WPIC 49A.04.02 Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—Second ...

Use this instruction with WPIC 47.09 (Minor—Definition) and WPIC 49A.10 (Visual or Printed Matter—Definition).

The statute was amended in 2019 to exclude minors who intentionally view over the internet visual or printed matter depicting a minor 13 years of age or older engaged in sexually explicit conduct. It also excluded a person under 13 years of age who intentionally views over the internet visual or printed matter depicting himself or herself engaged in sexually explicit conduct. Should a situation arise where these amendments apply, an appropriate revision of this instruction will need to be drafted.

With regard to using the bracketed element (2), see the Comment below. The jury should not be given both WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense) and the bracketed element (2) regarding the defendant's knowledge that the person depicted was a minor. If element (2) is used, do not use WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense). If element (2) is omitted and the defendant raises the affirmative defense that he or she had no information based on which he or she could reasonably have known the person depicted was a minor, then use WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense) with this instruction.

For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9.68A.070(2)(a) and RCW 9.68A.011(4)(f) and (g).

For a discussion of First Amendment issues, knowledge of the age of the child, degrees of the offense, and the statutory defense, see the Comment to WPIC 49A.03.01 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements).

Unit of prosecution. In State v. Polk, 187 Wn.App. 380, 388–93, 348 P.3d 1255 (2015), the court held it violated double jeopardy to convict the defendant of four counts of second degree possession of depictions, when he possessed multiple photographs at the same time and in the same location, because the proper unit of prosecution was one count for each incident of possession. Because multiple depictions comprise only one count of possession, the jury need be given only one elements instruction (WPIC 49A.04) and one verdict form (WPIC 180.01). As noted by the court in Polk, the unit of prosecution differs for first degree and second degree possession of depictions of minor engaged in sexually explicit conduct. RCW 9.68A.070(c) does not apply to the second degree offense

Multiple depictions per count. For cases involving multiple photographs or images per count, see the Notes on Use and Comments to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) and WPIC 4.26 (Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act). For cases involving multiple counts, care must be taken to instruct the jurors that a particular photograph or image can support only a single count. See the discussion in the Note on Use and Comment to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction).