State v. Polk

• Decision Date: 28 April 2015
• Docket Number: No. 31935–1–III.,31935–1–III.
• Citation: 348 P.3d 1255,187 Wash.App. 380
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. David Norman POLK, Appellant.

187 Wash.App. 380

348 P.3d 1255

STATE of Washington, Respondent

v.David Norman POLK, Appellant.

No. 31935–1–III.

Court of Appeals of Washington, Division 3.

April 28, 2015.

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Appellant.

James Lyle Nagle, Office of the Pros. Attorney, Walla Walla, WA, Teresa Jeanne Chen, Attorney at Law, Pasco, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 A jury found David Polk guilty of four counts of second degree dealing in depictions of a minor engaged in sexually explicit conduct and four counts of second degree possession of depictions of a minor engaged in sexually explicit conduct. He raises four issues on appeal. First, he contends that his four convictions for second degree possession violate the prohibition against double jeopardy because the offense of second degree possession of depictions is one unit of prosecution. Second, he contends that the State failed to present sufficient evidence to prove three of the counts of second degree dealing in depictions. Third, he contends that the possession of depictions count comprises the same criminal conduct as the dealing in depictions counts. Last, he challenges the imposition of a no contact order with R.E.R. We hold that double jeopardy considerations require dismissal of three of the four possession convictions, and that there is no authority to support the imposition of the no contact order with R.E.R. We therefore reverse three of the convictions, one no contact order, and remand for resentencing.

FACTS

¶ 2 Mr. Polk, using the pseudonym “D–Man,” contacted Brian Bennett on Facebook. Report of Proceedings (RP) at 31 –32. Mr. Polk and Mr. Bennett discovered that they were both friends with D.R.E. Mr. Polk sent computer files containing three nude photographs of D.R.E. to Mr. Bennett. Mr. Polk said that he had more.

¶ 3 Mr. Bennett figured out that D–Man's identity was Mr. Polk. Mr. Bennett contacted Detective Mike Boettcher about the photographs and allowed a search of his computer. Mr. Bennett also contacted D.R.E. to inform her that someone calling himself D–Man was circulating the nude photographs.

¶ 4 D.R.E. remembered Mr. Polk taking the photographs when she was 16 years old and living in Walla Walla. Mr. Polk represented himself to be a professional photographer and told D.R.E. that he wanted to take some fully nude photographs of her for submission to Playboy. On more than one occasion, Mr. Polk took nude and partially nude pictures of D.R.E. Mr. Polk told D.R.E. that she would need to wait until she was 18 years old to sign a contract for Playboy. D.R.E. moved away from Walla Walla shortly before her 18th birthday.

¶ 5 D.R.E. contacted Detective Roger Maidment about the photographs. A search warrant was obtained for Mr. Polk's home. Police seized seven computers located in various locations throughout the house. The computers were linked together, forming a global access network. One computer was logged onto D–Man's Facebook account and two other computers showed past access to D–Man's Facebook account. Police also found hundreds of slides, some of which were boxed or bagged together and labeled with a name, a slide digitizer to transfer images to computer files, and hundreds of loose photographs.

¶ 6 Detective Boettcher reviewed 7 to 8 terabytes of data for images of underage, nude females and males. In the images, he identified six underage females, four of whom testified at trial. He also found images of around a dozen more females who appeared to be underage but could not be identified.

¶ 7 According to Detective Boettcher, the digitized image files were copied onto many computer hard drives over the years. The dates on the computer files represented copy dates, not the date that the photograph was taken. Additionally, Detective Boettcher determined that the dates stamped on the hard-copy slides did not represent the date the photograph was taken but were externally stamped later.

¶ 8 One of the four victims identified in the images was D.R.E. Detective Boettcher located several digitized images of D.R.E., four of which were pornographic. A total of 170 copies of these four images were found on the computers in Mr. Polk's home. One of the digitized images matched a slide that Mr. Polk gave D.R.E. 20 years earlier. The date on the digitized version of the slide image was November 21, 2011.

¶ 9 Detective Boettcher also located images of S.L.M. in the search, recovering 87 hard-copy slides and 323 digitized images on four different computer hard drives. S.L.M. moved to Walla Walla when she was 15 years old and met Mr. Polk shortly after she turned 16 years old. She wanted a portfolio to become a model and posed for Mr. Polk four times. She remembers being 16 years old at the last shoot. While S.L.M. never got a copy of the photographs, she did see them during a slide show that Mr. Polk presented to S.L.M.'s husband after S.L.M. turned 18. The hard-copy slides of S.L.M. found in Mr. Polk's home were embossed with a date that occurred before she turned 18.

¶ 10 Images of T.J.H. were also found. Mr. Polk photographed T.J.H. and a friend without clothes on when T.J.H. was 16 years old. Later, but still at age 16, T.J.H. returned to Mr. Polk and had nude photographs taken to give to her boyfriend. When Mr. Polk gave T.J.H. the photographs, he told her that he was providing all photographs and negatives. T.J.H. eventually destroyed the nude photographs. However, police found five hard-copy slides of T.J.H. in Mr. Polk's home. One slide was embossed with the date December 1990. No digitized images of these slides were found on Mr. Polk's computer.

¶ 11 The next victim, C.C.M., met Mr. Polk when she was 13 or 14 years old. He told her that she was “modeling material” and took nude photographs to create a modeling portfolio. RP at 107. C.C.M. remembered that the photographs were taken before she turned 18 years old because she left for the Job Corps at 16, was pregnant at 17, and gave birth to her first child days after her 18th birthday. C.C.M. said that Mr. Polk gave her some of the photographs and, when her father asked for the rest, Mr. Polk said that he burned them. Still, police uncovered 49 slides of C.C.M. from Mr. Polk's home. Detective Boettcher also found digital copies of some of C.C.M.'s slides that were scanned into a recovered computer on December 9, 2011.

¶ 12 The State charged Mr. Polk with four counts of second degree dealing in depictions of a minor engaged in sexually explicit conduct and four counts of possession of depictions of a minor engaged in sexually explicit conduct. Prior to trial, Mr. Polk moved to dismiss all but one of the possession counts based on the same unit of prosecution. The State acknowledged that the unit of prosecution for possession was per incident and not per image, but argued that the photographs of each different victim constituted a different incident of possession. After hearing the argument, the trial court denied Mr. Polk's motion.

¶ 13 The State presented testimony of D.R.E., S.L.M., T.J.H., C.C.M., Detective Boettcher, and others. The State intended to present testimony of a fifth female, R.E.R., who had contact with Mr. Polk when she was underage. R.E.R. made statements to police prior to trial regarding her interactions with Mr. Polk when she was underage. R.E.R. was on a witness list to testify at trial. However, no photographs were found of R.E.R. in Mr. Polk's home. Mr. Polk moved to exclude R.E.R.'s testimony. The day before trial, the State informed the court that R.E.R. would not be testifying. The State amended the information to eliminate one count of dealing in depictions.

¶ 14 Regarding the four counts for dealing in depictions, the State presented a specific date of the alleged crime in the jury instructions. During closing arguments, the State also identified the victim associated with each count. Count 1 involved the transfer of the pictures of D.R.E. to Mr. Bennett on or about December 15, 2011. Count 2 involved dealing in the images of D.R.E. on or about November 21, 2011. Count 3 involved dealing in the images of S.L.M. on or about November 17, 2011. Count 4 involved dealing in the images of C.C.M. on or about December 9, 2011. The four counts for possession of depictions, counts 5 through 8, were identically described in the information with the same violation date of June 15, 2012.

¶ 15 A jury found Mr. Polk guilty of all eight charges. At sentencing, Mr. Polk renewed his motion to dismiss three of the possession charges based on the same unit of prosecution. He also argued that the convictions constituted the same criminal conduct and challenged the calculation of his offender score. The sentencing court declined to revisit the issues.

¶ 16 The court calculated Mr. Polk's offender score to be 21 for the eight counts. Mr. Polk had no prior criminal history. Mr. Polk objected to the score. The standard range sentence for each dealing in depictions count was 72 to 96 months, while the standard range for each possession count was 63 to 84 months. RCW 9.94A.510 ; RCW 9.94A.515. Despite these ranges, the maximum sentence Mr. Polk could receive for the class C felonies was 60 months. Therefore, the court imposed an exceptional sentence under RCW 9.94A.535(2)(c) by running the concurrent sentences of 60 months on counts 1 through 4 consecutive to the concurrent sentences of 60 months on counts 5 through 8, for a total sentence of 120 months.

¶ 17 Over Mr. Polk's objections, the court imposed a no contact order between Mr. Polk and R.E.R. R.E.R. was not an alleged victim in the case nor did she testify at trial.

¶ 18 Mr. Polk appeals. He raises four issues. First, he challenges the four convictions for second degree possession on double jeopardy grounds. Second, he challenges the sufficiency of the evidence in his second degree dealing in depictions convictions for counts 2 through 4. Third, for offender score calculation purposes, he contends that the possession of...