State v. Grenning

• Citation: 174 P.3d 706,142 Wn. App. 518
• Decision Date: 08 January 2008
• Docket Number: No. 32456-3-II.,No. 32426-1-II.,32426-1-II.,32456-3-II.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Neil GRENNING, Appellant.

174 P.3d 706

142 Wn. App. 518

STATE of Washington, Respondent, v. Neil GRENNING, Appellant.

No. 32426-1-II.

No. 32456-3-II.

Court of Appeals of Washington, Division 2.

January 8, 2008.

Rita Joan Griffith, Attorney at Law, Seattle, WA, for Appellant.

Donna Yumiko Masumoto, Pierce Co. Prosec. Atty. Office, Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.

PENOYAR, J.

¶ 1 Neil Grenning appeals his multiple convictions for various sexual offenses, claiming that (1) the search warrant was not timely executed; (2) the evidence was insufficient to support his possession of commercial child pornography convictions; (3) the discovery protective order was unduly restrictive; (4) his right to an impartial jury was violated; (5) hearsay statements were admitted in violation of his right to confrontation; (6) testimony was improperly admitted; and (7) he is entitled to a new trial due to cumulative error. Grenning further argues that (8) his consecutive sentences violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and (9) constitute cruel and unusual punishment.¹ Grenning also raises several additional issues in his statement of additional grounds (SAG).² We affirm in part, reverse in part, and remand for further proceedings.

FACTS

I. Initial Investigation and Search Warrant

¶ 2 On March 3, 2002, the Tacoma police department received a call from a mother concerned that Grenning had sexually molested her five year old son, RW. She explained that Grenning was her neighbor and that he occasionally took care of RW. The officer suggested that the mother take RW to a hospital. RW's mother took him to Mary Bridge Children's Hospital where a doctor examined him. During the examination, RW told the doctor that "Neil" had touched him on his "pee pee." 6 Report of Proceedings (RP) at 845.

¶ 3 On March 5, 2002, two days after RW's mother called the police, Detective Baker obtained a search warrant for Grenning's residence. In the affidavit in support of the warrant, Detective Baker indicated that RW's mother found RW in the bathroom placing an object in his anus. RW told his mother he was "trying to get out what Neil had put into my butt." Clerk's Papers (CP) at 49. Detective Baker stated that RW handed his mother a jar of petroleum jelly and said, "[t]his is what Neil put on his [sic] pee pee and put in my butt." CP at 49. RW's mother also told Detective Baker that Grenning had once showed her a digital picture he took of RW and that RW told her Grenning had taken pictures of him unclothed.

¶ 4 Detective Baker explained in his affidavit that Grenning told the officers during an interview that he kept personal lubricant near his computer because "it was more enjoyable to do that while sitting at the computer." CP at 50. Grenning's computer was located in his bedroom. When the officers asked Grenning if he had pornographic materials on his personal computer, he stated that it was an older computer and that there may be some "old stuff" on it. RP at 401.

¶ 5 The search warrant granted the officers permission to search for and seize a variety of items concealed at Grenning's home that were material to the investigation or prosecution of first degree child molestation. It required detectives to enter and search the home within 10 days.

¶ 6 On March 6, officers entered Grenning's home. Detective Voce, who was assigned to handle all computer equipment during the search, lawfully seized Grenning's computer and hard drives. On March 15, Detective Voce copied Grenning's three hard drives and then began investigating and reviewing the copied hard drives. He recovered two images of what appeared to be commercial child pornography. At this point, he stopped his investigation to obtain another search warrant.

II. Second Warrant and Subsequent Investigation

¶ 7 On March 27, police detectives obtained a second search warrant, expanding the search to include photographs, photograph albums, and drawings depicting minors engaged in sexually explicit activity. The warrant required that the search be done within 60 days.

¶ 8 More than a year later, on April 3, 2003, Detective Voce continued reviewing the information on the copied hard drives, specifically looking for evidence of child molestation and child pornography. He ultimately uncovered approximately 35,000 to 40,000 photographs of minors engaged in sexually explicit conduct on Grenning's hard drives. He uncovered 300 images depicting RW being sexually assaulted and molested, 40 images of a second victim, BH, being sexually assaulted and molested, and 20 images of commercial child pornography. The commercial child pornography images depicted adult males sexually assaulting or molesting minors.

¶ 9 According to Detective Voce, the images were located in the "unallocated space" of two of the three hard drives seized from Grenning's house. RP at 640. Grenning's computer was a Macintosh brand computer with an Apple operating system. Macintosh hard drives contain seven different partitions (or sections) of the drive. Two of Grenning's hard drives only contained four of the seven usual partitions and it appeared to Detective Voce that they had been intentionally removed. Detective Voce explained that removing partitions would cause data to be listed as unallocated even if the user had not deleted it. Additionally, the removed partitions made it more difficult to access the images and data on the hard drives. Detective Voce found all of the child pornography pictures on the two hard drives with unallocated space.

III. Continuing Investigation

¶ 10 In April 2003, the Criminal Misconduct Office in Brisbane, Australia contacted Detective Baker. Australian police suspected that pornographic photographs they discovered in a computer in Australia were Grenning's photos. The photos depicted victim BH being sexually assaulted and molested. Detective Voce obtained another search warrant using the information obtained from the Australian police to specifically look for evidence relating to BH on Grenning's copied hard drives.

¶ 11 Detectives found photos of BH on Grenning's hard drives and instant message chats. Chat participant "Photokind" referred to himself as a recent graduate of Pacific Lutheran University who was looking for work and applying for a teaching license. RP at 669-70. This description matched Grenning. In one chat, Photokind described a camping trip that matched up with the images found on Grenning's computer of BH being sexually assaulted. The chat gave a play-by-play narrative of the camping trip and detailed each of the pictures very specifically.

¶ 12 On June 7, 2004, prosecutors charged Grenning with 17 counts of first degree child rape, 2 counts of attempted first degree child rape, 6 counts of first degree child molestation, 26 counts of sexual exploitation of a minor, 1 count of second degree child assault, and 20 counts of possession of depictions of a minor engaged in sexually explicit conduct. As an aggravating factor, the State alleged that Grenning committed the second degree child assault and possession of child pornography crimes with sexual motivation.

IV. Pretrial Motion

¶ 13 Grenning made a pretrial motion to suppress the evidence the police obtained from the copies of his hard drives, arguing that the search was untimely. The trial court denied the motion. Grenning also made a pretrial motion for mirror-image copies of his computer hard drives. The trial court granted Grenning's motion, but it crafted a protective order requiring that the mirror-image hard drive copies only be viewed and tested at the Tacoma police facility, because it was a secured location. It directed police detectives to provide a computer, monitor, keyboard, mouse, and operating system for Grenning.

¶ 14 Grenning was allowed to access the hard drives between 8:30 a.m. and 4:30 p.m. Monday through Friday. The drives were to remain in the secured location. Only the defendant, his counsel, and his computer expert could view the data on the imaged drives. Once Grenning completed his examination, he had to notify Detective Voce, who would then remove the imaged drives and store them until completion of the case. While the drives were being stored, Detective Voce was not to view any of the data contained on the imaged drives or investigate what type of forensic evaluation Grenning conducted on the drives or the computer.

¶ 15 Grenning asked the trial court to reconsider the protective order and to allow him to remove the copied hard drives from the secure location so his expert could use his own lab to analyze the hard drives. The trial court denied the motion, determining that the protective order was necessary to protect the victims and to ensure that material contained on the hard drives was not released on the internet.

V. Trial Testimony, Conviction and Sentencing

¶ 16 At trial, BH was nine years old. At the time of the events, BH was approximately six years old. BH testified that he went on a camping trip with his older brother and Grenning. BH slept in the same tent as Grenning, and BH testified that Grenning touched his penis with his mouth. BH was nervous testifying and had difficulty talking about the camping trip.

¶ 17 RW was seven years old at the time of trial. The trial court found RW unavailable to testify due to his age.

¶ 18 On June 18, 2004, a jury convicted Grenning of 16 counts of first degree child rape,³ 26 counts of sexual exploitation of a minor,⁴ 6 counts of first degree child molestation,⁵ 1 count of second degree assault of a child with sexual motivation,⁶ 20 counts of possession of depictions of minors engaged in sexually explicit conduct with sexual motivation,⁷ and 2 counts of first degree attempted child rape.⁸

¶ 19 At sentencing, the trial court imposed the high end standard range for each offense, ran the sentences for the convictions within each type of offense concurrently and then ran each...