## COURT OF APPEALS DIVISION II 201511N - 14 

### AM 8: 314 STAT; Oi 

### j SHINGTOU 

## IN THE COURT OFAPPEALS OFTHE STATE OFWASHING19 DIVISION II STATE OF WASHINGTON,Respondent,

v. CHRISTOPHER EDWARD EGER, Appellant. No. 45248 -1 - II

UNPUBLISHED OPINION

LEE, J. — 

### Ajury found Christopher Eger guilty of possession of depictions of a minor engaged in sexuallyexplicit conduct. Egerappeals, arguingthatthetrial court abused its discretion 

### by admitting the images found on his hard drive when he offered to stipulate thatthey depicted a minor engaged in sexually explicit conduct. Because the State was not required to accept Eger's 

### stipulation andtheprobative value ofthe admitted images was not substantially outweighed bythe 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 afterfinding explicit images on the computer, police officers obtained warrants and seized the computer. Following anNo. 45248 -1 - II



### investigation,the State charged Eger with possession ofdepictions ofminors engaged in sexually explicit conduct.1 

### In a pretrial hearing, the trial court ruled that it would allowthe State to present 30 ofthe approximately 900 images found on Eger' s computer. Eger moved to exclude the images that 

### allegedly depict children" engaged in sexually explicit conduct, arguing thatthe evidence would 

### be highlyprejudicial. Clerk's Papers (CP) at 147. In lieu ofadmitting the images, Eger offeredto 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 presentthe crime that Eger allegedly committed. Thetrial 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. 

### Ajury found Eger guilty of possession of depictions of minors engaged in sexually explicit conduct. Eger appeals. ANALYSIS A. STIPULATION 

### Eger claims thatthe trial court erred by admitting explicit images ofminors, arguing that 

### the trial court abused its discretion by admitting unfairly prejudicial images instead ofaccepting 

### his proposed stipulation regardingthe 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, subjectto ER 403 and otherrules ofevidence,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 ofthe full evidentiary force ofthe case as the State] chooses to present it." 

### Old Chiefv. 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 Parrv. UnitedStates, 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 astory, and anaked proposition in acourtroom maybe 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 reallythere 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 ofthe concrete events of later criminal behavior charged against him." 519 U.S. at 190.

3No. 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 notoffered authorityto supporthis claimthatthe Statewas requiredto stipulate thatthe images depicted minors engaged in sexually explicit conduct. Therefore, in the absence of a stipulation 

### agreedto bythe parties,the trial courtdid not abuse its discretion in admitting the images. B. EVIDENCE RULE (ER) 403 

### Eger argues thatthe 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 ifthere is a reasonable 

### possibility that the testimony would have changed the outcome oftrial. " 4 State v.Aguirre, 168 Wn.2d 350, 361, 229 P.3d 669 (2010). 

### In determining whetherthetrial court abused its discretion in admittingthe images,we first review the relevancy ofthe images under ER 401., and then potential unfair prejudice under ER

4 The record does not reflect thatthe 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 underthese circumstances. State v. Gould, 58 

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

4No. 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 orprinted matterdepicting aminorengaged in sexually explicitconduct" andthat 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," 

### thejury may find that Eger " acted with knowledge of that fact." CP at 222 ( Jury Instruction 12). The State offered the images to 

### demonstrate thatthe images it charged Egerwith possessing depicted aminor 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

5No. 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 iftheir 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,theevidencewas highlyprobative astowhetherthe images Egerallegedlypossessed 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 ofthe panel having determined thatthis opinion will not be printed inthe Washington Appellate reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur: