Appeal from Pierce County Superior Court. Docket No: 11-1-03893-1. Date filed: 06/15/2012. Judge signing: Honorable Ronald E Culpepper.
Eric J. Nielsen (of Nielsen Broman & Koch PLLC ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Melody M. Crick, Deputy, for respondent.
AUTHOR: Lisa Worswick, J. We concur: J. Robin Hunt, P.J., Rich A. Melnick, J.
[181 Wn.App. 718] ¶ 1 Steven Powell appeals his convictions for 12 counts of voyeurism, arguing that the trial court erred by denying his CrR 3.6 motion to suppress evidence seized pursuant to an invalid search warrant. The State cross appeals the trial court's Knapstad  dismissal of the charge of second degree possession of depictions of a minor engaged in sexually explicit conduct.
¶ 2 Powell argues that the trial court erred by failing to make written findings of fact and conclusions of law as required by CrR 3.6, and ruling that the affidavit supporting the search warrant established probable cause to issue the warrant. In its cross appeal, the State argues that the legislature's 2010 amendment  to former RCW 9.68A.011(3) (2002) expanded the definition of sexually explicit conduct to include the conduct depicted within the images that Powell possessed.
[181 Wn.App. 719] ¶ 3 Because the trial court was not required to enter written findings and conclusions in this case and the supporting affidavit established probable cause to issue the search warrant, we affirm the trial court's denial of Powell's CrR 3.6 motion. But because the legislature's 2010 amendment to the definition of sexually explicit conduct expanded the definition to include the conduct depicted within the images in Powell's possession, we reverse the trial court's Knapstad dismissal of the charge of second degree possession of depictions of a minor engaged in sexually explicit conduct and remand for further proceedings.
A. The Affidavit
¶ 4 Joshua Powell was married to Susan Powell, who disappeared under suspicious circumstances. The State investigated Susan's disappearance as a kidnapping and murder; Joshua was a person of interest in her disappearance. During the investigation, Joshua and his father, Steven Powell, stated that they had over 2,000 pages of Susan's journal entries.
¶ 5 The State requested a search warrant to search Powell's house and to seize physical and digital copies of Susan's journal entries (collectively Susan's journals). The request stated:
That, on or about the 6th day of December, 2009 in West Valley, Utah, felonies, to-wit: Murder in the First Degree, a violation of R.C.W. 9A.32.030, Kidnapping, a violation of R.C.W. 9A[.]40.020, and Obstructing a Public Servant, a violation of R.C.W. 9A.76.020, were committed by the act, procurement or omission of another, that the following evidence, to-wit:
1. Journals belonging to Susan Powell.
[181 Wn.App. 720] 2. Digital media to include but not limited to laptop computers, traditional tower desk top computers, any type of device that could store digital media such as electronic and or digital copies of Susan Powell's journals.
[I]s material to the investigation or prosecution of the above described felony.
Clerk's Papers (CP) at 52-53. The affidavit supporting the search warrant provided the following facts:
Your Affiant was told by Detective Maxwell, that assisting detectives recovered a journal belonging to Susan Powell from her place of employment ... . Detective Maxwell reviewed this journal and advised your Affiant of the following information. ... Susan articulates when she was 19 years of age she was engaged to Joshua Powell. This journal also contains writings from Susan Powell describing marital discord between her and Joshua Powell from 2005 through and to her last entry on October 26, 2009.
Detective Maxwell described to your Affiant that ... Joshua Powell and Steven Powell appeared on the NBC Today Show. The following facts were broadcasted on national television. Joshua and Steven Powell admitted to possessing 2000 pages of journal entries belonging to Susan Powell.
Steven Powell has announced to the media the importance of these journals to the investigation because Susan Powell describes her relationships with males prior to Joshua Powell; her sexual[ ] fantasies, and it shows how unstable Susan Powell really is. Steven Powell also announced that he and Joshua Powell plan on sharing/releasing more journal entries in the coming weeks using the susanpowell.org website. ... The statement that they plan on releasing more journal entries leads your Affiant to believe that they have, and are in the act of, or will be scanning and digitally storing additional copies of Susan Powell's journals on their computers and or digital media devices.
CP at 58-60.
[181 Wn.App. 721] B. Search of Powell's House, Seizure of the Computer Disk, and CrR 3.6 Motion
¶ 6 The warrant to search Powell's house and seize Susan's journals was issued and the police searched Powell's house. During the search, the police seized a computer disk from Powell's bedroom and later searched its contents. The disk contained photographic images of female minors bathing and using the bathroom. Some of these images zoomed in on the minors' genitalia and breasts, covered and uncovered. ...