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Washington v. Chester

filed: June 28, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
GARY POWELL CHESTER, APPELLANT.



Superior Court of Pierce County. Superior Court Docket No. 94-1-00209-2. Date Filed In Superior Court: September 27, 1994. Superior Court Judge Signing: Frederick Hayes.

Written By: Bridgewater, J., Concurrence: Morgan, J., Dissenting: Turner, J.

Author: Bridgewater

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 videocamera 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 videocamera beneath her bed. The camera filmed her nude body as she dressed, unaware of the camera. The stepdaughter discovered the videocamera, 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 Wash. 2d 414, 421, 805 P.2d 200, modified, 812 P.2d 858 (1991); State v. Bohannon, 62 Wash. 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, "the 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 Wash. App. 348, 357-58, 869 P.2d 110, review denied, 124 Wash. 2d 1029, 883 P.2d 327 (1994) (quoting State v. Green, 94 Wash. 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(1)(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 "sexually 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 statute 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 "exhibition 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 Wash. 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(1)(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 Wash. 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 ...


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