Recently went to trial wherein my client was charged with Rape of a Child in the First Degree and Child Molestation in the First Degree. The State had seized my client’s phone years earlier, upon his arrest. Lots of pornography was extracted. On the eve of trial, the State amended its Information to add a count of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree. There were over 100,000 on the client’s phone; only a small percentage was (legal) pornography. However, there were two images where the models looked “young”. I ran across State v. Chambers while doing research on attacking the State’s amendment. Ultimately, I brought a Knapstad / 8.3(b) motion to dismiss the Depictions count, which the Court granted: the State could not establish the age of the models by either pediatric body development testimony or documenting known images by law enforcement databases. My client had a similar argument to Mr. Chambers, although the State’s information did not have the same defect.
The classic problem when the Defense locates a language description or clerical defect in the State’s charging document, known in Washington as an “Information,” is that if the Defense brings up the defect pre-trial, then the State will simply seek to amend the error. The court normally then inquires “how the Defense is prejudiced by the amendment,” which the Defense is usually not able to do. The optimal time to bring a motion to dismiss for defective language in an Information is after the State has rested at trial, but before the Defense puts on its case. Making the objection during “half-time” of a trial usually provides the Defense with some opportunity to claim that a new element added to an Information could not be prepared for. Mr. Chambers did not challenge the sufficiency of the charging document until after his guilty verdict at trial.
The appeals court held that Mr. Chambers’ post-verdict challenge could be brought. An Information’s notice to a Defendant of the essential elements of a crime is considered of constitutional magnitude or importance. However, due to the challenge being “post-verdict,” the Chambers’ court considered the sufficiency of the Information under a liberal construction rule in favor of the Information’s sufficiency.
Mr. Chambers was charged with 2 counts of Dealing in Depictions of Minor Engaged in Sexually Explicit Conduct in the First Degree, 1 count of Dealing in Depictions of Minor Engaged in Sexually Explicit Conduct in the Second Degree, and 24 counts of Possession of Depictions 1. He was found guilty on all counts. Mr. Chambers argued, for the first time on appeal, that these offenses required knowledge of the alleged “act,” i.e. knowledge of the nature of the depictions. The Information utilized language in the Washington statute criminalizing possessing or trading what is commonly known as “child pornography.” Mr. Chambers argued that he had to know the nature of the illegal images, and this was not spelled out in the Information.
On more than one occasion in the Chambers opinion, the appellate court indicates that a liberal construction or reading of the Information was to be employed. The Court disagreed with Mr. Chambers’ argument that the “charging document must track language of the to-convict jury instruction,” which in his case was not present.
The Court held “The State’s information mirrors the statute (prohibiting dealing or possession) where knowledge of the nature of the materials was implied in the statute under the strict statutory interpretation standard, and the language sufficiently provides notice of all essential elements under a more liberal construction.” The word “knowingly” in the information “modifies the acts of possession.” State v. Chambers, at 927.
It is not clear from the opinion whether the post-verdict challenge was a matter of strategy by the trial lawyer believing the issue was preserved properly for appeal. Since the “trial” was a bench trial on agreed-upon or stipulated facts, there is not a clear basis from the Chambers opinion itself for failing to make the mental element challenge at the conclusion of the State’s case. This may have allowed a stricter review of the State’s charging document.
Mr. Chambers will be in prison for a very long time.