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State v. Gray

Supreme Court of Washington, En Banc

September 14, 2017

ERIC D. GRAY, Petitioner.

          OWENS, J.

         When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of second degree dealing in depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.050. He appealed, claiming the plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves.

         RCW 9.68A.050 prohibits developing or disseminating sexually explicit images of minors. On its face, this prohibition extends to any person who disseminates an image of any minor, even if the minor is disseminating a self- produced image. Because the statute is unambiguous, we take it on its face and find that Gray's actions are included under the statute. We further find that the statute does not infringe Gray's First Amendment rights, nor is it unconstitutionally vague. See U.S. CONST, amend. I. Therefore, we affirm the Court of Appeals.


         In 2013, T.R., a 22-year-old woman, went to the Spokane County Sheriffs Office to report a series of harassing phone calls she had received over the past year. She stated that the caller used a restricted number and would not provide a name, but that she believed the caller was male. She also stated that she believed the caller was Gray.

         T.R. also reported that she had received two text messages the day before. The first contained a photograph of an erect penis and the words "(Eric Gray) picture message sent from Pinger." Clerk's Papers at 59. The second message read, '"Do u like it babe? It's for you [T.R.]. And for Your daughter babe-Sent From TextFree!'" Id. Using the phone number associated with the messages and additional information from the user's Pinger account, the Spokane County Sheriffs Office confirmed the messages came from Gray.

         About two weeks later, the deputy who took T.R.'s report went to Gray's house to question him. Gray was 17 at the time and lived with his parents. He had been diagnosed with Asperger's syndrome and had a prior adjudication requiring him to register as a sex offender. Though initially composed during questioning and believing the sheriff had come to talk with him about his sex offender registration, Gray's demeanor quickly became agitated when he learned the deputy's actual purpose. He admitted that he had been calling T.R. for the past year and had sent the text messages. He stated that T.R. used to work for his mother, that he retrieved T.R's phone number from his mother's business records, and that he was attracted to T.R. He also admitted that it was his erect penis in the photograph.

         The State charged Gray in juvenile court with one count of second degree dealing in depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.050. It also charged him with one count of telephone harassment under RCW 9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the trial court denied.

         In a stipulated facts trial, the court found Gray guilty of the second degree dealing in depictions of a minor charge. The State agreed to dismiss the telephone harassment charge and chose not to charge him with two counts of misdemeanor indecent exposure stemming from an unrelated incident. He was sentenced to 150 hours of community service, 30 days of confinement, and fees, before being released with credit for time served. He was again ordered to register as a sex offender.

         Gray appealed to Division Three of the Court of Appeals, which affirmed his adjudication. State v. E.G., 194 Wn.App. 457, 377 P.3d 272 (2016). It found that "[t]he legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons." Id. at 468. The court also suggested that this case was distinguishable from a "case of innocent sharing of sexual images between teenagers" and so declined to analyze such a situation. Id. Because of this, it found that the statute anticipated Gray's actions and that the statute did not violate either the federal or state constitutions.

         Gray petitioned this court for review, which was granted. State v. Gray, 187 Wn.2d 1001, 386 P.3d 1082 (2017). The American Civil Liberties Union of Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild subsequently filed a joint brief as amici curiae.


         1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself?

         2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions? See U.S. CONST, amends. V, XIV.


         The first issue here is whether the statute on its face applies to Gray. We review questions of statutory interpretation de novo. State v. Bunker, 169 Wn.2d 571, 577-78, 238 P.3d 487 (2010) (citing City of Spokane v. Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006)). Whether the statute permits prosecution of a minor taking and transmitting a sexually explicit image of himself is a question of first impression in this court.


         We must first determine whether a "person" under the dealing in depictions of a minor statute can also be the "minor" depicted in the images. If so, we must then determine whether the statute is overbroad in violation of the First Amendment free speech guaranty or whether the statute is unconstitutionally vague.

         1. Gray's Actions Fall under the Dealing in Depictions of a Minor Statute

         This court's duty is to "give effect to the Legislature's intent." State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992) (citing Wash. Pub. Power Supply Sys. v. Gen. Elec. Co., 113 Wn.2d 288, 292, 778 P.2d 1047 (1989)). The clearest indication of legislative intent is the language enacted by the legislature itself. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)). Therefore, "if the meaning of a statute is plain on its face, we 'give effect to that plain meaning.'" Id. (internal quotation marks omitted) (quoting Jacobs, 154 Wn.2d at 600). However, we will not read a statute in isolation; we determine its plain meaning by taking into account "the context of the entire act" as well as other related statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014) (quoting Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)).

         A. The Plain Language of the Statute Prohibits Transmitting Sexually Explicit Images of a Minor Even If the Minor Himself Sent It

         Here, the statute is unambiguous and we give it its plain meaning. RCW 9.68A.050 prohibits dealing in depictions of a minor engaged in sexually explicit conduct. In relevant part, it states that "[a] person commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the second degree when he or she . . . [k]nowingly develops, ... publishes, ... [or] disseminate[s] ... any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct" RCW 9.68A.050(2)(a). "Sexually explicit conduct" is a depiction "of the genitals or unclothed pubic or rectal areas of any minor ... for the purpose of sexual stimulation of the viewer." RCW 9.68A.01 l(4)(f). A "minor" is "any person under eighteen years of age." RCW 9.68A.011(5). Finally, a "person" is any "natural person, " whether an adult or a minor. RCW 9A.04.110(17), .090. Therefore, when any person, including a juvenile, develops, publishes, or disseminates a visual depiction of any minor engaged in sexual conduct, that person's actions fall under this statute's provisions.

         Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a "natural person" and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase "Do u like it, babe?, " indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor's genitals designed to sexually stimulate the viewer. This falls squarely within the statute's plain meaning.

         Gray argues that he cannot be charged under this statute because the "person" and the "minor" must be two different people. He states that had the legislature intended to include the depicted minor under the definition of "person, " it would have explicitly done so. We disagree.

         As noted above, a "person" is any natural person and a "minor" is merely a person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is nothing to indicate the "minor" cannot also be the "person." Contrary to Gray's arguments, we find that had the legislature intended to exclude the depicted minor from the definition of "person, " it would have done so as it has in other sections in this chapter. See RCW 9.68A.101(3)(a) (specifically excluding minors receiving compensation for sexual conduct from the definition of a "person" guilty of promoting commercial sexual abuse of a minor). Because the legislature has not excluded minors from the definition of "person" here, Gray was properly charged under this statute.

         Both Gray and amici urge that if we determine a minor can be charged under this statute for taking and disseminating sexually explicit pictures of himself, it could have dire consequences for other minors engaging in "sexting." They argue that the legislature never intended to criminalize teenagers consensually exchanging sexually explicit photographs, opining that doing so would be an impermissible infringement of those teenagers' First Amendment freedom of expression.

         Though both parties and amici have briefed the issue, those are not the facts before us. We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other. We also understand the worry caused by a well-meaning law failing to adapt to changing technology. But our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray's actions fall within the statute's plain ...

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