      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 No. 71432-5-1


                     Respondent,                     DIVISION ONE

                                                                                           o
                                                                                  C3   coo


MARK LESTER BESOLA and                               UNPUBLISHED
                                                                                       O-p,
JEFFREY EDWIN SWENSON,                                                                 ~n ' -r
                                                     FILED: May 19, 2014         vo
                    Appellants.                                                  23»   wmL

                                                                                 CO

                                                                                       O   —
                                                                                 cr>

       Cox, J. — Mark Besola and Jeffrey Swenson appeal their judgments and

sentences for possession of and dealing in depictions of a minor engaged in

sexually explicit conduct. The trial court properly denied their motions to

suppress evidence seized during the investigation of the crimes of conviction.

The challenged jury instructions were properly given by the trial court. There is

no showing that the trial court made any comment on the evidence. There was

sufficient evidence to support the convictions. There was no abuse of discretion

by the trial court in the evidentiary decisions challenged on appeal. The crimes

of conviction do not involve the same criminal conduct. But the community

custody conditions do not fully conform to the law. We affirm the convictions, but

remand for resentencing only on the community custody conditions.
No. 71432-5-1/2


       In 2009, law enforcement officers were investigating an informant named

Kellie Westfall for criminal activity. She agreed to talk to them about Mark Besola

and Jeffrey Swenson. Westfall told officers that Besola and Swenson had been

in a relationship and lived together in Besola's house for a number of years.

       She said that Besola was a veterinarian who would give Swenson

controlled substances, and she observed a variety of these substances

throughout the house. Westfall also told the officers that she saw child

pornography throughout the house.

       Based on Westfall's statements, law enforcement officers sought a

warrant to seize both controlled substances and child pornography. The judge

who issued the original warrant determined that probable cause existed only for

the controlled substances.

      During the execution of the warrant for controlled substances, officers

observed CDs and DVDs with handwritten titles such as "Czech Boy Swap,"

"Beginner," and "Young Gay Euro." They did not seize these items but instead

sought an addendum to the warrant. A different judge authorized the

amendment of the warrant to authorize seizure of this additional evidence.

      The warrant amendment identified the crime of investigation for the

additional evidence as "Possession of Child Pornography R.C.W. 9.68A.070."

Moreover, it authorized the seizure of five broad categories of evidence, including

"[a]ny and all videotapes, CDs, DVDs," and "any and all computer hard drives or

laptop computers and any memory storage devices," as well as other evidence.
No. 71432-5-1/3


       Officers executed the warrant amendment and seized a large number of

homemade CDs, DVDs, VHS tapes, computers, and other evidence.

       The State charged both Besola and Swenson with possession of

depictions of minors engaged in sexually explicit conduct and with dealing in

these types of depictions.1 They were tried together as co-defendants.

       The jury convicted them as charged. The court sentenced them both to

terms of confinement and also imposed a number of community custody

conditions.

       These appeals followed.

                            MOTIONS TO SUPPRESS

       Besola and Swenson challenge the validity of the search warrant, as

amended. They claim that the trial court erred when it denied their motions to

suppress.

      They first argue that the search warrant amendment was not sufficiently

particular. They next argue that Westfall, the informant who provided the

information on which the original search warrant was based, was not credible

and could not provide the basis for probable cause required to issue the warrant.

Finally, they argue that the officers who obtained the warrant intentionally or

recklessly omitted material facts from the supporting affidavit.

      We address, in turn, each of these challenges.




        See RCW 9.68A.050; RCW 9.68A.070.
No. 71432-5-1/4


                              Particularity Requirement

       Besola and Swenson argue that the warrant amendment is not sufficiently

particular. They contend that the warrant amendment did not describe the items

to be seized with particularity given First Amendment protections. They also

argue that the warrant amendment did not indicate the specific crime being

investigated.

       The Fourth Amendment mandates that a search warrant describe with

particularity the things to be seized.2 The purpose of this particularity

requirement is "to limit the executing officer's discretion" and "to inform the

person subject to the search what items the officer may seize."3 The degree of

specificity required necessarily varies "according to the circumstances and the

type of items involved."4

       We review de novo whether a search warrant contains a sufficiently

particularized description to satisfy the Fourth Amendment, but we construe the

language "in a commonsense, practical manner, rather than in a hypertechnical

sense."5




       2 State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992) (citing U.S.
Const, amend. 4).

       3 State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).

       4 State v. Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239 (1997).

       5 Perrone, 119 Wn.2d at 549.
No. 71432-5-1/5


       In State v. Perrone. the supreme court considered the First Amendment's

effect on the particularity requirement.6 It explained, "Where a search warrant

authorizing a search for materials protected by the First Amendment is

concerned, the degree of particularity demanded is greater than in the case

where the materials sought are not protected by the First Amendment."7 In other

words, "such warrants must follow the Fourth Amendment's particularity

requirement with 'scrupulous exactitude.'"8

       Here, there does not appear to be any disagreement among the parties

before us that a heightened standard of particularity applies to those items listed

in the warrant that are protected by the First Amendment. The search warrant

amendment stated in relevant part:

       Possession of Child Pornography R.C.W. 9.68A.070

             That these felonies were committed by the act, procurement
      or omission of another and that the following evidence is material to
      the investigation or prosecution of the above described felony, to-
      wit:


             1. Any and all video tapes, CDs, DVDs, or any other visual
             and or audio recordings;

             2. Any and all printed pornographic materials;       [9]




      6 119 Wn.2d 538, 547-48, 834 P.2d 611 (1992).

      7 ]d at 547.

      8 State v. Reep. 161 Wn.2d 808, 815, 167 P.3d 1156 (2007) (internal
quotation marks omitted) (quoting Perrone, 119 Wn.2d at 550).

        Ex. 3 (some emphasis added).
No. 71432-5-1/6


The items that the court authorized to be seized in this case—"video tapes,

CDs, DVDs'—are sufficiently similar to "[bjooks, films, and the like," that are

"presumptively protected by the First Amendment where their content is the

basis for seizure."10 And these prosecutions were based, in large part, on

seizure of these items.


       Thus, the issue is whether the description—"Possession of Child

Pornography R.C.W. 9.68A.070—satisfies the heightened standard of

particularity required for seized evidence that is presumptively protected by the

First Amendment.


       In Perrone, the supreme court concluded that the search warrant before it

was not sufficiently particular partly because it did not specifically reference the

crime under investigation.11 There, the warrant at issue authorized the seizure of

a number of items.12 After striking portions of the warrant that were not

supported by probable cause, it authorized seizure of "[cjhild .. . pornography;

photographs, movies, slides, video tapes, magazines ... of children ... engaged

in sexual activities . . . ."13 The court concluded that the term "child pornography"

was an insufficient reference to the crime being investigated.14 It gave three

reasons for this conclusion.




       10 Perrone, 119 Wn.2d at 550.

       11 Id, at 555.

       12 id, at 543.

       13 id at 552.

       14 Id. at 552-55.
No. 71432-5-1/7


       First, the court stated that "child pornography" is an "'omnibus legal

description' and is not defined in the statutes."15 It stated that this term gives law

enforcement too much discretion in deciding what to seize and is not "scrupulous
exactitude."16

       Second, the court explained that a more particular description than "child

pornography" was available at the time the warrant was issued.17 For example,

the language in former RCW 9.68A.011 (1989), which defines "sexually explicit

conduct" for the statutory chapter involving sexual exploitation of children, could

have been used.18

       Third, the court stated that reference to illegal activity in the form of "child

pornography" could not "save" the warrant.19 The court explained that "so much

of the rest of the warrant suffered] from lack of probable cause and from


       15 \± at 553-55.

       16 id

       17 id at 553-54.

       18 id (citing former RCW 9.68A.011 (1989)); see also RCW 9.68A.011 (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.").

       19
            Id. at 555.
No. 71432-5-1/8


insufficient particularity."20 "It is simply too much to believe that a term overly

general in itself can provide substantive guidance for the exercise of discretion in

executing a warrant otherwise riddled with invalidities."21

       Here, under Perrone. the "Child Pornography" description in the

amended warrant is patently insufficient to satisfy the particularity requirement of

the constitution. Moreover, the terms of the statute—possession of depictions of

a minor engaged in sexually explicit conduct—were available for use at the time

of the issuance of the warrant, as the Perrone court suggested.22 But the more

specific terms of the statute were not used in this warrant. For both reasons, this

portion of the description fails the particularity requirement that Perrone requires.

       Attempting to distinguish this case from Perrone, the State asserts that

this warrant contains the statutory citation to "R.C.W. 9.68A.070," whereas the

warrant in Perrone did not cite the relevant statute. The State further argues that

this citation fulfills the particularity requirement that the constitution imposes for

evidence presumptively subject to First Amendment protection.

       The year after Perrone. the supreme court, in State v. Riley, clarified that

when the items to be seized cannot be precisely described at the time the

warrant is issued, "generic classifications such as lists are acceptable."23 But




       20 id

       21 Id.

       22 \± at 553-54.

       23 121 Wn.2d 22, 28, 846 P.2d 1365 (1993).

                                               8
No. 71432-5-1/9


"[i]n such cases, the search must be circumscribed by reference to the crime

under investigation; otherwise, the warrant will fail for lack of particularity."24

          Importantly, Riley did not involve evidence entitled to First Amendment

protection.25 And that case contains little guidance for this case beyond the

general statement in the previous paragraph.

          The State also relies heavily on State v. Ollivier to support its position.26

In that case, this court cited Riley when it concluded that a warrant was

sufficiently particular in a search for evidence of violation of RCW 9.68A.070.27

This court reasoned in just a few sentences that the warrant there included a

"citation to the statute which Ollivier was accused of violating."28 There was no

further explanation of what the warrant actually stated.

          Here, the State asserts that the citation to "R.C.W. 9.68A.070' in this

search warrant made it sufficiently particular, notwithstanding the patently

deficient description, "Child Pornography," that precedes this citation.

          In our view, neither Riley nor Ollivier provides a clear answer to the

question in this case. That is because neither case involved a warrant that


      24 Id.; see also State v. Askham. 120 Wn. App. 872, 878, 86 P.3d 1224
(2004) ("The required degree of particularity may be achieved by specifying the
suspected crime.").

          25 Riley, 121 Wn.2dat26.

      26 Brief of Respondent at 37-46 (citing State v. Ollivier. 161 Wn. App. 307,
318-19, 254 P.3d 883 (2011)); see also Report of Proceedings (Feb. 2, 2012) at
27, 38.

      27 Ollivier. 161 Wn. App. at 318-19 (citing Riley. 121 Wn.2d at 28).

      28 Id.
No. 71432-5-1/10


authorized seizure of items presumptively protected by the First Amendment.

Riley involved the seizure of "notes, records, lists, ledgers, information stored on

hard or floppy discs, personal computers, modems, monitors, speed dialers,

touchtone telephones, electronic calculator, electronic notebooks or any

electronic recording device."29 Ollivier involved the seizure of "a red lock box,

computers, and the peripheral hardware associated with computers."30 Thus,

none of this evidence in either case implicates the particularity requirement that

is to be followed with "'scrupulous exactitude'" under Perrone.31

       Unlike Riley and Ollivier, as previously discussed, some of the items listed

in the amended warrant are presumptively subject to First Amendment protection

because they were seized on the basis of their content.

       Moreover, neither Riley nor Ollivier clearly answers the question whether

the statutory citation, by itself, is a sufficient "reference to the crime under

investigation" that circumscribes the generic classifications of items to be seized

in this warrant amendment.32 In Riley, the warrant did not state any crime.33 In

Ollivier, the court stated that there was a citation to the statute in the warrant.34

But the court did not address if the citation met the particularity requirement for


       29 Riley, 121 Wn.2dat26.

       30 Ollivier. 161 Wn. App. at 318.

       31 Reep. 161 Wn.2d at 815 (quoting Perrone. 119 Wn.2d at 548).

       32 Riley. 121 Wn.2d at 28; Ollivier. 161 Wn. App. at 318-19.

       33 Riley. 121 Wn.2dat26.

       34 See Ollivier. 161 Wn. App. at 318-19.

                                              10
No. 71432-5-1/11



seizure of evidence presumptively subject to the protections of the First

Amendment.


       The parties before us have not provided any relevant briefing on this

particularity requirement beyond the cases we already discussed in this opinion.

But we note that a number of federal circuit courts have held that reference to a

"broad" statute does not fulfill the particularity requirement but reference to a

"narrow" statute may be sufficient.

       For example, in United States v. Learv. the Tenth Circuit explained that

"reference to a broad federal statute is not a sufficient limitation on a search

warrant."35 A "broad federal statute" is one that is "general" in nature,36 has

"exceptional scope,"37 or covers "a broad range of activity."38 The Tenth Circuit

further noted that "some federal statutes may be narrow enough to meet the

fourth amendment's requirement."39

       Here, it appears that RCW 9.68A.070 is sufficiently narrow to fall within

the limits discussed in the previous paragraph to meet the constitutional

requirement of particularity. This statute is specific in describing the way that a




       35 846 F.2d 592, 601 (10th Cir. 1988).

       36 See United States v. Cardwell. 680 F.2d 75, 77 (9th Cir. 1982).

       37 See United States v. Spilotro, 800 F.2d 959, 965 (9th Cir. 1986).

       38 Learv. 846 F.2d at 601.

       39 id

                                             11
No. 71432-5-1/12


person may commit this offense: "knowingly possesses a visual or printed matter

depicting a minor engaged in sexually explicit conduct."40

       United States v. Burke is the best guidance that we have discovered in our

research to assist us in resolving the particularity issue in this case.41 That was a

prosecution for possession of child pornography under a federal statute.42 There,

the search warrant authorized the seizure of computers, firearms, photos,

magazines, and videos or compact discs.43

       Burke argued that the warrant issued to allow the search of his home did

not properly limit the search, violating the Fourth Amendment.44 The Tenth

Circuit concluded that the statutory reference was narrow enough to satisfy the

particularity requirement.45 The court explained, "[T]he charge listed on the

warrant is the sexual exploitation of a child followed by a statutory reference, a

charge 'narrow enough to meet the fourth amendment's requirement' by bringing

to [the] officers' attention the purpose of the search."46

       The court also indicated that whether the warrant was constitutional was a


close question. It stated:


       40 RCW 9.68A.070.

       41 633 F.3d 984, cert, denied. 131 S. Ct. 2130, 179 L. Ed. 2d 919 (2011).

       42 id at 987.

       43 id at 992.

       44 id at 991.

       45 id at 992.

       46 id

                                              12
No. 71432-5-1/13


              We emphasize that while we find the warrant in this case
       meets constitutional muster, the government can do better. We are
       confident an increase in particularity and detail will help avoid
       appeals like this one. Despite our conclusion on the facts of this
       case, we encourage law enforcement officers in the future to help
       the issuing court produce a warrant that obviates the flaws
       identified in this case.[47]

       We conclude that the statutory reference to the crime, "R.C.W.

9.68A.070" in this warrant was sufficiently narrow and particular to meet

constitutional muster. Riley makes clear that the search authorized by the

warrant must be circumscribed by reference to the crime under investigation. But

it does not specify how specific that reference must be when the First

Amendment presumptively applies. Burke establishes that a statutory citation

may be sufficient if the crime under investigation is sufficiently narrow. Based on

these cases, we cannot say that this warrant fails to meet these tests.

       We note, as the Burke court did, that the government can do better when

seeking warrants that implicate First and Fourth Amendment protections. As

Perrone makes clear, "Child Pornography is patently insufficient to meet the

"scrupulous exactitude" that the constitution requires where evidence is

presumptively subject to First Amendment protection.48 Moreover, a warrant may

not meet the particularity requirement if it does not contain a citation to a

sufficiently narrow statute to reference the crime under investigation. Thus, like




       47 \± at 993 n.4.

       48 Perrone. 119 Wn.2d at 552-53.


                                             13
No. 71432-5-1/14


Burke, "we encourage law enforcement officers in the future to help the issuing
court produce a warrant that obviates the flaws identified in this case."49

          The State makes two additional arguments. It argues that "items of

apparent evidentiary value may also be seized even though they are not

contraband."50 The State also asserts that even if portions of the warrant are

insufficiently particular, the severability doctrine should be applied to save valid

parts of the warrant.51 Given the previous analysis, we need not reach these

arguments.

                                Informant's Credibility

          Besola and Swenson next argue that the trial court erred when it

concluded that Westfall was a credible citizen informant and that there was

probable cause to issue a search warrant based on her statements. We

disagree.

      A search warrant may only be issued upon a determination of probable

cause.52 Probable cause is established where there are "facts and

circumstances sufficient to establish a reasonable inference that the defendant is




      49 Burke, 633 F.3d at 993 n.4.

      50 Brief of Respondent at 46-49 (citing United States v. Banks. 556 F.3d
967, 973 (9th Cir. 2009); United States v. Richards. 659 F.3d 527, 539 (6th Cir.
2011)).

      51 id at 49-50.

      52 State v. Fry, 168 Wn.2d 1,5-6, 228 P.3d 1 (2010) (citing U.S. Const.
amend. 4; Wash. Const, art. I, § 7).


                                             14
No. 71432-5-1/15


involved in criminal activity and that evidence of the criminal activity can be found

at the place to be searched."53

       On appellate review, this court considers the same evidence presented to

the judicial officer who issued the warrant.54 This court reviews de novo the

issuing judicial officer's conclusion of law that probable cause is established.55

       We reject the State's argument that we review for abuse of discretion the

issuing judicial officer's legal conclusion that probable cause has been

established. Although "[pjriorcase law on the standard of appellate review of

such probable cause determination is admittedly muddled," the more recent

cases have held that de novo review is the applicable standard.56

       "When a search warrant is based on an informant's tip, the constitutional

criteria for determining probable cause is measured by the two-pronged Aquilar-

Spinelli test."57 The two prongs consist of the "'veracity' or the credibility of the

informant, and the informant's 'basis of knowledge.'"58 Here, Besola and

Swenson only challenge Westfall's credibility.



       53 State v. Maddox. 152 Wn.2d 499, 505, 98 P.3d 1199 (2004).

       54 State v. Chamberlin. 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007).

       55 id; Ollivier. 178 Wn.2d at 848.

       56 In re Pet, of Petersen. 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002).

       57 Chamberlin. 161 Wn.2d at 41 (citing Aquilar v. Texas. 378 U.S. 108, 84
S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States. 393 U.S. 410, 89
S. Ct. 584, 21 L. Ed. 2d 637 (1969)).

       58 State v. Atchlev. 142 Wn. App. 147, 161, 173 P.3d 323 (2007) (quoting
State v. Jackson, 102 Wn.2d 432, 435, 688 P.2d 136 (1984)).

                                              15
No. 71432-5-1/16


       "The credibility of a confidential informant depends on whether the

informant is a private citizen or a professional informant and, if a citizen

informant, whether his or her identity is known to the police."59

       In State v. Chamberlin. the supreme court considered whether an

informant was credible.60 There, the informant, Randall Paxton, was arrested for

driving while under the influence, attempting to elude a pursuing police vehicle,

and reckless driving.61 Paxton admitted to being under the influence of

methamphetamine and marijuana, and he offered to provide a statement that he

got these drugs from Scott Chamberlin.62 The police told Paxton that they would

not make "any deal regarding his criminal charges" if he provided a statement.63

But Paxton still gave a tape-recorded statement regarding Chamberlin.64

       The supreme court concluded that Paxton was a reliable citizen informant

because Paxton made a statement against his penal interest when he admitted

to driving under the influence.65 Moreover, Paxton revealed his identity. He was

willing to "publicly stand by his information."66 The court explained, "This



      59idat162.

      60 161 Wn.2d 30, 41-42, 162 P.3d 389 (2007).

      61 id at 34.

      62 \±

      63 id

      64 id

      65 id at 42.

      66 ]±
                                             16
No. 71432-5-1/17


particular set of considerations need not be met in every case, but in this case,

these factors are sufficient" to establish the "veracity" or "credibility" prong of the

Aquilar-Spinelli test.67

        Here, the original search warrant affidavit was primarily based on

Westfall's statements to law enforcement. Similar to Chamberlin. Westfall was a

credible informant who revealed her identity. The affidavit stated that Westfall

was willing to testify and have her statements recorded. Additionally, Westfall

made statements against her penal interest. The affidavit stated that Westfall

was a "methamphetamine user, who both sold to and bought from Mr. Swenson

and Mr. Besola." Thus, like Chamberlin. the trial court properly concluded that

the "veracity" or "credibility" prong was satisfied and Westfall was a credible

informant. Because the basis of her knowledge is unchallenged, the controlling
test is satisfied.


        Besola and Swenson argue that Westfall was not a credible informant

because she "was possibly a participant in the crime under investigation, was

implicated in other crimes, and was possibly acting in the hope of gaining

leniency." They cite State v. Rodriguez to support this argument.68

       There, Division Three explained that "suspicious circumstances"

surrounding an informant's statement can "greatly diminish[ ] the presumption of




       67
            Id.


       68 Appellant's Opening Brief at 30 (citing State v. Rodriguez, 53 Wn. App.
571, 769 P.2d 309 (1989)).


                                              17
No. 71432-5-1/18


reliability of the informant ]."69 These "suspicious circumstances" include when

an informant is criminally involved or otherwise motivated by self-interest.70

        Here, the search warrant affidavit stated that she came in contact with law

enforcement because she was being investigated for another crime:

        Deputy Tjossen was contacted by Officer Boyle with the
        Washington State Auto Task Force on March 25, 2009. Officer
        Boyle was investigating Kellie Westfall in regards to a stolen
        vehicle. During the contact with Deputy Tjossen and Officer Boyle,
        Ms. Westfall reported that her friend, Jeffrey Swenson, was
        obtaining drugs from his roommate, Mark Besola.[71]

The affidavit does not state why Westfall wanted to talk to law enforcement, but

the fact that she was being investigated for another crime does raise some

suspicions about her veracity or credibility as an informant. But such suspicions

do not outweigh her credibility, given several considerations. First, Westfall is not

identified as a professional informant who was paid for her statements.72 Nor

does the affidavit state that law enforcement made any promises to Westfall if

she cooperated.73 Second, Westfall provided substantial detail in her statement,




        69 Rodriguez, 53 Wn. App. at 576-77.

       70 id

        71 Clerk's Papers at 308.

       72 See Atchlev, 142 Wn. App. at 162 ("The credibility of a confidential
informant depends on whether the informant is a private citizen or a professional
informant and, if a citizen informant, whether his or her identity is known to the
police.").

       73 See Chamberlin. 161 Wn.2d at 34, 42.


                                            18
No. 71432-5-1/19


which can outweigh the suspicions.74 Third, as previously discussed, Westfall

made statements against her penal interest.75 Finally, in Chamberlin. the

informant was being investigated for other crimes, but the court still concluded

that the informant was reliable.76 For these reasons, this argument is not

persuasive.

       Swenson argues that "[t]he idea that a person who makes a statement

against penal interest must be telling the truth because they have potentially

incriminated themselves, however, ignores important facts."77 He cites a law

review article to point out problems with this idea.78 But, as previously discussed,

the supreme court has considered statements against penal interest in

determining whether the "veracity" or "credibility" prong is met.79 Thus, we follow

the supreme court, not the law review article.



       74 See State v. Northness. 20 Wn. App. 551, 558, 582 P.2d 546 (1978)
("[T]he fact that an identified eyewitness informant may also be under suspicion
—in this case because of her initial contact has been held not to vitiate the
inference of reliability raised by the detailed nature of the information and the
disclosure of the informant's identity.").

       75 See State v. Lair. 95 Wn.2d 706, 711, 630 P.2d 427 (1981) ("Since one
who admits criminal activity to a police officer faces possible prosecution, it is
generally held to be a reasonable inference that a statement raising such a
possibility is a credible one.").

       76 Chamberlin, 161 Wn.2d at 34, 42.

       77 Opening Brief of Appellant Swenson at 19.

       78 id at 19-20 (citing Mary Nicol Bowman, Truth or Consequences: Self-
Incriminating Statements and Informant Veracity, 40 N.M. L. Rev. 225, 239-40
(2010)).

       79 See Chamberlin, 161 Wn.2d at 42.


                                             19
No. 71432-5-1/20




                                   Franks Hearing

       Besola and Swenson argue that the trial court erred when it denied their

motion for a Franks hearing. They allege that the search warrant affidavit

omitted material facts. We disagree.

       Under Franks v. Delaware, a criminal defendant may challenge material

misrepresentations in an affidavit supporting a search warrant.80

       A court begins with the presumption that the affidavit supporting a search

warrant is valid.81 Then, "[a]s a threshold matter, the defendant must first make a

'substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false statement is necessary to the

finding of probable cause.'"82 "Importantly, the Franks test for material

representations has been extended to material omissions of fact."83

       Reckless disregard for the truth occurs when the affiant "'in fact

entertained serious doubts as to the truth' of facts or statements in the




       80 State v. Cord. 103 Wn.2d 361, 366-67, 693 P.2d 81 (1985) (citing
Franks v. Delaware. 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667
(1978); United States v. Martin. 615 F.2d 318 (5th Cir. 1980); United States v.
Park. 531 F.2d 754, 758-59 (5th Cir. 1976)).

      81 Atchlev, 142 Wn. App. at 157.

      82 id (quoting Franks. 438 U.S. at 155-56).

      83 \± at 158.


                                             20
No. 71432-5-1/21



affidavit."84 Such "serious doubts" are shown by "'(1) actual deliberation on the

part of the affiant, or (2) the existence of obvious reasons to doubt the veracity of

the informant or the accuracy of his reports.'"85 "Assertions of mere negligence

or innocent mistake are insufficient."86

       "In examining whether an omission rises to the level of a

misrepresentation, the proper inquiry is not whether the information tended to

negate probable cause or was potentially relevant," but rather, the court must find

"the challenged information was necessary to the finding of probable cause."87

       "If the defendant succeeds in showing a deliberate or reckless omission,

then the omitted material is considered part of the affidavit."88 "'If the affidavit

with the matter. . . inserted ... remains sufficient to support a finding of probable

cause, the suppression motion fails and no hearing is required.'"89

       Here, Besola and Swenson argue that Detective Sergeant Teresa Berg

and Deputy R. Vance Tjossem omitted certain material facts from the affidavit for

the original search warrant. In its findings of fact and conclusion of law, the trial




       84 State v. Clark. 143 Wn.2d 731, 751, 24 P.3d 1006 (2001) (quoting State
v. O'Connor. 39 Wn. App. 113, 117, 692 P.2d 208 (1984)).

       85 id (quoting O'Connor. 39 Wn. App. at 117).

       86 Atchlev. 142 Wn. App. at 157.

       87idat158.

       88 id

       89 id (quoting State v. Garrison. 118 Wn.2d 870, 873, 827 P.2d 1388
(1992)).


                                              21
No. 71432-5-1/22


court listed 13 statements that Besola and Swenson claim were recklessly

omitted:


      a. Ms. Westfall had been charged in a five-count information with
      Possession of a Stolen Vehicle, Possession of Methamphetamine,
      Possession of Another's Identification, DWLS 3, and Obstructing
      Law Enforcement was filed in Pierce County Superior Court on
      January 20, 2009;

      b. Ms. Westfall's Drug Court Petition was entered on February 5,
      2009, and as a condition of her entry into the drug court program,
      she stipulated that there were facts sufficient to find her guilty of the
      charged offenses;

      c. Ms. Westfall failed to appear for drug court crew on February 25,
      2009, and a warrant was issued for her arrest;

      d. Ms. Westfall had been booked into the Pierce County Jail on or
      about March 25, 2009, and a no-bail hold had been ordered March
      26, 2009;

      e. Ms. Westfall was still incarcerated when she gave her statement
      to law enforcement on April 9, 2009;

      f. Ms. Westfall was subsequently ordered to be released from jail
      on her personal recognizance on April 13, 2009 and directed to
      report back to drug court;

      g. Ms. Westfall perceived Mr.Besola to be "jealous" of her because
      she had a close friendship with Jeffrey Swenson, an individual who
      lived at Mr. Besola's home and had a romantic relationship with Mr.
      Besola;

      h. Ms. Westfall [had] bought drugs [from] Mr. Swenson;

      i. Ms. Westfall became friends with Brent Waller, a registered sex
      offender who lived in an apartment located on the residence when
      she was in jail the last time, who told Ms. Westfall that she could
      live with him while she was going through drug court;

      j. Ms. Westfall told law enforcement that she was no longer allowed
      at the house because "[Besola] doesn't like me";

      I. The drugs that Ms. Westfall saw in the house were actual
      pharmaceuticals from Mr. Besola's vet clinic;


                                            22
No. 71432-5-1/23




       m. Ms. Westfall never actually read the drug labels on the drugs
       she claimed to witness Mr. Besola shooting; and

       n. The vials of Valium that Ms. Westfall saw in the house were for
       Mr. Besola's dog, who had cancer.[90]

The trial court then concluded that none of these statements "were omitted from

the search warrant affidavit intentionally or with a reckless disregard for the

truth."91 Further, the court determined that "none of the statements listed above

were material or necessary to the finding of probable cause."92

       Besola and Swenson argue that Sergeant Berg and Deputy Tjossem

recklessly disregarded the truth because they failed to include information that

was readily available. They contend that Westfall's statements previously

described were available through the tape-recorded interview. They also assert

that her criminal history was available through public records.

       In its oral ruling, the trial court stated that some of the alleged omissions

involved "nuances of Drug Court." The court stated:

              [Westfall] had not been kicked out of Drug Court, it appears,
      at the time that this interview took place, but she had been put into
      Drug Court. To find that law enforcement officers are required to
      know the nuances of Drug Court and what the stipulation means,
      as far as whether that falls into the category of a conviction or
      omission, I think is asking too much of law enforcement. Certainly
      doesn't rise to the level of any reckless or intentional act to not
      include the fact she was in Drug Court, what the status was of
      thatJ93!



      90 Clerk's Papers at 13-14.

      91 id at 13.

      92 id at 14.

      93 Report of Proceedings (Oct. 19, 2012) at 30.
                                             23
No. 71432-5-1/24




       But even assuming that some of the omissions were intentional or

reckless, the affidavit would have established probable cause even if the omitted

information had been included. Much of the information contained in the 13

statements was in the search warrant affidavit in some form.

       For example, the affidavit did not state that Westfall was charged with five

different crimes and was incarcerated at the time she gave her statement to the

law enforcement officers. But the affidavit did state that Deputy Tjossem was

investigating her for a crime and told another officer that Westfall was willing to

make a statement.94 Additionally, Besola and Swenson assert that the affidavit

did not state that Westfall bought drugs from Swenson. But the affidavit states,

"Westfall is a methamphetamine user, who both sold to and bought from Mr.

Swenson and Mr. Besola." Further, Besola and Swenson contend that the

affidavit did not state that Westfall was no longer able to stay at Besola's house

because Besola did not like her. But the affidavit states, "Mr. Besola does not

really like Ms. Westfall, but she is allowed into the home, because of Mr.

Swenson and the controlled substances. She has stayed overnight at the home

several times."


       In sum, a Franks hearing was not required. The omitted information was

not necessary to the determination of probable cause.

       Besola and Swenson argue that the omissions are material because "they

bear directly on Westfall's credibility." While this may be true, as previously



       94 Clerk's Papers at 308.

                                             24
No. 71432-5-1/25


discussed, the search warrant affidavit provided sufficient information to allow the

trial court to determine whether Westfall was a credible witness. The 13 omitted

statements do not change this determination.

       Besola and Swenson also assert that the supreme court has "found an

affiant reckless in circumstances quite similar to those found here." They cite

Turngren v. King County to support this assertion.95 That case is distinguishable.

       Tumgren involved a civil action for malicious prosecution, false arrest and

false imprisonment, libel, and slander.96 For the malicious prosecution claim, the

court looked at misstatements and omissions in the affidavit in support of the

search warrant.97 The court noted that the affidavit made it seem like an

informant voluntarily gave law enforcement information.98 When "[i]n actuality,

the informant's statements, given in response to police questioning about his own

criminal activity, could be construed as an effort to exculpate himself and turn

police interest away from his own crimes."99 The court explained that none of

this information was presented to the magistrate.100 The court concluded, "A

prima facie want of probable cause, together with the discrepancies between the



      95 Appellant's Opening Brief at 35 (citing Turngren v. King County. 104
Wn.2d 293, 705 P.2d 258 (1985)).

      96 Turngren. 104 Wn.2d at 295.

      97 id at 305-08.

      98 id at 308.

      "id

      100 Id.


                                            25
No. 71432-5-1/26


informant's track record as set out in the affidavit and in the deposition, permits

an inference of malice sufficient to survive summary judgment."101

       Turngren is distinguishable from this case for two reasons. First, Turngren

was analyzing a malicious prosecution claim. Moreover, the search warrant

affidavit in this case contained some of Westfall's criminal history, and it

explained when Westfall provided a tape-recorded statement to law enforcement.

The affidavit stated that Westfall was being investigated for a crime when she

decided to talk to law enforcement. Thus, Besola and Swenson's reliance on

Turngren is not persuasive.

                              JURY INSTRUCTIONS

       Besola and Swenson argue that the trial court improperly instructed the

jury. Specifically, they contend that RCW 9.68A.070 and RCW 9.68A.050,

possession of and dealing in depictions of minors engaged in sexually explicit

conduct, require that they knew the persons depicted were minors. They

contend that this element was missing from the jury instructions. We disagree.

       This court reviews de novo alleged errors of law in jury instructions.102

"Due process requires that a criminal defendant be convicted only when every

element of the charged crime is proved beyond a reasonable doubt."103 "Jury



       101 id at 309.

       102 State v. Lew. 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).

       103 State v. Garbaccio. 151 Wn. App. 716, 732, 214 P.3d 168 (2009)
(citing U.S. Const, amend. XIV; Wash. Const, art. I, § 22; Jackson v. Virginia.
443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Brown. 147
Wn.2d 330, 339, 58 P.3d 889 (2002)), review denied, 168 Wn.2d 1027 (2010).


                                             26
No. 71432-5-1/27


instructions must inform the jury that the State bears the burden of proving each

essential element of a criminal offense beyond a reasonable doubt."104 "It is

reversible error to instruct the jury in a manner that would relieve the State of this

burden."105

          As a general rule, "jury instructions are sufficient when, read as a whole,

they accurately state the law, do not mislead the jury, and permit each party to

argue its theory of the case."106

          Former RCW 9.68A.070 (2006), the law in effect at the time of the crimes,

stated:


                 A person who knowingly possesses visual or printed matter
          depicting a minor engaged in sexually explicit conduct is guilty of a
          class B felony.

          Former RCW 9.68A.050 (1989) stated:

          A person who:

          (1) Knowingly develops, duplicates, publishes, prints, disseminates,
          exchanges, finances, attempts to finance, or sells any visual or
          printed matter that depicts a minor engaged in an act of sexually
          explicit conduct... is guilty of a class C felony punishable under
          chapter 9A.20 RCW.

          In State v. Garbaccio, this court analyzed RCW 9.68A.070.107 It explained

that the supreme court had concluded that this statute contained a "scienter



          104 State v. Peters. 163 Wn. App. 836, 847, 261 P.3d 199 (2011).

          105 State v. Pirtle. 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
          106
                State v. Teal. 152 Wn.2d 333, 339, 96 P.3d 974 (2004).

          107 151 Wn. App. 716, 732-34, 214 P.3d 168 (2009), review denied. 168
Wn.2d 1027 (2010).


                                                27
No. 71432-5-1/28


element," which is "knowingly."108 This element is necessary to avoid First

Amendment problems.109 This court further stated that in order to avoid

constitutional difficulty, this court had previously construed this 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.'"110

       In State v. Rosul. this court noted that "'[a] natural grammatical reading of

[the statute] would apply the scienter requirement to possession, but not to the

age of the children depicted."111 But if the statute was read in this manner, "the

statute might be viewed as being facially overbroad because it would allow for

the imposition of criminal liability against individuals engaged in otherwise

innocent conduct who happen merely to possess contraband."112

       Thus, in both cases, this court construed "RCW 9.68A.070 'as requiring a

showing that the defendant was aware not only of possession, but also of the

general nature of the material he or she possessed.'"113 Essentially, "the State




       108 id at 733 (citing State v. Luther, 157 Wn.2d 63, 71, 134 P.3d 205
(2006)).

       109
             Id.


       110 id (quoting State v. Rosul. 95 Wn. App. 175, 185, 974 P.2d 916
(1999)).

       111 id. (alterations in original) (quoting Rosul, 95 Wn. App. at 182).

       112 id

       113 id (quoting Rosul. 95 Wn. App. at 185).

                                              28
No. 71432-5-1/29


must prove more than mere possession of contraband; it must prove

possession with knowledge of the nature of the illegal material."U4

       In Garbaccio. this court concluded that the trial court adequately instructed

the jury when it relied on pattern jury instructions for possession of depictions of

a minor engaged in sexually explicit conduct.115 The pattern jury instructions and

the instructions in that case read:

       Instruction No. 6—Elements of Charged Offense (11 WPIC
       49A.04):

              To convict the defendant of the crime of Possession of
       Depictions of a Minor Engaged in Sexually Explicit Conduct, each
       of the following elements of the crime must be proved beyond a
       reasonable doubt:


             (1) That on or about May 3, 2006, the defendant knowingly
       possessed visual or printed matter depicting a minor engaged in
       sexually explicit conduct;

              (2) That the defendant knew the person depicted was a
       minor; and

       (3) That this act occurred in the State of Washington.'1161

The Garbaccio court concluded that "the trial court adequately instructed the jury

as to the elements of the charged offense."117




      114 id at 734 (emphasis added).

      115id

      116 id at 725 n.4 (emphasis added).

      117 Id. at 734.


                                            29
No. 71432-5-1/30


      In this case, the issue is whether the jury instructions, which do not

duplicate the pattern instructions are, nevertheless, adequate. The instructions

for RCW 9.68A.070 read:

              To convict defendant BESOLA [AND SWENSON] of the
      crime of possession of depictions of a minor engaged in sexually
      explicit conduct, each of the following elements of the crime must
      be proved beyond a reasonable doubt:

            (1) That on or about the 21st day of April, 2009, defendant
      BESOLA [AND SWENSON], or a person to whom he was an
      accomplice, knowingly possessed visual or printed matter
      depicting a minor engaged in sexually explicit conduct, and

             (2) That this act occurred in the State of Washington.1118]

The instructions for RCW 9.68A.050 read:

              To convict defendant BESOLA [AND SWENSON] of the
      crime of dealing in depictions of a minor engaged in sexually
      explicit conduct, each of the following elements of the crime must
      be proved beyond a reasonable doubt:

             (1) That during the period of September 27, 2008 through
      April 21, 2009, defendant BESOLA [AND SWENSON], or a person
      to whom he was an accomplice, knowingly duplicated visual or
      printed matter depicting a minor engaged in sexually explicit
      conduct, and

             (2) That this act occurred in the State of Washington.'1191

      These instructions, fairly read, inform the jury that the State had to "prove

possession with knowledge of the nature of the illegal material."120 The

instructions are stated in a way that "knowingly" modifies "possessed visual or



      118 Clerk's Papers at 98-99 (emphasis added).

      119 id at 91-92 (emphasis added).

      120 Garbaccio, 151 Wn. App. at 734.

                                            30
No. 71432-5-1/31


printed matter depicting a minor engaged in sexually explicit conduct" for the first

crime. Likewise, "knowingly" modifies "duplicated visual or printed matter

depicting a minor engaged in sexually explicit conduct" for the second crime.121

Thus, under Rosul and Garbaccio. these instructions satisfied the scienter

element—knowingly. It was not fatal for this court to give instructions that did not

duplicate the pattern instructions.

       Moreover, the jury instructions permitted the parties to argue their theories

of the case.122 Besola and Swenson were both able to present their defenses,

which was to point to their co-defendant and argue that he was the sole offender.

A properly instructed jury rejected these defenses. There was no error.

       Besola and Swenson argue that, in State v. Luther, the supreme court

held that "not only do defendants have to know they are possessing or

duplicating pornography, they must also know that the persons depicted are

minors."123 Further, they contend that this element does not appear in the jury

instructions.


       First, it is not clear that this is what the supreme court held in Luther. The

Luther court stated that the "possession of materials depicting actual minors

engaged in sexually explicit conduct may be criminalized, provided that the


       121 Clerk's Papers at 91-92; see, e.g.. State v. Killingsworth. 166 Wn. App.
283, 289, 269 P.3d 1064 ("The 'to convict' instruction required the jury to find that
Killingsworth 'knowingly trafficked in stolen property.' The most natural reading
of the adverb 'knowingly,' as used in this instruction, is that it modifies the verb
phrase 'trafficked in stolen property.'"), review denied. 174 Wn.2d 1007 (2012).

       122 See lea], 152 Wn.2d at 339.

       123 Appellant's Opening Brief at 22-23 (citing Luther. 157 Wn.2d at 63).

                                             31
No. 71432-5-1/32


offense includes a scienter element."124 "RCW 9.68A.070 prohibits only

possession of child pornography involving actual minors, and the statute contains

a 'knowingly' scienter element."125

       Second, as previously discussed in this opinion, the jury instructions, fairly

read, inform the jury that the State had to "prove possession with knowledge of

the nature of the illegal material."126 Thus, this argument is not persuasive.

                            COMMENT ON EVIDENCE

       Besola argues that the trial court impermissibly commented on the

evidence. We disagree.

       Article 4, section 16 of the Washington Constitution provides, "Judges

shall not charge juries with respect to matters of fact, nor comment thereon, but

shall declare the law." "A statement by the court constitutes a comment on the

evidence if the court's attitude toward the merits of the case or the court's

evaluation relative to the disputed issue is inferable from the statement."127 "The

touchstone of error in a trial court's comment on the evidence is whether the

feeling of the trial court as to the truth value of the testimony of a witness has

been communicated to the jury."128 "The purpose of prohibiting judicial




       124 Luther, 157 Wn.2d at 71.

       125 id

       126 Garbaccio. 151 Wn. App. at 734.

       127 State v. Lane. 125 Wn.2d 825, 838, 889 P.2d 929 (1995).

       128 Id


                                             32
No. 71432-5-1/33


comments on the evidence is to prevent the trial judge's opinion from influencing

the jury."129

       If the reviewing court determines the trial judge's remark constitutes a

comment on the evidence, the burden is on the State to show that a defendant

was not prejudiced based on the record below.130

       Here, Besola argues that "the judge's comments told the jury that he found

Besola's witness to be evasive and frustrating." As the State points out, Besola

fails to cite the report of proceedings for any particular statements. Normally, this

failure would preclude review.

       But we note that in the fact section of Besola's brief he cites a particular

exchange during the State's examination of Besola's sister, Amelia Besola.

There being no other reference in the briefing than this, we examine this

exchange to resolve this issue.

       During this examination, Amelia Besola failed to answer the State's

questions that only required "yes" or "no" answers:

                 MS. SEVERS [Prosecutor]: Your Honor, I would ask you to
       direct the witness to answer the question.

                 THE COURT: I don't know how to do that, Ms. Sievers.
       They're very simple questions. Ms. Besola seems to be having
       trouble answering these simeple [sic] questions.
              Listen to the questions.
              What's the next question, Ms. Sievers?

                 MS. SIEVERS: That's fine; I'll move on.



       129 id

       130 Id.


                                             33
No. 71432-5-1/34


              THE COURT: I do understand your frustration, Ms.
       Sievers.'1311

This comment did not reveal the trial court's feeling as to "the truth value of the

testimony of a witness."132 Rather, the trial court's comments were directed to

Amelia Besola not answering the State's questions and the court's statement of

its understanding that counsel was frustrated. These comments say nothing

about the court's view of the truth of the testimony. There was no prohibited

comment on this evidence.


       Besola cites a number of cases to support his position that the trial court

made an impermissible comment. These cases do not change our conclusion.

       First, he cites State v. Eisner133 and Risley v. Moberg.134 These cases

involved judges who questioned witnesses.135 Here, the trial court did not

question Amelia Besola. Thus, these cases are not helpful.

       Second, he cites State v. Lane136 and State v. Lampshire.137 These cases

involved judges who commented on witnesses' credibility.138 Here, the trial judge



      131 Report of Proceedings (April 18, 2012) at 1059.

      132 Lane, 125 Wn.2d at 838.

      133 95 Wn.2d 458, 626 P.2d 10 (1981).

      134 69 Wn.2d 560, 419 P.2d 151 (1966).

      135 Eisner, 95 Wn.2d at 460-63; Risley. 69 Wn.2d at 561-65.

      136 125 Wn.2d 825, 889 P.2d 929 (1995).

      137 74 wn.2d 888, 447 P.2d 727 (1969).

      138 Lane. 125 Wn.2d at 835-39; Lampshire. 74 Wn.2d at 891-93.

                                             34
No. 71432-5-1/35


did not make any such comment. He commented on the witness not answering

the State's questions. Thus, these cases are not helpful.

                          SUFFICIENCY OF THE EVIDENCE

          Besola argues that there was insufficient evidence to support his

convictions. We disagree.

          As we previously stated in this opinion, the due process clause of the

Fourteenth Amendment of the United States Constitution requires that the State

prove every element of a crime beyond a reasonable doubt.139 To determine

whether the evidence is sufficient to sustain a conviction, this court must

determine "whether any rational fact finder could have found the essential

elements of the crime beyond a reasonable doubt."140 A challenge to the

sufficiency of the evidence admits the truth of the State's evidence and all

inferences that can reasonably be drawn from the evidence.141 On issues

concerning conflicting testimony, credibility of witnesses, and persuasiveness of

the evidence, this court defers to the jury.142 Circumstantial evidence and direct

evidence are considered equally reliable when weighing the sufficiency of the

evidence.143




      139 In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970).

      140 State v. Engel. 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

      141 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

      142 State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

      143 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).

                                              35
No. 71432-5-1/36


                                   RCW9.68A.070

       Besola argues that there was insufficient evidence for the jury to find that

he was in actual or constructive possession of depictions of minors engaged in

sexually explicit conduct. He is wrong.

       As previously noted, former RCW 9.68A.070 (2006) provides, "A person

who knowingly possesses visual or printed matter depicting a minor engaged in

sexually explicit conduct is guilty of a class B felony."

       Chapter 9.68A RCW does not provide a definition for "possession."144

Possession generally is "actual" or "constructive."145 Actual possession indicates

"physical custody," while constructive possession indicates "dominion and control

over an item."146 "In establishing dominion and control, the reviewing court

examines the 'totality of the situation.'"147 "This control need not be exclusive,

but the State must show more than mere proximity."148

       Here, Brent Waller, who lived in the garage of Besola's house, testified

that he saw a substantial amount of pornography in Besola's house. Law

enforcement officers seized multiple DVDs with depictions of minors engaged in

sexually explicit conduct from his house. Further, a handwriting expert testified



       144 See RCW 9.68A.011.

       145 State v. Callahan. 77 Wn.2d 27, 29, 459 P.2d 400 (1969).

       146 State v. Moblev. 129 Wn. App. 378, 384, 118 P.3d 413 (2005).

       147 JU (quoting State v. Morgan. 78 Wn. App. 208, 212, 896 P.2d 731
(1995)).

       148 State v. Raleigh. 157 Wn. App. 728, 737, 238 P.3d 1211 (2010).

                                             36
No. 71432-5-1/37


that some of these DVDs contained handwriting that could be attributed to

Besola.


        Officers also seized a computer that was registered to "Mark," which is

Besola's first name, and it contained personal photographs of Besola and

financial documents for his business. The computer also contained files with

video clips of minors engaged in sexually explicit conduct.

       This evidence was sufficient to establish that Besola had actual or

constructive possession of depictions of minors engaged in sexually explicit

conduct.


        Besola argues that Swenson admitted to possessing and viewing the

depictions and Besola denied it. Further, he contends that he had "no motive to

possess the items but Swenson did have a motive because he was trading

pornography with Brent Waller." While Besola denied possessing or knowing

about the videos, this court does not review credibility determinations by the

finder of fact.149

        Besola also contends that this case is similar to State v. Roberts.150 We

disagree.

       There, Dirk Roberts was convicted of possession of marijuana with intent

to deliver or manufacture.151 Roberts claimed that the marijuana grow operation


       149
             See Walton. 64 Wn. App. at 415-16.

       150 Appellant's Opening Brief at 42 (citing State v. Roberts. 80 Wn. App.
342, 355, 908 P.2d 892 (1996)).

       151 Roberts. 80 Wn. App. at 344.

                                            37
No. 71432-5-1/38


belonged to his subtenant, John Sylvester.152 The trial court implicitly held that

Robert's ability to evict Sylvester showed that Roberts had dominion and control

over the grow operation in the basement.153 This court concluded that the trial

court erred when it came to this conclusion.154 Here, the evidence that Besola

possessed the depictions was not based on his ability to evict Swenson. Thus,

Roberts is not helpful.

                                  RCW9.68A.050

       Besola argues that there was insufficient evidence to prove that he

duplicated any depictions of minors engaged in sexually explicit conduct. He is

mistaken.


       As previously noted, former RCW 9.68A.050 (1989) provides: "A person

who . . . [k]nowingly develops, duplicates, publishes, prints, disseminates,

exchanges, finances, attempts to finance, or sells any visual or printed matter

that depicts a minor engaged in an act of sexually explicit conduct... is guilty of

a class C felony punishable under chapter 9A.20 RCW."

       Here, law enforcement officers seized three computers from Besola's

home. The State presented evidence that 40 files were downloaded onto one of

the computers that was registered to "Mark" and contained documents connected

to Besola, and these files contained depictions of minors engaged in sexually

explicit conduct. Moreover, this computer had a device attached to the computer


       152 id

       153 \± at 353.

       154 Id. at 354.


                                            38
No. 71432-5-1/39


that a detective described as a "Systor DVD duplicating device." The computer

contained a peer-to-peer file sharing folder that contained two videos of minors

engaged in sexually explicit conduct. The State also presented evidence that

many of the seized DVDs were duplicates of the same videos.

       This evidence was sufficient to prove that Besola duplicated depictions of

minors engaged in sexually explicit conduct.

       Besola argues that there was no evidence that he was Swenson's

accomplice for both charges. He argues that there was no evidence proving that

Besola "solicit[ed], command[ed], encourag[ed] or requested]" Swenson to

commit the crime or "aid[ed] or agree[d] to aid" Swenson in planning or

committing the crime.155 First, the jury did not need to find that Besola was

Swenson's accomplice.156 There was sufficient evidence to find that Besola

himself possessed and duplicated the depictions of minors. Second, reasonable

inferences can be drawn from the evidence that Besola knew that Swenson was

committing these crimes and Besola was aiding him. Thus, this argument is not

persuasive.

                             CHARACTER EVIDENCE

      Swenson argues that the trial court abused its discretion when it admitted

evidence that Swenson and his roommate, Waller, traded adult pornography. He


      155
            Appellant's Opening Brief at 43 (citing RCW 9A.08.020).

      156 See Clerk's Papers at 91-92, 98-99 (explaining in the jury instructions
that "defendant BESOLA or a person to whom he was an accomplice" knowingly
possessed and knowingly duplicated visual or printed matter depicting a minor
engaged in sexually explicit conduct) (emphasis added).

                                            39
No. 71432-5-1/40


argues that this character evidence was "irrelevant and highly prejudicial,"

violating ER 404(b). Because Swenson failed to preserve this challenge by a

timely objection, we decline to review it.

       Swenson asserts that this testimony was admitted "over defense

objection." But he does not cite the record to show where he objected based on

ER 404(b) during Waller's testimony. Nor did he submit a reply brief to respond

to the State's argument that he did not preserve this issue based on his failure to

object at trial. Accordingly, we do not address this issue any further.

                           SAME CRIMINAL CONDUCT

       Besola and Swenson argue that the trial court erred in calculating their

offender score for sentencing purposes. Specifically, they contend that

possessing depictions of a minor engaged in sexually explicit conduct and

dealing in these depictions involve the same criminal conduct. We disagree.

       Under the Sentencing Reform Act of 1981, an offender's sentence range

for each conviction is ordinarily calculated by counting "all other current and prior

convictions as if they were prior convictions for the purpose of the offender

score."157 The act provides an exception to this general rule if the court finds that

some or all of the current offenses encompass the same criminal conduct.158

Crimes constitute the same criminal conduct when they "require the same

criminal intent, are committed at the same time and place, and involve the same




       157RCW9.94A.589(1)(a).

       158 Id.


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victim."159 Unless all three of these elements are present, the offenses do not

constitute the same criminal conduct and must be counted separately in

calculating the offender score.160 "[T]he statute is generally construed narrowly

to disallow most claims that multiple offenses constitute the same criminal act."161

       For the first element, "[i]ntent is to be viewed objectively rather than

subjectively."162 The first step is to "'objectively view' each underlying statute and

determine whether the required intents, if any, are the same or different for each

count."163 If the intents are different, the offenses are counted as separate

crimes.164 If the intents are the same, the next step is to "'objectively view' the

facts usable at sentencing, and determine whether the particular defendant's

intent was the same or different with respect to each count."165 If the intents are

the same, then the counts constitute same criminal conduct.166

       In State v. Hernandez. Division Two considered whether intent to deliver a

controlled substance had the same intent as possession of a controlled



       159 id

       160 State v. Porter. 133 Wn.2d 177, 181, 942 P.2d 974 (1997).

       161 id

       162 State v. Rodriguez. 61 Wn. App. 812, 816, 812 P.2d 868 (1991).

       163 JU (quoting State v. Collicott. 112 Wn.2d 399, 405, 771 P.2d 1137
(1989)).

       164 id

       165 id

       166 Id


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No. 71432-5-1/42


substance.167 The court explained, "'Objectively viewed, the intent of delivery is

to transfer the narcotics from one person to another usually, if not universally,

with an expectation of benefit to the person effecting the delivery.'"168 In contrast,

"Objectively viewed, the criminal purpose of simple possession is to have the

narcotics available and under the control of the possessor to use as he or she

sees fit."169 The court concluded that the two crimes did not involve the same

criminal conduct.170

       Here, like Hernandez, the intent to knowingly possess depictions of a

minor engaged in sexually explicit is different than the intent to knowingly deal in

these depictions. In this case, the State alleged that the relevant form of dealing

was duplicating the depictions. Objectively viewing the statutes, duplicating

these depictions has the intent to transfer them from one person to another.

While simple possession allows the possessor to have control over the

depictions for himself or herself. Because the intents are different, the trial court

did not err when it counted the offenses as separate crimes.171

       Besola and Swenson argue that the two crimes have the same intent

because in order to duplicate the depictions, they argue that a person must



       167
             95 Wn. App. 480, 483-86, 976 P.2d 165 (1999).

       168 IU at 484 (quoting State v. Baldwin. 63 Wn. App. 303, 307, 818 P.2d
1116(1991)).

       169 id

       170 id at 485-86.

       171 See id.


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No. 71432-5-1/43


possess the depictions. They cite United States v. Davenport to support this

assertion.172 But that case involved a double jeopardy and lesser included

offense claim.173 Thus, that case is not helpful.

                        COMMUNITY CUSTODY CONDITIONS

       Swenson argues that condition 13 and condition 27 were not statutorily

authorized, violated due process, and must be stricken. We conclude that

certain conditions are not statutorily authorized and remand for resentencing only

for these conditions.


       When a court sentences someone to a term of community custody, the

Sentencing Reform Act, RCW 9.94A.703(1), requires it to impose certain

conditions. This court reviews community custody conditions for abuse of

discretion.174 A court abuses its discretion if the sentence is not authorized by

statute.175 The proper remedy for a condition not authorized by statute is to

reverse that portion of the sentence and remand for resentencing of the improper

condition.176

       Under RCW 9.94A.703(3)(f), a court may order an offender to "[c]omply

with any crime-related prohibitions." A "crime-related prohibition" is an order that



       172 Appellant's Opening Brief at 46; Appellant's Reply Brief at 12-13 (citing
United States v. Davenport. 519 F.3d 940 (9th Cir. 2008)).

       173 Davenport. 519 F.3d at 943.

       174 Riley, 121 Wn.2dat37.

       175 State v. Barnett. 139 Wn.2d 462, 464, 987 P.2d 626 (1999).

       176 State v. Sansone, 127 Wn. App. 630, 643, 111 P.3d 1251 (2005).


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prohibits "conduct that directly relates to the circumstances of the crime for which

the offender has been convicted."177

       Swenson first challenges condition 13: "You shall not possess or consume

any mind or mood altering substances, to include alcohol, or any controlled

substances without a valid prescription from a licensed physician."™

Unless waived by the court, RCW 9.94A.703(2)(c) requires the court to order an

offender to "[r]efrain from possessing or consuming controlled substances

except pursuant to lawfully issued prescriptions."^79 As Swenson argues, a

"lawfully issued prescription" is broader than a "valid prescription from a licensed

physician." He points to RCW 69.41.030 to show that physician assistants and

other health care providers can issue lawful prescriptions and these providers

may not necessarily fall within the definition of "licensed physician."180 Thus,

condition 13 is not authorized and should be stricken.

       Swenson also challenges condition 27: "Do not possess or peruse any

sexually explicit materials in any medium. Your sexual deviancy treatment

provider will define sexually explicit material. Do not patronize prostitutes or




       177RCW9.94A.030(10).

       178 Clerk's Papers at 198 (emphasis added).
       179
             (Emphasis added.)

       180 rcw 69.41.030 (listing health care providers such as optometrists,
dentists, veterinarians, and nurse practitioners with prescription authority).

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No. 71432-5-1/45


establishments that promote the commercialization of sex."181 He makes three

arguments about this condition.

       First, Swenson argues that it was improper to allow his sexually deviancy

provider to define "sexually explicit material." He cites State v. Sansone to

support this argument.182 There, this court held that the definition of

"pornography" was "not an administrative detail that could be properly delegated"

to a community corrections officer.183 But this court limited the decision to the

facts of that case, and it observed that "[a] delegation would not necessarily be

improper if Sansone were in treatment and the sentencing court had delegated to

the therapist to decide what types of materials Sansone could have."184 Since

that is precisely what the trial court in this case has done, we conclude that there

was no error.



       Second, Swenson argues that this condition is not a crime-related

prohibition. He contends that "any sexually explicit material" is too broad and

can encompass "legal, adult pornography unrelated to the crime" of possessing

and dealing in depictions of minors engaged in sexually explicit conduct.185

Contrary to Swenson's argument, "any sexually explicit materials" is not too



       181
             Clerk's Papers at 199.

       182 Opening Brief of Appellant Swenson at 24 (citing State v. Sansone.
127 Wn. App. 630, 642, 111 P.3d 1251 (2005)).

       183 Sansone. 127 Wn. App. at 642.

       184 id at 643.

       185 (Emphasis added.)

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No. 71432-5-1/46


broad. As just discussed, this term only includes those defined by the sexual

deviancy treatment provider. Thus, this argument is not persuasive.

          Third, Swenson argues that the condition that he not "patronize . . .

establishments that promote the commercialization of sex" is too broad and not

crime-related. We agree. It is not clear what "establishments that promote the

commercialization of sex" means. Further, given this vague term, it is not clear

from this record whether there was evidence that such establishments were

related to Swenson's crimes. Thus, this part of condition 27 is without authority

of law.


          We affirm the judgments and sentences except that we reverse the

community custody conditions that we discussed in this opinion and remand for

resentencing only on these conditions.

                                                           ^XiX

WE CONCUR:




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