### FILED OCTOBER 12, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. SCOTTROBERT WATSON, Appellant. ) ) ) ) ) ) ) ) ) No. 34091-1-111

UNPUBLISHED OPINION

KORSMO, J.

- Scott Watson appeals from his conviction for communicationwith
a minor for immoral purposes, arguing that the trial court erred in denying his pretrial motionto dismiss, the statute is unconstitutionally vague, and the court erred in admitting evidence ofan additional incident. We affirm. FACTS Mr. Watson and his wife were friends oftheparents ofH.R.B. whenthe two families lived in California. H.R.B. became close tothe Watsons. In 2010, whenH.R.B.
was about 12, she and her family movedto Pasco, Washington. The Watsons remained in California. The child continuedto have a close relationship withthe California couple. 

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### No. 34091-1-III State v. Watson


### When she turned 15, the nature ofherrelationship with Mr. Watson changed. The two exchanged text messages about her returning to California and, overtime, about living as an adult with Watson. The couple texted about sexual topics. In response to requests from H.R.B., Mr. Watson eventually sent two pictures ofhis erectpenis to the 15-year-old via a text message. The child's mother laterbecame concerned about Watson's relationship with her daughter when, during a visit to Pasco, she observedhim with his hand on H.R.B.'s upper thigh during apool party. Watson was sent backto California and the child's phone was turned over to the police. A felony charge ofcommunicating with a minor for immoral purposes was filed in Franklin County Superior Courtbased on the two pictures. A protection order issued prohibiting Watson from contacting H.R.B. Watson, however, violated the order several times. Two days after her 16th birthday, he left items for her to pick up at her Pasco bus stop. A few weeks later he sent anotherpicture ofhis penis to H.R.B. The following week, he met her in Richland and gave her a vibrator as a birthday present. A second count ofcommunicating with a minor was filed overthe latestpicture transmission, and two counts ofviolating the restraining order were also filed. The latter two counts were later severed and venue changed to neighboring Benton County. Watson moved to dismiss the two Franklin County charges pursuantto State 

### v. Knapstad, 

### 107 Wn.2d 346, 729 P.2d 48 (1986). He argued that sending pictures ofhis penis did not constitute a crime because it did not amount to a request to engage in sexual 2No. 34091-1-III State v. Watson
misconduct. The trial court granted the motion as to count II, the charge arising after H.R.B.'s 16th birthday, but denied the motion on count I. The court reasoned that the child was under the age ofconsent at the time ofthe first charge, but was legally able to consent to the secondpicture. The case proceeded to trial eleven months later. The two pictures that formed the basis for the charge in count I were admitted into evidence, as was information about the delivery ofthe vibrator. H.R.B. testified that she and Mr. Watson had discussed sexual actions they intended to perform together and that she had sent nakedpictures ofherself to the defendant. Mr. Watson did not testify. Thejury convicted as charged. Mr. Watson timely appealed to this court. A panel considered the case without argument.ANALYSIS Mr. Watson presents three challenges in this appeal. In order, we will consider his arguments concerning the denial ofthe Knapstadmotion, the constitutionality ofthe communicating with a minor statute, and whetherthe court erred in admitting evidence of the other incidents. KnapstadRuling Mr. Watson first challenges the trial court's refusal to dismiss count I after his pretrial motion to dismiss both ofthe communicating charges. Since the matterhas gone to trial, this issue is not reviewable on appeal. 3No. 34091-1-III 

### State v. Watson Knapstad created a pretrial process, akin to summaryjudgmentunderthe civil rules, authorizing dismissal withoutprejudice ofcriminal charges that lacked sufficient evidence to proceed to thejury. 

### Knapstad, 107 Wn.2d at 356-357. The decision subsequently was codified in CrR 8.3(c). The denial ofa 

### Knapstadruling is not appealable as a matter ofright. CrR 8.3(c)(3). "Thepurpose ofsummaryjudgmentis to avoid a useless trial when there is no genuine issue ofany material fact." 

### Olympic Fish Prod., Inc. v. Lloyd, 93 Wn.2d 596, 602, 611 P.2d 737 (1980) (citing 

### Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 598 P.2d 1358 (1979). Thus, ifa case proceeds to trial, in most instances the pretrial ruling onthe summaryjudgmentmotion is not reviewable. 

### Adcoxv. Children's OrthopedicHosp. & 

### Med. Ctr., 123 Wn.2d 15, 35 n.9, 864 P.2d 921 (1993). 1 The purpose behind granting summaryjudgmentis no longer served once trial has occurred. The practice is similar in criminal cases. 

### State v. Jackson, 82 Wn. App. 594, 608 n.41, 918 P.2d 945 (1996), 

### review denied, 131 Wn.2d 1006 (1997). When an appellate courtreviews a sufficiency ofthe evidence challenge, it does so onthe basis ofthe most complete factual record in existence. 

### Id. at 608-609. Thus, ifa case proceeds to trial after the denial ofa 

### Knapstadmotion, the court will considerthe evidence presented at

1This approach also follows from the interlocutory nature ofa pretrial ruling. A judge can "reverse or modify a pretrial ruling at any time priorto the entry offinal judgment." 

### Adcox, 123 Wn.2d at 37.
4No. 34091-1-III 

### State v. Watson
trial. 

### Id. In that circumstance, there is "no right to have us review the sufficiency ofthe evidence using pretrial 

### Knapstad affidavits." 

### Id. at 609. Accordingly, the denial ofa 

### Knapstadmotion is not an issue that can be raised on appeal following trial. 

### Id. Here, Mr. Watson does not independently challenge the sufficiency ofthe evidence presented at trial, exceptto the extent it is related to his following argument. Thus, we decline to address the trial court's

### Knapstadruling. 

### Id. at 608-609. 

### Constitutionality of Communicatingwith a Minorfor ImmoralPurposes Statute The factual circumstances ofthis case do bear on Mr. Watson's argumentthat the statute is unconstitutional as applied to his case. He essentially argues thatbecause he
never asked H.R.B. to engage in an underage sexual act, it is unconstitutional to apply the statute to him. We believe that the motivation behind his actions was a question for the jury, leaving this case within the constitutional core ofthe statute. The communication with a minor for immoral purposes statute has long survived challenges to its constitutionality. The current iteration ofthe statute is straight-forward in its language: "Aperson who communicates with a minor for immoral purposes is guilty." RCW 9.68A.090(2). Certain prior offenses determine whetherthe crime is a felony or a gross misdemeanor. RCW 9.68A.090(1), (2).

5No. 34091-1-111 

### State v. Watson
Mr. Watson's principal argument is that display ofhis genitalia withoutmore is not a communication for an immoral purpose given the evidence that he did not intend to begin a sexual relationship before H.R.B. turned 18. This claim fails under earlier decisions. The seminal modern case involving this statute is 

### State v. Schimmelpfennig, 92 Wn.2d 95, 594 P.2d 442 (1979). 2 There the court concludedthatthe word "communicate" was not unconstitutionally vague. 

### Id. at 103. Noting that the wordwas
one ofcommon usage, the court determined that it "denotes both a course ofconduct and the spoken word." 

### Id. The court also concludedthat looking at the context ofthe statute in the criminal codes, the statute gave "ample notice" oflegislative intent to prohibit "sexual misconduct." 

### Id. at 102. Asking young children to enter a van and engage in sexual activities was immoral conduct. 

### Id. at 103. Our courtreturned to the statute in 

### State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993). There the defendant asked three young girls, ages 10 and 11, about the availability of"handjobs" and exposed his penis to them. He was convicted oftwo counts ofcommunicating for immoral purposes. 

### Id. at 926-928. The court rejected the defendant's vagueness argument, determining that "sexual misconduct" was not limjted

2 Atthe time of

### Schimmelpfennig, the statute prohibited communications to those under the age of 17. 

### See LAWS OF 1975, ch. 260, § 9A.88.020. The age limit was removed by Laws of 1984, ch. 262, § 8.
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### v. Watson

to activities proscribed in chapter 9.68A RCW. 

### Id. at 933. The goal ofthe communicating statute was to prohibit "communicationwith children for the predatory purpose ofpromoting their exposure to and involvement in sexual misconduct." 

### Id. To that end, ajury instruction that defined "immoralpurposes" as "immoralpurposes ofa sexual nature" was proper in McNallie's case. 

### Id. This court appliedMcNallie and upheld a conviction for communicating for immoral purposes in State v. Pietrzak, 100 Wn. App. 291, 997 P.2d 947 (2000). There the defendant, an adult, asked his 16-year-oldniece to strip andpose for sexually explicit pictures. Afterphotographing the young woman, the two engaged in sexual intercourse. 

### Id. at 293. The trial court found the behaviorto be "quidpro quo for housing, food, beer, and money." 

### Id. The defendant stated that thephotography was part ofa consensual sexual relationship between the two. 

### Id. This court confirmed thatthe statute was not vague despite the defendant's claim ofa consensual sexual relationship, concluding that "observing and photographing" a 16-year-old constituted "sexual exploitation and misconduct withpersons underthe age of 18." 

### Id. at 295-296. Accordingly, we conclude thatMr. Watson's action in sending a picture ofhis unclothed penis to a 15-year-oldgirl was sexual misconduct within the meaning ofour communicating statute. Exposing one's selfis a crime in many circumstances. RCW 9A.88.0I0. An adult exposing himselfto a 15-year-old, even atthe child's request, should

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### No. 34091-1-III State v. Watson 

### reasonably understand he is engaging in misconduct ofa sexual nature, particularly since the 15-year-old legally was unable to consent to sexual activity. The communication by photograph was no different than exposing himselfin person. The exposure did not have to be accompanied by evidence ofa present intent to engage in other sexual activities. Schimmelpfennig, 

### 92 Wn.2d at 103. We believing grooming a 15-year-old child for later sexual contact falls within the reach ofthe communication statute. As applied to the facts ofthis case, the communicatingwith a minor statute is not unconstitutionally vague. The defendant knew that a 15-year-oldminor could not engage in sexual activities with him, but nonetheless exchanged a sexually explicitphotograph as part ofan on-going pattern ofsexual conversation. A reasonable adult would understand that this was sexual misconduct. The statute was not vague as applied to this conduct. Admission of AnotherIncident 

### Finally, Mr. Watson argues that the trial court erredby admitting into evidence information about the delivery ofthe vibrator. The trial courtproperly weighedthe relevance ofthe evidence against its prejudicial impact. There was no abuse ofdiscretion. Evidentiary rulings, including those under ER404(b), are reviewed for abuse of discretion. State v. DeVincentis, 

### 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Discretion is abused ifit is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 

### 79 Wn.2d 12, 26,482 P.2d 775 (1971). Evidence ofother bad acts is

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### No. 34091-1-111 State v. Watson 

### permittedto establish specific purposes such as the identity ofan actor orthe defendant's intent orpurpose in committing a crime. ER404(b). Those purposes, in tum, must be of such significance to the current trial that the evidence is highly probative and relevant to prove an "essential ingredient" ofthe current crime. State v. Lough, 

### 125 Wn.2d 847, 863, 889 P.2d 487 (1995). When considering ER404(b) evidence, the proponent ofthe evidence must first convince a trial court by a preponderance ofthe evidence that the "misconduct" actually occurred. Lough, 

### 125 Wn.2d at 853. A trial court may, but is not required, to conduct a hearing to take testimony. State v. Kilgore, 

### 147 Wn.2d 288, 294-295, 53 P.3d 974 (2002). If

### the court determines that the misconduct occurred, the court then must identify the purpose for which the evidence is offered, determine whetherthe evidence is relevant to prove an element ofthe offense, and weigh the probative value ofthe evidence against its prejudicial effect. Lough, 

### 125 Wn.2d at 853. The court may then admit the evidence subjectto a limiting instruction telling thejurythe proper uses ofthe evidence. Id. 

### at 864. At trial, the prosecutor sought to admit testimony about both the pool incident and the vibrator delivery as evidence ofthe defendant's intent. In opposition, the defense argued that the delivery ofthe device occurred nearly a year after the charged count and
was highly prejudicial. Somewhat inconsistently, the defense also argued that there was

9No. 34091-1-111 State v. Watson nothing improper about giving the device to a 16-year-old.3 The trial court admitted the evidence, stating: With regard to the pool party, I think I will allow it ifit's nothearsay. If it's nothearsay with regard to the sextoy it's certainly is prejudicial but it no more prejudicial thanthe picture that was sent in though was after she turned 16. I think it certainly goes toward the intent so I will allowthat. Report ofProceedings at 16. On appeal, Mr. Watson argues, and the State agrees, that the trial court did not properly balance the ER404(b) factors on the record concerning the admission ofthe vibrator. Although the 404(b) analysis should have included some mention ofthe importance ofthe evidence to the State's case in its discussion ofrelevance, it is easy to
see the trial court's reasoningprimarily as a response to the defense contentionthatMr. Watson did nothing improper in delivering the vibrator. Inthat context, the trial court understandably focused on the purpose for which the incident was being admitted-the defendant's intent-andthe extent ofany prejudice from admitting the evidence. Those
were the aspects ofthe rule that the defense was contesting. The courthadtenable reasons for admitting the evidence. The defense theory was that Mr. Watsonhad shared the photos for the purpose ofeducating H.R.B. atherrequest The State's theory was that the communication was for furthering the development ofa

3 Ifthe delivery did not constitute a "bad act" underER404(b), then the only grounds for challenge would have been ER401 (relevancy) and ER403 (undue prejudice).
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sexual relationship with the child. In that regard, the Schimmelpfennig construction of the statute was critical. Communication can consist ofeitherwords or a "course of conduct." Schimmelpfennig, 92 Wn.2d at 103. Delivery ofa sexual toy to the youth furthered the theory that the earlierphotographs were merely aportion ofan on-going
course ofconduct designed to take the relationship to a different level. Even after being charged with a crime for his behaviortoward H.R.B., Mr. Watson continued to view the youth as a future sexual partner. The later incident confirmed his intentions. The trial court understandably found the behaviorrelevant under Schimmelpfennig. The court very clearly expressed its ruling on the prejudice aspect ofthe evidence. It was prejudicial, but much less prejudicial than the two photographs ofan erectpenis that formed the basis for the charge.4 

### The trial court understandably found that the incremental prejudice from admission ofthis incident did notjustify excluding the evidence. Again, this was a very tenable conclusion. Although the court did not perform an ideal ER404(b) balancing on the record, it put enough reasoning onthe record for this court (and the parties) to understand its reasonmg. The court had tenable grounds for ruling as it did. There was no abuse of discretion.

4 

### In what might be considered "before and after," one ofthe photographs also shows ejaculate.
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Thejudgmentis affirmed. A majority ofthepanel has determinedthis opinionwill notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR: 

# ~0.J.~

Pennell, J.

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