State v. Gailus

• Decision Date: 11 December 2006
• Docket Number: No. 56053-1-I.,56053-1-I.
• Citation: 136 Wn. App. 191,147 P.3d 1300
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Thomas Edward GAILUS, Appellant.

147 P.3d 1300

136 Wn. App. 191

STATE of Washington, Respondent, v. Thomas Edward GAILUS, Appellant.

No. 56053-1-I.

Court of Appeals of Washington, Division 1.

December 11, 2006.

Dana M. Lind, Nielsen Broman Koch PLLC, Seattle, for Appellant.

Dennis John McCurdy, Randi J. Austell, King County Prosecutor's Office, Seattle, for Respondent.

DWYER, J.

¶ 1 Following a bench trial, Thomas Gailus was convicted of ten counts of possessing depictions of a minor engaged in sexually explicit conduct, a felony.¹ Gailus asserts that all but one of these felony convictions were barred by the Fifth Amendment's double jeopardy prohibition. Because the statute defining his criminal conduct defined the prohibited act as the possession of "matter," Gailus contends his possession of a single compact disc, as a tangible item, rather than the individual digital files stored on the disc, constitutes the appropriate "unit of prosecution." Alternatively, Gailus argues that the statute is ambiguous, requiring application of the rule of lenity to determine the applicable unit of prosecution. Gailus also pleaded guilty to two counts of communication with a minor for immoral purposes, a gross misdemeanor. Gailus asserts that his sentence on the gross misdemeanors is invalid, as it purports to suspend the imposition of 24 months of jail time that he actually served. We affirm his convictions but remand for resentencing on the gross misdemeanor counts.

FACTS

¶ 2 On August 25, 2002, pursuant to a valid search warrant, police officers searched Gailus' premises. The officers discovered a false bottom to a bathroom vanity, underneath which they found a compact disc containing 149 separate digital files, most of which contained child pornography. Forensic examination determined that the 149 files had been copied onto the disc in eight separate sessions. Video images were contained in 148 of the files, while one file contained numerous reproductions of still images.

¶ 3 Gailus was charged with ten counts of possessing depictions of a minor engaged in sexually explicit conduct, based on 12 of the digital files stored on the compact disc,² all of which contained video images. Gailus was convicted of all ten counts of possessing depictions of a minor engaged in sexually explicit conduct in April 2005. He was sentenced to 12 months' incarceration on each count, the terms to run concurrently.

¶ 4 Also in April 2005, Gailus entered a guilty plea to two gross misdemeanor counts of communication with a minor for immoral purposes under domestic violence circumstances. He was sentenced to serve 12 months in jail on each gross misdemeanor count. The gross misdemeanor sentences were to run consecutively to one another and consecutively to the felony sentences. The trial court also purported to suspend 12 months of each gross misdemeanor sentence on the condition that the defendant serve 24 months in jail and complete 48 months of probation.

DISCUSSION

I. Unit of prosecution

¶ 5 Gailus contends that nine of his ten convictions for possessing depictions of a minor engaged in sexually explicit conduct must be vacated because the 12 depictions that form the bases for the ten charges were digitally recorded onto a single compact disc, and under former RCW 9.68A.070 his possession of the disc should constitute a single "unit of prosecution." We disagree and affirm each of Gailus' ten convictions.

¶ 6 The double jeopardy clause of the Fifth Amendment protects a defendant from being punished multiple times for the same offense. State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995); State v. Calle, 125 Wash.2d 769, 772, 888 P.2d 155 (1995). When a defendant is convicted of violating one statute multiple times, the proper inquiry for double jeopardy analysis is what "unit of prosecution" the legislature intended as the punishable act or course of conduct under the specific criminal statute. State v. Adel, 136 Wash.2d 629, 633-34, 965 P.2d 1072 (1998).

¶ 7 In determining the unit of prosecution for a particular statute, the court must examine the language of the statute at issue. State v. Ose, 156 Wash.2d 140, 144, 124 P.3d 635 (2005); Adel, 136 Wash.2d at 635, 965 P.2d 1072. The construction of a statute is a question of law that we review de novo. State v. Martin, 137 Wash.2d 774, 788, 975 P.2d 1020 (1999). Statutes should be construed as a whole, all language used should be given effect, and related statutes should be considered in relation to each other and harmonized whenever possible. State v. Williams, 62 Wash.App. 336, 338, 813 P.2d 1293 (1991). Statutes should be construed to effect their purpose and to avoid strained, unlikely, or absurd consequences. State v. Neher, 112 Wash.2d 347, 351, 771 P.2d 330 (1989).

¶ 8 Although Gailus asserts that his possession of one compact disc containing numerous files depicting minors engaged in sexually explicit conduct constitutes a single "unit of prosecution" under former RCW 9.68A.070, we conclude to the contrary.

¶ 9 Former RCW 9.68A.070 states that "[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony." RCW 9.68A.011(2) defines "[v]isual or printed matter" as "any photograph or other material that contains a reproduction of a photograph." RCW 9.68A.011(1) defines a "photograph" as "anything tangible or intangible produced by photographing," and "[t]o `photograph'" as "to make a print, negative, slide, digital image, motion picture, or videotape."³

¶ 10 Gailus focuses his argument regarding the applicable unit of prosecution on the phrase "[v]isual or printed matter," asserting that the word "matter" in former RCW 9.68A.070 indicates that the compact disc itself, rather than the digital images contained thereon, is the unit of prosecution intended by the legislature. Several factors militate against Gailus' argument.

¶ 11 First, RCW 9.68A.011(2) defines "[v]isual or printed matter" as "any photograph or other material that contains a reproduction of a photograph." The images contained on Gailus' compact disc are photographs because they clearly fall within the broad category of "anything tangible or intangible" as stated in the definition of "photograph" in RCW 9.68A.011(1). In addition, the images were produced by photographing as defined in RCW 9.68A.011(1), which defines "[t]o photograph" as including the making of a "digital image." Accordingly, the digital images that Gailus possessed are indisputably photographs under the statutes defining his offenses, and clearly meet the statutory definition of "[v]isual or printed matter."

¶ 12 Second, the statutory definition of "visual or printed matter" does not support Gailus' interpretation. In so determining, we apply the principle of statutory construction noscitur a sociis, which means that a word in a statute should not be read in isolation from its context. 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 47.16 (6th ed.2000). The term "other material" in RCW 9.68A.011(2) appears within the statutory definition of "[v]isual or printed matter," and therefore must be construed in its context as defining and limiting the terms "visual matter" or "printed matter." To define a compact disc, rather than the visual images contained thereon, as "visual matter" or "printed matter" requires a strained, unlikely, and absurd reading of the statute, which we do not indulge. State v. Neher, 112 Wash.2d at 351, 771 P.2d 330. However, digital images clearly meet the definition of "visual matter." Accordingly, we reject Gailus' assertion that the term "[v]isual or printer matter" indicates a legislative intent to define possession of a single compact disc as the unit of prosecution, rather than possession of the digital photographs contained thereon. We also reject Gailus' contention that former RCW 9.68A.070 is ambiguous concerning the unit of prosecution as it applies to the charges against him.

¶ 13 Third, we conclude that the legislature did not intend possession of multiple photographs on a single digital storage medium, such as a compact disc or a computer hard drive, to be a single unit of prosecution.⁴ As noted by a federal appellate court, the conclusion that possession of a compact disc constitutes a single unit of prosecution could lead to an absurd scenario in which an individual who possesses multiple books containing one visual depiction apiece would violate the statute multiple times, whereas an individual with hundreds of images on a hard drive or compact disc would only violate the statute once. United States v. Vig, 167 F.3d 443, 448 (8th Cir.1999). Accordingly, we reject Gailus' assertion that his possession of the single compact disc, rather than the multitude of digital photographs stored thereon, constitutes the applicable unit of prosecution.⁵

¶ 14 Gailus next argues that if the unit of prosecution is per image, a particular video depiction could be divided frame by frame, resulting in one count being charged for each frame. However, in so arguing, Gailus misconstrues the interaction between former RCW 9.68A.070 and RCW 9.68A.011. A video digital file is akin to a "motion picture" or "videotape," each of which meets the statutory definition of "photograph." Thus, just as a person in possession of one motion picture depicting a minor engaged in sexually explicit conduct can only be convicted of a single offense, a defendant can only be convicted of a single offense for each file containing such a photograph.

¶ 15 Gailus also argues that the unit of prosecution should be "per minor," citing State v. Root, 141 Wash.2d 701, 9 P.3d 214 (2000) (unit of prosecution for sexual exploitation of minor under RCW 9.68A.040 was per photo session per minor involved in each session). However, the analysis in Root is inapplicable here. The statutes at issue in the instant case are dissimilar to RCW 9.68A.040, and do not reasonably suggest the...