### FILED APRIL 28, 2015 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III
INTHE 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.

- Ajury found DavidPolkguilty offour counts ofsecond degree dealing in depictions ofa minor engaged in sexually explicit conduct and four counts ofsecond degree possession ofdepictions ofa minor engaged in sexually explicit conduct. He raises four issues on appeal. First, he contends that his four convictions for second degreepossessionviolate the prohibition against doublejeopardybecausethe offense ofsecond degree possession ofdepictions is one unit ofprosecution. Second, he contends that the State failed topresent sufficient evidence toprovethree ofthe counts of second degree dealing in depictions. Third, he contends thatthe possession ofdepictions count comprises the same criminal conduct as the dealing in depictions counts. Last, he challenges the imposition ofa no contact orderwith R.E.R. We holdthat doublejeopardyNo. 31935-1-III State v. Polk
considerations require dismissal ofthree ofthe four possession convictions, and thatthere is no authority to supportthe imposition ofthe no contact order with R.E.R. We therefore
reverse three ofthe convictions, one no contact order, and remand for resentencing. FACTS Mr. Polk, using the pseudonym "D-Man," contacted Brian Bennett on Facebook. Report ofProceedings (RP) at 31-32. Mr. Polk and Mr. Bennettdiscovered 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 aboutthe photographs and allowed a search ofhis computer. Mr. Bennett also contacted D.R.E. to inform herthat someone calling himself D-Man was circulatingthe nude photographs. D.R.E. remembered Mr. Polk takingthephotographs when she was 16 years old and living in Walla Walla. Mr. Polkrepresented himselftobe a professional photographer and told D.R.E. that he wanted to take some fully nude photographs ofher for submission to Playboy. On more than one occasion, Mr. Polktook nude and partially nude pictures ofD.R.E. Mr. Polktold D.R.E. that shewould need to waituntil she was

2No. 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'shome. Police seized seven computers located in various locations throughout the house. The computers were linked together, forming a global access network. One computerwas logged onto D-Man'sFacebook account and two other computers showedpast access to D-Man's Facebook account. Police also found hundreds ofslides, some ofwhich wereboxed or bagged together and labeled with
a name, a slide digitizer to transfer images to computer files, and hundreds ofloose photographs. Detective Boettcherreviewed 7 to 8 terabytes ofdata for images ofunderage, nude females and males. In the images, he identified six underage females, four ofwhom testified at trial. He also found images ofaround a dozen more females who appeared to beunderage but could not be identified. According to Detective Boettcher, the digitized image files were copied onto many computerhard drives over the years. The dates on the computer files represented copy dates, not the date that the photograph was taken. Additionally, DetectiveBoettcher



### 3No. 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 ofthe four victims identified in the images was D.R.E. Detective Boettcher located several digitized images ofD.R.E., four ofwhich were pornographic. A total of 170 copies ofthese four images were found on the computers in Mr. Polk's home. One ofthe digitized images matched a slide that Mr. Polkgave D.R.E. 20 years earlier. The date on the digitized version ofthe slide image was November 21,2011. Detective Boettcher also located images ofS.L.M. in the search, recovering 87 hard-copy slides and 323 digitized images on four different computerhard drives. S.L.M. moved to Walla Walla when she was 15 years old and metMr. Polk shortly after she turned 16 years old. She wanted a portfolio to become a model andposed for Mr. Polk four times. Sheremembers being 16 years old atthe last shoot. While S.L.M. never got a copy ofthe photographs, she did see them during a slide showthatMr. Polk presented to S.L.M.'s husband after S.L.M. turned 18. The hard-copy slides ofS.L.M. found in Mr. Polk'shome were embossed with a date that occurredbefore she turned 18. Images ofTJ.H. were also found. Mr. Polkphotographed 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 nudephotographs taken to give to herboyfriend. WhenMr.
4No. 31935-1-III State v. Polk
Polk gave T.J.H. the photographs, he told herthat 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 ofthese 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 herthat shewas "modelingmaterial" and took nude photographs to create a modeling portfolio. RP at 107. C.C.M. remembered that the photographs were taken before she turned 18years old because she left for the Job Corps at 16, was pregnant at 17, and gave birth to her first child days afterher 18th birthday. C.C.M. said that Mr. Polk gave her
some ofthephotographs and, when her father asked for the rest, Mr. Polk said that he burned them. Still, police uncovered 49 slides ofC.C.M. from Mr. Polk's home. Detective Boettcher also found digital copies ofsome ofC:C.M.'s slides that were scanned into a recovered computer on December 9,2011. The State charged Mr. Polk with four counts ofsecond degree dealing in depictions ofa minor engaged in sexually explicit conduct and four counts ofpossession ofdepictions ofa minor engaged in sexually explicit conduct. Prior to trial, Mr. Polk moved to dismiss all but one ofthe possession counts based on the same unit of


### 5No. 31935-1-II1 State v. Polk prosecution. The State acknowledged that the unit ofprosecution for possession was per incident and not per image, but argued thatthe photographs ofeach different victim constituted a different incident ofpossession. 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 ofa fifth female, R.E.R., who had contactwith 

### Mr. Polkwhen she was underage. R.E.R. made statements to police prior to trial regarding her interactions with 

### Mr. Polkwhen she was underage. R.E.R. was on a witness list to testifY at trial. However, nophotographs 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 notbetestifYing. The State amended the information to eliminate one count ofdealing in depictions. Regarding the four counts for dealing in depictions, the State presented a specific date ofthe alleged crime in thejury instructions. During closing arguments, the State also identified the victim associated with each count. Count 1involved the transfer ofthe 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 ofS.L.M. on or about November 17, 2011. Count4 involved


### 6No. 31935-1-III State v. Polk dealing in the images ofC.C.M. on or about December 9,2011. The four counts for possession ofdepictions, counts 5 through 8, were identically described in the information with the same violation date ofJune 15,2012. Ajury found Mr. Polk guilty ofall eight charges. At sentencing, Mr. Polk renewed his motion to dismiss three ofthe possession charges based on the same unit of prosecution. He also argued that the convictions constituted the same criminal conduct and challenged the calculation ofhis 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 objectedto the score. The standard range sentence for each dealing in depictions countwas 72 to 96 months, while the standardrange 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 of60 months
on counts 1through 4 consecutive to the concurrent sentences of60 months on counts 5 through 8, for a total sentence of 120 months.

7No. 31935-1-III State v. Polk
OverMr. Polk's objections, the court imposed a no contact orderbetween Mr. Polk and R.E.R. R.E.R. was not an alleged victim in the case nor did shetestify attrial. Mr. Polk appeals. Heraises four issues. First, he challenges the four convictions for second degree possession on doublejeopardy grounds. Second, he challenges the sufficiency ofthe evidence in his second degree dealing in depictions convictions for counts 2 through 4. Third, for offender score calculation purposes, he contends thatthe possession ofdepictions counts comprise the same criminal conduct as the dealing in depictions counts. Fourth, he challenges the imposition ofa no contact orderwith R.E.R. ANALYSIS 

### A. Whether Mr. Polk'spossession of multiplephotographs of child pornography countas a single unit of prosecution Mr. Polk contends that the entry offour convictions for second degree possession ofdepictions ofa minor engaged in sexually explicit conduct violated his constitutional right against doublejeopardybecause the simultaneouspossession ofmultiple photographs found in the same location constitutes a single unit ofprosecution for which he is subjectto a single conviction under RCW 9.68A.070. Both the Fifth Amendment tothe United States Constitution and article I, section 9 ofthe 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 8No. 31935-1-II1 State v. Polk
convicted ofviolating 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) (quotingAdel, 136 Wn.2d at 634-35). The legislature has the power, limited by the Eighth Amendment, to define criminal conduct and set out the appropriatepunishment for that conduct. Bell
v. UnitedStates, 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 ofprosecution, doublejeopardyprotects a defendant from being convicted twice under the same statute for committingjust one unit ofthe crime. See id. at 83-84. The first step in determining the properunit ofprosecution is to examine the language ofthe statute. State v. Ose, 156 Wn.2d 140, 144, 124 P.3d 635 (2005). Questions ofstatutory 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 ofthe language at issue, the context ofthe 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 toharmonize and give effect to all provisions whenpossible. State v. Young, 125 Wn.2d
9No.**31935~** I·III State 

### v. Polk 688,696, 888 P.2d 142 (1995). "A statute is ambiguous ifit can be reasonably interpreted in more than one way." State v. Mullins, 128 Wn. App. 633, 642, 116 P.3d 441 (2005). "Ifthe language ofa 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 ofchild pornography. The former version ofRCW 9.68A.070 was simplistic, providing that "[a] person who knowingly possesses visual orprinted matter depicting a minor engaged in sexually explicit conduct is guilty ofaclass B felony." FormerRCW 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 ofprosecution under the statute is
one unit perpossession, notper image orperminor. Mr. Sutherby was sentenced to
seven counts ofpossession ofdepictions ofa minor engaged in sexually explicit conduct after investigators found images ofat least seven different minors on Mr. Sutherby's two computers. 

### Id. at 876. The courtrecognized that possession ofa "visual orprinted matter" constituted "anyphotograph or other material" under former RCW 9.68A.Oll(2) (2002), and that "any"was an indefinite termthat could mean (1) a single photograph, (2) one, some, or all photographs regardless ofquantity, or (3) one ormore photographs
10No.31935-I-III State v. Polk

or other material. Id. at 879-80. Becausethe intent ofthe legislature was not clear, the court applied the rule oflenity and prior construction ofthe term "any" in othercontexts and determined that the properunit ofprosecution under former RCW 9.68A.070 1was "onecount perpossession ofchildpornography, without regard to the number ofimages comprising such possession orthe number ofminors depicted in the imagespossessed." Sutherby, 165 Wn.2d at 882. In response to Sutherby, the legislature clarifiedthe unit ofprosecution for possession and dealing in depictions ofa 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 oftechnology, offenders are now able to access childpornography 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 ofthe legislature to ensure that intentional viewing ofand dealing in child pornography overthe internet is subject to a criminal penalty without limiting the scope ofexisting prohibitions on the possession ofor dealing in child pornography, including the possession ofelectronic depictions ofa minor engaged in sexually explicit conduct. Itis also the intent ofthe

I Sutherby addressed former RCW 9.68A.070 (1990), whichprovided: "[a] person whoknowingly possesses visual orprintedmatter depicting a minor engaged in sexually explicit conduct is guilty ofa 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. IINo. 31935-I-III State 

### v. Polk legislature to clarify, in response to State 

### v. Sutherby, 204 PJd916 (2009), the unit ofprosecution for the statutes governing possession ofand dealing in depictions ofa minor engaged in sexually explicit conduct. It is the intent ofthe legislature that the first degree offenses under RCW 9.68A.050, 9.68A.060, and 9.68A.070 have a per depiction orimage unit ofprosecution, whilethe 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 ofthe legislature to set a different unit of prosecution for the new offense ofviewing ofdepictions ofa minor engaged in sexually explicit conduct such that each separate session of intentionallyviewing overthe internet ofvisual depictions or images ofa 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 ofprosecution for each degree. LAWS OF 2010, ch. 227, 

### § 6. To commitpossession ofdepictions ofa 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). Forthe purposes of determining the unit ofprosecution for each first degree offense in the aforementioned section, each depiction orimage constitutes a separate offense. Forthe crime ofsecond degree possession ofdepictions ofa minor engaged in sexually explicit conduct, a person commits the offense when he or she knowingly
12No.31935-1-III State v. Polk
possesses any visual orprinted 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). "Forthe purposes ofdetennining the unit ofprosecution under this subsection, each incident of possession ofone or more depictions or images ofvisual orprinted matter constitutes a separate offense." RCW 9.68A.070(2)(c). We agree with Mr. Polk that his second degree possession ofchild pornography is
one unit ofprosecution. In accordance with former RCW 9.68A.001 (2010), the unit of prosecution for second degree possession underRCW 9.68A.070(2)(c) is established in Sutherby. Each incident ofpossession or depictions in the second degree is one unit of prosecution, even ifpossession includes more than one depiction or image consistent with RCW 9.68A.OII(4)(f) or (g). Ifthe legislature intended for each incident ofsecond degree possession to mean each photograph or a group ofphotographs ofthe same victim, it could have done so. Instead, the legislature directed the harsher unit ofprosecution standard for first degree possession and intended the unit ofprosecution for second degree possession to be consistent with Sutherby. Thus, the unit ofprosecution for second degree possession is "one count perpossession ofchild pornography, without regard to the number ofimages

13No. 31935-1-II1 State 

### v. Polk comprising suchpossession or the number ofminors depicted in the images possessed." Sutherby, 165 Wn.2d at 882. Still, even when the legislature has expressed its view on the unit ofprosecution,
we mustperform a factual analysis to determine whether more than one "unit of prosecution" is present in aparticular case. State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007). In Mr. Polk's circumstance, his simultaneous possession ofmultiple depictions ofminors 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 ofa single law enforcement search and investigation into his prohibited possession ofthese images. Like in Sutherby, Mr. Polk'spossession ofmultiple depictions ofdifferent minors on multiple computers does not automatically result in multiple units ofprosecution. 

### Mr. Polk's four convictions for second degree possession ofdepictions ofa minor engaged in sexually explicit conduct violated his constitutional right against double jeopardy. Dismissal ofthree ofthe four counts ofpossession is therefore required.

14

### No. 31935-1-111 State v. Polk


### B. Whether Mr. Polk's convictions/orseconddegree dealing in depictions o/minors engagedin sexually explicit conduct in counts 

### 2, 3, and

### 4 are supported by substantialevidence 

### Mr. Polk challenges the sufficiency ofthe evidence for three ofhis 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 thatthe 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 ofthe evidence, the proper inquiry is "whether, after viewing the evidence in the light most favorable to the State, any rational trier offact could have found guilt beyond areasonable 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 ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably can be drawn therefrom." Id. A 

### person commits the crime ofdealing in the depictions ofa minor engaged in sexually explicit conduct in the second degree when he or she knowingly develops,
15No. 31935-1-II1 State v. Polk duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells any visual orprinted matterthat depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.Oll(4)(f) or (g). RCW 9.68A.050(2)(a)(i). The Statepresented sufficient evidence for ajuryto conclude that Mr. Polk was the person who scanned and duplicated thephotographs ontothe computers. Witnesses testified that Mr. Polkwas the person who took thepictures. Mr. Polk's wife testified thatthe photography was Mr. Polk's and no one else's work. Testimony established that Mr. Polkwas the personwhoprovided some ofthe women with copies oftheirpictures. There was no evidence to suggest that Mr. Polk'swife ordaughter assisted in duplicating any ofMr. Polk'sphotographs. 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. Thejury could infer that Mr. Polk was the person who copied or digitized the photographs onto the computers in his home. Sufficientevidence supports the date for each challenged count. First, count 2 deals with duplication ofimages ofD.R.E. on November 21, 2011. This date is supported by the testimony ofDetective Boettcherwho stated that a digitized image ofD.R.E. was copied from one computer folder and placed in a new computer folder on November 21,

16No. 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 ofS.L.M. DetectiveBoettcher testified thatthe computer storing an image ofS.L.M. recorded that the image was originally scanned on December 9,2011, or sometimeprior. 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 thatthe image couldhave been scanned priorto December 9 is sufficientto establish that the offense occurred on or about November 17. Last, count 4 addressed the images ofC.C.M. that were digitized on or about December 9, 2011. Like thepriortwo counts, Detective Boettcher'stestimonyprovided evidence to support the date ofthe conviction. Detective Boettchertestified that he found digital copies ofsome ofC.C.M.'s slides that were scanned into a computer on December 9,2011. In sum, sufficient evidence shows thatMr. Polk was the person who duplicated the prohibited images at the place and time alleged by the State for counts 2,3, and 4.
17No. 31935-1-I11 State v. Polk
C. Whether the remainingpossession countcomprises the same criminal conduct as the dealing counts Mr. Polk contends thatthe trial court should have countedthe remaining possession count as the same criminal conduct as the dealing counts becausepossession is
a continuing offense and the same images ofthe women form the same basis for both offenses. We review a sentencing court's decision on same criminal conduct for an abuse of discretion ormisapplication ofthe law. State v. Graciano, 176 Wn.2d 531, 536,295 P.3d 219 (2013). "Underthis standard, whentherecord 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. "Butwhere 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 ormore current offenses, the court determines the sentence range for each current offense by using all other current and prior convictions as ifthey were prior convictions for the purpose ofthe 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 ifthe court finds thatthose offenses encompass the same criminal conduct. RCW 9.94A.589(l)(a). "Same criminal conduct" 18No. 31935-1-III State v. Polk

means two ormore crimes that require the same criminal intent, are committed at the
same time andplace, and involve the same victim. RCW 9.94A.589(1)(a). The facts show that the remaining second degree possession ofdepictions offense and the four second degree dealing in depictions offenses involve the same victims. Second degree possession is not gaugedper 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 consideringpossession is a continuing offense, and Mr. Polk needed to be in possession ofthe photographs in order to duplicate them. However, whether the crimes involve the same criminal intent is a closer issue. "Intent is to be viewed objectivelyrather 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 ofeach statute, ifany, are the same or different for each count. Jd. If the intents are different, then the offenses are counted as separate crimes. Jd. Ifthe 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. Ifthe intents are the same, then the counts constitute the same criminal conduct. Jd.
19No. 31935-1-111 State v. Polk
Second degree possession requires a person to knowingly possess a visual or printed depiction ofa minor engaged in sexually explicit conduct as defined in RCW 9.68A.011(4)(f) or (g). RCW 9.68A.070(2)(a). 

### Itis clear from this statute that the intent involves knowingpossession oftheprohibited image. For second degree dealing in the depictions ofa minor engaging in sexually explicit conduct, a person must knowingly develop, duplicate, publish, print, disseminate, exchange, finance, attempt to finance, or sell any visual orprinted matter that depicts a minor engaged in an act ofsexually explicit conduct as defined in RCW 9.68A.011(4)(f)
or (g). RCW 9.68A.050(2)(a)(i). Itis clear from this statute that the intent involves the knowingpropagation ofthe prohibited image, either by disseminating images to another party orby creating more copies ofa current image. Thus, the count for second degreepossession ofdepictions 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 ofthese images. Because the intent ofeach offense is different, 

### Mr. Polk's convictions do not constitute the same criminal conduct.

20No. 31935-1-III State 

### v. Polk


### D. Whether the sentencingcourt lackedstatutory authority to impose a no contact order that was not crime related Mr. Polk challenges the court's imposition ofa crime-related no contact orderwith R.E.R.The imposition ofcrime-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 orhas 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-relatedprohibitions. See RCW 9.94A.505(8). Crime-related prohibitions include no contact orders. Armendariz, 160 Wn.2d at 119. The imposition ofa no contact orderprohibits conductthatrelates directly to the circumstances ofthe crime charged. 

### Jd. at 113. The no contact order with R.E.R. is not crime related. Mr. Polk was convicted of second possession ofdepictions ofminors engage in sexually explicit conduct and second degree dealing in depictions ofsexually explicit conduct. Images ofR.E.R. were not found in depictions that Mr. Polkpossessed or copied. The State did not present evidence ofR.E.R.'s contact with Mr. Polk at trial. The no contact orderbetween 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 doublejeopardyviolation for multiple counts ofsecond degree possession of depictions ofminors, and to vacate the no contact order applicable to R.E.R. Mr. Polk is entitled torecalculation ofhis offender score andreconsideration ofthe exceptional sentence imposed for multiple current convictions.

Lawrence-Berrey, J. WE CONCUR:

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

### J. 

# '0

22