State v. Luther
| Decision Date | 10 January 2005 |
| Docket Number | No. 52391-1-I.,52391-1-I. |
| Citation | 125 Wash. App. 176,105 P.3d 56 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Ronald Joseph LUTHER, Appellant. |
Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.
Dennis J. McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.
Seattle Police received an anonymous tip that Ronald Luther was using the Internet to obtain sexually explicit pictures of children. Luther eventually was charged with seven separate counts of possessing depictions of minors engaged in sexually explicit conduct, contrary to RCW 9.68A.070, and waived his right to a jury trial. The court ultimately found Luther not guilty of the charged counts but guilty of one count of attempted possession of depictions of minors engaged in sexually explicit conduct, and stayed its 120-day sentence pending appeal. Because the trial court did not find Luther guilty of possessing constitutionally protected materials, because the offense of attempted possession of depictions of minors engaged in sexually explicit conduct is not constitutionally overbroad, and because the evidence was sufficient to convict Luther of the crime of which he was convicted, we affirm.
In February of 2000, Detective Shannon Anderson, who worked for the Seattle Police Department on Internet crimes against children, received information from an anonymous "cyber tipster" through the National Center for Missing and Exploited Children. The information specified that a person in the Seattle area using the screen names of "RJoeLuther" and "Wombat" was having sexual conversations with minors and exchanging sexual images of minors over the Internet. The informant stated that the person was specifically communicating with another identified as "Steve13," who the informant believed to be a 13-year-old boy. Additional information from the tipster, including a home telephone number, led Detective Anderson to Ronald Luther.
In June of 2000, Detective Anderson contacted Luther by telephone. Luther admitted to communicating with "Steve13" via the Internet, but stated that he did not know the actual age of the person called "Steve13." Luther said that he usually chatted with other adults. Detective Anderson stated that Luther gave her his address and told her that he lived with a roommate, but that his roommate did not chat online. Detective Anderson testified that Luther agreed to come in to the police station to talk further with her, but that he later changed his mind.
The investigation was resumed in April of 2001 when Detective Anderson and Detective Leanne Shirey contacted Luther at his home. After the officers identified themselves, Luther began talking about "Steve13" and about viewing child pornography, without any prompting from the officers. Detective Anderson asked if she could search his computer and Luther responded that he would have to get his roommate's permission. When Detective Anderson asked if she could get a written statement instead, Luther agreed and invited the officers inside.
Luther showed the detectives two computers in the household; one in his bedroom and one in the living room. Detective Anderson read Luther his Miranda1 rights and asked him if he understood them. Luther indicated that he did understand, and then began talking to her. The admission of Luther's statements to the officers into evidence at the trial is not challenged on appeal.
Detective Anderson testified that Luther described in detail receiving a picture from "Steve13" that showed what he thought was a preteen or teen boy's naked genitals. Detective Anderson testified that Luther stated that he had received images from various people who claimed to be 18 or older, and that when he received images of pornography that looked like they depicted someone younger than 18 years old, he deleted those images because he was not "into that."
Detective Anderson testified that Luther also stated that he used both his and his roommate's computers to chat on line. Detective Anderson testified that Luther admitted that he signed onto chat rooms using the name "wombat" or "wombat1."
The officers obtained a search warrant for both of the computers, as well as data storage such as floppy disks and taped back-ups, in Luther's home. Computer forensic examiner Thomas Giboney conducted a search of both computers and the data seized. This search revealed sexually explicit images of what appeared to be minors contained on both CD Rom and floppy disks. A further search revealed e-mail chat logs with "rjoeluther" and "wombat1" that contained numerous examples of Luther communicating with what appeared to be minors. The trial court later ruled that the search and seizure was valid and the search is not contested on appeal.
Luther was ultimately charged with seven separate counts of possessing depictions of minors engaged in sexually explicit conduct, contrary to RCW 9.68A.070. These charges were based on picture files as well as chat-room logs by "wombat1" found by police on the computers seized from Luther's home and later admitted into evidence.
Luther waived his right to a jury trial. At trial, the court viewed the seven pictures offered by the State as evidence. These pictures showed young men engaged in explicit sexual conduct but their ages were undetermined. Detective Anderson admitted at trial that it was possible that a person could receive pictures through the Internet without being aware that they contained child pornography until they were opened. However, Giboney explained that the various images introduced into evidence had not been deleted, as Luther had told detectives, but had been intentionally saved and accessed at later dates. Luther later stipulated that the files that Giboney had testified about were all active files, and that there was no evidence that they had been deleted.
The trial court also viewed various chat room logs offered by the State as evidence. Detective Anderson testified that these logs had pictures attached to them, but the majority were not provided in the record for this appeal. One log, which contained conversations between "wombat1" and "eric16" is presented on appeal. Detective Anderson testified that this chat log had two pictures attached to it. One was titled "ERIC16.jpg" and showed a young man in a jock strap. The following are excerpted portions from that log:
Exhibits 19-20.
After hearing the testimony and viewing the exhibits, the trial court found that despite Luther's claim that he deleted pornographic images of minors when he received them because he was "not into" child pornography, images connected to Luther's on-line chats had not been deleted and instead were active files. Thus, the trial court found that Luther possessed the photographic images and on-line chat logs seized by the police from computer data banks in Luther's possession and control.
However, the court also found that the State had presented no evidence concerning the ages of the persons depicted in the photos, nor of their identities. Luther argued that in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), the United States Supreme Court held that a person may not be found guilty of possession of something that is portrayed to be or presented as if it were child pornography unless it is proven beyond a reasonable doubt to actually be child pornography. The trial court found by a preponderance of the evidence that the materials depicted actual minors, but ultimately held that it could not find Luther guilty beyond a reasonable doubt of possession of depictions of minors engaged in sexually explicit conduct as required by Ashcroft.
Nevertheless, the court found that Luther intended to possess depictions of minors engaged in sexually explicit conduct, and that Luther took a substantial step toward possession of such materials. Despite the fact that the State had not proved that the depictions were actually of minors, the attempt statute, RCW 9A.28.020(2), focuses on the actor's criminal intent and expressly provides...
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State v. Luther
...of minors engaged in sexually explicit conduct.3 ¶ 11 Luther appealed his conviction. The Court of Appeals affirmed. State v. Luther, 125 Wash.App. 176, 105 P.3d 56, review granted, 155 Wash.2d 1014, 124 P.3d 304 ¶ 12 Luther contends that the offense of attempted possession of child pornogr......
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