State v. Myers

941 P.2d 1102
CourtWashington Supreme Court
DecidedAugust 7, 1997
Docket64415-2
StatusPublished
Cited by154 cases

This text of 941 P.2d 1102 (State v. Myers) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Myers, 941 P.2d 1102 (Wash. 1997).

Opinion

941 P.2d 1102 (1997)

THE STATE OF WASHINGTON, Respondent,
v.
GARY K. MYERS, Petitioner.

No. 64415-2.

Supreme Court of Washington.

Oral Argument May 27, 1997.
Filed August 7, 1997.

*1103 William Vesneski, Seattle, for petitioner.

Bernardean Broadous, Thurston County Prosecutor and James C. Powers, Deputy County Prosecutor, Olympia, for respondent.

JOHNSON, Justice.

Gary Myers was convicted of sexual exploitation of a minor based on his videotaping his seven-year-old daughter. He appealed and the Court of Appeals held the statute was not void for vagueness or overbroad; the admission of other videotaped scenes of children's clothed pubic and buttock areas was not in error; and Myers' conviction was supported by substantial evidence. State v. Myers, 82 Wash.App. 435, 918 P.2d 183 (1996). We affirm the Court of Appeals.[1]

FACTS

While attending a family picnic, Gary Myers videotaped several scenes, including multiple shots of the clothed pubic and buttock areas of adults and children. When he returned home, using the same tape, he videotaped his seven-year-old daughter, N.M., in the bathtub. This portion of the tape opens on the full figure of N.M., who says, "Daddy, don't," then moves to extreme closeups of the child's pubic area. The voice of the operator, identified as Myers at trial, can be heard during the filming, asking N.M. to move in a certain way, i.e., to put her head in the water, to show how long she is, etc. The camera zooms in again and again to full frame shots of the child's pubic area.

*1104 Later that same day, Myers edited this tape and created a second tape. He edited the family picnic scene, deleting the more mundane shots of people at the family gathering, and repeating certain zoom shots of children's clothed buttock and pubic areas. He also edited the bathtub scene, deleting only the beginning shot, with N.M. saying, "Daddy, don't."

Myers was charged with sexual exploitation of a minor under RCW 9.68A.040(1)(b). At trial, Myers claimed he made these tapes to anger his girlfriend, and not for the purpose of sexual stimulation. The jury found him guilty. Myers appealed and we accepted review. Myers challenges whether RCW 9.68A.011(3)(e) (defining "sexually explicit conduct" for purposes of RCW 9.68A.040(1)(b)) is unconstitutionally overbroad; whether the trial court erred in admitting into evidence videotaped scenes of children other than N.M. and testimony regarding videotaped scenes of other children; and whether Myers' guilty verdict is supported by sufficient evidence.

ANALYSIS

Myers was charged and convicted of sexual exploitation of a minor. The relevant statutes provide:

(1) A person is guilty of sexual exploitation of a minor if the person:
(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[.]
RCW 9.68A.040(1)(b).
(3) "Sexually explicit conduct" means actual or simulated:
(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[.]
RCW 9.68A.011(3)(e).

At trial, Myers moved to dismiss, arguing RCW 9.68A.011(3)(e) is overbroad and vague. The overbreadth argument presented by Myers at trial centered on the word "exhibition" in the definition portion of the statute. Myers asserted there must be some conduct on the part of the subject, "something suggestive, something sexually inherent in the exhibition itself." Report of Proceedings (RP) at 9. Myers also claimed N.M. was not asked to "perform in any lewd manner." His motion to dismiss was denied. Myers essentially requested the trial court view the definition of "exhibition" from the vantage point of the minor, which the court refused to do. The definition, the court ruled, must be read from the viewpoint of the defendant. The court found the exhibition of body parts, together with the purpose of that exhibition (sexual stimulation), ensured the statute was neither overbroad nor vague.

A statute is presumed constitutional and the party challenging the statute has the burden of proving its unconstitutionality. City of Seattle v. Eze, 111 Wash.2d 22, 26, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. City of Seattle v. Webster, 115 Wash.2d 635, 641, 802 P.2d 1333, 7 A.L.R.5th 1100 (1990).

The traditional rule is that a person challenging a statute may not challenge the statute on the ground it may conceivably be applied unconstitutionally to others in situations not before the court. New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3359-60, 73 L.Ed.2d 1113 (1982). The exception to this rule is when the statute is challenged on overbreadth grounds and involves the First Amendment. Ferber, 458 U.S. at 768, 102 S.Ct. at 3360-61. In order for a statute to be struck down on overbreadth grounds, the overbreadth must be "substantial." Ferber, 458 U.S. at 769, 102 S.Ct. at 3361. Further, where conduct and not merely speech is involved, the substantial overbreadth of the statute is judged in relation to the statute's legitimate sweep. Ferber, 458 U.S. at 770, 102 S.Ct. at 3361-62.

Child pornography, like obscenity, is unprotected by the First Amendment. Ferber, 458 U.S. at 764, 102 S.Ct. at 3358. In Ferber, the Supreme Court upheld against an overbreadth challenge a statute that prohibited the use of children under 16 for sexual *1105 conduct in performances. Ferber, 458 U.S. at 774, 102 S.Ct. at 3363-64. The statute defined sexual conduct as various actual or simulated sexual acts and also lewd exhibition of the genitals. Ferber, 458 U.S. 747, 102 S.Ct. 3348. The Court found that whatever arguably impermissible applications of the statute existed, these did not amount to more than a fraction of the materials within the statute's reach and the statute was valid. Ferber, 458 U.S. at 773, 102 S.Ct. at 3363.

We have previously ruled RCW 9.68A.011(3)(e) is not overbroad. State v. Farmer, 116 Wash.2d 414, 805 P.2d 200

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Washington v. Andrew Wesley Bertrand
Court of Appeals of Washington, 2025
State Of Washington v. Michael John Paulson
Court of Appeals of Washington, 2020
State Of Washington v. Timothy James Clinkscales
Court of Appeals of Washington, 2019
State Of Washington v. Vernon Wayne Officer, Jr.
Court of Appeals of Washington, 2019
Maytown Sand & Gravel, LLC v. Thurston County
423 P.3d 223 (Washington Supreme Court, 2018)
State Of Washington v. Brannon I. Jones
Court of Appeals of Washington, 2017
State v. Mohamed
375 P.3d 1068 (Washington Supreme Court, 2016)
State v. Ozuna
Washington Supreme Court, 2015
State Of Washington v. Anthony Tyrone Clark
Court of Appeals of Washington, 2015
State v. Lazcano
354 P.3d 233 (Court of Appeals of Washington, 2015)
State Of Washington v. Alix Harris
Court of Appeals of Washington, 2015
State of Washington v. Jesus Torres
Court of Appeals of Washington, 2015
State v. McComas
345 P.3d 36 (Court of Appeals of Washington, 2015)
State Of Washington, V Sean Allen Forsman
Court of Appeals of Washington, 2015
State v. Wilcoxon
341 P.3d 1019 (Court of Appeals of Washington, 2015)
State of Washington v. Adrienna Marie Mosier
Court of Appeals of Washington, 2015
State Of Washington v. Weston Garrett Miller
Court of Appeals of Washington, 2014
State Of Washington v. Keith Alan Ratliff
Court of Appeals of Washington, 2014
State of Washington v. Joseph L. Shouse
Court of Appeals of Washington, 2014

Cite This Page — Counsel Stack

Bluebook (online)
941 P.2d 1102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-myers-wash-1997.