      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                No. 74310-4-1
                    Respondent,
                                                DIVISION ONE
       V.

JAMEEL L. PADILLA,                              UNPUBLISHED OPINION

                    Appellant.                  FILED: April 24, 2017

      SPEARMAN, J. — Jameel Padilla was convicted of two counts of viewing

depictions of a minor engaged in sexually explicit conduct in the first degree and

two counts of the same offense in the second degree. On appeal, he contends

that his convictions must be reversed because the charging document and the to

convict jury instruction omitted an essential implied element of the charged

crimes. Padilla also asserts that the community custody condition imposed by the

trial court prohibiting him from frequenting places where minors congregate is

unconstitutionally vague. We accept the State's concession of error as to the

challenged community custody condition, but conclude that Padilla's remaining

arguments are without merit. We remand to strike the unlawful condition, but

otherwise affirm the judgment and sentence.
No. 74310-4-1/2

                                               FACTS

        In April 2012, a mother and father reported to the Arroya Grande Police

Department that an unknown individual had sent sexually explicit messages to

their nine-year-old daughter on Facebook. The detectives were informed that the

individual used the profile name "Jim Wilcox." While the detectives were

investigating the complaint, they discovered that the Internet Protocol Address for

the computer used to access the Facebook account was associated with Jameel

Padilla of Everett, Washington.

        In September 2012, Everett Police executed a search warrant at Padilla's

home. They seized a laptop computer from the home. A forensic examination of

the computer revealed approximately one hundred sexually explicit photos of

young girls in the unallocated spacel in the computer's memory. It revealed

videos of infants and children engaged in sexually explicit conduct. The

examination also revealed internet search queries that Padilla initiated including:

"child porn Frostwire,"2 "What makes you a pedophile?;" "Eleven year old raped

by 20 men;" "Little girl sucking:" and "How to delete stuff from an unallocated

space." Verbatim Report of Proceedings(VRP)(09/22/15) at 128-29.

Additionally, the examination revealed chat communications where the user was

seeking content of children engaged in sexually explicit conduct.




        1 Data in unallocated space is data that has been deleted but continues to exist until it is
overwritten.
        2   FrostWire is a peer-to-peer file sharing program.


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No. 74310-4-1/3

        Padilla was charged with two counts of viewing depictions of a minor

engaged in sexually explicit conduct in the first degree, and two counts of the

same offense in the second degree.3 The charging document alleged that Padilla

intentionally viewed over the internet pictures of minors engaged in sexually

explicit conduct.4 The jury instructions for these counts mirrored this language.5



        3 Padilla was also charged with one count of communication with a minor for immoral
purposes via electronic communication which was severed from the other charges and tried
separately.
        4 The charging   document alleged as follows:
         That the defendant. . . did intentionally view over the internet, in an internet
      session ... visual or printed matter that depicted a minor engaged in [sexually
      explicit conduct (first degree) or display of unclothed genitals or female breasts
      (second degree)]. ...
Clerk's Papers(CP)at 104-05.
        5 The to convict instruction   for the first viewing count explained that:

            To convict the defendant of the crime of Viewing Depictions of a Minor
        Engaged in Sexually Explicit Conduct in the First Degree as charged in Count
        I, each of the following elements of the crime must be proved beyond a
        reasonable doubt:

           (1) That on or about the 1st day of January 2011 through the12th day of
        September, 2012, in an internet session separate and distinct from that
        alleged in Counts II, Ill, and IV, the defendant intentionally viewed over the
        internet visual or printed matter depicting a minor engaged in sexually explicit
        conduct;

           (2)That the viewing was initiated by the defendant; and

           (3) That the viewing of the visual or printed material occurred in the State
        of Washington.

            If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then it will be your duty to return a verdict of
        guilty.

           On the other hand, if, after weighing all the evidence, you have a
        reasonable doubt as to any one of these elements, then it will be your duty to
        return a verdict of not guilty.

CP at 86. The remaining counts were charged similarly, with different definitions of sexually
explicit conduct given for the first and second degree charges.




                                                    3
No. 74310-4-1/4

The charging document did not specifically allege, nor did the jury instructions

expressly require the State to prove, that Padilla knew he was viewing minors.

Padilla did not object to the information or jury instructions on this, or any other,

basis. The jury convicted him on all four counts.

       The sentencing court imposed several conditions of community custody

including prohibiting Padilla from frequenting areas where minor children are

known to congregate. Padilla appeals.

                                    DISCUSSION

       Padilla makes three assignments of error on appeal. The first two concern

whether we should read into the statute defining the crime of viewing depictions

of a minor engaged in sexually explicit conduct(the viewing statute) an additional

element of knowledge that the person depicted is a minor. Padilla claims that

such knowledge is an essential element of the crime and that the charging

document and the to-convict instructions given in this case were deficient

because of its omission. Padilla's third claim challenges a community custody

condition as unconstitutionally vague. We first decide whether Padilla is correct

that a defendant's knowledge that the person viewed is a minor is an essential

element of the charged crimes.

       Padilla rests his argument in large part on our decision in State v. Rosul,

95 Wn. App. 175, 974 P.2d 916(1999). In Rosul, we considered the statute

criminalizing the possession of child pornography (the possession statute). The

statute provided, in relevant part, that a person is guilty of possessing child

pornography when that person "knowingly possesses visual or printed matter


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No. 74310-4-1/5

depicting a minor engaged in sexually explicit conduct. . . ." Id. at 180; RCW

9.68A.070. We concluded the statute was impermissibly overbroad because, for

example, a person delivering a package containing child pornography could

knowingly possess the package and yet be unaware of its contents. Id. at 182.

Thus, applying the statute as written, a person engaged in "clearly innocent

conduct" could be in violation of it. Id. at 183. Accordingly, we construed the

statute to require "a showing that the defendant was aware not only of

possession, but also of the general nature of the material he or she possessed."

Id. at 185.

       Padilla argues that the possession statute and the viewing statute are

similar and that, as with the possession statute, in order to save the viewing

statute from being impermissibly overbroad, we must imply an element of

knowledge that the person depicted was a minor. But, as we observed in Rosul,

a statute is only impermissibly overbroad if it "will significantly compromise

recognized First Amendment protections of persons not before the court." Id. at

182 (citing Members of City Council of City of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 801, 104 S. Ct. 2118, 80 L. Ed. 2d 772(1984)). To

support his claim that the viewing statute is substantially overbroad, Padilla must

"demonstrate from the text of[the challenged law] and from actual fact that a

substantial number of instances exist in which the Maw cannot be applied

constitutionally." New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1,

14, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988). He fails to carry this burden.




                                         5
No. 74310-4-1/6

       The viewing statute states, in relevant part:

          (1) A person who intentionally views over the internet visual or
       printed matter depicting a minor engaged in sexually explicit conduct
       as defined in RCW 9.68A.011(4)(a) through (e) is guilty of viewing
       depictions of a minor engaged in sexually explicit conduct in the first
       degree. . . .

         (2) A person who intentionally views over the internet visual or
      printed matter depicting a minor engaged in sexually explicit conduct
      as defined in RCW 9.68A.011(4) (f) or (g) is guilty of viewing
      depictions of a minor engaged in sexually explicit conduct in the
      second degree ... .

          (3). . . The state must prove beyond a reasonable doubt that the
       viewing was initiated by the user of the computer where the viewing
       occurred.

RCW 9.68A.075.6 Thus, in order to sustain a conviction, this statute requires the

prosecution to prove that a defendant:(1) intentionally viewed visual or printed

material over the internet;(2)that the material viewed depicted a minor engaged

in sexually explicit conduct; and (3)that the viewing was initiated by the

defendant.




      6 Subsections (1) and (2) refer to   RCW 9.68A.011(4) which reads as follows:
      (4)"Sexually explicit conduct" means actual or simulated:
         (a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or
      oral-anal, whether between persons of the same or opposite sex or between
      humans and animals;
         (b) Penetration of the vagina or rectum by any object;
         (c) Masturbation;
         (d) Sadomasochistic abuse;
         (e) Defecation or urination for the purpose of sexual stimulation of the viewer;
         (f) Depiction of the genitals or unclothed pubic or rectal areas of any minor, or
      the unclothed breast of a female minor, for the purpose of sexual stimulation of the
      viewer. For the purposes of this subsection (4)(f), it is not necessary that the minor
      know that he or she is participating in the described conduct, or any aspect of it;
      and
         (g) Touching of a person's clothed or unclothed genitals, pubic area, buttocks,
      or breast area for the purpose of sexual stimulation of the viewer.




                                                6
No. 74310-4-1/7

Under a plain reading of the statute's language, we cannot see how the statute

impermissibly jeopardizes First Amendment protections. Nor does Padilla explain

how the statute criminalizes innocent conduct when it only reaches individuals

who initiate an Internet session intending to view material that depicts a minor

engaged in explicit sexual conduct and who, then, in fact, view the very material

sought. Unlike the possession statute, the viewing statute presents no identifiable

risk of sweeping within its prohibitions innocent persons engaged in

constitutionally protected activities.

       We conclude that Padilla has not shown that the statute is impermissibly

overbroad and reject his argument that we must imply an additional knowledge

element to the viewing statute. And because his claims that the charging

document and the to convict instructions are deficient hinge on the success of his

overbreadth argument, they also fail. We affirm Padilla's convictions.

       Padilla challenges the community custody condition prohibiting him from

frequenting areas where minor children are known to congregate because it is

unconstitutionally vague. The State concedes, and we agree, that the community

custody condition is void for vagueness and should be stricken. In Irwin, we

found that an identical prohibition was an unconstitutionally vague community

custody condition. State v. Irwin, 191 Wn. App. 644, 652-53, 364 P.3d 830

(2015). We therefore remand to the sentencing court with instructions to strike

the vague condition.

       Padilla also asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2.


                                         7
No. 74310-4-1/8

However, when a trial court makes a finding of indigency, that finding remains

throughout review "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency." RAP 14.2. Here,

Padilla was found indigent by the trial court. If the State has evidence indicating

that Padilla's financial circumstances have significantly improved since the trial

court's finding, it may file a motion for costs with the commissioner.

       Remanded to strike the unlawful condition but otherwise affirmed.



                                                    Y-ezt
WE CONCUR:




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