State v. Stribling

164 Wash. App. 867
CourtCourt of Appeals of Washington
DecidedNovember 9, 2011
DocketNo. 39931-8-II
StatusPublished
Cited by3 cases

This text of 164 Wash. App. 867 (State v. Stribling) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stribling, 164 Wash. App. 867 (Wash. Ct. App. 2011).

Opinions

Johanson, J.

¶1 Benjamin Clinton Stribling appeals his numerous sex offense convictions involving a minor. In the published part of this opinion, we consider Stribling’s argument that insufficient evidence supports his sexual exploitation of a minor conviction (count I). We also address Stribling’s arguments about the felony classification listed on his judgment and sentence for his attempted possession of depictions of a minor engaged in sexually explicit conduct conviction (count II). We agree with Stribling that insufficient evidence supports his conviction on count I and that his judgment and sentence incorrectly lists the felony classification on his count II conviction. We reverse and [870]*870vacate his conviction for sexual exploitation of a minor, and we remand for resentencing.1

FACTS

¶2 On July 6, 2009, the State charged Stribling in an amended information with one count of sexual exploitation of a minor (count I), one count of attempted possession of depictions of a minor engaged in sexually explicit conduct (count II), and seven counts of felony communication with a minor for immoral purposes (counts III through IX). In the amended information, all of the felony communication with a minor for immoral purposes counts (counts III through IX) contained two separate “on or about” dates for when the alleged criminal acts took place. Counts III, VIII, and IX’s two “on or about” dates matched, but the two separately included dates in counts IV through VII did not match.2

¶3 The primary evidence that the State relied on for its allegations was a series of e-mails that Stribling exchanged with K.C., the underage victim. The State specified the exact e-mail evidence that it would rely on to prove Stribling’s guilt for each charged offense in a document titled “Evidence [871]*871Pertaining to Amended Charges” (evidentiary memo).3 For counts IV through VII, the date of the e-mails that the State relied on matched the first “on or about” date in the charging information. For count VIII, the State indicated that it would rely on a March 11, 2008 e-mail, even though both dates in the amended charging information alleged that the criminal act occurred “on or about March 16, 2008.” Clerk’s Papers (Dec. 18, 2009) at 4.

¶4 Stribling waived his right to a jury trial, and a bench trial began on July 27. In the e-mails that the State presented, Stribling asked K.C. multiple times to send him nude photographs of herself. K.C. agreed to send Stribling some pictures, but she repeatedly refused to take or send any . nude photographs. On July 30, the trial court found Stribling guilty on counts I through VIII and entered a not guilty verdict on one of the felony communication with a minor for immoral purposes charges (count IX).

¶5 In September, the State noticed the nonmatching dates in counts IV through VII of the amended information, and the discrepancy between the dates in count VIII of the amended information and the e-mail date referenced in the evidentiary memo. The State requested the trial court to (1) ignore the inaccuracies as proofreading mistakes or (2) conform the amended information to “the proof, which was the first date in every count.” 5 Verbatim Report of Proceedings at 7. In October, before sentencing, the trial court ruled that the amended information was facially valid and that Stribling failed to show that the inaccuracies prejudiced him.

[872]*872. ¶6 At sentencing, the trial court found that Stribling’s convictions for sexual exploitation of a minor (count I) and attempted possession of depictions of a minor engaged in sexually explicit conduct (count II) constituted the same criminal conduct. Stribling’s judgment and sentence listed his count II conviction as a class B felony. Stribling appeals, challenging each of his convictions on various grounds.

ANALYSIS

I. Sufficiency of Evidence

¶7 First, we must determine whether the State presented sufficient evidence to sustain Stribling’s conviction for sexual exploitation of a minor (count I). We review a claim of insufficient evidence for “ ‘whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010) (quoting State v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282 (2003)). An appel lant challenging the sufficiency of evidence “necessarily admits the truth of the State’s evidence and all reasonable inferences that can be drawn from [that evidence].” Drum, 168 Wn.2d at 35. Circumstantial and direct evidence are equally reliable in determining sufficiency of the evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

¶8 A person is guilty of sexually exploiting a minor if the person “[a]ids, 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(l)(b). Stribling argues that this statute requires something more than asking a minor to send a nude photograph. The State counters that asking a minor to send a nude photograph falls squarely under the statute’s plain language of “invitfing]” a minor to engage in sexually explicit conduct. Br. of Resp’t at 15; RCW 9.68A.040(l)(b). We are constrained to agree with Stribing’s argument; we reverse and vacate his conviction for [873]*873sexual exploitation of a minor (count I), and we remand for resentencing.

¶9 The question in this case is a matter of first impression: Did the legislature intend to criminalize an invitation to a minor to take and send nude photographs, even if the minor does not agree to take or send nude photographs and no pictures are actually taken? Our basic duty in interpreting any statute is to ascertain and carry out the legislature’s intent. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). The starting point is the statute’s plain language and ordinary meaning. J.P., 149 Wn.2d at 450. When the plain language is unambiguous, the legislative intent is apparent, and we will not employ principles of construction to construe the statute otherwise. J.P., 149 Wn.2d at 450. We may discern a statute’s plain meaning “ ‘from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.’” J.P., 149 Wn.2d at 450 (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). When the statute is ambiguous, though, we may determine the legislature’s intent by applying recognized principles of statutory construction. J.P., 149 Wn.2d at 450. In construing a statute, we avoid a reading that produces absurd results. J.P., 149 Wn.2d at 450.

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

Related

State of Washington v. Jose Agustin Sanchez
Court of Appeals of Washington, 2024
State of Washington v. Michael Riley Frazier
Court of Appeals of Washington, 2017
State v. Stribling
267 P.3d 403 (Court of Appeals of Washington, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
164 Wash. App. 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stribling-washctapp-2011.