¶15 (dissenting) The panel has carefully considered and discussed former RCW 9.68A.070 (1990), the arguments of counsel, and the case law. This process has been far more difficult than it might have been had the legislature expressed its intent more precisely. While I see the logic of the majority opinion and feel that this is a close case, I reach a different result.
¶16 Parsing the language of former RCW 9.68A.070 and RCW 9.68A.011(3)(e) relevant to this case, it requires proof that the defendant “knowingly possesses visual. . . matter depicting a minor engaged in” “[e]xhibition of the genitals or unclothed pubic or rectal areas . . . for the purpose of sexual stimulation of the viewer.” In construing “engaged” and “for the purpose of sexual stimulation of the viewer,” the cases agree that the focus need not be on the minor and in most cases will be on the actions and purpose of the defendant.7
¶17 The difficulty arises with the word “exhibition.” Here, I did not find State v. Myers, 82 Wn. App. 435, 918 P.2d 183 (1996), aff’d, 133 Wn.2d 26, 941 P.2d 1102 (1997), and State v. Chester, 133 Wn.2d 15, 940 P.2d 1374 (1997), helpful because they deal with a different statute, RCW 9.68A.040. However, State v. Grannis, 84 Wn. App. 546, 930 P.2d 327 (1997), required some direct participation by the defendant in the exhibition, *663citing Chester before its review by the Washington Supreme Court. State v. Griffith, 129 Wn. App. 482, 488, 120 P.3d 610 (2005), focused on the intent of the defendant in capturing the image and stated, “If a minor is unclothed and the picture is for the sexual stimulation of the viewer, then it meets the definition of sexually explicit conduct.” Though seemingly reaching an opposite result, Griffith cites Grannis for this proposition. Griffith, 129 Wn. App. at 488.
¶18 Consistent with the construction given by the courts to “engaged” and “for the purpose of sexual stimulation of the viewer,” I construe “exhibition” to mean “showing”8 and focus on the defendant’s actions and intent, not those of the minor. However, I would not find any requirement that the defendant interact with the minor at the time of the filming.
¶19 In sum, giving the words of the statute their ordinary meaning in their context, I read the parsed language of former RCW 9.68A.070 and RCW 9.68A.011(3)(a) to say: “knowingly possesses visual . . . matter depicting a minor [involved] in[9] [but not necessarily aware of] showing genitals or unclothed pubic or rectal areas . . . for the [defendant’s] purpose of sexual [ly] stimulat[ing] the viewer.”
¶20 I find that the evidence supported Whipple’s conviction of nine counts of possession of a depiction of a minor engaged in sexually explicit conduct.
See State v. Chester, 133 Wn.2d 15, 19-20, 22-23, 940 P.2d 1374 (1997); State v. Griffith, 129 Wn. App. 482, 488, 120 P.3d 610 (2005); State v. Grannis, 84 Wn. App. 546, 549-50, 930 P.2d 327 (1997); State v. Myers, 82 Wn. App. 435, 440, 918 P.2d 183 (1996) (Turner, J., concurring), aff’d, 133 Wn.2d 26, 941 P.2d 1102 (1997).
See Webster’s Third New International Dictionary 796 (2002) (defining “exhibition” as “an act or instance of showing”).
9 See Webster’s Third New International Dictionary 751 (2002) (defining “engage” as “to become involved or entangled”).