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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. DARRELL LEWIS MORGAN, Appellant. No. 71298-5-1 DIVISION ONE

UNPUBLISHED FILED: May 4. 2015

Cox, J. — Darrell Morgan appeals his conviction of second degree 

### possession ofdepictions of a minorengaged in sexually explicit conduct. The trial court did not abuse its discretion by refusing to dismiss the case and 

### imposing other remedies afterfinding a detective had "[looked] over at a notebook in front of [Morgan]" during trial. There is sufficient evidence to support the conviction. The trial courtdid not abuse its discretion in admitting evidence of 

### nude adults in Morgan's possession. And the trial courtdid not prevent Morgan from presenting a defense. We affirm. While investigating an internal complaint ofpersonal use of a company computer, Charles Roberts, a forensic examinerfor the Boeing Company, 

### discovered a large numberofpornographic images, as wellas photos of a naked child taking a shower, on Morgan's workstation computer. Roberts determined that Morgan had been using his workcomputerto viewand manipulate these 

### images on a removable portable device connected through a USB port. RobertsNo. 71298-5-1/2 

### made a copy ofthe entire contents ofthe portable device, which proved to be Morgan's smartphone. Roberts also discovered the following instant messaging exchange 

### between Morgan and his wife Melissa Morgan, also a Boeing employee, occurring on April26, 2012, from 8:16 to 8:26 a.m.: 

### [Morgan]: Itruly wish you shared some ofthe dark desires Cyndy and I do. 

### [Melissa]: Idon't interactwith her and itfeels like she sometimes thinks she is above us even to me ... . I do for some. 

### [Morgan]: Yes some .... The corruption of an innocent doesn't hold appeal to you? 

### [Melissa]: No, itdoesn't.... Sorry. 

### [Morgan]: Kinda felt like you were trying to throw me underthe bus about the pics on my phone. 

### [Melissa]: MayIlook at your pics today? Itrulycouldn't see what they were! 

### [Morgan]: Okay, butyou're not going to appreciate
.... Just saying.[Melissa]: Okay. 

### [Morgan]: Showerpics. [Melissa]: Of? [Morgan]: Innocent. 

### [Melissa]: Okay OffInternet? [Morgan]: Yes. 

### [Melissa]: Sir, you need to be careful of that! 

### [Morgan]: Iknow
.... IfIhad not be (sic) referred tothere by someone Itrust.... And it is a noncommercial site
.... Private group. 

### [Melissa]: Ah
... . We can discuss later. [Morgan]: But very, very careful. 

### [Melissa]: Might be betterto put images to CD? [Morgan]: Agreed. [Melissa]: And clean 'puter. 

### [Morgan]: Not on puter.... Straightto phone. [Melissa]: Still linked to email. 

### [Morgan]: Yes.[1]

Verbatim ReportofProceedings (October 16, 2013) at 390-92.No. 71298-5-1/3 

### At noon, the followingexchange occurred: "[Melissa]: As Isaid, not personally good with youngerthan 12, but have no problems with whatyou like
.... [Morgan]: Good." 

### When Everett Police Detectives Karen Kowalchyk and Aaron De Folo asked him aboutthe pictures ofthe girl in the shower, Morgan admitted that "somebody" "sent it to [him] via texts and pictures," but he refused to "give that person's
. . . name because [he didn't] want them getting introuble." Morgan 

### identified pictures ofCyndy and her granddaughterbut repeatedly stated thatthe child inthe shower pictures was a different child and that he gotthe shower 

### pictures from a different person. Morgan told the detectives that he lived with and was in a relationship with both Cyndy and his wife Melissa, as if he had "two wives." When the detectives asked about his instant messaging exchange with 

### Melissa, Morgan claimed thatthe conversation was not aboutthe pictures of the child inthe shower, but about pictures ofan "underdeveloped" adult male inthe showeror about pictures ofMorgan taking a showerwith anotherwoman. 

### The State charged Morgan withsecond degree possession ofdepictions 

### of a minorengaged insexually explicitconduct. At trial, the State presented Roberts's testimony regarding the results of his investigation, a recording of the detectives' interview with Morgan, and various exhibits including pictures and 

### messages from Morgan's phone. CynthiaOcheltreetestified that she liveswith and has a "sexually" "open relationship" or "swingers lifestyle" with Morgan and his wife Melissa. Ocheltree testified that she had taken many pictures of her 

### nine-year-oldgranddaughter, A.S., including pictures while A.S. was taking aNo. 71298-5-1/4 

### shower, because she was "making a scrapbook" for "Mother's Day for hermom." 

### Ocheltree claimed that she sent some pictures of A.S. to Morgan so she could "free up space" on her phone to "take more pictures." A.S. and her mother 

### testified thatthey did not know that Ocheltree had taken pictures of A.S. inthe showeror sentthem to Morgan until afterthe investigation of this case began. 

### On the third day of trial, outside the presence ofthejury, Morgan moved to dismiss the case, claiming that Detective Kowalchyk violated his rights to counsel, 

### due process, and a fair trial by reading the notes he wrote to his attorney during trial. After questioning Detective Kowalchyk and defense counsel under oath, and considering "all ofthe evidence," the trial court could not find that the detective had "intentionally" attempted to read or had "actually" read anything from Morgan's notes. However, because itwas "extremely concerning
. . . that a detective is looking over at a notebook infront of a defendant," the court ruled that "an appropriate remedy would be to exclude Detective Kowalchyk from testifying inthis case." The prosecutor advised the courtthat Detective De Folo, who he intended to call as a witness rather than Detective Kowalchyk, had been sick, but agreed 

### to determine his availability during a recess. After a brief recess, Detective 

### Kowalchyk stated on the record that she had spoken to Detective De Folo on the phone during the recess, and that he "sounded really hoarse" but "said that he would make every effortto be here tomorrow morning." Following a lengthy 

### discussion regarding potential exhibits and the lunch break, the prosecutoraskedNo. 71298-5-1/5 

### forclarification as towhetherthe court would allow Detective Kowalchykto continue to participate inthe case. The trial court allowed Detective Kowalchyk to sit at counsel table and assist the prosecutor, but directed her "notto 

### communicate aboutthe substance of this case with . . . any ofthe witnesses." Acknowledging that Detective Kowalchyk spoke to Detective De Folo on the phone for scheduling purposes, the court stated "that's not ofconcern to me." Although defense counsel raised certain questions on the record, she stated "I
was not the one who raised this motion," and did not objectto the court's resolution ofthe prosecutor's requestfor clarification. Thejury convicted Morgan as charged. Morgan appeals. MOTION TO DISMISS 

### Morgan claims that a detective's conductduring trial warranted dismissal ofthe case. We disagree. We review a trial court's denial ofa motion to dismiss for abuse of discretion.2 A trial court abuses its discretion when its decision is manifestly 

### unreasonable or exercised on untenable grounds or for untenable reasons.3 The right to counsel is protected by the Fifth and SixthAmendments of the 

### United States Constitution and by articleI, section 22 of the state constitution.4 Intrusion into private attorney-client communications violates a defendant's right 

### to effective representation and due process.5

2State v. Hanna. 123 Wn.2d 704, 715, 871 P.2d 135 (1994): State v. Granacki. 90 Wn. App. 598, 602 n.3, 959 P.2d 667 (1998). 3 State v. Lord. 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). 4State v. Cory. 62 Wn.2d 371, 374-75, 382 P.2d 1019 (1963). 5 Id.No. 71298-5-1/6 

### The conductthatwas the basis ofthe objection was that a detective 

### allegedly read written communications between Morgan and his counsel during trial. The trial court considered the matter and determined that there was no intentional viewing of privileged communication between counsel and client. But, 

### inan excess ofcaution, ruled the detective would not be allowed to testify at trial. 

### Morgan relies on State v. Cory6and State v. Granacki,7 both of which involved deliberate and egregious intrusion by the State into confidential 

### communications between an accused and his attorney.8 In Cory, officers recorded and eavesdropped on the defendant's conversations with his attorney by installing a hidden microphone in a private conference room inthe countyjail 

### provided forprisoners to consulttheir attorneys.9 The Washington Supreme Court described the officers' conduct as "shocking and unpardonable."10 In Granacki. the State's lead detective in the case admitted to reading 

### defense counsel's notes during a trial recess, but claimed that he only read his


### name on one page and did not read any other notes.11 After a hearing, the trial courtfound thatthe detective "intentionally read defense counsel's notes and that 

### his testimony about reading them was notcredible."12 Although "less extensive

662 Wn.2d 371, 372, 378, 382 P.2d 1019 (1963). 790 Wn. App. 598, 601, 603-04, 959 P.2d 667 (1998). 8See ajso, State v. Fuentes, 179 Wn.2d 808, 816-17, 318 P.3d 257 (2014) (trialjudge found "egregious" police misconduct where detective investigating possible witness tampering listened to six conversations on jail phone between defendant and his attorney). 9 62 Wn.2d at 372. 10Jd at 378. 1190Wn. App. at 600. 12 Id. at 601.No. 71298-5-1/7 

### than the eavesdropping" in Cory, this court agreed thatthe detective's behavior


### was "egregious."13 But here, the trial courtwas not persuaded that Detective Kowalchyk deliberately attempted to intercept privileged communications between defense attorney and client. Thus, there was no egregious conduct warranting the sanction ofdismissal. Instead, because the detective "should know that she can't look at a notebook with defendant's writing on it,"the trial court excluded hertestimony "to temper any potential.
. . reading ofthose notes." The trial court
was inthe best position to determine the facts and found no violation. Moreover, Morgan fails to establish any abuse ofdiscretion inthe trial 

### court's choice ofremedy to avoid any potential for prejudice. As this court noted inGranacki, governmental misconduct generally does not require dismissal 

### absent actual prejudice to the defendant.14 Even then, the trial court may 

### properly chooseto impose a lesser sanction, becausethis is a classic example of trial court discretion.15 Inthat case, had the trial "court chosen to ban [the 

### detective] fromthe courtroom, exclude his testimony and prohibit him from 

### discussing the case with anyone," this court would not have found an abuse of discretion.16 Morgan does not claim Detective Kowalchyk's continued 

### participation in the trial or her communication with Detective De Folo regarding scheduling resulted inactual prejudice. And he does not identify any authority

13 Id at 603-04. 14 Id at 604. 15 Id 16id; see also, State v. Garza. 99 Wn.App. 291, 301-02, 994 P.2d 868 (2000)(if, upon remand, defendants establishjail officers' actions violated their right to counsel, superior court in its discretion should fashion appropriate remedy, "recognizing that dismissal is an extraordinary remedy, appropriate only when other, less severe sanctions will be ineffective").No. 71298-5-1/8 requiring a presumption ofprejudice and dismissal inthis case based on the possibility that Detective Kowalchyk inadvertently read something from the notebook.17 The trial court properly denied Morgan's motion to dismiss the case. SUFFICIENCY OF THE EVIDENCE Morgan argues that there was insufficient evidence to support his conviction because no rationaljuror could have found beyond a reasonable doubt that Ocheltree took pictures ofA.S. in the showerfor the purpose of sexual stimulation ofthe viewer. We disagree. The due process clause ofthe Fourteenth Amendment ofthe United States Constitution requires that the State prove every element of a crime 

### beyond a reasonable doubt.18 To determine whetherthe evidence is sufficient to sustain a conviction, this court must determine "whether any rational fact finder could have found the essential elements ofthe crime beyond a reasonable 

### doubt."19 Achallenge to the sufficiency ofthe evidence admits the truth ofthe State's evidence and all inferences that can reasonably be drawn from the 

### evidence.20 On issues concerning conflicting testimony, credibility ofwitnesses, 

### and persuasiveness of the evidence, this court defers to thejury.21

17 Cf. State v. Webbe. 122 Wn. App. 683, 697, 94 P.3d 994 (2004) (refusing to presume prejudice where prosecutors saw privileged notes from defense counsel's meetingwith defendant, which included a discussion ofthe pending charges, but without "purposeful, wrongful intrusion upon attorney-client privilege"). 18 In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). 19 State v. Enqel. 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). 20 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068(1992). 21 State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). 8No. 71298-5-1/9 

### Circumstantial evidence and direct evidence are considered equally reliable when weighing the sufficiency ofthe evidence.22 Where possession and intent are elements of a crime, we do not permit 

### inferences based on mere possession.23 "When intent is an element ofthe crime, 'intentto commit a crime may be inferred ifthe defendant's conduct and surrounding facts and circumstances plainly indicate such an intent as a matter 

### of logicalprobability.'"24 Intent may be proved through circumstantial evidence but may not be inferred from "patently equivocal" evidence.25 RCW 9.68A.070(2)(a) provides, "Aperson commits the crime of possession of depictions of a minor engaged in sexually explicit conduct inthe 

### second degree when he or she knowingly possesses any visual or printed matter 

### depicting a minor engaged insexually explicit conduct as defined in RCW 9.68A.011 (4) (f) or (g)." Relevant here, RCW 9.68A.011 (4)(f)defines "Sexually explicit conduct" as "actual or simulated": 

### Depiction ofthe genitals or unclothed pubic or rectal areas ofany minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation ofthe viewer. Forthe purposes ofthis 

### subsection (4)(f), it is not necessary thatthe minor know that he or 

### she is participating inthe described conduct, or any aspect ofit. "RCW 9.68A.011(4)(f)'s plain meaning is thatthe person who creates the 

### depiction
.. . must have the 'purpose of sexual stimulation of the viewer.' "26 "[T]hecreatorofthe "depiction" is the person who creates the image, such as a

22 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004). 23 State v. Vasauez. 178Wn.2d 1, 8, 309 P.3d 318 (2013). 24 Id. (quoting State v. Woods. 63 Wn. App. 588,591,821 P.2d 1235(1991)). 25 |d (quotations omitted). 26 State v. Powell. 181 Wn. App. 716, 728, 326 P.3d 859, review denied. 181 Wn.2d 1011 (2014).No. 71298-5-1/10 

### photographer."27 The final sentence in RCW9.68A.011(4)(f) "shows that the legislature intended to extend criminal liability to those who possess depictions made by secretly recording minors without their knowledge."28 Here, there is sufficient evidence to supportthe conviction. It is undisputed that Ocheltree created and sentto Morgan the pictures of her nude granddaughtertaking a shower. It is also undisputed that this minor did not know that she was the object of Ocheltree's conduct. Thus, the question is whether the person who created the pictures, Ocheltree, had the purpose of sexual stimulation ofthe viewer, Morgan. A jury could find beyond a reasonable doubtthat this element ofthe crime

was committed. She testified that she had a sexual relationship with Morgan and that she had sent Morgan erotic pictures ofherself. 

### Roberts testified that Boeing's computer records indicated that Morgan 

### stored the pictures of A.S. indata filefolders with many other pornographic 

### images. The record also indicates Morgan was viewingthe pictures of A.S. on his computer at approximately the same time he mentioned his and Ocheltree's "dark desires" and "the corruption ofan innocent" to his wife in instant messages. 

### When confronted by police detectives, Morgan did not explain how or why he received the pictures and gave inconsistent explanations for his instant 

### messaging conversations. Viewed inthe lightmostfavorably to the State, these facts and circumstances support a logical inference that Morgan knowingly

27Id 28 Id. 10No. 71298-5-1/11 

### possessed the pictures of A.S. that Ocheltree had created forthe purpose of his sexual stimulation. Morgan argues that the only evidence presented as to Ocheltree's purpose for taking and sending the pictures was hertestimony denying a sexual motivation and offering an innocent explanation. Inview ofthe evidence thatwe previously quoted inthis opinion, that argument is untenable. He also claims that his comments during the instant messaging session with Melissa and the interview with the detectives indicate he was referring to pictures ofother adults taking showers. And he claims that the delay between the first and second instant messaging exchange between Morgan and Melissa 

### undermines any inference that Melissa was referring to Morgan's and Ocheltree's shared sexual interest in pictures ofA.S. inthe shower. 

### Thejury was entitled to disbelieve all of this and find as it did. These are 

### largely credibilitydeterminations thatwe do not review on appeal. EVIDENTIARY RULINGS 

### Morgan challenges the admission into evidence ofeight exhibits 

### containing sexually explicitimages ofadults or images ofclothed children found on his phone.29 He argues generally thatthe exhibits were irrelevant because 

### they did not have any tendency to demonstrate Ocheltree's purpose in taking the pictures of A.S. He also argues thatthe exhibits were unduly prejudicial because 

### any probative value was outweighed bythe riskthatthe jury would base its verdict on Morgan's sexual interests and possession ofunrelated sexually explicit

29 Inhis replybrief, Morganconcedes that two additional exhibits listed in his opening briefwere properly admitted without objection. 11No. 71298-5-1/12 

### materials. Because there was no abuse ofdiscretion inthese evidentiary rulings,

we disagree. 

### We review evidentiary rulings for abuse of discretion.30 Evidence is relevant if ithas "any tendency to make the existence ofany fact that is of consequence to the determination ofthe action more probable or less probable than itwould be without the evidence."31 Evidence that is not relevant is not 

### admissible.32 Under ER 403, the court may exclude relevantevidence if its probative value is substantially outweighed by the danger of unfair prejudice, 

### confusion of the issues, or misleading thejury.33 The State's theory ofthe case was that Morgan and Ocheltree shared a sexual interest in the pictures ofA.S. in the shower. Each ofthe challenged exhibits tended to show eitherwhat Morgan was viewing at the time ofthe instant message conversation, how he stored the pictures ofA.S. in certain folders on 

### his phone along with other pornographic images, or what other shower pictures

were available on his phone and described during his interview with the detectives. Thus, these exhibits were relevant to a determination ofwhether 

### Morgan knowingly possessed the pictures Ocheltree created forthe purpose of his sexual stimulation. And the record reveals thatthe trial court explicitly 

### considered the dangerof unfair prejudice when admitting the exhibits, as ER403 requires.

30 State v. Matthews. 75 Wn. App. 278, 283, 877 P.2d 252 (1994). 31 ER401. 32 ER 402. 33 ER 403. 12No. 71298-5-1/13 Forthese reasons, Morgan fails to demonstrate any abuse ofdiscretion by the trial court in its evidentiary rulings. RIGHT TO PRESENT DEFENSE Morgan argues that he was denied his right to counsel and to present his defense when the trial court sustained the prosecutor's objection during his closing argument. We disagree. The right to counsel and to a jury trial includes a rightto have the defense 

### "theory of the case argued vigorously to thejury."34 But the trial court has broad discretion to control and restrict closing arguments.35 During closing, defense counsel argued thatthe case was about a misunderstanding ofthe context inwhich the pictures ofA.S. were discovered on Morgan's phone. Counsel reviewed Ocheltree's testimony about her innocent 

### purpose for the pictures and argued repeatedly that she was credible when she described her scrapbook project. Then counsel argued that the computer 

### records did not establish that Morgan was referring to the pictures of A.S. in his instant messages to Melissa. Finally, inresponse to the State's discussion ofthe elements of the crime, counsel continued: 

### [B]utthis is aboutwhetherornot[A.S.] was engagedin 

### sexually explicitconduct. This is aboutwhetheror not the nude picture was for the purpose ofsexual stimulation ofthe viewer, and that wasn'tthe purpose at all. The purpose was for a scrapbook. 

### [Prosecutor]: Objection, Your Honor. Misstatement ofthe law. The Court: Sustained.^

34 State v. Woolfolk. 95 Wn. App. 541, 549, 977 P.2d 1 (1999) (quoting United States v. DeLoach, 504 F.2d 185, 189 (D.C. Cir. 1974)). 35 ]d at 548. 36 Verbatim Report ofProceedings (October 17, 2013) at 562 (emphasis added). 13No. 71298-5-1/14 

### Defense counsel concluded by arguing the case was "a misunderstanding based
on the other images thatwere on Mr. Morgan's phone," and that he did not commit a crime because the pictures "certainly do not contain sexually explicit conduct."37 In rebuttal, the prosecutor stated, "The reason that objection was sustained is because the definition ofsexually explicit conduct does not require 

### you to findwhat [A.S.]was thinking aboutthese pictures."38 Based on this record, Morgan fails to demonstrate any abuse ofdiscretion. Although the prosecutor stated his objection immediately after defense counsel again referred to the scrapbook, it is apparentfrom the contextthat the basis of his objection was the suggestion that inorderto establish Morgan's guiltthe State had to prove thatA.S. was engaged in sexually explicit conduct. Because 

### RCW 9.68A.011 (4)(f) states that "it is not necessary thatthe minor know that he


### or she is participating inthe described conduct," and because the undisputed evidence attrial was that A.S. was unaware that Ocheltree was taking pictures 

### while she showered, the trial court properly sustained the objection. Morgan fails to establish a violation of his right to counsel and to present his defense. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW 

### Ina statement ofadditional grounds, Morgan states that an investigative 

### report by ChildProtective Services "was never admitted in original trial." He also states that the trial court should have ordered a sexual deviancy evaluation and

37 Id at 562-63 38 Id. at 563. 14No. 71298-5-1/15 

### polygraph prior to trial ratherthan after his conviction. Because these statements do not sufficiently informthe court ofthe nature and occurrence ofthe alleged error, we cannot review them.39 We affirm thejudgment and sentence. 

# Czrfi^T

WE CONCUR:

39 RAP 10.10(c). 15