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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

RUSSELL EARL LOVEN,

Appellant.

No. 66005-5-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: March 18. 2013

Spearman, A.C.J. — Russell Loven was convicted of several counts of rape of

a child, one count of child molestation, one count of sexual exploitation of a minor,

and one count of possessing depictions of minors engaged in sexually explicit

conduct. On appeal, he claims the trial courterred in (1) denying hisfor-cause

challenges to two potential jurors; (2) denying his requestfor a multiple-acts

unanimity instruction for the depictions count; and (3) considering his prior

convictions for rape ofa child as predicate offensesduring sentencing. Concluding

that the first two issues are controlled by case lawadverse to Loven's position and

that his prior convictions are not constitutionally invalid on their face, we affirm.

FACTS

Loven lived in two different apartments owned by Chris Nyhus from 2004 until

October 2008. Loven worked as a handyman for Nyhus in exchange for rent. Nyhus's

stepson, R.B., met Loven in 2004, when R.B. was 10 years old. Loven engaged in
No. 66005-5-1/2

sexual acts with R.B. starting from when the latter was 10years old until he was 14.1

Loven told his roommate, Christina Evans, that his relationship with R.B. "was just

touching and oral, nothing else." Verbatim Report of Proceeding (VRP) at 901, 931.

Loven told Evans he did not think the relationship was wrong because he considered

it to be consensual. Over the course of four years, Loven took photographs and

videos of R.B., posting some of these images on the internet.

When R.B. was 14 years old, he introduced Loven to his 15-year-old friend

C.J. Loven gave R.B. and C.J. marijuana and alcohol. On one occasion when R.B.

and C.J. were at Loven's apartment, Loven told C.J. that R.B. and Loven were going

into the bedroom to have oral sex. Loven touched C.J.'s penis with his hand on

several occasions and asked C.J. repeatedly to allow Loven to perform fellatio on

him. C.J. refused at first but eventually agreed.

Loven had an extensive collection of child pornography, including images of

children between the approximate ages of4 to 14 engaging in sexual acts with adults

and other children. Loven told Evans that he kept some of these materials in one of

his cars because he did not want to get caught with them inside the apartment.

In October 2008, Evans' friend Julie Leach called the police and took Evans to

speak to Detective Keith Savas about Loven. Savas interviewed Loven on October

24, 2008. During this interview, Loven denied having sexual contact with R.B. but

admitted to possessing child pornography.

The State charged Loven with one count of rape of a child in the first degree

(victim R.B.), one count ofrape ofa child in the second degree (R.B.), two counts of

During thisfour-year period, Loven was between 39 and 43 years old.
No. 66005-5-1/3

rape of a child in the third degree (R.B. and C.J.), one count of child molestation in

the third degree (C.J.), one count of sexual exploitation of a minor (R.B.), and one

count of possessing depictions of minors engaged in sexually explicit conduct.

A jury trial on these charges took place in January 2010. Before trial,

prospective jurors answered the following questions:

13. Are you able to sit on a jury in a case involving an accusation

of sexual misconduct by an adult male against two male children?

14. Are you able to sit on a jury in a case involving an accusation

of rape of a child?

15. Are you able to sit on a jurywhere you would view graphic

images of children engaged in sexual conduct?

Clerk's Papers (CP) at 285, 297. Jurors 25 and 47 answered each ofthese questions

"no." jd. During voir dire, these jurors elaborated on the difficulties theywould have in

sitting on the case.2 Loven challenged jurors 25 and 47for cause. The court denied

the challenges. The defense later used two peremptory challenges to excuse jurors

25 and 47 and ultimately used all six allotted peremptory challenges.

2Juror 25 stated that she would tend to believe a child witness and the child's allegations of

sexual abuse. She expressed uncertainty when the court asked herwhether she could "listen to

evidence regarding this topic and assess witnesses' credibility and bea fair and unbiased juror."

Defense counsel brought up hercomments thatshe would startfrom the position thata child's

allegations of sexual abuse were true unless she were shown evidence to the contrary and asked,

"Sort ofin this kind ofcase guilty until proven innocent, right?." She responded, "Yeah." When the

court attempted to clarify her position, she said shewould probably lean toward believing the child but

"would find outwhat'strue" and "wouldn't justassume it's right." She responded "yes" when the court

asked if she could presume the defendant innocent until proven guilty and hold the Stateto its burden

of proof. VRP at 559-68.

Juror 47 revealed that her husband had taken photographs of their 13- and 14-year-old

daughter "as shewent into adolescence, and he insists that it was art, but Ithought it was very inappropriate[.]" VRP at 388, 392. She believed she could not sit on a case involving similar

accusations because it would bring up feelings thatshe had at that earlier time. She alsosaid she

believed children most oftentell the truth. When the court asked whether she could be a fair and

impartial juror, she answered, "I probably could." VRP at389. The court again asked, "Do you think

you can be a fair and impartial juror for both the defense and the State given what's happened? Can

you setaside what happened with your daughter and only listen to the evidence in this case?" Juror

47 said, "I believe I can." VRP at 389.
No. 66005-5-1/4

At trial, the State presented testimony from R.B. and C.J., who testified that

Loven had oral sex with them during the charging periods. Police witnesses testified

that Loven possessed over 4,000 still images and 40 videos of children. Savas

testified these consisted of, "[ajmong other things, numerous, thousands of images of

children engaged in sex acts with other children, children engaged in sex acts with

adults, photographs that depict naked, partially clothed, or fully clothed children in

sexually suggestive poses we call child erotica." VRP at 1408. The State admitted 26

CDs and DVDs containing images and videos. The images and videos that were

admitted and shown to the jury included images and videos of R.B., including

depictions of him performing fellatio on Loven; a video of a 5- or 6-year-old girl having

anal sex with an adult male; and a photograph depicting young boys with erect

penises.

Loven asked the trial court to instruct the jury that it must be unanimous as to

which act supported a guilty verdict on each ofthe seven counts. Regarding the

depictions count, Loven argued that because the evidence for the depictions count

and the exploitation count was being presented to the jury in the same trial, the jury

could convict him of both counts based on the same image. He expressed concerns

that this might violate double jeopardy. The State opposed such an instruction for the

depictions count, asserting there was only one "unit of prosecution" which could be

based on "one photo, maybe 5,000 photos." VRP at 1493. The court denied a

unanimity instruction for the depictions count.3 In closing argument, the prosecutor

did not elect an image to support the depictions count, making a general reference to

1The court approved a unanimity instruction forthe six other counts.
No. 66005-5-1/5

the thousands of images and videos found in Loven's possession and then

discussing the photographs of R.B. and the video of the 5- or 6-year-old child.

The jury convicted Loven as charged. At sentencing, the trial court found that

Loven had previously been convicted of two counts of rape of a child in the first

degree and imposed the mandatory sentence of life in prison without the possibility of

parole.4 Loven appeals, assigning errorto (1) the denial of hisfor-cause challenges

to jurors 25 and 47, (2) the denial of his request for a multiple-acts unanimity

instruction, and (3) the consideration of his previous convictions for rape of a child as

predicate offenses at sentencing.

DISCUSSION

For-Cause Challenge to Jurors

The denial of a challenge for cause is reviewed for abuse of discretion. State

v. Gonzales, 111 Wn. App. 276, 278, 45 P.3d 205 (2002). A defendant has the right

to an impartial jury under both the state and federal constitutions. State v. Roberts,

142 Wn.2d 471, 517, 14 P.3d 717 (2000). A prospective jurorshould be removed for

cause when the juror's views or opinions would "'prevent orsubstantially impair the

performance of his duties as a juror in accordance with his instructions and his oath.'"

State v. Hughes. 106 Wn.2d 176, 181, 721 P.2d 902 (1986) (quoting Wainwright v.

Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)). This "actual bias"

is defined by statute as "the existence ofa state ofmind on the part ofthe juror in

reference to the action, or to either party, which satisfies the court that the challenged

4TheState alleged Loven had previously beenconvicted ofrapeofa child in the first degree.

Asecond conviction for rape ofa child in the first orsecond degree thus resulted in a sentence oflife

without parole. RCW 9.94A.030(37)(b); RCW 9.94A.507.
No. 66005-5-1/6

person cannot try the issue impartially and without prejudice to the substantial rights

of the party challenging!.]" RCW 4.44.170(2).

This case is controlled bv State v. Fire. 145 Wn.2d 152, 34 P.3d 1218 (2001).

Fire was charged with child molestation. Id. at 154. He brought a for-cause challenge

against a juror who expressed that he might have difficulty putting aside his strong

feelings about the type of accusation against the defendant in determining guilt or

innocence. JU at 155-56. Afterthe trial court denied the for-cause challenge, Fire

used a peremptory challenge to excuse the juror and subsequently used all of his

peremptory challenges. Id, at 156. There was no evidence that a biased jurorsat on

the jury, and Fire was convicted as charged. Id, at 156, 159.

On appeal, this court held that the juror had demonstrated actual bias and

should have been excluded bythe trial court. State v. Fire, 100Wn. App. 722, 729-

30, 998 P.2d 362 (2000). We reversed Fire's convictions, noting that under State v.

Parnell. 77 Wn.2d 503, 463 P.2d 134 (1969), a trial court's erroneous denial of a forcause challenge requires reversal regardless ofwhether the juror was ultimately

removed by a peremptory challenge. Fire, 100 Wn. App. at 727 (citing Parnell. 77

Wn.2d at 508).

The Washington Supreme Court granted review and reversed this court.

Abrogating Parnell in relevant part, the court held there was no basis for reversal of

the conviction under those circumstances:

We find that even if that juror should have been dismissed for

cause, Fire exercised one of his peremptory challenges to remove

the juror, and there is no showing that a biased juror, against whom

the peremptory challenge might have been used, sat on his panel.

Following the reasoning in United States v. Martinez-Salazar. 528

U.S. 304, 307, 315-16, 120 S.Ct. 774, 145 LEd.2d 792 (2000) and
No. 66005-5-1/7

State v. Roberts. 142 Wn.2d 471, 517-18, 14 P.3d 713 (2000), we

conclude that Fire did not lose a peremptory challenge, but

exercised it. Therefore, he has not demonstrated prejudice and has

not been deprived of any constitutional right. Without having to

decide whether the juror should have been removed for cause, we

reverse the Court of Appeals and remand for actions consistent

with this opinion.151

Fire. 145 Wn.2d at 154.

Fire is directly on point. As in Fire, even if juror 25 or juror 47 should have

been dismissed for cause, Loven has not alleged that a biased juror sat on the panel

and has not demonstrated prejudice.6 Loven contends Fire waswrongly decided and

argues we should follow pre-Fire cases, including Parnell.7 But Parnell was

abrogated by Fire, and this court may not overlook binding precedent ofthe

Washington Supreme Court. State v. Hunlev. 161 Wn. App. 919, 932, 253 P.3d 448

(2011), affd, 175 Wn.2d 901, 287 P.3d 584 (2012).

5The cited portion ofFire isfrom the lead opinion, which wassigned by four justices and

concluded that Washington case law had tacitly abandoned Parnell'srule that the erroneous

deprivation ofa peremptory challenge in itself required reversal. Fire, 145 Wn.2d at 159-63. Justice

Alexander, concurring in the result, expressed the view thatthe Parnell rule had notyet been

abandoned butthat itshould be in light of Martinez-Salazar. Fire. 145Wn.2d at 165-68 (Alexander,

C.J., concurring). Thus, a majority ofthe court agreed thatwithout a showing of prejudice, the mere

useofa peremptory challenge tocure an erroneously denied for-cause challenge did not violate the

defendant's right to an impartial jury.

6Also as in Fjre, wedo not reach the issueofwhether the jurors should have been removed

for cause.

7He also cites McMahon v. Carlisle-Pennell Lumber Co.. 135 Wash. 27, 30, 236 P. 797

(1925); State v. Stentz. 30 Wash. 134, 70 P. 241 (1902), abrogated by Fire, 145 Wn.2d at 163; State

v Lattin 19Wash. 57, 60-61, 52 P. 314 (1898); State v. Moody. 18Wash. 165, 170-72, 51 P. 356

(1897); State v. Rutten. 13 Wash. 203, 43 P. 30 (1895); State v. Wilcox. 11 Wash. 215, 223, 39 P. 368

(1895); State v. Murphy. 9Wash. 204, 37 P. 420 (1894); and State v. Stackhouse. 90 Wn. App. 344,

351-52, 957 P.2d 218 (1998).
No. 66005-5-1/8

Loven also argues Fjre should be overruled on state constitutional grounds,

providing briefing ofthe Gunwall8 factors and contending article I, section 21 and

article I, section 22 of the Washington Constitution provide greater protection of "the

right to an impartial jury as protected by our state right to appeal" than does the Sixth

Amendment. Specifically, he cites the right to an impartial jury under article I, section

22; the right to appeal under article I, section 22; and the inviolate right to trial by jury

under article I, section 21.9 He appears to argue that these provisions create a hybrid

independent right that was violated in his case. But Loven cites no authority in

support of this argument. Moreover, it is evident that Loven was tried by a jury in this

case and he is before us now on appeal of the jury's verdicts. Thus, we conclude that

neither article I, section 21 nor the right to appeal under article I, section 22 was

violated in this case.

Turning to Loven's claim that the "impartial jury" guarantee under article I,

section 22 provides greater protection than the Sixth Amendment in this case, we

reject this claim because a majority of the Washington Supreme Court has concluded

8State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986)sets forth six nonexclusive factors to

guide Washington courts in determining whether a state constitutional provision affords greater rights

than its federal counterpart: (1) the textual language of the state constitution; (2) significant differences

in the texts of the parallel provisions of the federal and state constitutions; (3) state constitutional and

common law history; (4) preexisting state law; (5) differences in structure between the federal and

state constitutions; and (6) matters of particular state interest or local concern. Jd. at 61-62.

9Wash. Const., art. I, § 21 states:

The right of trial by jury shall remain inviolate, but the legislature may

provide for a jury of any number less than twelve in courts not of record,

and for a verdict by nine or more jurors in civil cases in any court of record,

and for waiving of the jury in civil cases where the consent of the parties

interested is given thereto.

Wash. Const, art. I, § 22 provides, in relevant part:

In criminal prosecutions the accused shall have the right... to have a

speedy public trial by an impartial jury of the county in which the offense is

charged to have been committed and the right to appeal in all cases ....

8
No. 66005-5-1/9

that the Parnell rule (i.e., that a defendant is presumed to be prejudiced when he is

compelled to exhaust his peremptory challenges to remove a juror who should have

been removed for cause) is not a constitutional rule. While the lead opinion

expressed the view that the rule in Parnell. Rutten. and Stentz was based on

constitutional rather than common law grounds, Justice Alexander opined that the

Parnell rule was not constitutionally based but rather based on the broader purpose

of peremptory challenges, to allow a party to exclude a potential juror for which no

reason need be given. Fire, 145 Wn.2d at 164-65 (plurality); 168 (Alexander, J.,

concurring). Justice Sanders, in a dissenting opinion joined by three other justices,

concluded, "The basis for the rule that a defendant is presumed to be prejudiced

when he is compelled to exhaust his peremptory challenges to remove a jurorwho

should have been removed for cause is found in neither the state nor the federal

constitution. Rather it isfirmly ensconced in Washington common law." Id at 177

(Sanders, J., dissenting). Thus, the rule in Parnell has been interpreted by a majority

ofoursupreme court as not rooted in ourstate constitution, and Gunwall istherefore

of no assistance.

Jury Unanimity

A defendant has a right to a unanimousjury verdict under the Sixth

Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution. State v. Kitchen, 110Wn.2d 403, 409, 756 P.2d 105

(1988). To protect this right in cases where the evidence indicates thatmore than one

distinct criminal act has been committed but the defendant is charged with only one

count of criminal conduct, either (1) the State may elect the act upon which itwill rely
No. 66005-5-1/10

for conviction or (2) jurors must be instructed that they must agree that the same

underlying criminal act has been proved beyond a reasonable doubt. State v. Petrich.

101 Wn.2d 566, 572, 683 P.2d 173 (1984).

Loven claims the trial court erred in denying a Petrich instruction for the count

of possessing depictions of minors engaged in sexually explicit conduct. He first

contends as a general matter that possession can occur at differenttimes and

places, and can be constructive, actual, or unwitting. He asserts that, in his case,

rational jurors could have found that he did not possess all ofthe images (believing

the defense's suggestion at trial that Leach planted some ofthe images or gave them

to police under the pretense that they were Loven's). But he does notspecify how the

numerous photographs, digital images, and videosfound in his case broke down into

multiple distinct acts. His argumentsimply rests on the notion that each image

presented to the jury was a separate act and thatthe jury was required to agree as to

the image upon which its conviction was based.

We rejected this notion in State v. Furseth. 156 Wn. App. 516, 233 P.3d 902,

rev, denied. 170Wn.2d 1007 (2010). There, Furseth was charged with one count of

possessing depictions of minors engaged in sexually explicit conduct. ]d at 518. At

trial, multiple images found stored on his computer were introduced into evidence,

some depicting apparently prepubescent children engaged in sexual intercourse and

others depicting young men and boys in various stages of undress. ]d at 519. The

jury convicted him as charged. ]d On appeal, Furseth argued his conviction was

invalid because the jury was not instructed it had to unanimously agree as to which

image out of several constituted child pornography found in his possession, and the

10
No. 66005-5-1/11

State did not elect a particular image. ]d We rejected this argument based on State

v. Sutherbv. 165 Wn.2d 870, 204 P.3d 916 (2009), where the court held that

regardless of the number of images involved or the number of minors depicted,

possession of multiple images of child pornography constitutes a single "unit of

prosecution."10 Furseth. 156Wn. App. at 520-21 (citing Sutherbv. 165Wn.2d at 882).

We held in Furseth that "because the State could not have charged Furseth with

multiple, separate counts of possession of child pornography, evidence that he

possessed multiple images does not constitute evidence of multiple criminal acts,"

and therefore a unanimity instruction was not required.11 Furseth. 156 Wn. App. at

522.

Loven argues that Furseth was wrongly decided, citing State v. Adel. 136

Wn.2d 629, 965 P.2d 1072 (1998), and State v. King. 75 Wn. App. 899, 878 P.2d 466

(1994). Furseth is not inconsistent with these cases. In Adel. the defendant was

convicted of two counts of misdemeanor marijuana possession for possessing

marijuana simultaneously in two different locations, in his car and in his store. Adel.

136 Wn.2d at 631. The issue was whether Adel's possession of marijuana in two

10 The legislature subsequently amended the statute defining possession ofdepictions of

minors engaged in sexually explicit conduct by dividing it into two degrees based on the content ofthe

material involved. Lawsof 2010, ch. 227 § 6. The unitof prosecutionfor the first-degree offense is now

"each depiction orimage" possessed by a defendant. RCW 9.68A.070(1)(c). The unit ofprosecution

for thesecond-degree offense is"each incident ofpossession ofoneor more depictions orimages."

RCW 9.68A.070(2)(c). These amendments occurred after the events in Loven's case.

11 We do not read Furseth as holding, as a matteroflaw, that an allegation of possessing child

pornography can never involve multiple acts. We noted in Furseth that "[w]e do not address situations

in which spatial ortemporal differences might give rise toallegations ofmultiple actsofpossession."

Furseth, 156 Wn. App. at 522 n.5. Loven's argument that possession can occur at different times and

places and can beactual orconstructive could relate to the "spatial orand temporal differences" issue

we mentioned in Furseth. But he does not explain how spatial or temporal issues created distinct

multiple acts of possession in his case.

11
No. 66005-5-1/12

places constituted one criminal act (or "unit of prosecution"), in which case his two

convictions violated double jeopardy. Jd. at 632. The court stated:

The proper question for this case is what act or course of conduct

has the Legislature defined as the punishable act for simple

possession of a controlled substance? When the Legislature defines

the scope of a criminal act (the unit of prosecution), double jeopardy

protects a defendant from being convicted twice under the same

statute for committing just one unit of the crime.

]d at 634. The court concluded that the pertinent statute failed to indicate whether

the Legislature intended to punish a person multiple timesfor possession based on

drugs being kept in multiple places. Under the rule oflenity, therefore, Adel could be

found guilty on only one count of possession where all ofthe drugs were within his

domain and control at the same time. ]d at 635-36. Adel holds that the unit of

prosecution analysis defines the criminal act thatforms the basisfor a conviction for

a given crime and is consistent with Sutherbv. upon which ourdecision in Furseth

was based.

Next, King is distinguishable from this case and Furseth. King was convicted

of one count ofcocaine possession based on evidence that he possessed cocaine

(1) in a carin which hewas a passenger (constructive possession) and (2) in a fanny

pack hewas wearing (actual possession). King, 75 Wn. App. at 901. King claimed

the cocaine in the fanny packwas planted by the police and that the cocaine in the

car belonged to the driver. Id at 901-04. At trial, the court initially offered to submit a

written unanimity instruction, but denied King's subsequent requestfor a unanimity

instruction after the prosecutoragreed to make an election as to the specific instance

ofpossession. The prosecutor did not make an election, however, and the trial court

did not give a unanimity instruction. Id. at 903.

12
No. 66005-5-1/13

King claimed on appeal that the trial court erred in failing to provide a Petrich

instruction because the State agreed to elect but failed to do so. Id at 900. The State

argued on appeal that King's conviction was based on a continuing course of

conduct, and thus, no unanimity instruction was required. ]d at 902-03. This court

agreed with King:

If the State claims it will elect one out of multiple incidents to rely

on for conviction it may not later equivocate. In such a case, the

trial court must remedy the State's error by issuing a unanimity

instruction. Here, as a result of the State's comment and the

court's inaction, we cannot say that the jury acted with unanimity

as to one act of possession.

]d at 903.

Here, unlike in King, the State never agreed to elect. Furthermore, King

allegedly possessed cocaine in two different ways (constructive versus actual) and

presented different defenses as to each, |d at 903-04. These facts distinguish King

from Furseth. As noted, in this case Loven never explained how the many images in

his case broke down into separate multiple acts. In fact, defense counsel conceded

in closing argument that Loven was guilty of possessing depictions of children

engaged in sexually explicit conduct, and asserted no defenses that distinguished

between any purportedly separate acts of possession as in King.12

Predicate Conviction

In a statement of additional grounds, Loven claims his two 1994 convictions

for rape of a child in the first degree, which were used as predicate offenses for a

sentence of life under RCW 9.94A.507, were invalid and suffer from constitutional

12 Defense counsel argued that Leach gave police some images that did not belong to Loven,

butthis was presented to discredit Leach'stestimony as itmight relate to the counts Loven argued he

did not commit.

13
No. 66005-5-1/14

defects. Primarily he contends his counsel misadvised him as to his eligibility for a

Special Sex Offender Sentencing Alternative and provided ineffective assistance,

rendering his plea to those offenses facially invalid, involuntary, and unconstitutional.

A prior conviction that has "previously determined to have been

unconstitutionally obtained or which is constitutionally invalid on its face may not be

considered" in a sentencing proceeding. State v. Ammons. 105 Wn.2d 175, 187-88,

713 P.2d 719 (1986). "Constitutionally invalid on its face means a conviction which

without further elaboration evidences infirmities of a constitutional magnitude." ]d at

188. The Ammons court explained that "[t]o require the state to prove the

constitutional validity of prior convictions before they could be used would turn the

sentencing proceeding into an appellate review of all prior convictions." Id

Here, Loven's 1994 convictions have not previously been determined to have

been unconstitutionally obtained. And, as the trial courtfound, the judgment and

sentence appears valid on its face. 8/27/10 RP 6. His conviction does not, without

further elaboration, show infirmities of a constitutional magnitude. Loven does not

point specifically to anything in the document to show itsfacial invalidity, and the

defects he alleges cannot be determined from the judgment and sentence. His

recourse, if any, is to challenge the constitutionality of his guilty pleas collaterally in a

personal restraint petition under RAP 16.3. State v. Lewis. 141 Wn. App. 367, 397

n.21, 166 P.3d 786 (2007).

14
No.. 66005-5-i/15

Affirmed.

WE CONCUR:

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