State v. Reeves

• Decision Date: 05 May 2008
• Docket Number: No. 59528-8-I.,59528-8-I.
• Citation: 182 P.3d 491,144 Wn. App. 422
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross Appellant, v. Jon Curtis REEVES, Appellant/Cross Respondent.

182 P.3d 491

144 Wn. App. 422

STATE of Washington, Respondent/Cross Appellant, v. Jon Curtis REEVES, Appellant/Cross Respondent.

No. 59528-8-I.

Court of Appeals of Washington, Division 1.

May 5, 2008.

Thomas Michael Kummerow, Attorney at Law, Washington Appellate Project, Seattle, WA, for Appellant/Cross Appellant.

Thomas Marshal Curtis, Snohomish County Pros. Office, Everett, WA, for Respondent/Cross-Appellant.

LAU, J.

¶ 1 Jon Reeves was convicted of two counts of possessing a photograph depicting a minor engaged in sexually explicit conduct pursuant to RCW 9.68A.070. The photographs were part of seven separate collages that were kept in a notebook. Relying on Division Two's decision in State v. Sutherby, 138 Wash.App. 609, 158 P.3d 91 (2007), review granted, 162 Wash.2d 1018, 178 P.3d 1034 (2008), Reeves argues that his conviction violated double jeopardy because the photographs were contained in a single notebook and thus constituted a single unit of prosecution. We decline to adopt Sutherby's conclusion that the word "any" in the statute's definition of "visual or printed matter" rendered ambiguous the unit of prosecution for violation of RCW 9.68A.070. Rather, we adhere to State v. Gailus, 136 Wash.App. 191, 147 P.3d 1300 (2006) in which we held that the unit of prosecution is one crime for each photograph, regardless of whether they are stored in a single location. Accordingly, we affirm Reeves's conviction.

FACTS

¶ 2 On January 2, 2006, Tara Washek and Ronald Berry were packing the belongings of Jon Reeves and his fiancé, who had stayed with them during the month of December. When Washek picked up a notebook, some photographs fell out. The notebook was ultimately found to contain dozens of photographs, taped together in seven separate collages, most of which depicted young males engaged in sexually explicit conduct. Washek contacted the police.

¶ 3 Reeves was arrested and charged with two counts of possession of depictions of a minor engaged in sexually explicit conduct as proscribed by RCW 9.68A.070. A nurse qualified as an expert in maturation staging and age approximation testified that at least two of the boys in the photographs were most likely under the age of fourteen. The photographs were from two different collages. Reeves was convicted as charged, and the trial court imposed two concurrent sentences. Reeves appealed.

ANALYSIS

¶ 4 Reeves argues that the entry of two convictions violated his right against double jeopardy because the simultaneous possession of multiple photographs found in a single notebook constitutes a single unit of prosecution for which he is subject to a single conviction under RCW 9.68A.070. He contends that this result is compelled by Sutherby, in which Division Two held that the unit of prosecution for violating RCW 9.68A.070 was ambiguous, and therefore, under the rule of lenity, the defendant's act of simultaneously possessing multiple materials in the same location is one unit of prosecution for which he was subject to one conviction.

¶ 5 The double jeopardy clause of the Fifth Amendment and the corresponding provision in the Washington State Constitution protect a defendant from being punished multiple times for the same offense. State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998). Reeves did not raise a double jeopardy argument below, but this is a constitutional challenge that may be raised for the first time on appeal. State v. O'Connor, 87 Wash. App. 119, 123, 940 P.2d 675 (1997). "When a defendant is convicted of violating one statute multiple times, the proper inquiry for double jeopardy analysis is what `"unit of prosecution"' the legislature intended as the punishable act or course of conduct under the specific criminal statute." Gailus, 136 Wash. App. at 195, 147 P.3d 1300 (quoting Adel, 136 Wash.2d at 633-34, 965 P.2d 1072).

¶ 6 The first step in determining the proper unit of prosecution is to examine the language of the statute. State v. Ose, 156 Wash.2d 140, 144, 124 P.3d 635 (2005). Statutory construction is a question of law reviewed de novo. State v. Fisher, 139 Wash. App. 578, 583, 161 P.3d 1054 (2007). The court first looks to the statute's plain meaning to determine legislative intent. Ose, 156 Wash.2d at 144, 124 P.3d 635. "Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." State v. Elmore, 143 Wash.App. 185, 177 P.3d 172, 173 (2008). Statutes are construed as a whole to harmonize and give effect to all provisions when possible. State v. Young, 125 Wash.2d 688, 696, 888 P.2d 142 (1995). "A statute is ambiguous if it can be reasonably interpreted in more than one way." State v. Mullins, 128 Wash.App. 633, 642, 116 P.3d 441 (2005). "If the language of a penal statute is ambiguous, the courts apply the rule of lenity and resolve the issue in a defendant's favor." State v. Knutson, 64 Wash.App. 76, 80, 823 P.2d 513 (1991).

¶ 7 RCW 9.68A.070 provides, "A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class B felony." RCW 9.68A.011(2) defines "`[v]isual or printed matter'" as "any photograph or other material that contains a reproduction of a photograph." RCW 9.68A.011(1) states that "[t]o `photograph' means to make a print, negative, slide, digital image, motion picture, or videotape," and that "[a] `photograph' means anything tangible or intangible produced by photographing."

¶ 8 Reeves, relying on Sutherby, focuses his unit of prosecution analysis on the term "any" in RCW 9.68A.011(2). In Sutherby, the defendant was charged with ten counts under RCW 9.68A.070, one count for each of ten different digital files found on his home computer. The trial court ruled that the proper unit of prosecution was one count for each child who was photographed or filmed and so it consolidated those counts relating to different visual images of the same minors. Sutherby, 138 Wash.App. at 613, 158 P.3d 91. Sutherby was convicted and sentenced on all seven charged counts.

¶ 9 On appeal, Sutherby argued that the definition of "`visual or printed matter'" as "`any photograph or other material that contains a reproduction of a photograph'" means that the act of possessing child pornography at any one time or general location is a single unit of prosecution. Id. at 614, 158 P.3d 91 (quoting RCW 9.68A011(2)). The State argued that "any" means "one" and that under this definition, each distinct photograph or digital file is the proper unit of prosecution. Id. at 614, 158 P.3d 91.

¶ 10 Division Two held that "Sutherby's violation of [RCW 9.68A.070] by simultaneously possessing multiple materials in the same location is one unit of prosecution for which he is subject to only one conviction." Id. at 615, 158 P.3d 91. The court began its analysis by observing that the dictionary definition of the word "any" encompasses a "full spectrum of quantities," including "(1) one; (2) one, some or all regardless of quantity; (3) one or more; (4) great, unmeasured, or unlimited in amount; and (5) all." Id. at 614, 158 P.3d 91 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976)). The court reasoned that the placement of the word "any" in RCW 9.68A.011(2) provides no guidance as to the legislature's intended use of the term and that "the statute is equally sensible" using the definitions "(1) one, (2) one, some or all ..., [or] (3) one or more." Id. at 614, 158 P.3d 91. The court stated,

Under these readings, the legislature may have intended that the statute ban the possession of (1) one photograph or other material that contains a reproduction of a photograph; (2) one, some, or all, regardless of quantity, photographs or other material containing a reproduction of a photograph; or (3) one or more photographs or other material containing a reproduction of a photograph.

Id. at 614-15, 158 P.3d 91.

¶ 11 Because Division Two concluded that the word "any" rendered the statute ambiguous, it applied the rule of lenity and held that "Sutherby's violation of the statute by simultaneously possessing multiple materials in the same location is one unit of prosecution for which he is subject to only one conviction." Id. at 615, 158 P.3d 91.

¶ 12 Reeves argues that the Sutherby decision correctly held that the unit of prosecution for RCW 9.68A.070 was ambiguous and that the rule of lenity applies. Because both of the suspect images he possessed were contained in a single notebook, he contends that he was simultaneously possessing multiple materials in the same location and is therefore subject to only one conviction.

¶ 13 We differ with Sutherby and hold that the legislature's use of the word "any" in defining "visual or printed matter" does not render ambiguous the unit of prosecution for violations of RCW 9.68A.070. When the applicable statutes are properly construed as a whole and the word "any" is viewed in context, Sutherby's construction of the statute is unreasonable and the law of lenity does not apply.

¶ 14 Sutherby stated that the term "any" was ambiguous because it could mean "(1) one, (2) one, some, or all ..., [or] (3) one or more." Sutherby, 138 Wash.App. at 614, 158 P.3d 91. But RCW 9.68A.011(2) defines "visual or printed matter" as "any photograph or other material that contains a reproduction of a photograph." (Emphasis added.) The Legislature's use of the singular term "photograph" expressly modifies the term "any" and renders it unambiguous. Moreover, RCW 9.68A.070 prohibits possession of "visual or printed matter depicting a minor engaged in sexually explicit conduct...." (Emphasis added.) Again, the legislature's use of the singular term "minor" plainly demonstrates its intent to permit the State to bring a separate charge for each minor photographed. When RCW 9.68A.070 and RCW 9.68A.011(2) are construed together to...