State v. Holt

• Decision Date: 02 July 1984
• Docket Number: 6100-7-II,Nos. 6099-0-I,s. 6099-0-I
• Citation: 687 P.2d 218,38 Wn.App. 34
• Parties: The STATE of Washington, Respondent, v. Gerald HOLT and Lewis James Arnett, Appellants.
• Court: Washington Court of Appeals

Page 34

38 Wn.App. 34

687 P.2d 218

The STATE of Washington, Respondent, v. Gerald HOLT and Lewis James Arnett, Appellants.

Nos. 6099-0-II, 6100-7-II.

Court of Appeals of Washington Division 2.

July 2, 1984.

As Amended on Denial of Reconsideration Sept. 11, 1984.

John S. Abolofia, Tacoma, for appellant Gerald Holt.

A. Corinne Dixon, Tacoma, for appellant L.J. Arnett.

Barbara L. Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

WORSWICK, Acting Chief Judge.

Gerald Holt and Lewis Arnett appeal conviction on one count each of selling and/or distributing obscene literature and films (former RCW 9.68.010, Laws of 1961, ch. 146, § 1). Arnett also appeals lesser included offense convictions based on two counts of child pornography (RCW 9.68A.030). No issue is raised here as to the propriety of a lesser included offense conviction based on such a charge. Many issues are raised which we find without merit. However, we reverse the convictions based on the obscene literature charges. Otherwise, we affirm.

On July 9, 1981, Detective Ray MacPherson of the Port Orchard Police Department visited Jerry's Adult Bookstore in Tacoma at the request of the Tacoma Police Department. MacPherson bought several magazines and films at the store with marked money provided by Tacoma police. The police returned to Jerry's later that evening and arrested Arnett, who had sold the magazines and films to MacPherson. Arnett was charged with violating obscenity and child pornography statutes. Holt, Jerry's owner, was charged with violating the obscenity statute. They were tried together, resulting in the convictions indicated above.

Appellants contend that the trial court erred in not dismissing count I against Holt and counts III, VI and VII against Arnett for failure of the information to state a crime. As will be seen, we agree as to counts I and III, and disagree as to counts VI and VII. However, before discussing the merits, it is appropriate that we comment on the status of these contentions on appeal.

Usually, an argument will not be considered on appeal that was not presented to the trial court. Farrell v. Score, 67 Wash.2d 957, 411 P.2d 146 (1966). At oral argument, counsel for Holt claimed that appellants argued at the omnibus hearing that the information failed to state a crime because the challenged counts omitted reference to the mental state elements of the crimes. Appellants have not provided us with a report of proceedings for the omnibus hearing. The record merely contains an application for an omnibus hearing, with notation that defendant Arnett will move to dismiss the information for failure to state an offense, and an order denying the motion to dismiss. This is insufficient to apprise us of the arguments made to the trial court. ¹

Ordinarily we would simply refuse to review these contentions. Farrell v. Score, supra. However, an information that fails to state an offense is constitutionally defective. State v. Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982). Therefore, we are mandated to review this issue by the decisions of our Supreme Court that constitutional error can be raised for the first time on appeal. State v. Johnson, 100 Wash.2d 607, 674 P.2d 145 (1983).

An information must charge all the statutory elements of the alleged crime. State v. Bonds, supra; State v. Ashker, 11 Wash.App. 423, 426, 523 P.2d 949 (1974), overruled on other grounds, State v. Braithwaite, 92 Wash.2d 624, 600 P.2d 1260 (1979). While the precise language of the statute need not be followed, words conveying the same meaning must be used. State v. Moser, 41 Wash.2d 29, 246 P.2d 1101 (1952). An information which fails to charge all the statutory elements of the alleged crime violates defendant's constitutional rights and should be dismissed. Bonds, 93 Wash.2d at 16, 653 P.2d 1024; Ashker, 11 Wash.App. at 426, 523 P.2d 949. Counts VI and VII meet the test; counts I and III do not.

Arnett was convicted on counts VI and VII of the second amended information. Count VI provided, in part:

Don Herron ... accuses LEWIS JAMES ARNETT of the crime of CHILD PORNOGRAPHY, RCW 9.68A.030, committed as follows, to-wit:

That the said LEWIS JAMES ARNETT, in the County of Pierce, in the State of Washington, on or about the 9th day of July, 1981, did [sic ] then and there being unlawfully and feloniously possessed with intent to distribute, or sold to another for commercial consideration, or printed matter which is obscene, knowing that such production involved the use of a minor person, under the age of 18, engaged in sexually explicit conduct, to-wit: a motion picture titled Angel Gets Raped, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.

Count VII was identical except for the film title "AGR" in place of "Angel Gets Raped."

RCW 9.68A.030 provides, in part:

A person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, or prints with intent to distribute, sell, or exhibit to others for commercial consideration, any visual or printed matter which is obscene, knowing that the production of such matter involves the use of a minor engaged in sexually explicit conduct and that the matter depicts such conduct, is guilty of a Class C felony.

* * *

Arnett contends that counts VI and VII are defective because they fail to charge that he knowingly possessed the films and knew the matter depicted minors engaged in sexually explicit conduct. We disagree.

RCW 9.68A.030 identifies two classes of offender: (1) those who import obscene materials involving minors into the state, and (2) those who possess, prepare, publish, or print the same type of material within the state with intent to sell it. Those importing the proscribed material must do so "knowingly." However, for those, as Arnett, who do not import but possess the proscribed material within the state, the statute merely requires that possession be coupled with the intent to sell it. Obviously, someone who possessed material with intent to sell it would know he possessed it. See RCW 9A.08.010. Arnett's interpretation of RCW 9.68A.030 would therefore add a superfluous element to the offense.

The phrase "knew the matter depicted minors engaged in sexually explicit conduct" does not add an element to the crime. A person who knew the production of the matter he was selling involved the use of a minor engaged in sexually explicit conduct, would know the matter depicted such conduct. Counts VI and VII charged that Arnett knew production of the films AGR and Angel Gets Raped involved the use of a minor engaged in sexually explicit conduct. It was not necessary to charge also that Arnett knew the films depicted such conduct. Counts VI and VII were not defective.

Count III against Arnett and I against Holt, however, do not charge all elements of the crime. Count III provided, in part:

Don Herron ... accuses LEWIS JAMES ARNETT of the crime of SELLING AND/OR DISTRIBUTING OBSCENE LITERATURES AND FILMS, RCW 9.68.010, committed as follows, to-wit:

That the said LEWIS JAMES ARNETT, ... on or about the 9th day of July, 1981, did then and there being unlawfully sell, distribute, and offer to sell and distribute motion pictures, to-wit: Animal Action, then and there containing moving pictures which were obscene, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Washington.

Count I against Holt was identical to count III against Arnett, except for the names. Former RCW 9.68.010 provided, in part:

Every person who--

(1) Having knowledge of the...