WPIC 49A.06.02 Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Disseminat...

This instruction is to be used only for cases charging second degree dealing in depictions under RCW 9.68A.050(2)(a)(i). For cases charging second degree dealing in depictions under RCW 9.68A.050(2)(a)(ii), use WPIC 49A.08.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—Second Degree—Elements) instead of this instruction.

Use bracketed language as applicable. For directions on the various ways to use the bracketed phrases, see WPIC 4.20 (Introduction).

With regard to using the bracketed element (2), see the Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements). 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.

Use this instruction with WPIC 47.09 (Minor—Definition) and WPIC 49A.10 (Visual or Printed Matter—Definition). If the court has determined that knowledge of the minority of the person depicted is an element of the offense, then also use WPIC 10.02 (Knowledge—Knowingly—Definition).

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.050(2)(a)(i); RCW 9.68A.011(4)(f)–(g). This instruction has been revised to include the 2019 statutory amendments to RCW 9.68A.050(1)(a) and (2)(a) requiring that the defendant be over 18 years old. For further discussion of this and constitutional issues regarding the statute, as well as how to use the pattern instructions for dealing in depictions under RCW 9.68A.050, see the Comment to WPIC 49A.05.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Elements.)

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.03.02 (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 was a violation of the double jeopardy clause 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).

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).