                                                                    FILED 

                                                                 APRIL 28, 2015 

                                                           In the Office of the Clerk of Court 

                                                         W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31935-1-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         PUBLISHED OPINION
                                              )
DAVID NORMAN POLK,                            )

                                              )

                     Appellant.               )


       LAWRENCE-BERREY, J. - A jury found David Polk guilty of four counts of second

degree dealing in depictions of a minor engaged in sexually explicit conduct and four

counts of second degree possession of depictions of a minor engaged in sexually explicit

conduct. He raises four issues on appeal. First, he contends that his four convictions for

second degree possession violate the prohibition against double jeopardy because the

offense of second degree possession of depictions is one unit of prosecution. Second, he

contends that the State failed to present sufficient evidence to prove three of the counts of

second degree dealing in depictions. Third, he contends that the possession of depictions

count comprises the same criminal conduct as the dealing in depictions counts. Last, he

challenges the imposition of a no contact order with R.E.R. We hold that double jeopardy
No. 31935-1-III
State v. Polk


considerations require dismissal of three of the four possession convictions, and that there

is no authority to support the imposition of the no contact order with R.E.R. We therefore

reverse three of the convictions, one no contact order, and remand for resentencing.

                                          FACTS

      Mr. Polk, using the pseudonym "D-Man," contacted Brian Bennett on Facebook.

Report of Proceedings (RP) at 31-32. Mr. Polk and Mr. Bennett discovered that they

were both friends with D.R.E. Mr. Polk sent computer files containing three nude

photographs ofD.R.E. to Mr. Bennett. Mr. Polk said that he had more.

      Mr. Bennett figured out that D-Man's identity was Mr. Polk. Mr. Bennett

contacted Detective Mike Boettcher about the photographs and allowed a search of his

computer. Mr. Bennett also contacted D.R.E. to inform her that someone calling himself

D-Man was circulating the nude photographs.

      D.R.E. remembered Mr. Polk taking the photographs when she was 16 years old

and living in Walla Walla. Mr. Polk represented himselfto be a professional

photographer and told D.R.E. that he wanted to take some fully nude photographs of her

for submission to Playboy. On more than one occasion, Mr. Polk took nude and partially

nude pictures ofD.R.E. Mr. Polk told D.R.E. that she would need to wait until she was




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No. 31935-1-III
State v. Polk


18 years old to sign a contract for Playboy. D.R.E. moved away from Walla Walla

shortly before her 18th birthday;

       D.R.E. contacted Detective Roger Maidment about the photographs. A search

warrant was obtained for Mr. Polk's home. Police seized seven computers located in

various locations throughout the house. The computers were linked together, forming a

global access network. One computer was logged onto D-Man's Facebook account and

two other computers showed past access to D-Man's Facebook account. Police also

found hundreds of slides, some of which were boxed or bagged together and labeled with

a name, a slide digitizer to transfer images to computer files, and hundreds of loose

photographs.

       Detective Boettcher reviewed 7 to 8 terabytes of data for images of underage, nude

females and males. In the images, he identified six underage females, four of whom

testified at trial. He also found images of around a dozen more females who appeared to

be underage but could not be identified.

      According to Detective Boettcher, the digitized image files were copied onto many

computer hard drives over the years. The dates on the computer files represented copy

dates, not the date that the photograph was taken. Additionally, Detective Boettcher




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No. 31935-1-III
State v. Polk


determined that the dates stamped on the hard-copy slides did not represent the date the

photograph was taken but were externally stamped later.

      One of the four victims identified in the images was D.R.E. Detective Boettcher

located several digitized images ofD.R.E., four of which were pornographic. A total of

170 copies of these four images were found on the computers in Mr. Polk's home. One

of the digitized images matched a slide that Mr. Polk gave D.R.E. 20 years earlier. The

date on the digitized version of the slide image was November 21,2011.

      Detective Boettcher also located images of S.L.M. in the search, recovering 87

hard-copy slides and 323 digitized images on four different computer hard drives. S.L.M.

moved to Walla Walla when she was 15 years old and met Mr. Polk shortly after she

turned 16 years old. She wanted a portfolio to become a model and posed for Mr. Polk

four times. She remembers being 16 years old at the last shoot. While S.L.M. never got a

copy of the photographs, she did see them during a slide show that Mr. Polk presented to

S.L.M.' s husband after S.L.M. turned 18. The hard-copy slides of S.L.M. found in Mr.

Polk's home were embossed with a date that occurred before she turned 18.

      Images ofTJ.H. were also found. Mr. Polk photographed TJ.H. and a friend

without clothes on when TJ.H. was 16 years old. Later, but still at age 16, TJ.H.

returned to Mr. Polk and had nude photographs taken to give to her boyfriend. When Mr.


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No. 31935-1-III
State v. Polk


Polk gave T.J.H. the photographs, he told her that he was providing all photographs and

negatives. TJ.H. eventually destroyed the nude photographs. However, police found

five hard-copy slides ofTJ.H. in Mr. Polk's home. One slide was embossed with the

date December 1990. No digitized images of these slides were found on Mr. Polk's

computer.

       The next victim, C.C.M., met Mr. Polk when she was 13 or 14 years old. He told

her that she was "modeling material" and took nude photographs to create a modeling

portfolio. RP at 107. C.C.M. remembered that the photographs were taken before she

turned 18 years old because she left for the Job Corps at 16, was pregnant at 17, and gave

birth to her first child days after her 18th birthday. C.C.M. said that Mr. Polk gave her

some of the photographs and, when her father asked for the rest, Mr. Polk said that he

burned them. Still, police uncovered 49 slides of C.C.M. from Mr. Polk's home.

Detective Boettcher also found digital copies of some of C:C.M.' s slides that were

scanned into a recovered computer on December 9,2011.

       The State charged Mr. Polk with four counts of second degree dealing in

depictions of a minor engaged in sexually explicit conduct and four counts of possession

of depictions of a minor engaged in sexually explicit conduct. Prior to trial, Mr. Polk

moved to dismiss all but one of the possession counts based on the same unit of


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No. 31935-1-II1
State v. Polk


prosecution. The State acknowledged that the unit of prosecution for possession was per

incident and not per image, but argued that the photographs of each different victim

constituted a different incident of possession. After hearing the argument, the trial court

denied Mr. Polk's motion.

       The State presented testimony ofD.R.E., S.L.M., TJ.H., C.C.M., Detective

Boettcher, and others. The State intended to present testimony of a fifth female, R.E.R.,

who had contact with Mr. Polk when she was underage. R.E.R. made statements to

police prior to trial regarding her interactions with Mr. Polk when she was underage.

R.E.R. was on a witness list to testifY at trial. However, no photographs were found of

R.E.R. in Mr. Polk's home. Mr. Polk moved to exclude R.E.R.'s testimony. The day

before trial, the State informed the court that R.E.R. would not be testifYing. The State

amended the information to eliminate one count of dealing in depictions.

       Regarding the four counts for dealing in depictions, the State presented a specific

date of the alleged crime in the jury instructions. During closing arguments, the State also

identified the victim associated with each count. Count 1 involved the transfer of the

pictures ofD.R.E. to Mr. Bennett on or about December 15,2011. Count 2 involved

dealing in the images ofD.R.E. on or about November 21, 2011. Count 3 involved

dealing in the images of S.L.M. on or about November 17, 2011. Count 4 involved


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No. 31935-1-III
State v. Polk


dealing in the images ofC.C.M. on or about December 9,2011. The four counts for

possession of depictions, counts 5 through 8, were identically described in the

information with the same violation date of June 15,2012.

       A jury found Mr. Polk guilty of all eight charges. At sentencing, Mr. Polk

renewed his motion to dismiss three of the possession charges based on the same unit of

prosecution. He also argued that the convictions constituted the same criminal conduct

and challenged the calculation of his offender score. The sentencing court declined to

revisit the issues.

       The court calculated Mr. Polk's offender score to be 21 for the eight counts. Mr.

Polk had no prior criminal history. Mr. Polk objected to the score. The standard range

sentence for each dealing in depictions count was 72 to 96 months, while

the standard range for each possession count was 63 to 84 months. RCW 9.94A.51O;

RCW 9.94A.515. Despite these ranges, the maximum sentence Mr. Polk could receive

for the class C felonies was 60 months. Therefore, the court imposed an exceptional

sentence under RCW 9.94A.535(2)(c) by running the concurrent sentences of 60 months

on counts 1 through 4 consecutive to the concurrent sentences of 60 months on counts 5

through 8, for a total sentence of 120 months.




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No. 31935-1-III
State v. Polk


       Over Mr. Polk's objections, the court imposed a no contact order between Mr.

Polk and R.E.R. R.E.R. was not an alleged victim in the case nor did she testify at trial.

       Mr. Polk appeals. He raises four issues. First, he challenges the four convictions

for second degree possession on double jeopardy grounds. Second, he challenges the

sufficiency of the evidence in his second degree dealing in depictions convictions for

counts 2 through 4. Third, for offender score calculation purposes, he contends that the

possession of depictions counts comprise the same criminal conduct as the dealing in

depictions counts. Fourth, he challenges the imposition of a no contact order with R.E.R.

                                       ANALYSIS

A. 	   Whether Mr. Polk's possession ofmultiple photographs ofchild pornography
       count as a single unit ofprosecution

       Mr. Polk contends that the entry of four convictions for second degree possession

of depictions of a minor engaged in sexually explicit conduct violated his constitutional

right against double jeopardy because the simultaneous possession of multiple

photographs found in the same location constitutes a single unit of prosecution for which

he is subject to a single conviction under RCW 9.68A.070.

       Both the Fifth Amendment to the United States Constitution and article I, section 9

of the Washington Constitution protect against multiple punishments for the same

offense. State v. Adel, 136 Wn.2d 629,632,965 P.2d 1072 (1998). When a defendant is

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No. 31935-1-II1
State v. Polk


convicted of violating one statute multiple times, the proper inquiry is what unit of

prosecution has the legislature intended as the punishable act under the specific criminal

statute. State v. McReynolds, 117 Wn. App. 309, 334, 71 P.3d 663 (2003) (quoting Adel,

136 Wn.2d at 634-35). The legislature has the power, limited by the Eighth Amendment,

to define criminal conduct and set out the appropriate punishment for that conduct. Bell

v. United States, 349 U.S. 81, 82-83, 75 S. Ct. 620, 99 L. Ed. 905 (1955). When the

legislature defines the scope for a criminal act, referred to as the unit of prosecution,

double jeopardy protects a defendant from being convicted twice under the same statute

for committing just one unit of the crime. See id. at 83-84.

       The first step in determining the proper unit of prosecution is to examine the

language of the statute. State v. Ose, 156 Wn.2d 140, 144, 124 P.3d 635 (2005).

Questions of statutory construction are reviewed de novo. State v. Fisher, 139 Wn. App.

578,583, 161 P.3d 1054 (2007). The court first looks to the statute's plain meaning to

determine legislative intent. Ose, 156 Wn.2d at 144. "Plain meaning is discerned from

the ordinary meaning of the language at issue, the context of the statute in which that

provision is found, related provisions, and the statutory scheme as a whole." State v.

Elmore, 143 Wn. App. 185, 188, 177 P.3d 172 (2008). Statutes are construed as a whole

to harmonize and give effect to all provisions when possible. State v. Young, 125 Wn.2d


                                              9

No. 31935~ I·III
State v. Polk


688,696, 888 P.2d 142 (1995). "A statute is ambiguous if it can be reasonably

interpreted in more than one way." State v. Mullins, 128 Wn. App. 633, 642, 116 P.3d

441 (2005). "If the language of a penal statute is ambiguous, the courts apply the rule of

lenity and resolve the issue in a defendant's favor." State v. Knutson, 64 Wn. App. 76,

80,823 P.2d 513 (1991).

       RCW 9.68A.070 prohibits the possession of child pornography. The former

version ofRCW 9.68A.070 was simplistic, providing that "[a] person who knowingly

possesses visual or printed matter depicting a minor engaged in sexually explicit conduct

is guilty ofa class B felony." Former RCW 9.68A.070 (2006).

       In 2009, the defendant in State v. Sutherby, 165 Wn.2d 870, 878, 204 P .3d 916

(2009) challenged the statute, contending that the unit of prosecution under the statute is

one unit per possession, not per image or per minor. Mr. Sutherby was sentenced to

seven counts of possession of depictions of a minor engaged in sexually explicit conduct

after investigators found images of at least seven different minors on Mr. Sutherby's two

computers. Id. at 876. The court recognized that possession of a "visual or printed

matter" constituted "any photograph or other material" under former RCW 9.68A.Oll(2)

(2002), and that "any" was an indefinite term that could mean (1) a single photograph,

(2) one, some, or all photographs regardless of quantity, or (3) one or more photographs


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No.31935-I-III
State v. Polk


or other material. Id. at 879-80. Because the intent of the legislature was not clear, the

court applied the rule of lenity and prior construction of the term "any" in other contexts

and determined that the proper unit of prosecution under former RCW 9.68A.070 1 was

"one count per possession of child pornography, without regard to the number of images

comprising such possession or the number of minors depicted in the images possessed."

Sutherby, 165 Wn.2d at 882.

       In response to Sutherby, the legislature clarified the unit of prosecution for

possession and dealing in depictions of a minor engaged in sexually explicit conduct.

LAWS OF 2010, ch. 227, § 6. The legislature stated its intent by amending former


RCW 9.68A.00I (2007) to read,

      The legislature further finds that due to the changing nature of technology,
      offenders are now able to access child pornography in different ways and in
      increasing quantities. By amending current statutes governing depictions of
      a minor engaged in sexually explicit conduct, it is the intent of the
      legislature to ensure that intentional viewing of and dealing in child
      pornography over the internet is subject to a criminal penalty without
      limiting the scope of existing prohibitions on the possession of or dealing in
      child pornography, including the possession of electronic depictions of a
      minor engaged in sexually explicit conduct. It is also the intent of the


        I Sutherby addressed former RCW 9.68A.070 (1990), which provided: "[a] person
who knowingly possesses visual or printed matter depicting a minor engaged in sexually
explicit conduct is guilty of a class C felony." Sutherby, 165 Wn.2d at 879. In 2006, the
legislature changed the offense in RCW 9.68A.070 from a class C felony to a class B
felony. LAWS OF 2006, ch. 139, § 3.


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No. 31935-I-III
State v. Polk


       legislature to clarify, in response to State v. Sutherby, 204 P Jd 916 (2009),
       the unit of prosecution for the statutes governing possession of and dealing
       in depictions of a minor engaged in sexually explicit conduct. It
       is the intent of the legislature that the first degree offenses under
       RCW 9.68A.050, 9.68A.060, and 9.68A.070 have a per depiction or image
       unit of prosecution, while the second degree offenses under RCW
       9.68A.050, 9.68A.060, and 9.68A.070 have a per incident unit of
       prosecution as established in State v. Sutherby, 204 PJd 916 (2009).
       Furthermore, it is the intent of the legislature to set a different unit of
       prosecution for the new offense of viewing of depictions of a minor
       engaged in sexually explicit conduct such that each separate session of
       intentionally viewing over the internet of visual depictions or images of a
       minor engaged in sexually explicit conduct constitutes a separate offense.

LAWS OF 2010, ch. 227, §   1.

       Correspondingly, the legislature amended RCW 9.68A.070 by dividing the offense

into two degrees and defining a unit of prosecution for each degree. LAWS OF 2010,

ch. 227, § 6. To commit possession of depictions of a minor engaged in sexually explicit

conduct in the first degree, a person must knowingly possess a visual or

printed matter depicting a minor engaged in sexually explicit conduct as defined by

RCW 9.68A.Ol1(4)(a) through (e). RCW 9.68A.070(1)(a). For the purposes of

determining the unit of prosecution for each first degree offense in the aforementioned

section, each depiction or image constitutes a separate offense.

      For the crime of second degree possession of depictions of a minor engaged in

sexually explicit conduct, a person commits the offense when he or she knowingly


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No.31935-1-III
State v. Polk


possesses any visual or printed matter depicting a minor engaged in sexually explicit

conduct as defined in RCW 9.68A.OII(4)(f) or (g). RCW 9.68A.070(2)(a). "For the

purposes of detennining the unit of prosecution under this subsection, each incident of

possession of one or more depictions or images of visual or printed matter constitutes a

separate offense." RCW 9.68A.070(2)(c).

       We agree with Mr. Polk that his second degree possession of child pornography is

one unit of prosecution. In accordance with former RCW 9 .68A.00 1 (2010), the unit of

prosecution for second degree possession under RCW 9.68A.070(2)(c) is established in

Sutherby. Each incident of possession or depictions in the second degree is one unit of

prosecution, even if possession includes more than one depiction or image consistent with

RCW 9.68A.OII(4)(f) or (g).

       If the legislature intended for each incident of second degree possession to mean

each photograph or a group of photographs of the same victim, it could have done so.

Instead, the legislature directed the harsher unit of prosecution standard for first degree

possession and intended the unit of prosecution for second degree possession to be

consistent with Suther by. Thus, the unit of prosecution for second degree possession is

"one count per possession of child pornography, without regard to the number of images




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No. 31935-1-II1
State v. Polk


comprising such possession or the number of minors depicted in the images possessed."

Suther by, 165 Wn.2d at 882.

       Still, even when the legislature has expressed its view on the unit of prosecution,

we must perform a factual analysis to determine whether more than one "unit of

prosecution" is present in a particular case. State v. Varnell, 162 Wn.2d 165, 168, 170

P.3d 24 (2007). In Mr. Polk's circumstance, his simultaneous possession of multiple

depictions of minors engaged in sexually explicit conduct constituted a single unit of

prosecution. The depictions were discovered at the same time and at the same location.

The images found in Mr. Polk's home were the result of a single law enforcement search

and investigation into his prohibited possession of these images. Like in Suther by, Mr.

Polk's possession of multiple depictions of different minors on multiple computers does

not automatically result in multiple units of prosecution.

       Mr. Polk's four convictions for second degree possession of depictions of a minor

engaged in sexually explicit conduct violated his constitutional right against double

jeopardy. Dismissal of three of the four counts of possession is therefore required.




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No. 31935-1-111
State v. Polk


B. 	   Whether Mr. Polk's convictions/or second degree dealing in depictions o/minors
       engaged in sexually explicit conduct in counts 2, 3, and 4 are supported by
       substantial evidence

       Mr. Polk challenges the sufficiency of the evidence for three of his convictions of

second degree dealing in depictions. Mr. Polk contends that the evidence was insufficient

to show that he was the person who duplicated the images at the place and time alleged by

the State for counts 2, 3, and 4.

       In every criminal prosecution, due process requires that the State prove, beyond a

reasonable doubt, every fact necessary to constitute the charged crime. In re Winship,

397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). When a defendant

challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant." Id. Furthermore, "[a]

claim of insufficiency admits the truth of the State's evidence and all inferences that

reasonably can be drawn therefrom." Id.

       A person commits the crime of dealing in the depictions of a minor engaged in

sexually explicit conduct in the second degree when he or she knowingly develops,


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No. 31935-1-II1
State v. Polk


duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or

sells any visual or printed matter that depicts a minor engaged in an act ofsexually

explicit conduct as defined in RCW 9.68A.Oll(4)(f) or (g). RCW 9.68A.050(2)(a)(i).

The State presented sufficient evidence for a jury to conclude that Mr. Polk was the

person who scanned and duplicated the photographs onto the computers. Witnesses

testified that Mr. Polk was the person who took the pictures. Mr. Polk's wife testified

that the photography was Mr. Polk's and no one else's work. Testimony established that

Mr. Polk was the person who provided some of the women with copies of their pictures.

There was no evidence to suggest that Mr. Polk's wife or daughter assisted in duplicating

any of Mr. Polk's photographs. As far as computer access, evidence showed that Mr.

Polk logged onto more than one computer on the network in his home and was on the

computers where the digitized files were found. The jury could infer that Mr. Polk was

the person who copied or digitized the photographs onto the computers in his home.

       Sufficient evidence supports the date for each challenged count. First, count 2

deals with duplication of images of D.R.E. on November 21, 2011. This date is supported

by the testimony of Detective Boettcher who stated that a digitized image ofD.R.E. was

copied from one computer folder and placed in a new computer folder on November 21,




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No. 31935-1-III
State v. Polk


2011. Detective Boettcher gathered this file creation date from the computer drive where

the image was found.

         Second, count 3 alleged dealing in depictions on or about November 17,2011, and

the State alleged in closing arguments that images were of S.L.M. Detective Boettcher

testified that the computer storing an image of S.L.M. recorded that the image was

originally scanned on December 9,2011, or sometime prior. Additionally, Detective

Boettcher said that image was copied multiple times and could be found on different hard

drives. While the date established by the testimony does not exactly match the

November 17 date alleged by the State, Detective Boettcher's testimony that the image

could have been scanned prior to December 9 is sufficient to establish that the offense

occurred on or about November 17.

         Last, count 4 addressed the images of C.C.M. that were digitized on or about

December 9, 2011. Like the prior two counts, Detective Boettcher's testimony provided

evidence to support the date of the conviction. Detective Boettcher testified that he

found digital copies of some of C.C.M. 's slides that were scanned into a computer on

December 9,2011. In sum, sufficient evidence shows that Mr. Polk was the person who

duplicated the prohibited images at the place and time alleged by the State for counts 2,3,

and 4.


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No. 31935-1-I11
State v. Polk


C. 	   Whether the remaining possession count comprises the same criminal conduct as
       the dealing counts

       Mr. Polk contends that the trial court should have counted the remaining

possession count as the same criminal conduct as the dealing counts because possession is

a continuing offense and the same images of the women form the same basis for both

offenses.

       We review a sentencing court's decision on same criminal conduct for an abuse of

discretion or misapplication of the law. State v. Graciano, 176 Wn.2d 531, 536,295 P.3d

219 (2013). "Under this standard, when the record supports only one conclusion on

whether crimes constitute the' same criminal conduct,' a sentencing court abuses its

discretion in arriving at a contrary result." Id. at 537-38. "But where the record

adequately supports either conclusion, the matter lies in the court's discretion."

Id. at 538.

       Generally, "[w]hen imposing a sentence for two or more current offenses, the court

determines the sentence range for each current offense by using all other current and prior

convictions as if they were prior convictions for the purpose of the offender score." State

v. Ehli, 115 Wn. App. 556, 560, 62 P.3d 929 (2003) (footnote omitted). However, some

or all current offenses can count as one crime if the court finds that those offenses

encompass the same criminal conduct. RCW 9.94A.589(l)(a). "Same criminal conduct"

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No. 31935-1-III
State v. Polk


means two or more crimes that require the same criminal intent, are committed at the

same time and place, and involve the same victim. RCW 9.94A.589(1)(a).

       The facts show that the remaining second degree possession of depictions offense

and the four second degree dealing in depictions offenses involve the same victims.

Second degree possession is not gauged per image, but per incident. The incident for

possession involved the same victims as the dealing in depictions counts 1,2, 3, and 4.

Also, the offenses occurred at the same time and place considering possession is a

continuing offense, and Mr. Polk needed to be in possession of the photographs in order

to duplicate them.

       However, whether the crimes involve the same criminal intent is a closer issue.

"Intent is to be viewed objectively rather than subjectively." State v. Rodriguez, 61 Wn.

App. 812, 816, 812 P.2d 868 (1991). We first look to the underlying statutes to determine

whether the intents of each statute, if any, are the same or different for each count. Jd. If

the intents are different, then the offenses are counted as separate crimes. Jd. If the

intents are the same, then we look objectively to the sentencing facts and determine

whether a particular defendant's intent was the same or different with respect to each

count. Jd. If the intents are the same, then the counts constitute the same criminal

conduct. Jd.


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No. 31935-1-111
State v. Polk


       Second degree possession requires a person to knowingly possess a visual or

printed depiction of a minor engaged in sexually explicit conduct as defined in

RCW 9.68A.011(4)(f) or (g). RCW 9.68A.070(2)(a). It is clear from this statute that the

intent involves knowing possession of the prohibited image.

       For second degree dealing in the depictions of a minor engaging in sexually

explicit conduct, a person must knowingly develop, duplicate, publish, print, disseminate,

exchange, finance, attempt to finance, or sell any visual or printed matter that depicts a

minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4)(f)

or (g). RCW 9.68A.050(2)(a)(i). It is clear from this statute that the intent involves the

knowing propagation of the prohibited image, either by disseminating images to another

party or by creating more copies of a current image.

       Thus, the count for second degree possession of depictions offense is not the same

criminal conduct as the counts for second degree dealing in depictions offense. One

statute addresses an offender's intent to possess the prohibited images, whereas the other

addresses an offender's propagation of these images. Because the intent of each offense

is different, Mr. Polk's convictions do not constitute the same criminal conduct.




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No. 31935-1-III
State v. Polk


D. 	     Whether the sentencing court lacked statutory authority to impose a no contact
         order that was not crime related

         Mr. Polk challenges the court's imposition of a crime-related no contact order with

R.E.R.

         The imposition of crime-related prohibitions is reviewed for an abuse of

discretion. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A court

abuses its discretion when its decision is manifestly unreasonable or has an untenable

basis. State v. Brown, 132 Wn.2d 529, 572,940 P.2d 546 (1997).

         A sentencing court has the discretion to impose crime-related prohibitions. See

RCW 9.94A.505(8). Crime-related prohibitions include no contact orders. Armendariz,

160 Wn.2d at 119. The imposition of a no contact order prohibits conduct that relates

directly to the circumstances of the crime charged. Jd. at 113.

         The no contact order with R.E.R. is not crime related. Mr. Polk was convicted of

second possession of depictions of minors engage in sexually explicit conduct and second

degree dealing in depictions of sexually explicit conduct. Images of R.E.R. were not

found in depictions that Mr. Polk possessed or copied. The State did not present evidence

ofR.E.R. 's contact with Mr. Polk at trial. The no contact order between Mr. Polk and

R.E.R. is not crime related. The court abused its discretion in imposing this condition.




                                             21 

No. 31935-1-III
State v. Polk


       We reverse and remand for resentencing. A resentencing hearing is required to

correct the double jeopardy violation for multiple counts of second degree possession of

depictions of minors, and to vacate the no contact order applicable to R.E.R. Mr. Polk is

entitled to recalculation of his offender score and reconsideration of the exceptional

sentence imposed for multiple current convictions.




                                          Lawrence-Berrey, J.

WE CONCUR:




 ~,C-t'
Siddoway, C.J.                            Brown, J.       '0




                                            22 

