                                                                        FILED
                                                                    OCTOBER 12, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34091-1-111
                      Respondent,             )
                                              )
      v.                                      )
                                              )
SCOTT ROBERT WATSON,                          )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Scott Watson appeals from his conviction for communication with

a minor for immoral purposes, arguing that the trial court erred in denying his pretrial

motion to dismiss, the statute is unconstitutionally vague, and the court erred in admitting

evidence of an additional incident. We affirm.

                                          FACTS

       Mr. Watson and his wife were friends of the parents ofH.R.B. when the two

families lived in California. H.R.B. became close to the Watsons. In 2010, when H.R.B.

was about 12, she and her family moved to Pasco, Washington. The Watsons remained

in California. The child continued to have a close relationship with the California couple.




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No. 34091-1-III
State v. Watson


       When she turned 15, the nature of her relationship with Mr. Watson changed. The

two exchanged text messages about her returning to California and, over time, about

living as an adult with Watson. The couple texted about sexual topics. In response to

requests from H.R.B., Mr. Watson eventually sent two pictures of his erect penis to the

15-year-old via a text message. The child's mother later became concerned about

Watson's relationship with her daughter when, during a visit to Pasco, she observed him

with his hand on H.R.B.'s upper thigh during a pool party. Watson was sent back to

California and the child's phone was turned over to the police.

       A felony charge of communicating with a minor for immoral purposes was filed in

Franklin County Superior Court based on the two pictures. A protection order issued

prohibiting Watson from contacting H.R.B. Watson, however, violated the order several

times. Two days after her 16th birthday, he left items for her to pick up at her Pasco bus

stop. A few weeks later he sent another picture of his penis to H.R.B. The following

week, he met her in Richland and gave her a vibrator as a birthday present. A second

count of communicating with a minor was filed over the latest picture transmission, and

two counts of violating the restraining order were also filed. The latter two counts were

later severed and venue changed to neighboring Benton County.

       Watson moved to dismiss the two Franklin County charges pursuant to State v.

Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). He argued that sending pictures of his

penis did not constitute a crime because it did not amount to a request to engage in sexual

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No. 34091-1-III
State v. Watson


misconduct. The trial court granted the motion as to count II, the charge arising after

H.R.B.'s 16th birthday, but denied the motion on count I. The court reasoned that the

child was under the age of consent at the time of the first charge, but was legally able to

consent to the second picture.

       The case proceeded to trial eleven months later. The two pictures that formed the

basis for the charge in count I were admitted into evidence, as was information about the

delivery of the vibrator. H.R.B. testified that she and Mr. Watson had discussed sexual

actions they intended to perform together and that she had sent naked pictures of herself

to the defendant. Mr. Watson did not testify.

       The jury convicted as charged. Mr. Watson timely appealed to this court. A panel

considered the case without argument.

                                         ANALYSIS

       Mr. Watson presents three challenges in this appeal. In order, we will consider his

arguments concerning the denial of the Knapstad motion, the constitutionality of the

communicating with a minor statute, and whether the court erred in admitting evidence of

the other incidents.

       Knapstad Ruling

       Mr. Watson first challenges the trial court's refusal to dismiss count I after his pre-

trial motion to dismiss both of the communicating charges. Since the matter has gone to

trial, this issue is not reviewable on appeal.

                                                 3
No. 34091-1-III
State v. Watson


       Knapstad created a pretrial process, akin to summary judgment under the civil

rules, authorizing dismissal without prejudice of criminal charges that lacked sufficient

evidence to proceed to the jury. Knapstad, 107 Wn.2d at 356-357. The decision

subsequently was codified in CrR 8.3( c). The denial of a Knapstad ruling is not

appealable as a matter of right. CrR 8.3(c)(3).

       "The purpose of summary judgment is to avoid a useless trial when there is no

genuine issue of any material fact." Olympic Fish Prod., Inc. v. Lloyd, 93 Wn.2d 596,

602, 611 P.2d 737 (1980) (citing Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 598 P.2d

1358 (1979). Thus, if a case proceeds to trial, in most instances the pretrial ruling on the

summary judgment motion is not reviewable. Adcox v. Children's Orthopedic Hosp. &

Med. Ctr., 123 Wn.2d 15, 35 n.9, 864 P.2d 921 (1993). 1 The purpose behind granting

summary judgment is no longer served once trial has occurred.

       The practice is similar in criminal cases. State v. Jackson, 82 Wn. App. 594, 608

n.41, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997). When an appellate

court reviews a sufficiency of the evidence challenge, it does so on the basis of the most

complete factual record in existence. Id. at 608-609. Thus, if a case proceeds to trial

after the denial of a Knapstad motion, the court will consider the evidence presented at


       1
        This approach also follows from the interlocutory nature of a pretrial ruling. A
judge can "reverse or modify a pretrial ruling at any time prior to the entry of final
judgment." Adcox, 123 Wn.2d at 37.


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No. 34091-1-III
State v. Watson


trial. Id. In that circumstance, there is "no right to have us review the sufficiency of the

evidence using pretrial Knapstad affidavits." Id. at 609. Accordingly, the denial of a

Knapstad motion is not an issue that can be raised on appeal following trial. Id.

       Here, Mr. Watson does not independently challenge the sufficiency of the

evidence presented at trial, except to the extent it is related to his following argument.

Thus, we decline to address the trial court's Knapstad ruling. Id. at 608-609.

       Constitutionality of Communicating with a Minor for Immoral Purposes Statute

       The factual circumstances of this case do bear on Mr. Watson's argument that the

statute is unconstitutional as applied to his case. He essentially argues that because he

never asked H.R.B. to engage in an underage sexual act, it is unconstitutional to apply the

statute to him. We believe that the motivation behind his actions was a question for the

jury, leaving this case within the constitutional core of the statute.

       The communication with a minor for immoral purposes statute has long survived

challenges to its constitutionality. The current iteration of the statute is straight-forward

in its language: "A person who communicates with a minor for immoral purposes is

guilty." RCW 9.68A.090(2). Certain prior offenses determine whether the crime is a

felony or a gross misdemeanor. RCW 9.68A.090(1), (2).




                                               5
No. 34091-1-111
State v. Watson


       Mr. Watson's principal argument is that display of his genitalia without more is

not a communication for an immoral purpose given the evidence that he did not intend to

begin a sexual relationship before H.R.B. turned 18. This claim fails under earlier

decisions.

       The seminal modern case involving this statute is State v. Schimmelpfennig, 92

Wn.2d 95, 594 P.2d 442 (1979). 2 There the court concluded that the word

"communicate" was not unconstitutionally vague. Id. at 103. Noting that the word was

one of common usage, the court determined that it "denotes both a course of conduct and

the spoken word." Id. The court also concluded that looking at the context of the statute

in the criminal codes, the statute gave "ample notice" of legislative intent to prohibit

"sexual misconduct." Id. at 102. Asking young children to enter a van and engage in

sexual activities was immoral conduct. Id. at 103.

       Our court returned to the statute in State v. McNallie, 120 Wn.2d 925, 846 P.2d

1358 (1993). There the defendant asked three young girls, ages 10 and 11, about the

availability of "hand jobs" and exposed his penis to them. He was convicted of two

counts of communicating for immoral purposes. Id. at 926-928. The court rejected the

defendant's vagueness argument, determining that "sexual misconduct" was not limjted


       2
        At the time of Schimmelpfennig, the statute prohibited communications to those
under the age of 17. See LAWS OF 1975, ch. 260, § 9A.88.020. The age limit was
removed by Laws of 1984, ch. 262, § 8.


                                             6
No. 34091-1-111
State v. Watson


to activities proscribed in chapter 9.68A RCW. Id. at 933. The goal of the

communicating statute was to prohibit "communication with children for the predatory

purpose of promoting their exposure to and involvement in sexual misconduct." Id. To

that end, a jury instruction that defined "immoral purposes" as "immoral purposes of a

sexual nature" was proper in McNallie's case. Id.

       This court applied McNallie and upheld a conviction for communicating for

immoral purposes in State v. Pietrzak, 100 Wn. App. 291, 997 P .2d 94 7 (2000). There

the defendant, an adult, asked his 16-year-old niece to strip and pose for sexually explicit

pictures. After photographing the young woman, the two engaged in sexual intercourse.

Id. at 293. The trial court found the behavior to be "quid pro quo for housing, food, beer,

and money." Id. The defendant stated that the photography was part of a consensual

sexual relationship between the two. Id. This court confirmed that the statute was not

vague despite the defendant's claim of a consensual sexual relationship, concluding that

"observing and photographing" a 16-year-old constituted "sexual exploitation and

misconduct with persons under the age of 18." Id. at 295-296.

       Accordingly, we conclude that Mr. Watson's action in sending a picture of his

unclothed penis to a 15-year-old girl was sexual misconduct within the meaning of our

communicating statute. Exposing one's self is a crime in many circumstances. RCW

9A.88.0I0. An adult exposing himself to a 15-year-old, even at the child's request, should




                                             7
No. 34091-1-III
State v. Watson


reasonably understand he is engaging in misconduct of a sexual nature, particularly since

the 15-year-old legally was unable to consent to sexual activity. The communication by

photograph was no different than exposing himself in person. The exposure did not have

to be accompanied by evidence of a present intent to engage in other sexual activities.

Schimmelpfennig, 92 Wn.2d at 103. We believing grooming a 15-year-old child for later

sexual contact falls within the reach of the communication statute.

       As applied to the facts of this case, the communicating with a minor statute is not

unconstitutionally vague. The defendant knew that a 15-year-old minor could not engage

in sexual activities with him, but nonetheless exchanged a sexually explicit photograph as

part of an on-going pattern of sexual conversation. A reasonable adult would understand

that this was sexual misconduct. The statute was not vague as applied to this conduct.

       Admission ofAnother Incident

       Finally, Mr. Watson argues that the trial court erred by admitting into evidence

information about the delivery of the vibrator. The trial court properly weighed the

relevance of the evidence against its prejudicial impact. There was no abuse of discretion.

       Evidentiary rulings, including those under ER 404(b ), are reviewed for abuse of

discretion. State v. De Vincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Discretion is

abused if it is exercised on untenable grounds or for untenable reasons. State ex rel.

Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). Evidence of other bad acts is




                                             8
No. 34091-1-111
State v. Watson


permitted to establish specific purposes such as the identity of an actor or the defendant's

intent or purpose in committing a crime. ER 404(b ). Those purposes, in tum, must be of

such significance to the current trial that the evidence is highly probative and relevant to

prove an "essential ingredient" of the current crime. State v. Lough, 125 Wn.2d 847, 863,

889 P.2d 487 (1995).

       When considering ER 404(b) evidence, the proponent of the evidence must first

convince a trial court by a preponderance of the evidence that the "misconduct" actually

occurred. Lough, 125 Wn.2d at 853. A trial court may, but is not required, to conduct a

hearing to take testimony. State v. Kilgore, 147 Wn.2d 288, 294-295, 53 P.3d 974 (2002).

If the court determines that the misconduct occurred, the court then must identify the

purpose for which the evidence is offered, determine whether the evidence is relevant to

prove an element of the offense, and weigh the probative value of the evidence against its

prejudicial effect. Lough, 125 Wn.2d at 853. The court may then admit the evidence

subject to a limiting instruction telling the jury the proper uses of the evidence. Id. at 864.

       At trial, the prosecutor sought to admit testimony about both the pool incident and

the vibrator delivery as evidence of the defendant's intent. In opposition, the defense

argued that the delivery of the device occurred nearly a year after the charged count and

was highly prejudicial. Somewhat inconsistently, the defense also argued that there was




                                              9
No. 34091-1-111
State v. Watson


nothing improper about giving the device to a 16-year-old. 3 The trial court admitted the

evidence, stating:

       With regard to the pool party, I think I will allow it if it's not hearsay. If
       it's not hearsay with regard to the sex toy it's certainly is prejudicial but it
       no more prejudicial than the picture that was sent in though was after she
       turned 16. I think it certainly goes toward the intent so I will allow that.

Report of Proceedings at 16.

       On appeal, Mr. Watson argues, and the State agrees, that the trial court did not

properly balance the ER 404(b) factors on the record concerning the admission of the

vibrator. Although the 404(b) analysis should have included some mention of the

importance of the evidence to the State's case in its discussion of relevance, it is easy to

see the trial court's reasoning primarily as a response to the defense contention that Mr.

Watson did nothing improper in delivering the vibrator. In that context, the trial court

understandably focused on the purpose for which the incident was being admitted-the

defendant's intent-and the extent of any prejudice from admitting the evidence. Those

were the aspects of the rule that the defense was contesting.                                  I
       The court had tenable reasons for admitting the evidence. The defense theory was        I
                                                                                               i
                                                                                               I
that Mr. Watson had shared the photos for the purpose of educating H.R.B. at her request
                                                                                               I
The State's theory was that the communication was for furthering the development of a          I
                                                                                               f
                                                                                               !

       3
        If the delivery did not constitute a "bad act" under ER 404(b), then the only          t
grounds for challenge would have been ER 401 (relevancy) and ER 403 (undue prejudice).         t
                                                                                               !
                                                                                               [
                                                                                               'I

                                              10                                               l
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No. 34091-1-111
State v. Watson


sexual relationship with the child. In that regard, the Schimmelpfennig construction of

the statute was critical. Communication can consist of either words or a "course of

conduct." Schimmelpfennig, 92 Wn.2d at 103. Delivery of a sexual toy to the youth

furthered the theory that the earlier photographs were merely a portion of an on-going

course of conduct designed to take the relationship to a different level. Even after being

charged with a crime for his behavior toward H.R.B., Mr. Watson continued to view the

youth as a future sexual partner. The later incident confirmed his intentions. The trial

court understandably found the behavior relevant under Schimmelpfennig.

       The court very clearly expressed its ruling on the prejudice aspect of the evidence.

It was prejudicial, but much less prejudicial than the two photographs of an erect penis

that formed the basis for the charge. 4 The trial court understandably found that the

incremental prejudice from admission of this incident did not justify excluding the

evidence. Again, this was a very tenable conclusion.

       Although the court did not perform an ideal ER 404(b) balancing on the record, it

put enough reasoning on the record for this court (and the parties) to understand its

reasonmg. The court had tenable grounds for ruling as it did. There was no abuse of

discretion.



       4
        In what might be considered "before and after," one of the photographs also
shows ejaculate.


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No. 34091-1-III
State v. Watson


      The judgment is affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



   ~0.J.~
      Pennell, J.




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