State Of Washington v. Darin Vance

Filed
Washington State
Court of Appeals
Division Two

July 2, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 50664-5-II

Respondent, PART PUBLISHED OPINION

v.

DARIN R. VANCE,

Appellant.

GLASGOW, J. — Based on information received from federal law enforcement, the

Vancouver Police Department and Clark County Sheriff’s Office obtained and executed a search

warrant for the home of Darin Richard Vance to search for depictions of a minor engaged in

sexually explicit conduct. Investigators found several such images and ultimately charged Vance

with 10 counts of possession of depictions of a minor engaged in sexually explicit conduct.

Following a bench trial, Vance was convicted on all 10 counts. He appeals his convictions and

sentence.

Vance argues that the search warrant violated article I, section 7 of the Washington

Constitution. He contends that the warrant was not sufficiently particular, relying on Division

One’s decision in State v. McKee, 3 Wn. App. 2d 11, 413 P.3d 1049 (2018), rev’d and

remanded, 438 P.3d 528 (2019).1 We hold that the warrant in this case was different from the

1
The issue before the Washington Supreme Court in McKee was whether the proper remedy
following suppression of cell phone evidence was to vacate the defendant’s convictions and
remand to trial court for further proceedings, or to order all the counts dismissed. 438 P.3d at
530. The court held that the Court of Appeals should have vacated and remanded, rather than
dismissing. Id. The Supreme Court did not address whether the warrant was sufficiently
particular. Id.
No. 50664-5-II

one found invalid in McKee and was sufficiently particular to comply with the Fourth

Amendment and article I, section 7. We address Vance’s remaining arguments in the

unpublished portion of this opinion.

We affirm Vance’s convictions and sentence.

FACTS

On August 26, 2010, FBI Special Agent Alfred Burney, working undercover in Detroit,

Michigan, used a peer-to-peer file sharing program to download 35 files from a software user

with an IP address subscribed to Comcast. At least 20 of those files appeared to be pictures of

children engaged in sexually explicit activity. Burney then submitted an administrative

subpoena to Comcast requesting all subscriber information for the person using that IP address.

Comcast responded that the IP address belonged to Vance. Burney sent this information and the

downloaded files to the FBI’s Seattle office.

The Seattle FBI office obtained and confirmed Vance’s street address and sent the

information and files it received to Investigator Maggi Holbrook of the Vancouver Police

Department and the Clark County Sheriff’s Office Digital Evidence Cybercrime Unit.

At the time of Burney’s investigation, the FBI was part of an interagency, multi-

jurisdictional initiative involving the Department of Justice, the Department of Homeland

Security’s United States Immigration and Customs Enforcement, and the Internet Crimes

Against Children task forces. The sheriff’s office’s Cybercrime Unit was a local Internet Crimes

Against Children task force, and Holbrook was the local liaison. Burney was not involved with

the task force himself.

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Using the information received from the FBI, Detective Patrick Kennedy of the

Vancouver Police Department and Special Agent Julie Peay of Immigration and Customs

Enforcement independently verified Vance’s home address. Kennedy then obtained a search

warrant for Vance’s home. The warrant first authorized a search for “evidence of the crime(s)

of: RCW 9.68A.050 Dealing in depictions of a minor engaged in sexually explicit conduct and

RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit conduct.”

Clerk’s Papers (CP) at 3. The warrant then described the items to be seized, including a list of

specific types of electronic devices and media “capable of being used to commit or further the

crimes outlined above, or to create, access, or store the types of evidence, contraband, fruits, or

instrumentalities of such crimes.” CP at 4.

The warrant also identified for seizure the accompanying records, documents, and

information necessary to operate and access those devices and data. This description of the

goods authorized for seizure concluded with authorization to transfer any and/or all seized items

to the Cybercrime Unit:

[F]or the examination, analysis, and recovery of data from any seized items to
include: graphic/image files in common formats such as JPG, GIF, PNG or in any
other data format in which they might be stored, pictures, movie[] files, emails,
spreadsheets, databases, word processing documents, Internet history, Internet web
pages, newsgroup information, passwords encrypted files, documents, software
programs, or any other data files, whether in allocated or unallocated space on the
media, whether fully or partially intact or deleted, that are related to the production,
creation, collection, trade, sale, distribution, or retention of files depicting minors
engaged in sexually explicit acts/child pornography.

CP at 6 (emphasis added).

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The Cybercrime Unit executed the warrant on Vance’s home and seized several

electronic devices. The resulting forensic examination revealed at least 20 images and videos

depicting minors engaged in sexually explicit conduct.

The State charged Vance with seven counts of first degree possession of depictions of a

minor engaged in sexually explicit conduct and three counts of first degree dealing in depictions

of a minor engaged in sexually explicit conduct. See State v. Vance, 184 Wn. App. 902, 906,

339 P.3d 245 (2014). The trial court redacted from the search warrant affidavit information

obtained by federal agents, found probable cause for the search warrant no longer existed,

granted the suppression motion, and dismissed the charges against Vance. See id. at 909-10.

Vance then moved to suppress the evidence seized from his home and dismiss the case. Id. at

905. The trial court granted the motion. CP at 593. The State appealed and we reversed. See id.

at 905-06.

On remand, Vance filed a new motion to suppress the evidence seized from his home

arguing in part that the warrant was not sufficiently particular. The trial court denied the motion

to suppress, and the parties proceeded to a bench trial. Just before trial, the State filed an

amended information dismissing the distribution charges and instead charged Vance with a total

of 10 counts of possession of depictions of minors engaged in explicit sexual conduct. After a

bench trial, the court found Vance guilty on all 10 counts. Vance requested an exceptional

sentence downward, but the court imposed a standard range sentence of 77 months of

confinement.

Vance appeals his convictions and sentence.

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ANALYSIS

PARTICULARITY OF SEARCH WARRANT

Vance argues that the search warrant for his electronic devices was insufficiently

particular to satisfy the Fourth Amendment or article I, section 7, and so all evidence seized as a

result of that warrant should have been suppressed. We disagree.

Both the Fourth Amendment and article I, section 7 require that a search warrant describe

with particularity the place to be searched and the persons or things to be seized. State v.

Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992). The particularity requirement prevents

general and overbroad searches. Id. Where the warrant involves materials potentially protected

by the First Amendment, a greater degree of particularity is required. Id. at 547. We review de

novo whether a search warrant contains a sufficiently particularized description of the items to be

searched and seized. Id. at 549.

A search warrant’s description of the place to be searched and property to be seized is

sufficiently particular if “it is as specific as the circumstances and the nature of the activity under

investigation permit.” Id. at 547. A generic or general description of the things to be seized may

be sufficient if probable cause is shown and “a more specific description is impossible” with the

information known to law enforcement at the time. Id. Search warrants must be “tested and

interpreted in a common sense, practical manner, rather than in a hypertechnical sense.” Id. at

549.

Vance relies on recent case law specifically addressing warrants authorizing searches for

and seizures of evidence related to sexually explicit depictions of minors. He analogizes this

case to McKee, 3 Wn. App. 2d 11.

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The search warrant in McKee listed the alleged crimes as “Sexual Exploitation of a Minor

RCW 9.68A.040,” “Dealing in depictions of minor engaged in sexually explicit conduct RCW

9.68A.050.” Id. at 18. The warrant authorized the police to conduct a “physical dump” of “all of

the memory of the phone for examination.” Id. at 29. The warrant then identified certain “Items

Wanted” to be seized from the defendant’s cell phone amounting essentially to any “electronic

data from the cell phone showing evidence of the above listed crimes.” Id. at 18-19.

In McKee, Division One of our court held that the warrant lacked the requisite

particularity because it “was not carefully tailored to the justification to search and was not

limited to data for which there was probable cause.” Id. at 29. In other words, “the search

warrant clearly allow[ed] search and seizure of data without regard to whether the data [was]

connected to the crime.” Id. “The language of the search warrant left to the discretion of the

police what to seize.” Id.

The McKee court relied on State v. Besola, in which our Supreme Court held that a mere

citation to the child pornography statute at the top of the warrant did nothing to make it more

particular. 184 Wn.2d 605, 615, 359 P.3d 799 (2015). The warrant in Besola identified the

crime of “Possession of Child Pornography R.C.W. 9.68A.070,” and authorized the police to

seize:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio
recordings;

2. Any and all printed pornographic materials;

3. Any photographs, but particularly of minors;

4. Any and all computer hard drives or laptop computers and any memory storage
devices;

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5. Any and all documents demonstrating purchase, sale or transfer of
pornographic material.

Id. at 608-09. The warrant’s rote citation to the statute failed to add information, such as the

definition of “child pornography” that would have modified or limited the evidence that officers

could seize. Id. at 615. Nor did the warrant include specific language using the citation to the

statute “to describe the materials sought.” Id. at 614. The omission of such limiting information

created the “primary defect” in the warrant—it covered lawfully possessed materials, such as

adult pornography and photographs of minors that did not depict them engaged in sexually

explicit acts. Id. at 616.

The State argues this case more closely resembles State v. Martinez, 2 Wn. App. 2d 55,

408 P.3d 721, review denied, 190 Wn.2d 1028 (2018). There, Division One upheld a warrant

that authorized seizure of any “photographs, pictures, albums of photographs, books,

newspapers, magazines and other writings on the subject of sexual activities involving children.”

Id. at 66. The warrant also authorized the seizure of “pictures and/or drawings depicting children

under the age of eighteen years who may be victims of the aforementioned offenses, and

photographs and/or pictures depicting minors under the age of eighteen years engaged in

sexually explicit conduct as defined in RCW 9.68A.011(3).” Id. at 66.

The Martinez court held the warrant was sufficiently particular because rather than

merely cite to the statute, “it use[d] the language ‘sexually explicit conduct as defined in RCW

9.68A.011(3).’” Id. at 67. The court also reasoned that, unlike in Perrone where the warrant

contained the overbroad term “child pornography,” the Martinez warrant used the statutory

language “sexually explicit conduct.” Id. at 66. Finally, while the warrant in Martinez also

authorized the seizure of some materials that could be lawfully possessed, that alone did “not

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automatically make the warrant overbroad.” Id. at 67. “[P]ossession of materials about sexuality

involving children [was] relevant to the charged offense.” Id. The warrant was not overbroad

for authorizing the seizure of relevant materials. Id. For these reasons, the court concluded the

warrant provided law enforcement with an objective standard to determine what should be

seized. Id.

We conclude that the warrant in this case is more analogous to the one upheld in

Martinez than the warrants lacking particularity struck down in McKee, Perrone, and Besola.

The warrant in this case explained that there was probable cause to search for “evidence of the

crime(s) of: RCW 9.68.050 Dealing in depictions of a minor engaged in sexually explicit

conduct and RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit

conduct.” CP at 3. Then throughout, the warrant authorizes a search for computers or various

devices “capable of being used to commit or further the crimes outlined above, or to create,

access, or store the types of evidence, contraband, fruits, or instrumentalities of such crimes,”

connecting the search to depictions of minors engaged in sexually explicit conduct in a manner

that was absent in Besola, 184 Wn.2d at 604. CP at 4.

Furthermore, the final paragraph of the warrant permits the Cybercrime Unit to transfer

the electronic and related devices and to search them for “graphic/image files in common formats

. . . pictures, movie[] files, emails, spreadsheets, databases, word processing documents, Internet

history, . . . newsgroup information, . . . encrypted files” and other similar files “that are related

to the production, creation, collection, trade, sale, distribution, or retention of files depicting

minors engaged in sexually explicit acts/child pornography.” CP at 5-6.

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Unlike the warrants in Besola and McKee, the warrant here regularly referred back to the

statutory language limiting the evidence that officers could seize and so was sufficiently

particular to cover only data and items connected to the crime. Unlike the warrant in McKee,

which merely identified the crime of “Sexual exploitation of a minor,” or Perrone, which only

used the overbroad term, “child pornography,” here the warrant used the more specific language,

“Possession of depictions of a minor engaged in sexually explicit conduct.” McKee, 3 Wn. App.

2d at 18; Perrone, 119 Wn.2d at 553-54; CP at 134. The warrant here used sufficiently specific

language to authorize the seizure of only illegal materials.

Vance argues that the warrant should have included the definition of “sexually explicit

conduct” in RCW 9.68A.011(3). To be sure, adding a reference to that definition would have

made this warrant even more precise. But the warrant taken as a whole makes it clear to the

executing officer what specific items are authorized for search and seizure. And it does not

appear that this warrant authorized law enforcement to search for and seize adult pornography or

depictions of children more generally. While the warrant contemplates that law enforcement

would retain Vance’s devices for a period of time to search them for the files to seize, allowing

law enforcement some amount of time to search electronic devices for this specifically identified

evidence to seize does not undermine the validity of the warrant.

Accordingly, we hold that the search warrant was sufficiently particular. To the extent

McKee contradicts our conclusion, we disagree with McKee. We affirm Vance’s convictions and

his sentence.

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A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2.06.040, it is so ordered.

Vance also argues that the trial court erred in applying the silver platter doctrine, which

allows admission of evidence that law enforcement officers of another jurisdiction validly

obtained; the 2004 amendment to the special sex offender sentencing alternative (SSOSA) statute

violated equal protection; the trial court erred by refusing to impose an exceptional sentence

downward; and his sentence constituted cruel punishment under article I, section 14 of the

Washington Constitution. We disagree.

I. SILVER PLATTER DOCTRINE

Vance argues that the trial court improperly applied the silver platter doctrine in denying

his motion to suppress. We disagree.

In reviewing a trial court’s ruling on a motion to suppress, we determine whether

substantial evidence supports the challenged findings of fact and whether the findings support

the trial court’s conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).

We review the trial court’s conclusions of law de novo. Id.

A. Scope of the Silver Platter Doctrine

The silver platter doctrine allows evidence that was lawfully obtained under the laws of

another jurisdiction to be admitted in Washington courts, even if the discovery of that evidence

would have violated Washington law. State v. Mezquia, 129 Wn. App. 118, 132, 118 P.3d 378

(2005). The doctrine has limitations, however, in order to prevent the government from using

more lenient rules in other jurisdictions to circumvent the limitations of Washington law. See id.

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at 133. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully

obtained evidence, and (2) the forum state’s officers did not act as agents or cooperate with or

assist the foreign jurisdiction, or vice versa. Id. at 133 “‘[A]ntecedent mutual planning, joint

operations, cooperative investigations, or mutual assistance between federal and state officers

may sufficiently establish agency and serve to bring the conduct of the federal agents under the

color of state law.’” State v. Brown, 132 Wn.2d 529, 587, 940 P.2d 546 (1997) (quoting State v.

Gwinner, 59 Wn. App. 119, 125, 796 P.2d 728 (1990)). “‘On the other hand, mere contact,

awareness of ongoing investigations or the exchange of information may not transmute the

relationship into one of agency.’” Id. (quoting Gwinner, 59 Wn. App. at 125).

For example, we have held that there existed an inappropriate level of cooperation where

Washington officers accompanied DEA agents to the defendant’s property, took aerial

photographs at the DEA’s request, and turned those photographs over to the DEA. State v.

Johnson, 75 Wn. App. 692, 700-01, 879 P.2d 984 (1994). On the other hand, “[w]here the

officials of the foreign jurisdiction gathered evidence independently and then contacted

Washington police officers, our courts have concluded there [was] not an inappropriate level of

cooperation.” Mezquia, 129 Wn. App. at 133. Even where Washington law enforcement alerted

federal agents to possible illegal activity without directing federal agents on how to proceed, that

was not enough to make the federal officers agents of the State. See Gwinner, 59 Wn. App. at

125-26.

B. Constitutionality of the Silver Platter Doctrine

Vance first asks us to reject the silver platter doctrine altogether, asserting that

Washington’s continued application of the doctrine violates article I, section 7 of the Washington

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Constitution. Vance argues that we should follow the United States Supreme Court’s holding in

Elkins v. United States, 364 U.S. 206, 223, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960) (“[E]vidence

obtained by state officers during a search which, if conducted by federal officers, would have

violated the defendant’s immunity from unreasonable searches and seizures under the Fourth

Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.”).

However, Washington courts, including our Supreme Court, have consistently applied the

silver platter doctrine with respect to evidence obtained from foreign jurisdictions. See, e.g.,

Brown, 132 Wn.2d 529; Gwinner, 59 Wn. App. 119; Johnson, 75 Wn. App. 692. Washington

courts have reasoned that under federalism principles, state constitutions do not dictate federal

action and no legitimate state interests would be furthered by forbidding transfer of criminal

evidence from federal to state authorities when the evidence was lawfully obtained by federal

agents. Brown, 132 Wn.2d at 586-87. We follow our state’s precedent and apply the silver

platter doctrine to the facts of this case.

C. Application of the Silver Platter Doctrine

Vance asserts that Washington officers would have had to obtain a search warrant rather

than use administrative subpoena power to initially discover that Vance had downloaded child

pornography. Even so, Vance does not argue that the evidence in question was obtained in

violation of federal law. Thus, Vance does not dispute that the first prong of the silver platter

doctrine, whether the evidence was obtained lawfully under the agent’s foreign jurisdiction, was

met. We accordingly need only consider the second prong of the silver platter doctrine: whether

there was inappropriate cooperation between state and federal authorities.

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Vance argues the involvement of federal authorities in this case violated the silver platter

doctrine because of the ongoing high level of interagency cooperation between those entities and

the Cybercrime Unit in investigating and prosecuting child pornography cases generally. He

reasons that because the unit works as part of an interconnected network of federal, state, and

local law enforcement agencies, federal officers are essentially operating as agents of the State

during these investigations rather than conducting separate and independent federal

investigations. According to Vance, the actions of federal officers in this case amounted to

antecedent planning, joint operations, or other cooperative investigation by virtue of these federal

and state agencies’ established and continuing practice of working together to investigate child

pornography crimes. See Brown, 132 Wn.2d at 587.

Vance argues that an agency relationship exists here because of the very makeup of the

Cybercrime Unit. First, he claims Holbrook was working as a federal agent when reviewing the

case because she first referred the case to the United States Attorney’s Office for prosecution and

only referred it to state authorities after the United States Attorney’s Office rejected the case.

Second, he claims Holbrook and the Cybercrime Unit have a formal agency relationship with

federal law enforcement because of the unit’s position as the local task force and its ongoing

relationship with federal agents. He points to admissions by federal officers that this case was

“based on a collaborative investigation conducted by the federal agents . . . and state and local

law enforcement.” Br. of Appellant at 24; CP at 8. He contends that federal agents often work

in conjunction with Cybercrime Unit agents on joint state-federal investigations, pointing

specifically to the fact that federal agents, unlike state authorities, have the power of

administrative subpoenas. We disagree.

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The facts of this case are similar to Mezquia, where Division One of this court concluded

there was no inappropriate cooperation between state and foreign officers. 129 Wn. App. at 134.

In Mezquia, although Washington and Florida authorities both participated in the same national

DNA database, there was no inappropriate cooperation between them on Mezquia’s case because

the Florida officials had independently gathered DNA evidence before contacting Washington

police officers. Id. at 133-34.

Here, the Cybercrime Unit and FBI both participate in the same nationwide networks to

combat child pornography, but the only contact between the unit and FBI officials in the

investigation of Vance occurred when the Seattle FBI office sent to Holbrook the information

that Burney had obtained. There is nothing in the record to suggest that Washington officers in

any way directed, assisted, or participated in Burney’s investigation, or that the FBI was

involved with the ensuing investigation carried out by the Cybercrime Unit. Burney

independently conducted his undercover peer-to-peer sessions in Detroit without any awareness

of or involvement from Washington law enforcement. Upon receiving the FBI’s information,

the Cybercrime Unit effectively took over the case with no further involvement from the FBI.

Although Kennedy stated that his affidavit was based on a collaborative investigation by

federal agents and state and local law enforcement, this seems to refer merely to the fact that the

FBI shared information with the Cybercrime Unit. Vance has pointed to no evidence in the

record that FBI and Cybercrime Unit officials worked together to investigate Vance beyond the

one instance of information sharing. And although Vance alleges that Holbrook referred the case

to the United States Attorney’s Office before ultimately referring it to state authorities, he has

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pointed to nothing in the record that supports this assertion. Moreover, a referral to the United

States Attorney, without more, would not create an agency relationship.

There is no evidence of antecedent mutual planning, joint operations, cooperative

investigation, or mutual assistance between federal and state officers beyond one instance of

information sharing. The record shows that the FBI validly uncovered information under federal

law and merely shared that information with local law enforcement, who then took over the

investigation. See Mezquia, 129 Wn. App. at 133 (“[w]here the officials of the foreign

jurisdiction gathered evidence independently and then contacted Washington police officers, our

courts have concluded there is not an inappropriate level of cooperation.”); Brown, 132 Wn.2d at

587 (“‘[M]ere contact, awareness of ongoing investigations or the exchange of information may

not transmute the relationship into one of agency.’”) (quoting Gwinner, 59 Wn. App. at 125).

We conclude that, under the specific facts of this case, there was no agency relationship

that would run afoul of the silver platter doctrine. We recognize there may be circumstances

where a state or local agency’s ongoing involvement in a nationwide task force could create an

agency relationship. However, Vance has not shown that the task force involvement here created

undue cooperation in the investigation of his case.

In sum, we hold the trial court properly applied the silver platter doctrine and denied

Vance’s motion to suppress on this ground.

II. EQUAL PROTECTION CHALLENGE TO SSOSA ELIGIBILITY

At sentencing, Vance requested a SSOSA sentence under RCW 9.94A.670, as well as an

exceptional sentence downward on the grounds that the standard range was clearly excessive.

The court considered Vance’s arguments, but ultimately decided to sentence him within the

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standard sentence range of 77-102 months. The court then sentenced him to 77 months of

confinement and 36 months of community custody.

In 2004, the legislature amended the SSOSA eligibility statute to add an additional

requirement that the defendant have an “established relationship with, or connection to, the victim

such that the sole connection with the victim was not the commission of the crime.” RCW

9.94A.670(2)(e); LAWS OF 2004, ch. 176, § 4(2)(e). Because Vance did not have an established

relationship with the victims, he is not eligible for SSOSA under the 2004 amendment. State v.

Willhoite, 165 Wn. App. 911, 915, 268 P.3d 994 (2012).

Vance argues that the 2004 amendment violates the equal protection clauses of the state

and federal constitutions because it lacks any rational basis for distinguishing between offenders

who had established relationships with their victims and those who did not.2 We disagree.3

Vance is not a member of a suspect class and this challenge does not implicate a

fundamental right, so rational basis review applies. State v. Harner, 153 Wn.2d 228, 235-36,

103 P.3d 738 (2004). Vance has the burden of “showing that the law is irrelevant to maintaining

a state objective or that it creates an arbitrary classification.” State v. Simmons, 152 Wn.2d 450,

458, 98 P.3d 789 (2004). A legislative classification will satisfy rational basis review if “‘there

is any reasonably conceivable state of facts that could provide a rational basis for the

2
Vance also asserts a privileges and immunities challenge. We consider the equal protection
clause and the privileges and immunities clause under the same analysis in this context. See
State v. Shawn P., 122 Wn.2d 553, 559-60, 859 P.2d 1220 (1993).
3
Vance also contends that the trial court refused to consider his equal protection challenge to the
2004 SSOSA amendment, and asks us to remand to the trial court to consider his argument. We
conclude that the trial court addressed the constitutionality of the statute sufficiently for us to
resolve this issue on the merits.

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classification.’” Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257

(1993) (quoting FCC v. Beach Commc’ns Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d

257 (1993)); see also Harris v. Charles, 171 Wn.2d 455, 466, 256 P.3d 328 (2011).

Vance argues his exclusion from SSOSA violates equal protection because the legislature

did not set forth any legitimate governmental objective for excluding sex offenders with no

established relationship to the victim from SSOSA eligibility.

The State analogizes this case to State v. McNeair, in which Division One rejected an

equal protection claim by a defendant who was ineligible for the drug offender sentencing

alternative due to statutory requirements that certain offenders not have prior felony convictions.

88 Wn. App. 331, 944 P.2d 1099 (1997). The court reasoned that the legislature made a rational

classification “in light of the goal of maximizing the potential for successful rehabilitation of

those drug offenders to which the statute applies.” Id. at 341.

We agree with the State. Similar to McNeair, here it appears the legislature’s goal was to

encourage reporting where the offender had a preexisting relationship with their victim. H.B.

REP. ON HB 2400 at 5, 58th LEG., REG. SESS. (Wash. 2004). The legislature has accomplished

this by providing an alternative sentencing scheme that emphasizes treatment over incarceration,

making the consequences of victim reporting potentially less drastic.

These objectives provide a rational basis for a scheme that excludes other classes of

offenders from the alternative sentencing arrangements offered by SSOSA. While Vance argues

that there is no reason to treat his offense more severely than those eligible for SSOSA under the

statute, that is not enough to defeat rational basis review where any conceivable legislative

rationale will suffice. Like the statute in McNeair, the SSOSA provision here implies that the

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legislature “balanced competing objectives” and made a conceivably legitimate choice to

exclude sex offenders with no established relationship to their victims from the sentencing

alternative. McNeair, 88 Wn. App. at 342.

We accordingly reject Vance’s constitutional challenge to the 2004 amendment and

affirm the trial court’s decision not to consider a SSOSA sentence.

III. REQUEST FOR EXCEPTIONAL SENTENCE DOWNWARD

Vance argues the trial court abused its discretion in not imposing an exceptional sentence

downward based on RCW 9.94A.535(1), the multiple offense policy of RCW 9.94A.589, and the

purposes of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW and RCW

9.94A.010. We disagree.

A defendant generally cannot appeal the length of a sentence within the standard sentence

range imposed under RCW 9.94A.510 or RCW 9.94A.517. RCW 9.94A.585(1). A

discretionary sentence within the standard range is reviewable in circumstances where the court

refused to exercise its discretion at all or relied on an impermissible basis for refusing to impose

an exceptional sentence below the standard range. State v. McFarland, 189 Wn.2d 47, 56, 399

P.3d 1106 (2017).

A trial court errs when “it refuses categorically to impose an exceptional sentence
below the standard range under any circumstances” or when it operates under the
“mistaken belief that it did not have the discretion to impose a mitigated exceptional
sentence for which [a defendant] may have been eligible.”

Id. (quoting State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). Put

simply, “a trial court that has considered the facts and has concluded that there is no basis for an

exceptional sentence has exercised its discretion.” Garcia-Martinez, 88 Wn. App. at 330.

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Under RCW 9.94.535, a sentencing court may impose an exceptional sentence below the

standard range if it finds there are substantial and compelling reasons justifying one. RCW

9.94A.535(1) contains a nonexclusive list of mitigating factors that support an exceptional

sentence downward, including when the “operation of the multiple offense policy of RCW

9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of

[the SRA], as expressed in RCW 9.94A.010.” RCW 9.94A.535(1)(g); State v. Graham, 181

Wn.2d 878, 882, 337 P.3d 319 (2014). The purposes of the SRA expressed in RCW 9.94A.010

are: ensure punishment that is proportionate to the seriousness of the offense and the defendant’s

criminal history, promote respect for the law with just punishment, be commensurate with

punishments imposed on others for similar crimes, protect the public, offer an opportunity for the

defendant to improve, preserve resources, and reduce the risk of re-offense. Whether a given

presumptive sentence is clearly excessive in light of the purposes of the SRA is not a subjective

determination of the individual sentencing judge, but rather is an objective inquiry based on the

legislature’s stated purposes. State v. Hortman, 76 Wn. App. 454, 463, 886 P.2d 234 (1994).

A. Per Image Unit of Prosecution

The legislature has explained that the prevention of sexual exploitation of children is a

government objective “of surpassing importance.” RCW 9.68A.001. In 2010, the legislature

amended former RCW 9.68A.001 (2007) to clarify that first degree offenses for possession of

depictions of minors engaged in sexually explicit conduct have a “per depiction or image” unit of

prosecution, while second degree offenses have a “per incident” unit of prosecution. RCW

9.68A.001, .070; State v. Polk, 187 Wn. App. 380, 391, 348 P.3d 1255 (2015).

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The difference between first and second degree possession depends upon the nature of

the images. See RCW 9.68A.011, .070. Depictions of sexual intercourse, penetration with any

object, masturbation, sadomasochistic abuse, or defecation or urination for the purpose of the

viewer’s sexual stimulation are all depictions triggering possession in the first degree and a per

image unit of prosecution. RCW 9.68A.011, .070. The 2010 amendment effectively increased

the presumptive sentencing range for a defendant in Vance’s position from 12-14 months to 77-

102 months.

B. Denial of Exceptional Sentence Downward in This Case

Vance requested an exceptional sentence below the standard range, but the trial court

denied the request and sentenced him to the low end of the range. Vance argues that the trial

court erred in not finding that his standard range sentence was “clearly excessive” because it did

not adequately consider the factors listed in RCW 9.94A.010. Br. of Appellant at 34-35. Vance

concedes that “the trial court seemed to respond to the arguments made by [defense counsel] . . .

regarding the [.010 factors],” but he contends that the “sole reason” the court declined to find the

sentence excessive was that the legislature had decided to punish this type of sex offense more

severely. Br. of Appellant at 35. Essentially, Vance argues that the trial court’s deference to the

legislature’s clear intent regarding the unit of prosecution was improper because the new

standard sentence range created by the 2010 amendments results in a sentence that he believes is

“clearly excessive” for his crime.

In this case the trial court acknowledged that it had the authority to consider an

exceptional sentence downward, and it discussed sentences imposed on others committing

similar offenses, the use of state resources, the risk to the community, and other potential

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mitigating factors. Ultimately, the court decided to abide by the legislature’s amendments

establishing the unit of prosecution and impose a sentence at the bottom of the standard range.

The court acknowledged that it had considered the factors espoused in the SRA, and although it

did not consider Vance a threat to public safety, it declined to impose a sentence inconsistent

with the legislature’s clear intent to punish more severely crimes involving depictions of minors

engaged in sexually explicit activity.

The trial court said that subjectively, it would have preferred to impose a lighter sentence,

but “I don’t think I can” under Hortman’s requirement that the judge objectively apply the

legislature’s intent. Verbatim Report of Proceedings (VRP) (Vol. 2) at 210; see Hortman, 76

Wn. App. at 463. When read in light of the court’s entire discussion, this comment refers not to

a belief that the court could not impose an exceptional sentence under any circumstances, but

rather that there was nothing specific or unique about Vance’s case that warranted an exceptional

sentence. The trial judge discussed the fact that a downward departure would essentially be

based on a disagreement with the legislature’s determination of the unit of prosecution rather

than an individualized determination based on the specific facts of this case.

On balance, the trial court discussed RCW 9.94A.010 factors and decided that they did

not warrant downward departure in this case. While the trial court did so in part because it did

not want to ignore the legislature’s intent regarding unit of prosecution for this crime,

consideration of legislative intent is not fatal to the trial court’s decision. Consequently, we hold

that the trial court adequately considered the RCW 9.94.010 factors and therefore, engaged in the

analysis that RCW 9.94A.535(1)(g) required.

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C. Consideration of Mitigating Factors Outside of the Statutory List

Vance also argues that the court failed to consider certain mitigating factors outside of

RCW 9.94A.535’s nonexclusive list. First, he argues the court should have considered his post-

offense rehabilitation because, although it is not listed as a mitigating factor justifying an

exceptional sentence under RCW 9.94A.535(1), the court nevertheless had discretion to consider

it when deciding whether to impose a sentence below the standard range.

To determine whether a factor supports departure from the standard sentence range, we

apply a two-part test. State v. O’Dell, 183 Wn.2d 680, 690, 358 P.3d 359 (2015), review denied,

189 Wn.2d 1007 (2017). “First, a factor cannot support the imposition of an exceptional

sentence if the legislature necessarily considered that factor when it established the standard

sentencing range.” Id. Second, in order to justify an exceptional sentence, the factor must be

“‘sufficiently substantial and compelling to distinguish the crime in question from others in the

same category.’” Id. (quoting State v. Ha’mim, 132 Wn.2d 834, 840, 940 P.2d 633 (1997)).

Even assuming without deciding that post-offense rehabilitation would be an appropriate

mitigating factor for the court to consider, there is no indication that the trial court failed to

consider it in declining to impose an exceptional sentence. At sentencing, the court noted that

Vance was not a danger to the community and acknowledged defense counsel’s arguments

regarding Vance’s post-offense rehabilitation.

Second, Vance argues that the trial court erred in failing to consider the unavailability of

a SSOSA sentence as a mitigating factor justifying an exceptional sentence. He reasons that the

legislature could not have “necessarily considered” the unavailability of SSOSA as a mitigating

factor when it established the standard sentence range for defendants in Vance’s position

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because, at the time the range was established, sex offenders who did not have an established

relationship with the victim had been eligible for SSOSA. Br. of Appellant at 44; see O’Dell,

183 Wn.2d at 690.

However, Vance makes no argument on the second prong of the relevant test: whether

this factor is “‘sufficiently substantial and compelling to distinguish the crime in question from

others in the same category.’” Id. (quoting Ha’mim, 132 Wn.2d at 840). The unavailability of a

SSOSA sentence for Vance does not distinguish his offense from other offenses for possession of

depictions of minors engaged in sexually explicit conduct. In fact, it is a common characteristic

of this crime that the defendant does not have an established relationship with the victim.

Because this factor does not separate Vance from other defendants in the same category, it does

not justify imposing an exceptional sentence downward. Moreover, whether to allow trial courts

to use this circumstance as a mitigating factor is a policy question more appropriate for the

legislature to address.

We hold the trial court properly considered Vance’s request for an exceptional sentence

and we therefore affirm the trial court’s decision not to depart from the standard range sentence.

IV. CRUEL PUNISHMENT

Finally, Vance argues that the trial court failed to consider his argument that the length of

his sentence violates article I, section 14 of the Washington Constitution, which prohibits cruel

punishment. He contends his sentence of 77 months constitutes cruel punishment because it is

disproportionate to the sentences received in other jurisdictions for similar crimes. We hold that

his sentence was not cruel punishment.

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A. Article I, Section 14 Prohibition Against Cruel Punishment

The constitutionality of a statute is a question of law that we review de novo. State v.

Abrams, 163 Wn.2d 277, 282, 178 P.3d 1021 (2008). We presume that a statute is constitutional;

the party challenging the statute bears the burden of proving its unconstitutionality beyond a

reasonable doubt. Id.

Article I, section 14 prohibits “cruel punishment.” State v. Witherspoon, 180 Wn.2d 875,

887, 329 P.3d 888 (2014). A defendant’s sentence is considered cruel “‘when it is grossly

disproportionate to the crime for which it is imposed.’” State v. Moen, 4 Wn. App. 2d 589, 598,

422 P.3d 930 (2018), review denied, 192 Wn.2d 1030 (2019) (quoting State v. Morin, 100 Wn.

App. 25, 29, 995 P.2d 113 (2000)).

A defendant may challenge the proportionality of his sentence in two different ways.

First, he may bring an “as-applied” challenge by arguing his sentence is grossly disproportionate

given his particular circumstances. Moen, 4 Wn. App. 2d at 598-99. Second, a defendant may

assert a categorical challenge by arguing that an entire class of sentences is disproportionate

based on “‘the nature of the offense’” or the characteristics of a class of offenders. Id. (quoting

Graham v. Florida, 560 U.S. 48, 60-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)).

While Vance argues that we should analyze his claim as an as-applied challenge under

State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980), we disagree. As we pointed out in Moen, the

Fain court addressed an as-applied challenge: whether the defendant’s life imprisonment

sentence was disproportionate given the circumstances of his particular crime. Moen, 4 Wn.

App. 2d at 600. Here, Vance does not argue that his specific circumstances make his punishment

disproportionate to his crime, but rather that any defendant sentenced under the “per image” unit

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of prosecution for first degree possession of depictions of a minor engaged in sexually explicit

conduct will receive a constitutionally disproportionate sentence. Because Vance “‘challenges a

sentencing statute as applied to a class of [defendants], rather than solely the constitutionality of

his sentence alone, the categorical approach is necessary.’” Id. (quoting State v. Bassett, 198

Wn. App. 714, 738, 394 P.3d 430 (2017), aff’d, 192 Wn.2d 67 (2018)).

We conduct a two-step analysis when reviewing a categorical challenge, considering (1)

objective indicia of society’s standards to determine whether there is a national consensus

against the sentencing practice at issue, and (2) our own understanding of the prohibition of cruel

punishment. Moen, 4 Wn. App. 2d at 601.

B. Application of the Categorical Analysis

Our first task is to determine whether there is a national consensus against a “per image”

unit of prosecution that results in significant prison sentences for those convicted of possession

of certain types of child pornography. Vance argues that federal courts have come to recognize

that the relative ease of downloading images from the internet diminishes the value of sentence

enhancements based on a per image unit of prosecution, since an offender could almost as easily

download thousands of images as mere dozens. As a result, he contends, federal courts have

gradually lowered sentences for crimes of possession of child pornography, frequently with

minimal or no incarceration. See, e.g., United States v. Autery, 555 F.3d 864, 867 (9th Cir. 2009)

(affirming sentence of five years of probation with no period of incarceration); United States v.

Stall, 581 F.3d 276, 277-78 (6th Cir. 2009) (affirming sentence of one day of incarceration with

ten years of supervised release).

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In particular, Vance points to the discrepancy between his sentence and the sentence he

claims he likely would have received had he been charged in federal court rather than in state

court. He presents a number of federal cases where defendants in similar situations were

sentenced to no more than 36 months, while he received a 77 month sentence and could have

received as much as 102 months at the top of the range.

Although Vance presents examples of individual cases from federal courts, he does not

provide legislative enactments or state practices regarding sentencing frameworks using a per

image unit of prosecution, necessitating an independent examination of sentencing practices

from around the country to determine whether a consensus exists. The United States Federal

Sentencing Guidelines manual includes a sentencing enhancement based on the number of

images possessed by the defendant. See U.S. FEDERAL SENTENCING GUIDELINES manual §

2G2.2(b)(7) (2018). The guidelines specify an enhancement of two levels if the offense involved

between 10 and 150 images. U.S. FEDERAL SENTENCING GUIDELINES manual § 2G2.2(b)(7)(A).

For a defendant in Vance’s situation, this would result in a prison sentence of 33 to 41 months.

See U.S. FEDERAL SENTENCING GUIDELINES manual, ch. 5, part A.

Other states also provide for comparable sentences for possession of multiple images.

California’s child pornography statute prescribes a punishment of imprisonment for up to one

year for possession of any image, with the term of confinement increasing up to five years if the

number of images exceeds 600, and 10 or more of those images involve a prepubescent minor.

CAL. PENAL CODE § 311.11(a)-(c)(1). New York defines possession of child pornography as

possession of “any performance which includes sexual conduct” by a child and classifies it as a

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class E felony, which carries a maximum term of four years in prison. N.Y. PENAL LAW §§

70.00(2)(e), 263.16.

Illinois classifies possession of child pornography as a class 3 felony, which carries a

sentence between two and five years of imprisonment. 720 ILCS 5/11-20.1(a)(6), (c); 730 ILCS

5/5-4.5-40(a). Similar to Washington, Illinois specifies that the possession of each individual

photograph of child pornography “constitutes a single and separate violation.” 720 ILCS 5/11-

20.1(a-5). Also similar to Washington, the Illinois legislature specifically amended the statute

to specify a per image unit of prosecution after an appellate court declined to construe the former

statute’s use of the term “any” as meaning one count per photograph. See People v. McSwain,

964 N.E.2d 1174, 1187-90 (Ill. App. Ct. 2012); 2013 ILL. LEGIS. SERV. P.A. 98-437 (H.B. 2647)

(West); State v. Sutherby, 165 Wn.2d 870, 882, 204 P.3d 916 (2009). Indeed Illinois’s

sentencing framework appears to be even more severe than Washington’s, as Illinois mandates

that judges impose consecutive sentences for defendants with certain child pornography

convictions, including some forms of possession. 730 ILCS 5/5-8-4(d)(2.5).

The Pennsylvania Supreme Court has reasoned that its legislature’s use of the term “any”

in its definition of possession of child pornography “suggests a lack of restriction or limitation”

and concluded that “each photograph or computer depiction constitutes a distinct occurrence of

offensive conduct.” Commonwealth v. Davidson, 595 Pa. 1, 35-36, 938 A.2d 198 (2007). The

Davidson court concluded that the plain language of the statute made clear that the legislature

intended for each image of child pornography possessed by an individual to be a separate,

independent crime. Id. at 36. In rejecting the defendant’s double jeopardy challenge based on

his 28 convictions for possession of child pornography, the court noted that “a significant

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majority” of other jurisdictions have similarly found that possession of each image of child

pornography constitutes a separate offense and that this is a permissible unit of prosecution. Id.

at 37 (citing United States v. Esch, 832 F.2d 531, 541-42 (10th Cir. 1987); People v. Renander,

151 P.3d 657, 660 (Colo. App. 2006); Fink v. State, 817 A.2d 781, 788 (Del. 2003); State v.

Farnham, 752 So.2d 12, 14-15 (Fla. Dist. Ct. App. 2000)).

This review of other state practices does not reveal a clear consensus against a per image

unit of prosecution for child pornography or a clear consensus that the length of Vance’s

sentence is unusually cruel. Many jurisdictions employ some form of sentence enhancement

based on the number of images possessed, and Illinois in particular has a statutory provision

nearly equivalent to RCW 9.68A.001 specifying a per image unit of prosecution for possession

of child pornography. Although the high courts of other jurisdictions have typically addressed

this issue in the context of double jeopardy, rather than cruel punishment, the fact remains that

those jurisdictions have interpreted their statutory sentencing schemes to permit per image units

of prosecution. And although some federal courts have shifted toward imposing more lenient

sentences, this does not establish a national consensus against the practice chosen by

Washington’s legislature.

There being no apparent national consensus against a per image unit of prosecution,

Vance’s cruel punishment claim fails under the first prong of the categorical approach. As a

result, we need not address the second prong.

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We hold that Vance’s sentence is not cruel punishment.

CONCLUSION

We affirm Vance’s convictions and sentence. The trial court properly applied the silver

platter doctrine, the 2004 amendment to the SSOSA statute did not violate equal protection, the

trial court properly declined to impose an exceptional sentence downward, and Vance’s sentence

is not cruel punishment under article I, section 14.

Glasgow, J.
We concur:

Worswick, J.

Maxa, C.J.

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