State v. Root

• Decision Date: 28 September 2000
• Docket Number: No. 68098-1.,68098-1.
• Citation: 9 P.3d 214,141 Wash.2d 701
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Joseph Stuart ROOT, Petitioner.

9 P.3d 214

141 Wash.2d 701

STATE of Washington, Respondent, v. Joseph Stuart ROOT, Petitioner.

No. 68098-1.

Supreme Court of Washington, En Banc.

Argued May 18, 2000.

Decided September 28, 2000.

Mark D. Mestel, Everett, for Petitioner.

Christopher Shea, Clallam County Prosecutor, Lauren Michele Erickson, Deputy Clallam County Prosecutor, Port Angeles, for Respondent.

GUY, C.J.

This court granted review of the limited issue of "unit of prosecution" for sexual exploitation of a minor. Joseph Stuart Root was convicted of 73 counts of sexual exploitation of a minor based on sexually explicit photographs he took of three young children. The question is whether the "unit of prosecution" for sexual exploitation of a minor is per photograph, per pose, or per photo session. We hold that the "unit of prosecution" for sexual exploitation of a minor is per photo session per minor involved in each session.

Root was convicted of 6 counts of rape of a child in the first degree and 73 counts of sexual exploitation of a minor, involving C (age 3), M (age 10), and H (age 3). Clerk's Papers at 19-22. In 1995, Root was living with M and H's mother and baby-sat those two children along with C numerous times. After the two mothers began suspecting Root of sexually molesting their children, they contacted the police. Clerk's Papers at 389-94. During the search of M and H's mother's house and attached garage the police found hundreds of photographs, rolls of film, and videotapes depicting the three children in sexually explicit poses. Ex. 23.

Root was originally charged with 74 counts of sexual exploitation. Clerk's Papers at 190-218. The sexual exploitation charges were based on photographs and a video taken by Root. In most of the photographs, the children are naked with their genitals prominently displayed. Several series of photographs involve one male child wearing dresses which are held up to reveal the child is not wearing underwear. In some of the photographs the children's buttocks are exposed and objects—including a medicine dropper, Root's finger, or a plastic hot dog—are protruding from their rectums. Another series of photographs shows one child in a barrel, smeared with feces, and with feces in his mouth. In another series one child is trying to get Icy Hot off his genitals. Def.-Appellant's Opening Br. at 50-51; Resp't's Supplemental Br. at 2.

Root was convicted and sentenced to a total term of 460 months. Clerk's Papers at 31. His offender score was 88 for each rape and 78 for each exploitation count, with standard ranges of 210-270 months and 120 months respectively.¹ Clerk's Papers at 24-31. The court set the term for one of the rapes to run consecutively to all the other sentences, so Root's total term is 460 months.² Clerk's Papers at 31.

Root appealed the 6 counts of rape and 73 counts of sexual exploitation of a minor arguing he was improperly charged on multiple separate counts. The Court of Appeals affirmed the convictions. See State v. Root, 95 Wash.App. 333, 975 P.2d 1052 (1999)

. In his Petition for Review to this court, Root argued review be accepted on various grounds. We granted review limited to the issue of what constitutes the "unit of prosecution" for sexual exploitation of a minor.

ISSUE

Whether, in a case charging multiple counts of sexual exploitation of a minor based on posing children for many photographs, the proper "unit of prosecution" is each photograph, each pose, or each photo session.

DISCUSSION

The Court of Appeals held that the State did not abuse its discretion in charging one count of sexual exploitation for each photograph or videotape taken in violation of RCW 9.68A.040. Root, 95 Wash.App. 333,975 P.2d 1052. The court in Root determined that the "unit of prosecution" intended for sexual exploitation of a minor was a "photograph"—a print, negative, slide, motion picture, or videotape. Id. at 336, 975 P.2d 1052; RCW 9.68A.011(1). The court reasoned that, Division One, in State v. Knutson, 64 Wash.App. 76, 823 P.2d 513(1991), determined the proper "unit of prosecution" was a photograph and charging for each photograph was not "multiplicitous" because each photograph was a separate act of sexual exploitation of a minor.³ Therefore, Root could be charged a separate count of sexual exploitation of a minor for each photograph.

The dissent reasoned that the "unit of prosecution" was ambiguous, and as such, the ambiguity should be construed in favor of the defendant under the rule of lenity. Root, 95 Wash.App. at 338, 975 P.2d 1052 (citing State v. Adel, 136 Wash.2d 629, 634-35, 965 P.2d 1072 (1998)). The dissent stated that in general the statute consists of two elements: (1) posing a minor in sexually explicit conduct, and (2) knowing that the conduct will be photographed. Id. Arguably, actually photographing the minor is not an element of the crime. Id. "Rather, the crime is complete if the defendant poses, or causes the minor to be posed, with knowledge that the pose will be photographed." Id.

The dissent supported the conclusion that the punishable offense is that of posing, not photographing, by citing to this court's decision in State v. Chester, 133 Wash.2d 15, 940 P.2d 1374 (1997). In Chester, we held that the defendant had not violated RCW 9.68A.040 because he had not aided, invited, employed, authorized, or caused his stepdaughter to engage in sexually explicit conduct; he merely photographed a minor in what may have been sexually explicit conduct. Id. at 23, 940 P.2d 1374. The dissent also argued that Knutson did not hold that each photograph was a separate crime. The dissent determined that under the rule of lenity Root should be charged per pose that he caused with the knowledge it would be photographed. Root, 95 Wash.App. at 339, 975 P.2d 1052.

The question to be answered here is what act or course of conduct has the Legislature defined as the punishable act for sexual exploitation of a minor. See Adel, 136 Wash.2d at 634,

965 P.2d 1072 (addressing the "unit of prosecution" for simple possession of a controlled substance). The first step in a "unit of prosecution" inquiry is to analyze the applicable criminal statute. Id. at 635, 965 P.2d 1072. Based on the language of RCW 9.68A.040, stating the elements of sexual exploitation of a minor, the "unit of prosecution" does not appear to be solely per photograph. RCW 9.68A.040 states:

(1) A person is guilty of sexual exploitation of a minor if the person:

(a) Compels a minor by threat or force to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance; or

(c) Being a parent, legal guardian, or person having custody or control of a minor, permits the minor to engage in sexually explicit conduct, knowing that the conduct will be photographed or part of a live performance.

The statute basically consists of two elements: (1) posing a minor in sexually explicit conduct, and (2) knowing that the conduct will be photographed. See Root, 95 Wash. App. at 338,

975 P.2d 1052. "Sexually explicit conduct" means actual or simulated:

(a) Sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oralanal, whether between persons of the same or opposite sex or between humans and animals;

(b) Penetration of the vagina or rectum by any object;

(c) Masturbation;

(d) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer;

(e) Exhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer;

(f) Defecation or urination for the purpose of sexual stimulation of the viewer; and

(g) Touching of a person's clothed or unclothed genitals, pubic area, buttocks, or breast area for the purpose of sexual stimulation of the viewer.

RCW 9.68A.011(3). The crime arguably is complete when the defendant merely causes the minor to engage in sexually explicit conduct, knowing the defendant or someone else will take a photograph. Just photographing the minor is not what constitutes the crime. See Chester, 133 Wash.2d at 23,

940 P.2d 1374.

This court in Chester stated "it does not appear that the Legislature intended, under the current provisions of the sexual exploitation of minors statute, to criminalize the photographing of a child, where there is no influence by the defendant which results in the child's sexually explicit conduct." 133 Wash.2d at 23, 940 P.2d 1374. If the defendant posed the child knowing a photograph would be taken, but someone else took the picture, the defendant would still violate the statute. Moreover, in State v. Farmer we held that "the State's interest in protecting its children from sexual exploitation and abuse constitutes a sufficiently compelling reason justifying prohibiting minors from posing for sexually explicit photography." 116 Wash.2d 414, 423, 805 P.2d 200, 13 A.L.R.5th 1070 (1991) (emphasis added.) The "unit of prosecution" does not appear to be merely the act of taking the photograph. Case law suggests something more must be involved than simply taking a photograph. The defendant must take some sort of active role in causing the sexually explicit conduct. Therefore, the defendant should not be charged per photograph. The "unit of prosecution" for RCW 9.68A.040 is engaging in activity that compels, aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, while knowing such conduct will be photographed.

Chapter 9.68A, Sexual Exploitation of Children, has a progression of prohibited conduct. The sequence starts with RCW 9.68A.040 which defines the prohibited conduct (one is not to compel, aid, invite, employ, authorize, or cause a minor to engage in sexually explicit conduct). While photographing is...