No. 26432-3-II.The Court of Appeals of Washington, Division Two.
Filed: October 25, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 99-1-00847-0, Hon. Stephen M. Warning, September 11, 2000, Judgment or order under review.
Counsel for Appellant(s), Eleanor M. Couto, Attorney At Law, 1402 Broadway, Suite 102, Longview, WA 98632.
Counsel for Respondent(s), Heiko P. Coppola, Deputy Pros Atty, Cowlitz Co Pros Aty Offc, 312 S.W. First Ave, Kelso, WA 98626.
MORGAN, J.
Following a bench trial on stipulated facts, John Allen Brower was convicted of twenty counts of second degree rape, sexual exploitation of a minor, and possession of depiction of a minor engaged in sexually explicit conduct. He was given an exceptional sentence of 360 months. He claims on appeal that a warrant for his home was not supported by probable cause and was overbroad. He also claims that he should not have been given an exceptional sentence. We affirm.
In July 1999, the Longview Daily News offered an Internet service to which members of the public could subscribe. On or about July 7, 1999, the Daily News was informed that one of its subscribers had posted on its Internet service a picture of an adolescent boy with his genitals exposed. The newspaper’s Internet service manager, Kurt Grindeland, notified the police. Officer Gabel responded and, according to the affidavit later submitted in support of a search warrant, spoke to Grindeland as follows:
Grindeland told Officer Gabel that he had received an E-mail from a woman named `Robin’. . . . Robin told Grindeland that she is a child rape survivor and assists the Justice Department and U.S. customs in sting operations to help catch pedophiles. According to Robin, a person who uses the Internet name of `JB’ at the e-mail address of jb@tdn.com had responded to one of her requests for child pornography. Robin also stated that `JB’ had posted a digital photograph on one of the Internet newgroups of a teenage boy who was exposing his genitalia. Above the posted photo `JB’ typed `Anyone have or know where I can locate more of this boy, pls post or email me, have some to trade if you want to do it prvtly. . . . . . . . . PLS!!!!!’[1]
On July 8, 1999, Officer Raymond Hartley was assigned to follow up. He reviewed Gabel’s report, which had attached to it a photo of a teenage boy exposing his genitalia. On July 14, 1999, he asked a pediatrician to assess the age of the boy in the photo, and the pediatrician opined that the boy was probably under 18. On July 16, 1999, he learned from Grindeland that the account on which the picture was posted had been opened by John Brower in 1996, and that Brower’s e-mail address was jb@tdn.com.
The account agreement showed an address, an old phone number, and a new phone number. Detective Reeves ran an internet search for Brower’s e-mail address and came up with a personal advertisement web site. This site contained an ad in which Brower stated he was looking for `hot-cute men-boys.’[2] Hartley checked police records and the city directory for John Brower. He found that Brower had once given the police the same address he had given the Longview Daily News, and that Brower had later given the police an address that was a mail-drop. He also obtained Brower’s full name and date of birth.
On July 20, 1999, Hartley learned from the phone company that Brower’s phone number was still the newer one shown on his agreement with the newspaper. He also learned that the phone was installed at 1071 Seventh Avenue, apartment 5, in Longview. The next day, he observed a vehicle registered to Brower parked in front of that address. The day after that, Hartley learned from the Cowlitz Public Utilities District that Brower was the billing occupant of that address, and that he had been living there since March 1997. Armed with this information, Hartley contacted a U.S. customs agent trained in using the internet. Using the name `William Holly,’ the agent began an e-mail conversation with Brower. Brower asked for photos of `Holly,’ and Hartley supplied some photos of himself. Brower took a while to respond. When he did, he explained that he had been babysitting a 14-year-old boy for the past week. He went on to describe the boy in ways that implied molestation.
In late August 1999, `Holly’ and Brower agreed to meet in Longview, partly so that Brower could supply `Holly’ with `a fun video’ of `14 year old skateboarders with nice cocks[.]’[3] The meeting was to occur on approximately Friday, September 3, 1999. On September 3, 1999, Hartley submitted an affidavit for a search warrant containing the above facts. Finding probable cause to search the Seventh Avenue address, the magistrate issued a warrant that authorized officers to search for:
(a) Camera equipment and video equipment intended for the taking, producing, and reproducing of photographic images, including but not limited to cameras, instant and otherwise, video reproduction equipment, lenses, enlargers, photographic papers, film, developed and undeveloped, Polaroid cameras, attachments for remotely taking of photographs depicting minors engaged in sexually explicit conduct;
(b) Items of personal property which tend to identify the person(s) in residence, occupancy, control or ownership of the premises that is the subject of this warrant, including but not limited to canceled mail, deeds, leases, rental agreements, photographs, personal telephone books, utility and telephone bills, statements, identification documents, and keys;
(c) Phone books, phone registers, correspondence or papers with names, addresses and telephone numbers which would tend to identify any minor or possibly other pedophile/child molesters;
(d) Photographs, movies, Video tapes, negatives, slides and/or undeveloped film depicting nudity and or sexual activities involving minors and/or minors with adults that depict minors engaged in sexually explicit conduct;
(e) Correspondence, diaries, and any other writings, tape recordings, or letters relating to any minor and/or adults and sexual conduct between minors and adults and any writings evidencing trading of pornography or nudity regarding persons under the age of 18 years old;
(f) Magazines, books, movies, photographs, and/or drawings, artifacts, or statues depicting nudity and/or sexual activities of minors and/or minors with adults, as well as collections of newspaper, magazines and other publication clippings of which tend to demonstrate a particular sex and age preference of John A. Brower, the defendant.
(g) Safe deposit keys, bank statements, billing and checks tending to show the location and identity of safe deposit boxes and storage facilities that are accessible to John A. Brower that might conceal evidence relating to the depictions of minors engaged in sexually explicit conduct.
(h) Computers, computer hard drives, floppy disks or diskettes, computer CD’s (compact disks), computer monitors, computer keyboards, computer printers, computer scanners (photo or otherwise), computer zip disk or diskettes and computer zip drives, Computer CD ROM’s, computer software relating to pornography, computer software relating to communications through the internet for the purposes of procuring or disseminating child pornography, fax machines, any printed images or data concerning pornography.
(i) Any bills, writings, cancelled checks, agreements, statements and other evidence of the usage of any internet provider or access service in the past or the present.[4]
Officers executing the warrant found and seized “hundreds” of “sexually explicit’ pictures of young men and boys, some emphasizing acts of sadomasochistic abuse.[5] They also found and seized “dozens of pornographic . . . videotapes,” “two homemade videos” showing Brower engaging in “explicit sexual acts” with a young boy, and over six hundred digital images on Brower’s computer depicting “juvenile boys engaged in explicit sexual acts with other boys, as well as with adult men.”[6]
Brower was arrested the next day, September 4, 1999, while he was returning to his apartment. He admitted to having sex with five under-age boys, and to posting child pornography on the Internet over the past three years. On September 9, 1999, he was charged with four counts of second degree rape; one count of third degree child rape; and two counts of sexual exploitation of a minor.
On December 21, 1999, Brower filed a motion to suppress all evidence resulting from the search warrant. On May 18, 2000, the court found that the italicized words quoted above were overbroad, and that evidence seized pursuant to those words would be suppressed. Using the severance doctrine, however, it upheld the remainder of the warrant.
On August 3, 2000, following a stipulated-facts bench trial, the court found Brower guilty of all twenty counts. On September 11, 2000, it held a sentencing hearing at which the prosecutor sought an exceptional sentence of 560 months and Brower sought a standard range sentence of 250 months.
The trial court imposed an exceptional sentence of 360 months, based on the following findings and conclusions:
FINDINGS OF FACT
1. The defendant was found guilty of 5 counts of rape in the second degree.
2. The defendant was found guilty of 5 counts of sexual exploitation of a minor for video taping sex acts with the 14-year old victim in Finding 1.
3. The defendant was found guilty of 10 counts of possession of depiction of a minor engaged in sexually explicit conduct.
4. It was a different child depicted in each of the 10 counts in Finding 3.
5. The defendant has an offender score of 27.
6. Even if there were no multipliers, the defendant has a score over 9.
7. The pictures mentioned in Finding 3 are extraordinarily sadistic in nature.
8. The imposition of standard range of 210 — 280 is clearly too lenient in light of the purposes set forth in RCW 9.94A.010.
CONCLUSIONS OF LAW
1. The defendant would receive no punishment for `free crimes’ if the standard range were to be used, as his total offender score is substantially above the maximum.
2. There are substantial and compelling reasons to impose an exceptional sentence above the standard range.[7]
On appeal, Brower argues that “the search warrant failed to establish probable cause and violated the Fourth Amendment specificity requirements.”[8] He also argues that the trial court erred by imposing an exceptional sentence.
Brower bases his warrant argument on State v. Perrone[9] and State v. Riley[10] .
The warrant in Perrone purported to authorize the seizure of child pornography, adult pornography, and various other items. In conclusions that the defendant did not challenge on appeal, the trial court held `that there was probable cause for the seizure of child pornography[,]’ but that there was no probable cause `for the seizure of adult pornography, drawings of children, and some of the other items described in the warrant.’[11] Declining to apply the severance doctrine, the trial court suppressed the evidence, and the Supreme Court affirmed. The warrant in Riley was overbroad and invalid because it permitted the seizure of broad categories of material without reference to any specific criminal activity. As the State correctly argues, this case is different from both Perrone and Riley. The facts in the affidavit gave rise to probable cause for the seizure of videotapes and photos depicting sexually explicit conduct by children. The warrant was carefully limited to the seizure of such items, except for paragraph (f) and the word `pornography’ in paragraph (h), which the trial court excised and severed. Holding that the doctrine of severance was properly applied, and that ample probable cause remained after severance, we conclude that the trial court did not err insofar as it denied Brower’s motion to suppress evidence. Brower’s remaining argument is that the trial court erred by relying `upon erroneous reasons to justify a departure from the presumptive sentence range.’[12] He explains:
In the case at hand, the court entered eight findings of fact. However, those findings are repetitive. At the sentencing hearing, the court gave the Defendant an exceptional sentence based solely on his total offender score which was in excess of the maximum score of nine. The findings keep repeating this same idea that the Defendant has a score in excess of nine. This appears to be the only valid factor to support the Defendant’s exceptional sentence.[13]
Agreeing with this assessment, we address two questions. (1) Did the trial court have statutory authority to impose an exceptional sentence based on an offender score in excess of nine? (2) Is it apparent from the record that the court would have done that even in the absence of its other findings of fact?
The answer to the first question is yes. A sentencing court may impose an exceptional sentence upward if `[t]he operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient[.]’[14] `This inquiry is automatically satisfied whenever `the defendant’s high offender score is combined with multiple current offenses so that a standard sentence would result in `free’ crimes crimes for which there is no additional penalty.’[15] Brower’s offender score was 27, the matrix only goes up to 9, and he would obviously have received `free crimes’ but for an exceptional sentence. For that reason, the trial court had authority to impose an exceptional sentence.
The answer to the second question is also yes. As Brower himself notes, the trial court’s findings of fact repeat the same proposition over and over: that his offender score was 27. That proposition was the main reason for imposing an exceptional sentence, and it seems obvious that the trial court would have indeed, probably did impose the exceptional sentence for only that reason.[16]
We conclude that the exceptional sentence was valid and that the trial court did not err.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD and BRIDGEWATER, JJ., concur.