State v. Davis, s. 18800-3-

• Decision Date: 09 January 1989
• Docket Number: 21035-1-I,Nos. 18800-3-,s. 18800-3-
• Citation: 768 P.2d 499,53 Wn.App. 502
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kenneth James DAVIS, Appellant. In the Matter of the Personal Restraint Petition of Kenneth James DAVIS, Petitioner.

Page 502

53 Wn.App. 502

768 P.2d 499

STATE of Washington, Respondent, v. Kenneth James DAVIS, Appellant.

In the Matter of the Personal Restraint Petition of Kenneth

James DAVIS, Petitioner.

Nos. 18800-3-I, 21035-1-I.

Court of Appeals of Washington,

Division 1.

Jan. 9, 1989.

Marc Lampson, Washington Appellate Defender, Seattle, for Kenneth james davis.

S. Aaron Fine, Deputy Pros. Atty., Everett, for State.

WINSOR, Judge.

Kenneth Davis appeals from a judgment and sentence entered on a jury verdict finding him guilty of three counts of indecent liberties; one count of second degree statutory rape; one count of third degree statutoryrape; four counts of bribing a witness; one count of delivering a controlled substance; and one count of possessing depictions of a minor engaged in sexually explicit conduct. Consolidated with his appeal is Davis' personal restraint petition. We affirm the judgment and sentence and dismiss the petition.

In June 1984, C. reported to police that Kenneth Davis, a 57-year-old Marysville resident, had pictures of nude minors in his possession; had supplied her with liquor and marijuana; and had taken pictures of her in various stages of undress. The police promptly obtained and executed a search warrant for Davis' home. Their search resulted in seizure of approximately 78 photographs and hundreds of negatives depicting minor girls undressing, naked and in various stages of undress, in sexual poses, holding objects between their legs, hugging and kissing one another, and engaging in sexual acts.

Several of the girls depicted in the seized photographs cooperated in the police investigation. Their reports led police to file 13 criminal charges against Davis. Eleven of these counts, involving four victims, were tried to a jury.

The jury found Davis guilty on all 11 counts. Using SRA guidelines, the trial court sentenced Davis to a maximum term of 10 years, with a minimum 200-month term. Davis appeals, challenging the constitutionality of RCW 9.68A.070, the jurisdiction of the court, and the sufficiency of evidence; and alleging instructional error and ineffective assistance of counsel. In his petition, Davis raises additional evidentiary, and prosecutorial and juror misconduct issues.

CONSTITUTIONALITY OF RCW 9.68A.070

Davis was convicted of violating RCW 9.68A.070, which makes it a gross misdemeanor to knowingly possess visual or printed matter depicting a minor ¹ engaged in sexually explicit conduct. For purposes of RCW 9.68A.070, sexually explicit conduct means actual or simulated sexual intercourse, penetration of the rectum or vagina by any object, or certain conduct performed "for the purpose of sexual stimulation of the viewer," i.e., masturbation, sadomasochistic abuse, exhibition of the genitals or unclothed pubic or rectal areas, defecation or urination, and "[t]ouching of a person's clothed or unclothed genitals, pubic area, buttocks, or breast area". RCW 9.68A.011(3).

Davis attacks his conviction under this statute by challenging the provision's constitutionality. He contends that RCW 9.68A.070 violates the constitutional right to privacy, and argues that the statute is overbroad and vague.

Privacy Challenge. Although the constitution extends special safeguards to the privacy of the home, United States v. Orito, 413 U.S. 139, 142, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513 (1973), that protection is not without limitation. Cf. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (constitution does not confer a right to commit sodomy in the home). Thus, although states normally are precluded from criminalizing the possession of obscene matter, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); compelling reasons may exist for overriding that preclusion, Id., 394 U.S. at 568 n. 11, 89 S.Ct. at 1249 n. 11.

Here, we address whether compelling reasons exist for prohibiting the possession of child pornography. The Supreme Court has recognized that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." New York v. Ferber, 458 U.S. 747, 757, 764, 102 S.Ct. 3348, 3354, 3358, 73 L.Ed.2d 1113 (1982) (upholding a statute prohibiting the distribution of child pornography). ² Therefore, states are allowed "greater leeway in the regulation of pornographic depictions of children." Ferber, 458 U.S. at 756, 102 S.Ct. at 3354. This regulation need not be limited to legally obscene materials, because whether a particular depiction is legally obscene "bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work." Ferber, 458 U.S. at 761, 102 S.Ct. at 3356. Instead, legislation prohibiting child pornography need only comply with the requirements that the offense be limited to works that visually depict sexual conduct by children below a specified age, and that criminal responsibility not be imposed without some element of scienter on the part of the defendant. ³ Ferber, 458 U.S. at 764-65, 102 S.Ct. at 3358.

To date, three state courts have considered whether a state's interest in protecting its children justifies proscribing possession of child pornography. Each has held that the state's interest in preserving its children's privacy, and in protecting them from the physiological, mental, and emotional abuse caused by the sexual seduction, exploitation, and mistreatment occasioned by child pornography, justify the privacy invasion caused by the statute. Felton v. State, 526 So.2d 635 (Ala.Crim.App.1986), aff'd, 526 So.2d 638 (Ala.1988); State v. Meadows, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986), cert. denied, 480 U.S. 936, 107 S.Ct. 1581, 94 L.Ed.2d 771 (1987); People v. Geever, 122 Ill.2d 313, 119 Ill.Dec. 341, 522...