State v. Chester

918 P.2d 514, 82 Wash. App. 422, 1996 Wash. App. LEXIS 242

• Court: Court of Appeals of Washington
• Decided: June 28, 1996
• Docket: 18689-6-II
• Status: Published

Opinions

Bridgewater, J.

Gary P. Chester appeals his jury conviction of sexual exploitation of a minor, with a special finding of sexual motivation, for concealing a video camera beneath his 14-year-old stepdaughter’s bed and filming her naked. I hold there was insufficient evidence of causation, and reverse.

While his 14-year-old stepdaughter was in the shower, Chester concealed a video camera beneath her bed. The camera filmed her nude body as she dressed, unaware of the camera. The stepdaughter discovered the video camera, the mother viewed the tape and called the police, and Chester was arrested. Chester told police that he videotaped his stepdaughter as a "dumb joke,” and that he did not consider her as a sex object. Chester later indicated he knew the tape would record her in an undressed state.

I

Chester raises several constitutional challenges to the statutes involved, RCW 9.68A.011(e) and RCW 9.68A.040. The challenges he raises are those of constitutional vagueness and overbreadth. These challenges have been discussed and rejected by the Supreme Court and our court. State v. Farmer, 116 Wn.2d 414, 421, 805 P.2d 200, modified, 812 P.2d 858 (1991); State v. Bohannon, 62 Wn. App. 462, 467, 814 P.2d 694 (1991).

II

Chester contends there is insufficient evidence to support his conviction. In determining whether sufficient evidence supports a conviction, "[t]he standard of review is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Olson, 73 Wn. App. 348, 357-58, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994) (quoting State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)).

Chester was charged with the sexual exploitation of a minor in violation of RCW 9.68A.040(l)(b) and (c). 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.

RCW 9.68A.040.

RCW 9.68A defines "[s]exually explicit conduct” to include behavior recognized as sexually explicit: intercourse, masturbation, penetration of the vagina or rectum by any object. RCW 9.68A.011(3)(a)-(c). The statuté also defines behavior that becomes sexually explicit when engaged in "for the purpose of sexual stimulation of the viewer,” including sadomasochistic abuse, defecation, urination, genital touching, and "[ejxhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor.” RCW 9.68A.011(3)(d)-(g). The statute, aimed at extinguishing the market for sexually explicit materials featuring children, legitimately attempts to protect children from being abused as subjects of such materials. Chester was charged under the "exhibition of the genitals” definition of sexually explicit conduct.

I begin my analysis of the sufficiency of the evidence with the observation that there are two components of every crime: the criminal act, and the criminal state of mind. State v. Utter, 4 Wn. App. 137, 139, 479 P.2d 946 (1971). In sexual exploitation of a minor, the criminal state of mind is defined by the phrase, "knowing that such conduct will be photographed or part of a live performance.” RCW 9.68A.040(l)(b); RCW 9.68A.040(c). Assuming that his stepdaughter’s conduct was "sexually explicit” within the meaning of the statute, there is sufficient evidence in this case that Chester had the requisite criminal state of mind: a rational trier of fact could find beyond a reasonable doubt that Chester knew his stepdaughter’s conduct would be photographed when Chester took affirmative steps to photograph her. At issue in this case is whether there is sufficient evidence Chester performed the criminal act required by the statute.

A criminal act may be described as both an affirmative act, or the omission of a possible and legally required performance. Utter, 4 Wn. App. at 140. Sexual exploitation of a minor describes the criminal act in pertinent part as when the perpetrator aids, invites, employs, authorizes, or causes, RCW 9.68A.040(b), or a parent permits, RCW 9.68A.040(c), a minor to engage in sexually explicit conduct. In order to discern what the Legislature intended when it enacted the above,

we must first look to the plain meaning of the words used in the statute. State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990). In that regard, we are duty-bound to give meaning to every word that the Legislature chose to include in a statute and to avoid rendering any language superfluous. Wright v. Engum, 124 Wn.2d 343, 352, 878 P.2d 1198 (1994) ("We do not interpret statutes so as to render any language superfluous.”) (citing Yakima County (West Valley) Fire Protection Dist. 12 v. Yakima, 122 Wn.2d 371, 858 P.2d 245 (1993)). See also City of Seattle v. McCready, 123 Wn.2d 260, 280, 868 P.2d 134 (1994) (stating that it is "the settled practice of construing statutes to avoid superfluous language”) . . .

City of Seattle v. Williams, 128 Wn.2d 341, 348-49, 908 P.2d 359 (1995). Statutes should be construed to effect their purpose, and to avoid unlikely, absurd, or strained consequences. Ski Acres, Inc. v. Kittitas County, 118 Wn.2d 852, 857, 827 P.2d 1000 (1992); State v. Rhodes, 58 Wn. App. 913, 919, 795 P.2d 724 (1990).

The statute contains several verbs that describe the perpetrator’s threshold criminal act. Where a statute does not define a nontechnical word, we may look to the dictionary for guidance. State v. Pacheco, 125 Wn.2d 150, 154, 882 P.2d 183 (1994). "Aid” means to "give help or support to.” Webster’s Third New International Dictionary 44 (1969). "Invite” means both to "offer an incentive or inducement to” and "provide opportunity or occasion for.” Webster’s, at 1190. "Employ” means to "use or engage the services of.” Webster’s, at 743. "Authorize” means to "to endorse, empower, justify, or permit by or as if by some recognized or proper authority.” Webster’s, at 146. "Cause” may be given its ordinary meaning, without resort to a dictionary definition. "Permit” has several relevant dictionary definitions. Primarily, it means "to consent to expressly or formally.” Webster’s, at 1683. A more contemporary dictionary than that previously cited also defines "permit” as "[t]o afford opportunity” or "to allow.” American Heritage Dictionary 924 (2d college ed. 1985). All of the statutory verbs include a definition that the perpetrator take some direct action to induce a minor "to engage in sexually explicit conduct.” Secondary definitions of the terms "invite” and "permit” suggest that one may commit the crime of sexual exploitation as a voyeur, i.e., by providing an opportunity for or allowing the minor to engage in sexually explicit conduct, knowing it will be photographed.

There is no evidence that Chester took an affirmative act to cause his daughter’s conduct under either RCW 9.68A.040(b) or (c). Thus, the issue is whether, as a voyeur, Chester could violate the statute.

I conclude that the Legislature did not intend to impose criminal liability on a parent who does nothing to induce his child’s conduct, regardless of whether the parent photographs or observes the child’s behavior. I glean this in part from the plain language of the statute: all of the terms denote some direct act influencing the minor’s behavior. Although secondary definitions of "invite” and "permit” suggest that opportunistic voyeurism may be punished, if the Legislature had meant that a parent merely photographing their nude child could be held criminally liable, it would have said so clearly and plainly. It did not.

I emphasize that the statute does not criminalize the act of photographing — the photography relates to the criminal state of mind. The act of photographing a child undressing, urinating, defecating, or masturbating does not make the photographer’s act criminal under the statute as currently worded. To be a criminal act, there must be evidence that someone other than the minor induced the minor’s behavior. I hold that RCW 9.68A.040 requires a perpetrator to take some affirmative act that induces the minor to engage in sexually explicit conduct. A parent could be held criminally liable under subsection (c) only whén the parent gives a third party express permission to sexually exploit the parent’s child. In reaching this holding, I am mindful that statutes that impose criminal liability for an omission of a legally required performance are held to a higher standard of notice, see Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), and that criminal statutes that are ambiguous are to be strictly construed in favor of the defendant, State v. Wiss-ing, 66 Wn. App. 745, 753, 833 P.2d 424, review denied, 120 Wn.2d 1017 (1992).

The State argues that when photographs are taken or the child’s nudity is observed for the purpose of sexual stimulation of the viewer, the statute is satisfied. Such an interpretation unreasonably strains the plain language of RCW 9.68A.040(a) and Ob). I do not address today whether such behavior may be made criminal by our Legislature. I hold that the act of photographing a nude minor cannot satisfy the threshold requirements of RCW 9.68A.040(a) and (b) without sufficient evidence a perpetrator took direct action to induce the minor to engage in sexually explicit conduct. The Legislature did not intend that a parent could violate subsection (c) without evidence that someone violated either subsection (a) or (b). When the parent is the only actor who has induced the conduct of the minor, that parent can be convicted only under RCW 9.68A.040(a) or (b). To infer personal gratification from the parent’s act of watching or photographing, without more, extends the reach of this statute to parental conduct the Legislature did not intend to prohibit.

This holding is not inconsistent with Bohannon or Farmer. We noted in Bohannon that a person could be guilty of sexual exploitation of a child if that "individual [took] sexually explicit photographs of a child at a time when the child was unaware that the pictures were being taken.” Bohannon, 62 Wn. App. at 472. In Farmer, the court described the criminal act of the defendant to include taking "nude photographs . . . in a variety of sexually suggestive poses,” and "a number of suggestive and sexually explicit photographs.” Farmer, 116 Wn.2d at 418. It is clear from the opinions that both Bohannon and Farmer influenced the behavior of their minor subjects. In both Bohannon and Farmer, although not expressly addressed, we observe the State was required to demonstrate with sufficient evidence that the photographer "posed” the minor in order to show a criminal act was committed. "Posed” is not satisfied by showing a strategic placement of the camera, because the phrase "engage in” refers to the conduct of the child, not the photographer. "Posed” may be satisfied, however, with evidence a sleeping child’s position or state of dress was altered by the photographer. This clarifies the above dicta in Bohannon. Chester’s act of videotaping his stepdaughter was inappropriate, even morally reprehensible. But our Legislature has thus far not criminalized a parent’s surreptitious videotaping of his or her nude child. Applying the statute to Chester, I hold there was insufficient evidence that he violated RCW 9.68A.040(b) or (c). Under subsection (b), there is no evidence that Chester induced his daughter’s behavior in any way. Under subsection (c), there is no evidence that someone violated subsection (a) or subsection Ob), and, therefore, no evidence that Chester gave someone express permission to do so. The failure to prove any causal link between Chester’s behavior and his stepdaughter’s conduct is the deficiency in the State’s case. At most, Chester took advantage of his stepdaughter’s inevitable conduct — her undressing — to knowingly photograph her. No person committed an act prohibited in either RCW 9.68A.040(a) or (b); and, without this, violation of the statute is impossible.

We do not condone Chester’s despicable act, but are constrained to find under the statute there was insufficient evidence to support the conviction. Because of our disposition, we need not address the remainder of Chester’s challenges. We reverse.