State v. Luther
| Citation | 157 Wn.2d 63,134 P.3d 205 |
| Decision Date | 18 May 2006 |
| Docket Number | No. 76849-8.,76849-8. |
| Parties | STATE of Washington, Respondent, v. Ronald Joseph LUTHER, Petitioner. |
| Court | United States State Supreme Court of Washington |
Nancy P. Collins, Washington Appellate Project, Seattle, for Petitioner.
Dennis John McCurdy, King County Prosecutor's Office, Seattle, for Respondent.
¶ 1 Defendant Ronald Luther raises constitutional challenges to his conviction for attempted possession of child pornography. He also claims that there is insufficient evidence to uphold his conviction. We conclude that the statutes prohibiting the attempted possession of depictions of minors engaged in sexually explicit conduct are not constitutionally overbroad, that Luther was not unlawfully convicted of possessing constitutionally protected materials, and that sufficient evidence supports his conviction. We affirm the Court of Appeals.
¶ 2 In February 2000, Seattle Police Department Detective Shannon Anderson received a tip through the National Center for Missing and Exploited Children that a person using the e-mail names of "Rjoeluther" and "wombat" was engaging in sexual conversations with minors over the Internet and exchanging pictures of minors in sexually explicit conduct—specifically, images of a 13-year-old boy, Steven. Anderson eventually obtained "wombat's" phone number, which turned out to be Luther's, and spoke with him by telephone. Luther admitted that he had chatted with someone named "Steve13" over the Internet but denied he had ever met Steven in person. Luther told Anderson that he thought Steven was 13 but he did not really know for sure; he thought "Steve13" typed too fast to be a 13-year-old.
¶ 3 On April 9, 2001, after an unrelated delay, Anderson and another detective went to Luther's home to continue the investigation. Luther told Anderson he remembered her from the conversation a year earlier, and Anderson told Luther that she was trying to clear up old cases. Without prompting, Luther began to talk about "Steve13" and viewing images of child pornography. Anderson asked if Luther would consent to a search of his computer, which Luther denied on the basis that his roommate would have to give permission because the computer belonged to him. Anderson then asked Luther if he would give a statement, and Luther agreed. Luther told Anderson that "Steve13" had sent him a video of himself and another boy, that both boys looked about 12 to 13 years old, but that there was nothing sexual in the video. Luther also said in his statement that "Steve" had sent Luther a picture "Steve" claimed was of himself; the picture was of a "`preteen or teen boy'" who was "`naked from the waist down'" and showed a "`closeup of his genitals.'" Report of Proceedings (RP) at 40 (Mar. 20, 2003) (quoting statement). Luther told Anderson that he had no way of knowing if the picture was really "Steve13" or "`if Steve13 is really thirteen.'" Id. (quoting statement); see Clerk's Papers (CP) at 110-11 (Findings of Fact (FF) 5). Luther told Anderson that his online name was "wombat" or "wombatl." Id.; RP at 42 (Mar. 20, 2003).
¶ 4 Luther also stated that he had received images over the Internet that he considered to be child pornography. Luther said in his statement that he "deletes images of minors when he receives them" and that "six months ago he received pornographic images of minors on the computer, and that he deleted those images." CP at 111 (FF 7); see RP at 40-41. Luther stated that "he is `not into' child pornography." CP at 111 (FF 7); see RP at 41 (Mar. 20, 2003).
¶ 5 Anderson then obtained a search warrant for the hard drives and related computer storage devices on the two computers in Luther's residence, and for the data on them. After the search warrant was executed, Seattle Police Detective Tom Giboney conducted a forensic search of the CPUs (central processing units). The detectives looked for and printed out images that appeared to be of minors engaged in sexually explicit conduct and on-line chats related to depictions of minors engaged in sexually explicit conduct. Luther was charged with eight counts1 of possessing depictions of minors engaged in sexually explicit conduct contrary to RCW 9.68A.070. He waived his right to a jury trial.
¶ 6 At trial, the detectives testified that it was possible for a person to receive pictures through the Internet without knowing their contents until they were opened. However, they also testified that the images and on-line chats introduced into evidence had not been deleted, as Luther claimed; instead, they were active files that had been intentionally saved and accessed at later dates. The trial court examined the pictures and the on-line chat logs offered by the State and admitted as evidence. The pictures show young males engaged in sexually explicit conduct.
¶ 7 Only one of the logs introduced at trial is in the record on appeal. This log contains two chats between "wombat1" and "eric16." The first of the two chat conversations occurred October 31, 2000. During this conversation, Luther asks if "eric16" has a "cam" and wants to swap pictures. Ex. 20. The dialogue shows that Luther and "eric16" expressed interest in masturbating together, and that Luther received a picture of a young man in a "jockstrap" during the course of the conversation. In the second conversation, which occurred on November 15, 2000, Luther refers to the "jockstrap" picture sent to him and asks "eric16" about masturbating "cam2cam." Id. Luther also states he would like to see a picture of "eric16's" genitals. Id. Luther offers to let "eric16" see "his bulge" if "eric16" sends a picture. Id. Luther then states: "hehe well yeah.. but you are underage so have to be careful." Id. (emphasis added). Luther continues to ask "eric16" to send a picture, and tells "eric16" that he is "rubbin" himself and waiting for a picture. Id.
¶ 8 Following trial, the court entered findings of fact and conclusions of law. The court concluded that Luther knowingly possessed the photographic images and the on-line chats introduced into evidence. The trial court found, however, that the State had failed to introduce evidence concerning the ages of the persons depicted in the photographic images or their identities, and found that "[a]ll persons depicted appeared to be post-adolescent." CP at 113 (FF 14). The court concluded that there was reasonable doubt as to the ages of the persons depicted, and therefore held that Luther was not guilty of seven counts of possession of depictions of minors engaged in sexually explicit conduct as charged.
¶ 9 The court also found that, CP at 111 (FF 6). Nevertheless, the trial court explained in its oral ruling, which was formally incorporated into the trial court's findings and conclusions:2
[I]t is my belief, beyond a reasonable doubt, that [Luther] was in fact making every attempt to secure photographs of boys under the age of eighteen in sexually explicit positions. In fact, it is my belief, beyond a reasonable doubt, that he thought he had them. He might have thought some of them might have been a ruse, but it is my belief, without any doubt at all, what he wanted was pictures of boys under the age of eighteen in sexually explicit positions. And, at least as to some of them, he certainly thought he had them. He might have had a doubt as to some because of the way people react and play games on the internet, ruses. But he thought he had them.
....
The Court finds beyond a reasonable doubt that the defendant was out on the internet sites ... conversing with persons that he believed to be young males under the age of eighteen. Through technology available over the internet he was able to secure electronic images, of photographs or of images created electronically of persons that he believed to be under the age of eighteen who were male and engaged in sexually explicit activities as defined by the statute.
¶ 10 Based on its finding that Luther intended to possess depictions of minors engaged in sexually explicit conduct, the court found that Luther attempted to possess depictions of minors engaged in sexually explicit conduct and took a substantial step toward obtaining such images. The trial court concluded that Luther was guilty of one count of attempted possession of depictions 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 (2005).
¶ 12 Luther contends that the offense of attempted possession of child pornography is constitutionally overbroad in violation of the first amendment to the United States Constitution and article I, section 5 of the Washington State Constitution.4
¶ 13 RCW 9.68A.070 provides 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."5 The policy underlying the statute is set out in RCW 9.68A.001:
¶ 14 RCW 9.68A.070 is unquestionably constitutional under United States Supreme Court precedent. In New York v Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the Court held that child pornography involving actual minors...
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