Appeal from Superior Court of Grays Harbor County. Docket No: 94-1-00334-1. Date filed: 03/13/95. Judge signing: Hon. David E. Foscue.
Authored by J. Dean Morgan. Concurring: Elaine M. Houghton. Dissenting: John E. Turner
The opinion of the court was delivered by: Morgan
MORGAN, J. -- In 1994, Roy A. Grannis was living at his mother's house. In June, his sister, Toni Cobain, borrowed a videotape from his bedroom. When Cobain viewed the tape, she discovered it contained two scenes relevant here, each apparently filmed with a home video camera.
The first scene involves minor girls playing in a park. The camera focuses on their clothed genitalia and buttocks, and on one girl's breast area as she bends over. As far as the record shows, no adult initiated, contributed to, or otherwise influenced the girls' conduct.
The second scene shows a minor girl taking a bath. It is taken from a vantage point located outside the bathroom, through "what appears to be a crack in the wall." *fn1 At one point, the girl looks around and the camera moves away. The camera then returns to focus on the girl, showing her unclothed breasts and pubic area. As far as the record shows, no adult initiated, contributed to, or otherwise influenced the girl's conduct while bathing.
Several months after borrowing the tape, Cobain turned it over to the Aberdeen Police Department. The next day, officers of that department presented the tape and an accompanying affidavit to a magistrate. The affidavit incorporated the tape and stated that Grannis' mother owned a home video camera that Grannis knew how to operate. The magistrate issued a search warrant for Grannis' mother's house, and officers executing the warrant found two more videotapes that have relevance here.
The State charged Grannis with two counts (Counts I and III) of possessing visual or printed matter depicting a minor engaged in sexually explicit conduct in violation of RCW 9.68A.070. In addition, it charged Grannis with one count (Count II) of sexual exploitation of a minor in violation of RCW 9.68A.040. Count I was based on the videotape that Cobain had borrowed and then taken to the police. Counts II and III were each based on one of the two videotapes found during the search of the house.
The case went to trial, and the jury convicted on all three counts.
Two issues are dispositive on appeal. They are (1) whether the tape borrowed by Cobain constitutes sufficient evidence to support the conviction on Count I, and (2) whether the tape borrowed by Cobain gave the magistrate probable cause to believe that evidence of a crime would be found in Grannis' mother's house.
RCW 9.68A.070 provides the basis for Count I. It states:
A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.
As can be seen, RCW 9.68A.070 provides that one of the dividing lines between a picture that is criminal to possess, and a picture that is not criminal to possess, is whether the picture "depicts a minor engaged in sexually explicit conduct." Unless a ...