(dissenting in part) — I dissent from the majority’s decision that the State could charge Root with a separate count for each photo.
To determine whether Root may be punished for each photo, we must analyze the statute for the “unit of prose*338cution” the Legislature intended to punish. State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998) (citing Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955); State v. Mason, 31 Wn. App. 680, 685-87, 644 P.2d 710 (1982)). In doing so, we look for the “act or course of conduct” the Legislature has defined as the punishable act. Adel, 136 Wn.2d at 634. If the statute is ambiguous as to the unit of prosecution, we must construe the ambiguity in favor of the defendant under the rule of lenity. Adel, 136 Wn.2d at 634-35 (citing Bell, 349 U.S. at 84).
Here, Root was charged with violating RCW 9.68A-.040(l)(a) and/or (b). Together, these sections prohibit conduct that “[c]ompels . . . [a]ids . . . authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed . . . .” Thus, in general, the statute consists of two elements: (1) posing a minor in sexually explicit conduct, and (2) knowing that the conduct will be photographed. Arguably, actually photographing the minor is not an element of the crime. Rather, the crime is complete if the defendant poses, or causes the minor to be posed, with knowledge that the pose will be photographed. Yet, in affirming the State’s separate charges based upon separate photos, the majority necessarily concludes that the Legislature intended to punish the act of photographing, not the act of posing. I believe this result is inconsistent with both the statutory language and the Supreme Court’s decision in State v. Chester, 133 Wn.2d 15, 940 P.2d 1374 (1997).
In Chester, the defendant was convicted of sexual exploitation of a minor for secretly photographing his partially nude stepdaughter. The court held that the defendant had not violated the statute because there was no evidence he aided, invited, employed, authorized or caused his stepdaughter to engage in sexually explicit conduct. Chester, 133 Wn.2d at 23. Thus, Chester tells us that a defendant does not violate the statute by merely photographing a minor in what may be sexually explicit conduct.
*339And State v. Knutson, 64 Wn. App. 76, 823 P.2d 513 (1991), does not support the State’s position. In Knutson, the defendant was charged with and pleaded guilty to four counts of violating RCW 9.68A.040. The counts involved two victims, but Knutson stipulated that he posed and photographed each victim on two occasions. Knutson, 64 Wn. App. at 78-79. Because of this, the court held that the counts were not “multiplicitous” and that Knutson’s offender score was properly calculated. Id. at 80-81. Thus, Knutson did not hold that each photograph taken during one posing session is a separate crime under RCW 9.68A-.040.
In conclusion, the statute is at least ambiguous as to whether the Legislature intended to punish the act of posing or the act of photographing, assuming the latter to be an element of the crime. Under the rule of lenity, we must construe the statute in favor of Root, i.e., the Legislature intended to punish posing. I would remand for a hearing to determine the number of separate counts Root committed. This finding would turn upon the number of poses Root caused with knowledge they would be photographed.1
Review granted at 139 Wn.2d 1001 (1999).
The parties have not briefed or argued the issue of whether Root committed separate crimes with separate poses during each posing session. This issue should be addressed first by the trial court.