COURT OF APPEALS

DIVISION II

201511N - 14 AM 8: 314

STAT; Oi j SHINGTOU

IN THE COURT OF APPEALS OF THE STATE OF WASHING19

DIVISION II

STATE OF WASHINGTON, 

Respondent, 

v. 

CHRISTOPHER EDWARD EGER, 

Appellant. 

No. 45248 -1 - II

UNPUBLISHED OPINION

LEE, J. — A jury found Christopher Eger guilty of possession of depictions of a minor

engaged in sexually explicit conduct. Eger appeals, arguing that the trial court abused its discretion

by admitting the images found on his hard drive when he offered to stipulate that they depicted a

minor engaged in sexually explicit conduct. Because the State was not required to accept Eger' s

stipulation and the probative value ofthe admitted images was not substantially outweighed by the

danger of unfair prejudice, the trial court did not abuse its discretion in admitting the images. 

Accordingly, we affirm. 

FACTS

In 2010, while Eger was travelling out of the state for business, Eger' s wife called the

police to report that she found " child pornography" on their home computer. 3 Verbatim Report

ofProceedings (VRP) at 281. Police officers responded to Eger' s home, and after finding explicit

images on the computer, police officers obtained warrants and seized the computer. Following an
No. 45248 -1 - II

investigation, the State charged Eger with possession of depictions of minors engaged in sexually

explicit conduct. 1

In a pretrial hearing, the trial court ruled that it would allow the State to present 30 of the

approximately 900 images found on Eger' s computer. Eger moved to exclude the images that

allegedly depict children" engaged in sexually explicit conduct, arguing that the evidence would

be highly prejudicial. Clerk' s Papers ( CP) at 147. In lieu of admitting the images, Eger offered to

stipulate that the images meet the statutory criteria. The State argued that it was not required to

stipulate and that it had a right to present the crime that Eger allegedly committed. The trial court

ruled that the State has a " right to put on the evidence to support the elements of the crime that

they' re alleging took place." 2 VRP at 234. 

At trial, the State proffered 12 images. The trial court admitted 10 images. A jury found

Eger guilty of possession of depictions of minors engaged in sexually explicit conduct. Eger

appeals. 

ANALYSIS

A. STIPULATION

Eger claims that the trial court erred by admitting explicit images of minors, arguing that

the trial court abused its discretion by admitting unfairly prejudicial images instead of accepting

his proposed stipulation regarding the images. We disagree. 

Eger argues that his offered stipulation would have fulfilled the State' s duty to prove the

element without prejudicing the State' s case, and that the State' s refusal to accept his stipulation

evidences the State' s purpose " was to unfairly turn.the jury against Eger." Br. of Appellant at 9. 

1 RCW 9. 68A.070. 
No. 45248 -1 - II

Washington courts have long established that " the State is not automatically precluded

from presenting its evidence on an issue merely because the defendant offers a stipulation," which

requires that both parties agree. State v. Rice, 110 Wn.2d 577, 598 -99, 757 P. 2d 889 ( 1988), cert. 

denied, 491 U.S. 910 ( 1989). Importantly, subject to ER 403 and other rules of evidence, the State

is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal

defendant may not stipulate or admit his way out of the full evidentiary force of the case as the

State] chooses to present it." Old Chief v. United States, 519 U.S. 172, 186 -87, 117 S. Ct. 644, 

136 L. Ed. 2d 574 ( 1997) 2; State v. Finch, 137 Wn.2d 792, 811, 975 P. 2d 967 ( 1999). The " reason

for the rule is to permit a party ` to present to the jury a picture of the events relied upon. To

substitute for such a picture a naked admission might have the effect to rob the evidence of much

of its fair and legitimate weight. ' Old Chief 519 U.S. at 187 ( quoting Parr v. United States, 255

F.2d 86, 88 ( 5th Cir.), cert denied, 358 U.S. 824 ( 1958)). 3

2 The Old Chiefcourt noted the following regarding stipulations: 

A syllogism is not a story, and a naked proposition in a courtroom may be no match

for the robust evidence that would be used to prove it. People who hear a story

interrupted by gaps of abstraction may be puzzled at the missing chapters, and

jurors asked to rest a momentous decision on the story's truth can feel put upon at

being asked to take responsibility knowing that more could be said than they have

heard. A convincing tale can be told with economy, but when economy becomes a

break in the natural sequence of narrative evidence, an assurance that the missing

link is really there is never more than second best. 

519 U.S. 172 at 189. 

3 In Old Chief the court ultimately excluded the disputed evidence; however, the court excluded

on propensity grounds, noting that the evidence at issue was " dependent on some judgment

rendered wholly independently of the concrete events of later criminal behavior charged against

him." 519 U.S. at 190. 

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No. 45248 -1 - II

Here, the State was not required to stipulate to the nature ofthe images. Eger argues that

his stipulation offered the State an alternative method of proving the nature of the images. And

while it is true that his stipulation would have satisfied the State' s burden on that element, Eger

has not offered authority to support his claim that the State was required to stipulate that the images

depicted minors engaged in sexually explicit conduct. Therefore, in the absence of a stipulation

agreed to by the parties, the trial court did not abuse its discretion in admitting the images. 

B. EVIDENCE RULE (ER) 403

Eger argues that the admitted images were highly prejudicial, and therefore, the trial court

abused its discretion by admitting the " inflammatory images." Br. of Appellant at 15. The trial

court did not abuse its discretion in admitting the images. 

The trial court has broad discretion to admit evidence, and we review its decisions for an

abuse ofdiscretion. State v. Lord, 161 Wn.2d 276, 294, 165 P. 3d 1251 ( 2007). A trial court abuses

its discretion when its decision is based on untenable grounds or untenable reasons. Id. at 283 -84. 

An erroneous ruling with respect to such questions requires reversal only if there is a reasonable

possibility that the testimony would have changed the outcome of trial. "4 State v. Aguirre, 168

Wn.2d 350, 361, 229 P.3d 669 ( 2010). 

In determining whether the trial court abused its discretion in admitting the images, we first

review the relevancy of the images under ER 401., and then potential unfair prejudice under ER

4 The record does not reflect that the trial court balanced the probative and prejudicial value ofthe

images under ER 403. But Eger has cited no authority for the proposition that a trial court is

required to do an ER 403 balancing on the record under these circumstances. State v. Gould, 58

Wn. App. 175, 184, 791 P.2d 569 ( 1990). 

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No. 45248 -1 - II

403. See State v. Pirtle, 127 Wn.2d 628, 651, 904 P.2d 245 ( 1995); see also Finch, 137 Wn.2d at

811. 

Evidence is relevant if it has " any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence." ER 401; Pirtle, 127 Wn. 2d at 652. Relevant evidence is generally

admissible. ER 402. The decision to admit evidence " where the defendant offers to stipulate is

within the discretion of the trial court." Pirtle, 127 Wn.2d at 653. 

To convict Eger of possession of depictions of a minor engaged in sexually explicit

conduct, the State was required to prove beyond a reasonable doubt that Eger " knowingly

possessed visual or printed matter depicting a minor engaged in sexually explicit conduct" and that

Eger knew the person depicted was a minor. CP at 226 (Jury Instruction 16); see Rice, 110 Wn.2d

at 600. The jury was instructed that "[ i]f a person has information that would lead a reasonable

person in the same situation to believe that a fact exists," the jury may find that Eger " acted with

knowledge of that fact." CP at 222 ( Jury Instruction 12). The State offered the images to

demonstrate that the images it charged Eger with possessing depicted a minor engaged in sexually

explicit conduct. Thus, the images, which showed minors engaged in sexually explicit conduct, 

tended to prove an element of the crime charged. The evidence was relevant. See Pirtle, 127

Wn.2d at 652; see also Finch, 137 Wn.2d at 811. 

However, relevant evidence " may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice." ER 403; Rice, 110 Wn.2d at 600. Eger argues that

the images were unpleasant and, therefore, prejudicial, and that the trial court should have required

the State to accept his stipulation to the content ofthe images. Eger argues that "[ g] raphic evidence

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No. 45248 -1 - II

of children depicted of engaging in sexually explicit conduct can cause disgust in a

jury." Br. of

Appellant at 10. But " evidence is not prejudicial merely because it is gruesome," and "[ e] ven

repulsive photographs are admissible if their probative value outweighs their prejudicial effect." 

Rice, 110 Wn.2d at 601; State v. Sargent, 40 Wn. App. 340, 347, 698 P. 2d 598 ( 1985). 

Here, the evidence was highly probative as to whether the images Eger allegedly possessed

depicted a minor engaged in sexually explicit conduct. Eger has not demonstrated how the

probative value of the images, which tended to prove an element of the crime charged, was

substantially outweighed by unfair prejudice. See Rice, 110 Wn.2d at 600. Thus, the trial court

did not abuse its discretion by admitting the images. We affirm. 

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

Washington Appellate reports, but will be filed for public record in accordance with RCW

2. 06.040, it is so ordered. 

We concur: