Steven Powell trial defense motion to dismiss count 15

8/2/2019 Steven Powell trial defense motion to dismiss count 15

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IN THE SUPERIOR COURT OF THE STATE OF WASHJNGTONIN AND FOR TH E COUNTY O F PIERCE

STATE OF WASHINGTON, 11Plaintiff, 1 NO. 11-1-03893-1

VS. 11 DEFENDANT'S MOTION TOSTEVEN POWELL, 1 DlSMISS COUNT XV1Defendant. 1MOTION

COMES NOW th e above-named defendant by and through his attorneys of record, Mark1 T Quigley and Travis R. Currie, and respectfully moves this court under CrR 8.3, and pursuantto Stvie i1 nupstad, 107' Wn.2d 346,729 P 2 d 18 1 9861, fo r dismissal of Count XV, Pussessionof Depictions of a Minor Engaged in Sexually Explicit Conduc t in the Second Degree, becausethere i s insufficient evidence, as a matter of law, to sustain the charge.

Our Supreme Court has set forth th e following procedure for a Knupssad motion:Under [ S m t ~ ]:. Knapstad, 107 Wash.Zd [3 16[ 356,719P.Zd 48[1986], such a motion should be initiated by a sworn afildavit "allegingthere are no material disputed facts and the undisputed facts do not

' POWELL- MOTION TODISMISS COUNT XV-1

Dcpar t~nunt f Assignud Counsul014 Market Street , Suite 334Tscrma , Washingtun 98402-36YkTe lephr~n t .1257 r 7 9 8 - 6 0 6 2

E-FILED

IN COUNTY CLERK'S OFFICE

PIERCE COUNTY, WASHINGTON

May 07 2012 9:03 AM

KEVIN STOCK

COUNTY CLERKNO: 11-1-03893-1


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1 HEREBY DECLARE, UNDER PENALTY OF PERJURY PURSUANT TO THE1 LAWS OF THE STATE OF WASHINGTON, THAT THE FOLLOWING IS TRUE A N D12 1 CORRECT TO TH E BEST OF MY KNOWLEDGE AND BELIEF:

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establish a prima facie case of guilt." Then "[tlheState can defeat themotion by filing an affidavit which specifically denies th e material factsalleged in the defendant's affidavit. If material factual allegations in the

8Y

l 3 I My name isMark T. Quigley, WSB#14496. I am on e of th e attorneys assigned to

I motion are denied or disputed by the State. denial of the motion to dismiss3 1! ismandatory." [Knapsrad, 107 Wn.2d at 356 , 729 P.2d 481 On the other

hand, "[ilf th e State does not deny the undisputed facts or allege other4 ; ' material facts," the court must decide "whether the facts which the1 ' State relies upon, as a matter of law, establish a prima facie case ofguilt." [Knapsfad,107Wash.2d at 356-57, 729 P.2d 481. "Since theo 1 court is no t to rule on factual questions, no findings of fact shouldbe entered." [Knapsfad,107Wash.2d at 357,729 P.2d 48.1? I 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).

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

DECLARATIONOF COUNSEL10 1 '

17 I are stated below. The following summary s for the purposes of this Motion only and are not astipulation for trial. Thesematerially undisputed facts, for th e purposes of this Motion only, do

19 1 not support a prima facie case for Count XV.

24 I were taking baths, getting dressed and using the toilet. The State alleges the photos were taken20 / On August 25 ,201 1. a photo disc was recovered from the bedroom of Steven Powell21 ;!

25 , by Steven Powell through an open window in the house looking into an open window of hi s

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26 POWELL- MOTION TO

I pursuant to a search warranl. The disc contained numerous photos of two girls, ages 8 and 10years old. The photos depict both girls' exposed breasts, buttocks, and genital areaswhile they

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27 DISMISS COUNT XV-2

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Dcpartmunr ofAss igried Counsel949 Market Street. Suite 33 4Tacoma. Washington 9F1302-3696Tcluphonu: ( 2 5 3 ) 798-6062


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1 neighbor's house. The State alleges that girls' mother never thought someone would bephotographing them from outside the house. The State alleges that no one was given permissionto photograph the girls on these occasions and that the two girls had no know ledge they werebeing photographed. I am unaware of any allegation that Steven Powe ll influenced or caused the

I! actions of the t ~ oirls in any way during the alleged incidents.SIGNED UNDER PENALTY OF PERJURY, PURSUANT TO TH E LAWS OF THEI STATE OF WASHWGTON, AT ThC.OMA, WASHING

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i 'IMOTION TO DISMISS

The appropriate test for determining the sufficiency of the evidence is whether, after1, viewing the evidence in the light most favorable to the State, any rational trier of fact could haveI found the essential elements of rb crime beyond a reasonable doubt. Stare v IVutle, 92 Wn.App.I'I 885, (reversed on other grounds Stare v. Wade, 1 38 Wn.2d 460) citing Slate v. Green, 94 Wn.2d1 216. A claim of insufficiency adm its the t r u t h of the State's evidence and all inferences that11il reasonably can be drawn there from. Wade,citing Sfnre v. Salinas, 119 Wn.2d 192.20 1, 8291 P.2d 1068 ( 1 997).

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

I the elements of Count XV, Possession of Depictions of Minors Engaged in Sexually Explicit'1 Conduct Second Degree. The term '.sexually explicit conduct': as alleged in relevant part ofiPOWELL- MOTION TODISMISS COUNT X V - 3

Depart~ncnt f Ass~gnedCounsel949 Ma r k e t Strcct, Sui te 334T a c om a . Wa5h1ngtcm 98402-3696Telcpllonc ( 2 511 798-6062


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I.I Count XV, is defined in RC W 9.68.011 (4 ) ( f )as follows:I !Ili Depiction of the genitals or unclothed pubic or rectal areas of anyminor, or the unclothed breast of a female minor, for the purpose of sexualstimulation of the viewer. For the purposes of this subsection (4)(f), i t is

not necessary that the minor know that he or she is participating in th edescribed conduct, or any aspect of i t.

6 This statute, defining sexually explicit conduct, was amended to its present form i n 20 10. TheI!' prior statute defining "sexually explicit conduct" read, in relevant pan as follows:

Exhibition of the genitals or unclothed pubic or rectal areas of anyminor, or the unclothed breast of a female minor, for the purpose of sexualstimulation of the viewer.I I ,:I The legislature in 20 10 substituted the word .'depiction" for "exhibition" and added the lastII12 ' sentence regarding knowledge of th e minor. In all other respects the two versions of the statutel 3 '1 are identical.

In considering facts virtually identical to the facts alleged here, the Court of Appeals,1 Division Two. found the evidence was insufficient to establish sexually explicit conduct. State v.

l 6 117 1 Whjpple, 144 Wash. App. 654, 183 P.3d 1105 (2008).i

I n Wlipple. supra, the defendant was charged with Possession of Depictions of a Minor19 1 Engaged in Sexually Explicit Conduct in 2006. The Court therefore analyzed the definition of" i L r cxu l l ycxplicil conduct" under th e terms of the farmer RCW 9.68A.011, ref'erenced above.

W h i ~ ~ l e ,upra, has not been overturned or modified, an d remains controlling herc.2 3

I21 1 ,

24 111Whipple, supra, the defendant secretly photographed and filmed a minor female, in:I2 5 1 various stages of undress and naked, without the minor's knowledge she was being filmed.

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POWELL- MOTION TO27 ' 1 DISMISS COUNT XV-4

However, the change of statutory language does not affect the Court's reasoning. The decision in

1)eparlmcnt rf r \ s ~ e n c d ounsel949 M3rker Slreet, Suite 334T~ c o i r ~ a ,\-ash~ngton EJnZ-36YbTctrphune: 12531 740-oOhZ


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These images were discovered on the defendant's laptop computer. In analyzing whether therewas sufficient evidence of "sexually explicit conduct", the Court relied on Stale v . Grannis, 83Wn.App. 546, 930 P.2d 327 ( 1 997), in interpreting the language of the statute. The Court, inGrannis, 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 notestablish the victims were engaged in "sexually explicit conduct". State v. Grannis, supra at 5 5 1 .

The Washington Supreme Court examined the definition of sexually explicit conduct inStale v. Chester, 133 Wash. 2d 15,940 P.2d 1374 ( 1 997) and held that the legislature did notintend to criminaliix the photographing of a child where there is no nfluence 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 foundguilty of Sexually Exploiting a Minor ( a separate crime which also has an element of sexuallyexplicit conduct). State v. Chester, supra, at 23 .

Applying th e above reasoning, the Court in State v . Whipple, supra, held that on actsvirtually identical to those here, that insufficient evidence was present to support conviction ofUnlawful Depictions of Minors Engaged in Sexually Explicit Conduct. The Court focused onthe actions (or inactions) of the defendant, specifically whether the defendant did anything to aid,invite, or cause the conduct of he minor victim. Where, as here, the minors were unaware theywere being photographed, the defendant could no t have contributed to or influenced theirconduct. Therefore the evidence does not establish "sexually explicit conduct" as defined in

POWELL- MOTION TODISMISS COUNT XV-5

Uepar~lncntof A~signec! 'rjunsel')JQ Market S t r c c ~ , uite 3 3 4Tacoma, H'us l~ i~~g tc ro8 3 0 2 - 3 N 6Telephone (153) 798-6062


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1 RCW 9.68A.011, either pre or post 2010 mendment.' I? / In evaluating whether the amendment of RC W 9.68A.01 I would affect th e reasoning ofi

the cases cited above, th e added language should be analyzed. The substitution of the word"depjctiun"for "cxhibi tion" refers to the content of th e images and does not address th e conduct,if any:of the defendant or a third person other than the minor victim. The addition of the finalsentence refers to th e knowledge, if any, of the minor victim and does not address any action ofth e defendant or any third party. Th e emphasis on he Court's reasoning in Chester. supra,

I9 Gramis, supra, and Whippk, supra is on the actions of he defendant. The amendment of RC WI'' 9.68.01 1 defining "sexually explicit conduct" after those decisions does not change theirI1 1 I

I rationale. The charge of Possession of Uepictions of a Minur Engagcd in Sexually Explicit12 !,1 Conduct requires proof that th e dcfcndmt initiated, contributed to, or in any way influenced theI3 1,1

14 victim's conduct. The facts alleged herein, taken in the light most favorable to the State, fail toI s I show such action by the defendant Steven Powell. Therefore Count XV must be dismissed.

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Respectfully submitted this '3ay of May 2012.

~ttofneyor Defendant -=&VTS RRIE, WSBA#29298ttorney for Defendant/X

36 1 POWELL- MOTION 1' 027 11 DISMISSCOUNT X V d

lleparrmenr o f Ass~snrdCounsel31 9 Market Strcct. Suile 3 3 4ta co r~ >a , a?h~ngtcm 3102- 696Telephone: ( 253) 798-6062

Steven Powell trial defense motion to dismiss count 15

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