Mr. Vezzoni guilty of dealing in depictions of a minor engaged in sexually explicit conduct and possession of depictions of a minor engaged in sexually explicit conduct, but not guilty of the sexual exploitation of a minor charge. This appeal follows.
Mr. Vezzoni contends his conviction for possession of depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.070 is unconstitutional because it infringes on his right to privacy under both the federal and state constitutions. But statutes are presumed constitutional. State v. Farmer, 116 Wn.2d 414, 419, 805 P.2d 200, 812 P.2d 858 (1991). Thus, `[t]he party challenging the statute has the burden of proving its unconstitutionality beyond a reasonable doubt, as well as rebutting the presumption that all legally necessary facts exist.' Id. To challenge the constitutionality of a statute, a person must show the statute has operated to his own prejudice. State v. Bohannon, 62 Wn. App. 462, 469, 814 P.2d 694 (1991). If possible, statutes should be construed to be constitutional. Farmer, 116 Wn.2d at 419-20.
Relying on cases stating that minors have the constitutional right to engage in private sexual activity, Mr. Vezzoni asserts the State cannot regulate the taking and possession of photographs by minors because privacy rights extend to both the minor who permits the photographic depiction, as well as the minor who takes the photos. To the extent Mr. Vezzoni argues T.N. had the right to consent to the taking of photographs of her body, we need not address the argument because Mr. Vezzoni lacks standing to raise this challenge. As for his right to take and possess the photos, the right to privacy is not without its limitations. Farmer, 116 Wn.2d at 422. "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." State v. Davis, 53 Wn. App. 502, 504, 768 P.2d 499 (1989) (quoting New York v. Ferber, 458 U.S. 747, 757, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)). Therefore, `the state's interest in protecting its children from sexual exploitation is sufficiently compelling to justify prohibiting possession of child pornography.' Id. at 505. RCW 9.68A.070 does not impermissibly violate Mr. Vezzoni's constitutional right to privacy. Id. at 506.
Mr. Vezzoni next contends that the court should avoid deciding constitutional issues when a case can be resolved on statutory grounds. He argues his convictions should be vacated because the legislature did not intend for child pornography statutes to apply in situations where teenagers, who are capable of consenting to sexual activity, take nude photographs of each other.
The primary rule of statutory construction is to give effect to the legislature's intent. State v. Rizor, 121 Wn. App. 898, 902, 91 P.3d 133 (2004). If a statute's language is clear, "its plain meaning must be given effect without resort to rules of statutory construction." Id. (quoting State v. Theilken, 102 Wn.2d 271, 275, 684 P.2d 709 (1984)). A statute is ambiguous when it is susceptible to more than one interpretation. Id.
In State v. D.H., 102 Wn. App. 620, 622, 9 P.3d 253 (2000), review denied, 142 Wn.2d 1025 (2001), the 15-year-old defendant videotaped the breasts and buttocks of three high school classmates. One of the classmates, K.S., reluctantly agreed to expose her breasts for the camera only after the defendant followed her around and repeatedly asked her. Id. at 622-23. The defendant then showed the videotape to several classmates. Id. at 623. He was charged with three counts of sexual exploitation of a minor, but convicted only of the count involving K.S. Id. On appeal, he argued the offense of sexual exploitation of a minor was never intended to encompass his conduct because the statute's statement of legislative intent was aimed at the criminal conduct of adults, not minors; there was no evidence of abuse of trust or evidence that he took advantage of an impressionable child; and the legislature did not intend to criminalize his conduct because the alleged victims in this case were approximately the same age. Id. at 627. Since it could not modify the unambiguous elements of an offense in the guise of statutory interpretation, the court noted the defendant's conduct fell within the unambiguous statutory definition of sexual exploitation of a minor and the legislature had not made distinctions based on age in the statute. Id.
Here, the child pornography statutes are unambiguous and do not make age-based distinctions when defining specific criminal conduct. As the court stated in D.H., `[t]he Legislature is well aware of how to create different degrees of criminal liability on the basis of a specific age disparity between the offender and the victim.' Id. When the legislature declines to make distinctions based on age in the statute, `[t]here is no room for judicial interpretation . . . beyond the plain language of the statute.' Id. The legislature did not intend to exclude juvenile offenders from the child pornography statutes.
Mr. Vezzoni contends the photos of T.N. are constitutionally protected by the First Amendment. Relying on Ferber, 458 U.S. 747, he asserts his convictions must be vacated.
In Ferber, the owner of an adult bookstore appealed his conviction under a New York child pornography statute for selling films that primarily depicted young boys masturbating. Id. at 751-52. The Court held that under the First Amendment, photographs of children need not be obscene to be prohibited, so long as the standards used to define the category of banned speech were suitably narrow and an element of scienter was included. Id. at 764-65. The court formulated this test for identifying child pornography:
A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.
Id.
Mr. Vezzoni argues that because the photos of T.N. did not show her engaging in any sexual conduct or performing any sexual activity, the photos do not constitute child pornography. Although `laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy[,] . . . the States are entitled to greater leeway in the regulation of pornographic depictions of children.' Id. at 756.
Mr. Vezzoni was convicted of violating RCW 9.68A.050, dealing in depictions of a minor engaged in sexually explicit conduct, and RCW 9.68A.070, possessing depictions of a minor engaged in sexually explicit conduct. These statutes both contain the phrase `sexually explicit conduct' and require the depicted minor to be engaged in sexually explicit conduct. RCW 9.68A.050; RCW 9.68A.070; State v. Stellman, 106 Wn. App. 283, 289, 22 P.3d 1287 (2001); State v. Grannis, 84 Wn. App. 546, 551-52, 930 P.2d 327 (stating that the sexually explicit conduct requirement is not met when a minor merely plays in a playground or merely takes a bath), review denied, 133 Wn.2d 1018 (1997). Sexually explicit conduct is defined in part as the `actual or simulated . . . [e]xhibition 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.' RCW 9.68A.011(3)(e).
Here, the photos of T.N. show the actual exhibition of her genitals, unclothed pubic areas, and breasts. Although no evidence directly indicates T.N. had the purpose of sexually stimulating a viewer, there is evidence Mr. Vezzoni initiated and contributed to T.N.'s conduct. Therefore, a reasonable trier of fact could infer the photos were taken for the purpose of sexually stimulating the viewer. The photos show T.N. engaged in sexual conduct and therefore constitute child pornography as defined in Ferber.
Mr. Vezzoni also contends RCW 9.68A.011(3)(e) is overly broad and violates the First Amendment because it does not contain the words `lewd' or `lascivious' in its definition of `sexually explicit conduct.' But our Supreme Court has already twice discussed and rejected such a challenge. State v. Myers, 133 Wn.2d 26, 31-34, 941 P.2d 1102 (1997); Farmer, 116 Wn.2d at 421.
Nonetheless, he urges this court to reconsider the holdings of Myers and Farmer, asserting that they are in error because they do not mention the U.S. Supreme Court cases of Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990), or United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). We decline to do so. This court cannot overrule our Supreme Court in any event. State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997).
Mr. Vezzoni claims that because the court failed to find he knew T.N. was a minor, his convictions do not meet the requirements of X-Citement Video. In cases tried to the court without a jury, the court must enter written findings of fact and conclusions of law. CrR 6.1(d). `Those findings should address the elements of the crimes separately and indicate the factual basis for each.' State v. Denison, 78 Wn. App. 566, 570, 897 P.2d 437, review denied, 128 Wn.2d 1006 (1995).
X-Citement Video, 513 U.S. at 66-67, involved a constitutional challenge to a federal child pornography statute that was bereft of any scienter requirement relating to the contents of the proscribed material. The only element of scienter required in the statute was `knowingly' shipping, transporting, receiving, or distributing visual depictions of sexually explicit conduct involving minors. Id. at 68. In construing the statute to preserve its constitutionality, the U.S. Supreme Court determined it was the intention of Congress to apply the scienter requirement of `knowingly' to the sexual explicit nature of the material itself. Id. at 64-65, 78. The Court also construed the scienter requirement to apply to the child's age. Id. at 78. In this context, the Court noted that `a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.' Id.
Mr. Vezzoni argues that RCW 9.68A.050 and RCW 9.68A.070 are facially overbroad and unconstitutional because they do not require actual knowledge of the depicted person's age. He asserts that in order to pass First Amendment scrutiny, every child pornography statute must contain a scienter requirement and the State must prove the defendant knew the photographed person was a minor. But it is not constitutionally necessary for prosecution under child pornography statutes that the defendant know the actual age of the person depicted. State v. Rosul, 95 Wn. App. 175, 184-85, 974 P.2d 916, review denied, 139 Wn.2d 1006 (1999). Thus, the statutes are not overly broad. The trial court did not err by failing to make a finding Mr. Vezzoni knew T.N. was a minor. Affirmed.
A majority of the panel has determined 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.
Schultheis, J. and Kurtz, J., Concur.