                                                                                                       COURT OF APPEALS
                                                                                                           DIVISION II

                                                                                                      201511N - 14 AM 8: 314
                                                                                                      STAT; Oi   j   SHINGTOU
    IN THE COURT OF APPEALS OF THE STATE OF WASHING19
                                                   DIVISION II

 STATE OF WASHINGTON,                                                           No. 45248 -1 - II


                                          Respondent,


          v.



 CHRISTOPHER EDWARD EGER,                                                 UNPUBLISHED OPINION


                                          Appellant.




         LEE, J. —       A jury found Christopher Eger guilty of possession of depictions of a minor

engaged in sexually explicit conduct. Eger appeals, arguing that the trial court abused its discretion

by admitting the images found on his hard drive when he offered to stipulate that they depicted a

minor engaged in sexually explicit conduct. Because the State was not required to accept Eger' s

stipulation and the probative value of the admitted images was not substantially outweighed by the

danger of unfair prejudice, the trial court did not abuse its discretion in admitting the images.

Accordingly, we affirm.

                                                        FACTS


         In 2010, while Eger was travelling out of the state for business, Eger' s wife called the

police   to   report   that   she   found " child pornography"   on   their home computer.   3 Verbatim Report


of Proceedings ( VRP) at 281. Police officers responded to Eger' s home, and after finding explicit

images    on   the   computer, police officers obtained warrants and seized       the   computer.   Following   an
No. 45248 -1 - II



investigation, the State charged Eger with possession of depictions of minors engaged in sexually

explicit conduct. 1

           In a pretrial hearing, the trial court ruled that it would allow the State to present 30 of the

approximately 900 images found            on   Eger'   s computer.   Eger moved to exclude the images that


     allegedly depict children" engaged in sexually explicit conduct, arguing that the evidence would

be highly prejudicial. Clerk' s Papers ( CP) at 147. In lieu of admitting the images, Eger offered to

stipulate that the images meet the statutory criteria. The State argued that it was not required to

stipulate and that it had a right to present the crime that Eger allegedly committed. The trial court

ruled that the State has a " right to put on the evidence to support the elements of the crime that


they' re alleging   took    place."   2 VRP at 234.


           At trial, the State   proffered   12 images. The trial    court admitted      10 images.     A jury found

Eger guilty     of possession of      depictions   of minors engaged        in sexually       explicit conduct.   Eger


appeals.




                                                    ANALYSIS


A.         STIPULATION


           Eger claims that the trial court erred by admitting explicit images of minors, arguing that

the trial court abused its discretion by admitting unfairly prejudicial images instead of accepting

his proposed stipulation regarding the images. We disagree.

           Eger argues that his offered stipulation would have fulfilled the State' s duty to prove the

element without prejudicing the State' s case, and that the State' s refusal to accept his stipulation

evidences     the State'   s purpose " was   to unfairly turn.the   jury   against   Eger."    Br. of Appellant at 9.




 1
     RCW 9. 68A. 070.
No. 45248 -1 - II



           Washington courts have long established that " the State is not automatically precluded

from presenting its           evidence on an           issue merely because the defendant            offers a stipulation," which



requires    that   both      parties agree.       State   v.   Rice, 110 Wn.2d 577, 598 -99, 757 P. 2d 889 ( 1988),                cert.




denied, 491 U.S. 910 ( 1989).                   Importantly, subject to ER 403 and other rules of evidence, the State

 is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal

defendant may not stipulate or admit his way out of the full evidentiary force of the case as the

 State]   chooses       to   present     it."    Old Chief v. United States, 519 U. S. 172, 186 -87, 117 S. Ct. 644,
                                    2;
136 L. Ed. 2d 574 ( 1997)                State    v.   Finch, 137 Wn.2d 792, 811, 975 P. 2d 967 ( 1999). The " reason


for the    rule    is to     permit a    party ` to      present   to the     jury   a picture of    the   events   relied upon.    To


substitute for such a picture a naked admission might have the effect to rob the evidence of much


of   its fair   and   legitimate    weight. '          Old Chief 519 U.S. at 187 ( quoting Parr v. United States, 255
                                                                                     3
F.2d 86, 88 ( 5th Cir.),          cert   denied, 358 U.S. 824 ( 1958)).




2 The Old Chiefcourt noted the following regarding stipulations:

           A syllogism is not a story, and a naked proposition in a courtroom may be no match
           for the     robust evidence            that   would    be   used   to   prove   it.   People who hear a story
          interrupted by gaps of abstraction may be puzzled at the missing chapters, and
          jurors asked to rest a momentous decision on the story's truth can feel put upon at
          being asked to take responsibility knowing that more could be said than they have
           heard. A convincing tale can be told with economy, but when economy becomes a
           break in the natural sequence of narrative evidence, an assurance that the missing
           link is really there is never more than second best.

519 U. S. 172 at 189.


3 In Old Chief the court ultimately excluded the disputed evidence; however, the court excluded
on    propensity       grounds,     noting that the             evidence      at   issue   was "   dependent on some judgment
rendered wholly independently of the concrete events of later criminal behavior charged against
him." 519 U.S. at 190.




                                                                        3
No. 45248 -1 - II



         Here, the State was not required to stipulate to the nature of the images. Eger argues that

his   stipulation offered   the State an     alternative method of   proving the   nature of   the images.       And


while it is true that his stipulation would have satisfied the State' s burden on that element, Eger

has not offered authority to support his claim that the State was required to stipulate that the images

depicted minors engaged in sexually explicit conduct. Therefore, in the absence of a stipulation

agreed to by the parties, the trial court did not abuse its discretion in admitting the images.

B.        EVIDENCE RULE ( ER) 403


          Eger argues that the admitted images were highly prejudicial, and therefore, the trial court

abused    its discretion   by   admitting the "   inflammatory images."    Br.   of   Appellant   at   15.   The trial


court did not abuse its discretion in admitting the images.

          The trial court has broad discretion to admit evidence, and we review its decisions for an

abuse of discretion.   State     v.   Lord, 161 Wn.2d 276, 294, 165 P. 3d 1251 ( 2007). A trial court abuses


its discretion when its decision is based on untenable grounds or untenable reasons. Id. at 283 -84.


 An erroneous ruling with respect to such questions requires reversal only if there is a reasonable

possibility that the testimony would have changed the outcome of trial. "4 State v. Aguirre, 168
Wn.2d 350, 361, 229 P. 3d 669 ( 2010).


          In determining whether the trial court abused its discretion in admitting the images, we first

review the relevancy of the images under ER 401., and then potential unfair prejudice under ER




4 The record does not reflect that the trial court balanced the probative and prejudicial value of the
images under ER 403. But Eger has cited no authority for the proposition that a trial court is
required to do an ER 403 balancing on the record under these circumstances. State v. Gould, 58
Wn. App. 175, 184, 791 P. 2d 569 ( 1990).


                                                          4
No. 45248 -1 - II



403. See State        v.   Pirtle, 127 Wn.2d 628, 651, 904 P. 2d 245 ( 1995); see also Finch, 137 Wn.2d at


811.


         Evidence is         relevant       if it has "      any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without    the    evidence."           ER 401; Pirtle, 127 Wn. 2d                         at    652.    Relevant evidence is generally

admissible.      ER 402. The decision to admit evidence " where the defendant offers to stipulate is


within   the   discretion        of   the trial   court."       Pirtle, 127 Wn.2d at 653.


         To convict Eger of possession of depictions of a minor engaged in sexually explicit

conduct,    the State        was       required         to   prove       beyond       a   reasonable      doubt that Eger "     knowingly

possessed visual or printed matter depicting a minor engaged in sexually explicit conduct" and that

Eger knew the         person      depicted      was a minor.             CP   at   226 ( Jury Instruction 16); see Rice, 110 Wn.2d


at   600. The    jury      was    instructed that "[ i] f a person has information that would lead a reasonable


person   in the    same situation          to     believe that       a   fact     exists,"     the jury may find that Eger " acted with

knowledge        of   that fact."         CP      at    222 (   Jury     Instruction 12).              The State offered the images to


demonstrate that the images it charged Eger with possessing depicted a minor engaged in sexually

explicit conduct.          Thus, the images, which showed minors engaged in sexually explicit conduct,

tended to prove an           element of           the    crime charged.              The     evidence was relevant.        See Pirtle, 127


Wn.2d at 652; see also Finch, 137 Wn.2d at 811.

          However,          relevant      evidence "          may be excluded if its probative value is substantially

outweighed       by the danger           of unfair prejudice."             ER 403; Rice, 110 Wn.2d at 600. Eger argues that


the images were unpleasant and, therefore, prejudicial, and that the trial court should have required


the State to     accept     his   stipulation      to the    content of the          images. Eger        argues   that "[ g] raphic evidence




                                                                              5
No. 45248 -1 - II



of children     depicted    of    engaging in sexually      explicit conduct can cause      disgust in   a   jury."   Br. of


Appellant      at   10.   But "   evidence    is   not prejudicial   merely because it is   gruesome,"        and "[ e] ven




repulsive photographs are admissible if their probative value outweighs their prejudicial effect."


Rice, 110 Wn.2d at 601; State v. Sargent, 40 Wn. App. 340, 347, 698 P. 2d 598 ( 1985).

        Here, the evidence was highly probative as to whether the images Eger allegedly possessed

depicted   a    minor     engaged        in sexually   explicit   conduct.   Eger has not demonstrated how the


probative value of the images, which tended to prove an element of the crime charged, was


substantially       outweighed      by   unfair prejudice.    See Rice, 110 Wn.2d     at   600. Thus, the trial court


did not abuse its discretion by admitting the images. We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We   concur:
