E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON June 07 2012 4:03 PM KEVIN STOCK COUNTY CLERK

NO: 11-1-03893-1

SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY

STATE OF WASHINGTON Plaintiff, Vs. STEVEN CRAIG POWELL, CAUSE NO. 11-1-03893-1

Defendant.

DEFENSE MOTIONS ON SENTENCING: (1) DOUBLE JEOPARDY -UNIT OF PROSECUTION / (2) SAME CRIMINAL CONDUCT

COMES NOW THE DEFENDANT, STEVEN CRAIG POWELL, by and through his Attorneys Mark Quigley and Travis Currie, and hereby moves this court for the following: (1) An order dismissing 12 of the 14 counts of Voyeurism based on a violation of his constitutional right to be free from double jeopardy guaranteed by the Fifth Amendment of the United States Constitution. This motion is based on the Fifth Amendment of the U.S. Constitution, Washington Constitution, art. I, sec. 9, the memorandum of counsel, the file and record herein, and the evidence produced at trial. (2) The Defense also moves this Court to find that any remaining counts as to each respective victim amount to the "same criminal conduct" for purposes of sentencing under RCW 9.94A.589. I. PROCEDURAL HISTORY The Pierce County Prosecuting Attorney originally charged the Defendant, Steven Powell, by way of Information, filed on September 23, 201 1, with 14 counts of Motion to Dismiss Counts Double Jeopardy

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Voyeurism, and one count of Possession of Depictions of Minor Engaged in Sexually Explicit Conduct in the Second Degree. The charge of Possession of Depictions of Minor Engaged in Sexually Explicit Conduct in the Second Degree has been previously dismissed by the Court. The remaining 14 counts of Voyeurism, all allege that between June of 2006 and August of 2007 the defendant did, for the purpose of arousing or gratifying the sexual desire of any person, knowingly view, photograph, or film A.H. (Counts 1-7), and J.H. (Counts 8-14), without that person's knowledge and consent, while that person was in a place where that person would have a reasonable expectation of privacy. The State had also alleged that each of these counts was aggravated by the following circumstances: the offense involved an invasion of the victim's privacy, and/or the defendant committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished. The first of these aggravators, that the offense involved an invasion of the victim's privacy was conceded and dismissed by the State on Defense motion prior to the court issuing its instructions to the jury. At the close of the State's case, the Defense filed and argued a motion to dismiss all but 2 counts based on insufficient evidence to support separate offenses. The State filed a response, arguing in part that this was a sentencing issue and should be revisited after any verdict. On May 16,20 12, the Jury returned a verdict of guilty on counts 1- 14.
11. RELEVANT FACTS PRODUCED AT TRIAL

At trial, the State admitted 15 photographs in support of their 14 remaining counts of Voyeurism. (Trial Exhibits 1-15) The lead case Detective Sanders testified that these

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images were single shots removed from a large number of .jpg files created from a digital video camera recording. Detective Sanders testified that these are the images the State is relying on for the counts; all come from one disk; and that they are images of a total of 2 alleged victims (counts 1 through 7 involve Victim 1 (A.H.), and counts 8 through 14 involve Victim 2 (J.H.)). Detective Sanders testified that there was no way to tell who, if anyone had ever viewed the images. When questioned as to how he had come to the various counts, he said he had tried to figure out counts based on the content of the pictures (i.e. the apparent time of day, the items in the background, and based on the actions that were going on-using the toilet or taking a bath). Detective Sanders also

testified that there was no way to know when exactly the pictures had been created. Furthermore, he testified that it is possible they were all taken the same day. The Detective conceded that the images used in support of Count 8 and 10 were of the same victim engaged in a bath from the same time. The images themselves contain a number of items in the background that the detective apparently relied on. Seven of the photos include a short tumbler type water glass sitting in the same spot on the comer of a low wall separating the upstairs "loft" or landing area from the stairs. In five of the photos, there is what appears to be a pink item of clothing in the foreground. In some of those photos and several others, there also appears to be some other item of clothing sitting on this pink item with a distinctive bulge. Still other photos all contain the same pillow, also in the foreground. Still others, could be from the same filming period but it may be unclear because of a change of angle or focus.

111. LAW AND ARGUMENT

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Department of Assigned Counsel 949 Market Street, Suite 334 Tacoma, Washington 98402-3696 Telephone: (253) 798-6062

(1) Double Jeopardy-Unit

of Prosecution

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"The Double Jeopardy Clause of the United States Constitution provides that no person shall 'be subject for the same offense to be twice put in jeopardy of life and limb."' State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002), quoting U.S.

Const., amend. 5. The Washington Constitution provides likewise.

Id.,citing Const. art.

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I, sec. 9; In re Personal Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000). Double jeopardy prohibitions "protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime." Westling, 145 Wn.2d at 610, citing State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998); North Carolina v. Pierce, 395 U.S. 71 1, 89 S. Ct. 2071,23 L.Ed. 2d 656 (1969). The federal and state provisions afford the same protections and are "identical in thought, substance, and purpose." State v. Shoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959); &, 136 Wn.2d at 632. If a defendant is convicted of multiple violations of the same statute, whether double jeopardy has been violated depends on what "unit of prosecution" the Legislature intends as the "punishable act under the statute." Westling, 145 Wn.2d at 610, citing Davis, 142 Wn.2d at 172; State v. Tili, 139 Wn.2d 107, 113, 985 P.2d 365 (1999);

m,136 Wn.2d at 634.

The unit of punishment inquiry is always fact-specific 136 Wn.2d at 640.

and must proceed on a case-by-case basis. &,

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The allowable unit of prosecution concept was set out in Sanabria v. United States, 437 U.S. 54, 69-70 (1978): It is Congress, and not the prosecution, which establishes and defines offenses. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Brown v. Ohio, 432 U.S. 161, 165 (1977). But once Congress has defined a Motion to Dismiss Counts Double Jeopardy

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statutory offense by its prescription of the "allowable unit of prosecution," United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 (1952) [(allowable unit of prosecution under Fair Labor Standards Act was a course of conduct in setting wages below the statutory minimum, not each week's payment to each employee)]; Bell v. United States, 349 U.S. 81 (1955) [(allowable unit of prosecution under the Mann Act was an act of transportation for immoral purposes, not the number of women transported)]; Braverman v. United States, 3 17 U.S. 49 (1942) [(a single agreement to violate several penal statutes can result in only one conspiracy conviction)]; In re Nielsen, 13 1 U.S. 176 (1 889) [(Double Jeopardy Clause would not permit government to convict a man of bigamy, a continuous offense, and then prosecute him for committing adultery with the same wife on the next day)], that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct "offenses" under the statute depends on this congressional choice. What the Legislature intended must first be determined from the language in the statute. Westling, 145 Wn.2d at 610, citing T h 139 Wn.2d at 115. The i, ultimate question is "whether, in light of legislative intent, the charged crimes constitute the same offense." State v. Graham, 153 Wn.2d 400, 103 P.3d 1238 (2005), quoting In re Personal Restraint of Orange, 152 Wn.2d 795, 8 15, 100 P.3d 291 (2004). However, the court is not allowed to impute legislative intent, or to construe a statute in a way it believes will best accomplish a statutory purpose. United States v. Keen, 96 F.3d 425,433 (9th Cir. 1996) (citing Brown v. United States, 623 F.2d 54, 59 (9th Cir. 1980)). Rather, when the Legislature fails to define the unit of prosecution or if legislative intent is unclear, therefore requiring a choice to be made between two readings of what conduct the Legislature has made a crime, the rule of lenity requires that any ambiguity be "'resolved against turning a single transaction into multiple offenses."'

Adel,136 Wn.2d at 634-35;

(quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed. 260 (1952)(citing Bell v. United States, 349 U.S. 81, 75 S.Ct. Motion to Dismiss Counts Double Jeopardy

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620, 99 L.Ed. 905 (1 955) (doubt is resolved against turning a single transaction into multiple offenses)); State v. Turner, 102 Wn.App. 202, 6 P.3d 1226 (2000) (applying the rule of lenity to the first degree theft statute, RCW 9A.56.030(l)(a)), review denied, 143 Wn.2d 1009 (200 1). The unit of prosecution for a crime may be an act, or it may be a "course of conduct." State v. Tvedt, 153 Wn.2d 705, 107 P.3d 728 (2005)(robbery statute), citing Universal C.I.T. Credit Corn., 344 U.S. at 225-26 (federal overtime payment statute); State v. Root, 14 1 Wn.2d 70 1, 7 10, 9 P.3d 2 14 (2000)(evaluating old sexual exploitation of a minor statute); Adel, 136 Wn.2d at 634 (unlawful possession of controlled substances statute). Hence, the determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical act or a single victim; rather, the key is the nature of the conduct proscribed. For instance, in Universal C.I.T. Credit Corn, supra, the defendant violated the Fair Labor Standards Act through a managerial decision that certain activity did not require overtime payment. Even though there were multiple underpayments to multiple employees during multiple pay periods, the Court determined that Congress intended one punishment for the one managerial decision, and held that the unit of prosecution was determined by the scope of the course of conduct defined by the statute rather than the discrete physical acts making up the course of conduct, or the number of victims. 344 U.S. at 224-26. Accord Brown v. Ohio, 432 U.S. 161, 169 (1977) (stating that a nine day joyride could not be the basis for multiple convictions where the applicable criminal statute did not make each day of continued use a separate criminal offense).

Motion to Dismiss Counts Double Jeopardy

Department o f Assigned Counsel 949 Market Street, Suite 334 Tacoma, Washington 98402-3696 Telephone: (253) 798-6062

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Similarly, in Root, supra, our Washington Supreme Court analyzed the elements of the previous sexual exploitation of a minor statute, finding that there were two: (1) having children engage in sexually explicit poses and (2) then photographing them. Given those elements, the court held that the "course of conduct" defining the unit of prosecution was a single session and each victim, rather than each photograph taken during a session. 141 Wn.2d at 710. The crime of voyeurism was specifically found in State v. Boyd, 137 Wash.App 910, 155 P.3d 188 (2007), to be a course of conduct type crime. The court held in Boyd that where the court found that evidence pertaining to the voyeurism charge did not establish multiple acts of voyeurism but rather a continuing course of conduct where the state submitted two photographs of the same victim and the victim testified that both photographs were taken while she going up the stairs to class, and they were apparently taken in the same place and time. Id. (evaluating the need for a Petrich instruction where the state charged only one act but submitted multiple photos taken at the same time). For this case, under RCW 9A.44.115, a person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films another person, without that person's knowledge and consent, the intimate areas of another person, or while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy. RCW 9A.44.115 (2)(a)(b). It is clear from the from the language of the statute that his is intended to be a course of conduct type crime. The phrase, "while the person being viewed, photographed, or filmed," refers to an ongoing period of time. Common sense tells us that a person who is continually watching through a camera

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Department of Assigned Counsel 949 Market Street, Suite 334 Tacoma, Washington 98402-3696 Telephone: (253) 798-6062

and occasionally snapping photos has committed a single act of voyeurism, not a separate crime for each photo taken. That statute includes "photographs" or "films" so that it is still a crime even if these acts are done remotely or by hidden camera and the defendant isn't also viewing the victim at the same time. The crime is the violation of the victims privacy. The evidence presented at trial was that the images were created on a digital video camera and stored as a series of .jpg files. Under the statute, "Photographs" or "films" means the making of a photograph, motion picture film, videotape, digital image, or the recording or transmission of the image of a person. Clearly, under this definition, the intent of the act is to criminalize the invasion of a person's privacy. Therefore, the act occurs when someone is actually watching the victim, or when they are being recorded either by photographing or filming in some way. The Defense does not dispute that for purposes of a double jeopardy analysis, the unit of prosecution under the voyeurism statute has been held to be for each victim whose right to privacy is violated. Sate v. Diaz-Flores, 148 Wash.App 9 11,201 P.3d 1073 (2009). Therefore, separate counts for viewing or recording A.H and J.H. are appropriate. However, where the evidence presented did not show that there were separate and distinct acts, rather then just a period of filming, the court must find that the separate counts constitute Double Jeopardy. Here, the State specifically conceded that at least two of the counts (8 and 10) were based on images of the same victim taken on the same day at nearly the same time, but that they were of separate acts of the victim. However, the voyeurism statute does

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not focus on the separate acts of the victim, but rather that of the defendant. The State did not presented any evidence that these were recorded at separate times, or that they were not an ongoing act of voyeurism. Therefore, the Court must dismiss one of these counts under double jeopardy. Furthermore, the testimony and the exhibits themselves suggest that many of the other counts as charged may have been acts that occurred on the same day. Since the testimony was that they could have been the same day, and there was no evidence to suggest that there were separate periods of filming, the rule of lenity requires finding all of the counts to be a single unit of prosecution for each victim. Any images that were produced during a single period of voyeurism constitute the same ongoing act, and separate convictions are a violations of the defendant's right against Double Jeopardy. There is no evidence to prove that all of these acts took place at different times. The testimony was that they could have all taken place on the same day. The State presented evidence that the individual photos themselves were drawn from a series of images saved from a digital video recording, but no definitive evidence to support the conclusion that they were taken at different times. Although there was testimony that the detective chose images in support of separate counts based on what he perceived as differences in the contents of the photos, they failed to account for the alarming number of similarities within the photos. The jury made NO FINDINGS that these were separate acts. The testimony was that the disk contained numerous series of images that were looped, and others that were actually repeated images. Presumably, this was because of how they had been saved, and therefore, there is no way to tell what order the various sequences were taken in. The sequences as saved have been edited by someone either at

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the time they were originally stored, or at a later date. It is possible, based on the testimony that these images were saved from one long continuous period of recording, with adjustments being made to the focus, angle or position, and f-stop of the camera. Therefore, the Court should find that all of the acts could have been taken on the same day during the same period of recording, and that they amount to a single unit of prosecution as to counts 1-7 and 8- 14. Images 1, 3,4, 8, 9, 10, and 11 are all clearly taken from the same period of recording. Images 2 and 2a also could have been taken from this same series, as could images 13 and 14. Exhibit 1 shows a nude A.H. standing in the bathroom. In front of her, to the right is someone in a pink sweater or shirt. Sitting on the corner of the banister, above the stairs, is a clear, short, tumbler-type water glass. This glass would be perched on the edge of the banister over the top of the open end of the stairs above a long drop. The glass looks to be in the exact same position in 1 , 3 , 4 (as to A.H), and also 8,9, 10 and 11 (as to J.H.). The pink sweater or shirt is visible in 2, and also 8, 10, 11 and 13. It is not clearly visible in 1,2, 3, or 4, but that is only due to the focus of the camera lens. However, there is also an object that appears to be under the pink shirt, that sticks out in a distinctive shape in images 2,4, 8, 10 and possible 14. Images 13 and 14, are also of the same victim (J.H.), sitting on the toilet, and are so similar, that there is really nothing in the images to suggest they were not taken at the same time. Images 6 and 7 are of the same victim (A.H.), wearing the same clothes, standing with her underwear pulled down, have the same pillow in the left foreground, the dog in the right foreground, and have the same item of clothing draped over the banister. The pillow even has the same distinctive indentation in both photos, showing that it had not

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been moved. They were also both saved in "Open window in back of house" and are image numbers 00403 and 00499. Given the testimony of Detective Sanders that all of these recordings could have been made during the same day, they would constitute a single unit of prosecution as to each victim and the court should dismiss all but one count as to each victim. Absent any findings by the Jury that there were separate periods of voyeurism, the Rule of Lenity requires the court to find a single unit of prosecution as to each victim.

1(2) Same Criminal Conduct

A defendant's offender score for any offense is determined by looking at each past crime and each "other current offense" RCW 9.94A.589. However, if two current offenses encompass the "same criminal conduct", as defined by RCW 9.9rA.589(l)(a), then those current offenses together must be treated as a single offense for sentencing purposes. RCW 9.94A.589(l)(a) defines "same criminal conduct" as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." State v. Tili, 139 Wn.2d 107, 123,985 P.2d 365 (1999). The "relevant inquiry for the intent prong is to what extent did the criminal intent, when objectively, change from one crime to the next." State v. Tili, 139 Wn.2d at 123. The State relies on State v. Grantharn, 84 Wn.App. 854,932 P.2d 657 (1997), to argue that the Court should find that the present crimes are different criminal conduct based on a separate criminal intent. The Grantham court found that the defendant's criminal intent changed from one crime to the next when that defendant had the time or opportunity to pause, reflect, and either cease his or her criminal activity or proceed to commit a W h e r

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criminal act. Grantham, 84 Wn.App. at 859. However, in Grantham, the court noted that the evidence supported that each act was complete in itself. Our case is distinguishable, because the facts do NOT support this inference. The State presented no evidence that the images were not taken all on the same day or even all in one long, continuous video recording. Therefore, this case is more similar to State v. Walden, 69 Wn.App. 183, 847 P.2d 956 (1993), where the court found that one count of second degree rape and one count of attempted second degree rape constituted same criminal conduct when they were against the same victim, nearly the same time and place, and the criminal intent was similar. The crimes here, with respect to each individual victim, were committed in the same place. There is no evidence to prove that all of these acts took place at different times. Therefore, the Court should find that all of the acts could have been taken on the same day during the same period of recording, and that they amount to same criminal conduct as to counts 1-7 and 8-14. The Defendant should be scored as a 3. However, should the court be willing to consider the testimony by officer Sanders that he could determine different filming periods based on the content, the court should still examine the photos themselves.

IV. CONCLUSION The court should dismiss counts 2-7 and 9-14 under Double Jeopardy, leaving the defendant with 1 count of voyeurism as to each d d k & ~ + ?
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cc

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Furthermore, even if the court found that these were not the same unit of prosecution, the court should find that the majority of the photographs constituted same criminal conduct and sentence the defendant with a score of 3.

Respectfully submitted this * y a

of June, 20 12.by:

~ t f b r n for Mr. Steven Powell e~

By:

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R. Currie, WSBA # 29298 orney for Mr. Steven Powell

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Department of Assigned Counsel 949 Market Street, Suite 334 Tacoma, Washington 98402-3696 Telephone: ( 2 5 3 ) 798-6062