State v. E.G.
| Decision Date | 14 June 2016 |
| Docket Number | No. 32354–4–III,32354–4–III |
| Citation | 377 P.3d 272,194 Wash.App. 457 |
| Court | Washington Court of Appeals |
| Parties | State of Washington, Respondent, v. E.G., Appellant. |
David L. Donnan, Kathleen A. Shea, Washington Appellate Project, 1511 3rd Ave. Ste. 701, Seattle, WA, 98101–3647, Counsel for Appellant.
Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W Mallon Ave., Spokane, WA, 99260–0270, Counsel for Respondent.
Margaret Chen, ACLU of Washington, 901 5th Ave. Ste. 630, Seattle, WA, 98164–2086, Marsha L. Levick, Juvenile Law Center, 1315 Walnut Street Suite 400, Philadelphia, PA, 19107, Amicus Curiae on behalf of American Civil Liberties Union of Washington.
Korsmo, J. ¶ 1 A juvenile was convicted of second degree dealing in depictions of a minor engaged in sexually explicit activity for texting a picture of his erect penis to an adult female. We conclude that the statute does cover this conduct and affirm the juvenile court disposition.
FACTS
¶ 2 E.G. began sending harassing phone calls to T.R., a former employee of E.G.'s mother. T.R. at the time was a 22-year-old mother of an infant daughter. E.G. found T.R.'s telephone number by checking his mother's business records.
¶ 3 Beginning in mid-2012, a male using a restricted phone number would call T.R. at night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013, T.R. received two text messages: one with a picture of an erect penis, and the other with the message, T.R. reported the phone calls and text messages to the police, who tracked the telephone to E.G., then age 17. He was questioned by the police and told them that it was his penis in the photograph.
¶ 4 Shortly before his 18th birthday, E.G. was charged in the juvenile division of the Spokane County Superior Court with one count of second degree dealing in depictions and one count of making harassing telephone calls. The court soon thereafter entered an order extending the juvenile court's jurisdiction. E.G. also was then currently serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier adjudication for communicating with a minor for immoral purposes.
¶ 5 The defense eventually moved to dismiss the charges on two bases, including an argument that the dealing in depictions statute could not be applied to a minor who was also the “victim” of the offense. The trial court denied the motion and the parties promptly reached a disposition. The parties stipulated to the facts of the dealing in depictions charge, stipulated to revocation of the current SSODA due to failure to make progress in treatment, and agreed to dismiss the telephone harassment count and unrelated pending counts of indecent exposure.1 The trial court concluded E.G. had committed the offense of second degree dealing in depictions of a minor engaged in sexually explicit conduct. The trial court imposed a mitigated2 sentence of time served and required him to register as a sex offender.
¶ 6 E.G. then timely appealed. This court accepted an amicus brief jointly filed by the American Civil Liberties Union of Washington and the Juvenile Law Center. The parties subsequently presented oral argument to a panel of this court.
ANALYSIS
¶ 7 The only issue in this appeal is whether the dealing in depictions statute properly could be applied to E.G.'s conduct. He argues that the statute is unconstitutional under both the First and Fourteenth Amendments to the United States Constitution.3 Amici reprise E.G.'s trial court argument that the statute should be interpreted in a manner that permits a juvenile to distribute sexually explicit pictures of himself. We address the three arguments in the order noted.
¶ 8 The statute in question is RCW 9.68A.050(2)(a), which defines the offense of second degree dealing in depictions of minors engaged in sexually explicit conduct. It states:
¶ 9 The only definition referenced in the statute that has application to this case is found in RCW 9.68A.011(4)(f). That statute defines “[s]exually explicit conduct” to include:
¶ 10 We now consider the challenges raised, turning initially to the First Amendment argument set forth by E.G.
¶ 11 E.G. argues that his conduct was protected by the First Amendment. Specifically, E.G. argues that his transmission of the photograph was protected, expressive conduct and that in prohibiting self-produced depictions, the statute sweeps too broadly, rendering it unconstitutional. However, minors have no superior right to distribute sexually explicit materials involving minors than adults do.
¶ 12 In determining the constitutionality of a statute, this court starts with a presumption that the statute is constitutional and reviews challenges de novo. Lummi Indian Nation v. State , 170 Wash.2d 247, 257–58, 241 P.3d 1220 (2010). A party may challenge the constitutionality of a statute as applied in the specific context of that party's actions, or alternatively may facially challenge the statute as unconstitutional in all of its applications. City of Redmond v. Moore , 151 Wash.2d 664, 668–69, 91 P.3d 875 (2004). To prevail on the former, the party must show a violation of a constitutional right. Id. To prevail on the latter, the party must show that no set of circumstances exists in which the statute can be constitutionally applied. Wash. State Republican Party v. Pub. Disclosure Comm'n , 141 Wash.2d 245, 282 n. 14, 4 P.3d 808 (2000). Holding a statute to be unconstitutional as applied will prevent future application of that statute in similar circumstances, while holding a statute facially unconstitutional renders it totally inoperative. Id.
¶ 13 Because of the important rights protected by the First Amendment, a party may challenge a statute on its face as being overbroad regardless of whether that party's rights are affected. State v. Motherwell , 114 Wash.2d 353, 370–71, 788 P.2d 1066 (1990). “A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities.” Seattle v. Huff , 111 Wash.2d 923, 925, 767 P.2d 572 (1989). While it is inherently “dangerous” to regulate any form of expression, certain categories of expression are exempt from First Amendment protections. New York v. Ferber , 458 U.S. 747, 754–55, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). One such category is child pornography. In light of the State's interest in safeguarding the physical and psychological well-being of minors, the United States Supreme Court determined that all child pornography is exempt from First Amendment protection. Id. at 764–65, 102 S.Ct. 3348 ; see also State v. Luther , 157 Wash.2d 63, 70–71, 134 P.3d 205 (2006).
¶ 14 E.G. argues that the goal of protecting minors from abuse and exploitation is not served by prohibiting self-produced child pornography. Consequently, he contends that self-produced child pornography should be excluded from the exemption. However, one of the primary purposes of child pornography statutes is to restrict the distribution network for child pornography in order to eliminate the market for producing the materials. Ferber , 458 U.S. at 759, 102 S.Ct. 3348. Exempting self-produced images simply affords putative child pornographers the opportunity to purchase child pornography directly from voluntary, consenting minors, or else encourages minors to produce and market their own child pornography. Such exemptions would significantly frustrate efforts to combat child pornography.
¶ 15 An exemption for minors would also constitute a significant expansion of their First Amendment privileges in this area. States are permitted to prohibit the sale to minors of non-obscene sexually-oriented materials that can be sold to adults. Ginsberg v. New York , 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (). If the First Amendment does not require a minor to have access to non-obscene materials that are available to adults, it does not afford them a privilege to produce or distribute sexually explicit materials.
¶ 16 The First Amendment does not consider child pornography a form of protected expression. There is no basis for creating a right for minors to express themselves in such a manner, and, therefore, no need to place a limiting construction on a statute that does not impinge on a constitutional right. Accordingly, we conclude that the dealing in depictions of minors statute does not violate the First Amendment when applied to minors producing or distributing sexually explicit photographs of themselves.
Vagueness
¶ 17 E.G. next contends that the dealing in depictions statute is vague because it does not provide notice that sending self-produced images of one's own genitalia to others is included within the scope of the statute. While the statute's reach may be broad, it is not vague.
¶ 18 “Under the Fourteenth Amendment, a penal statute is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.” O'Day v. King County , 109 Wash.2d 796, 810, 749...
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