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Powell Sentencing Motion

Powell Sentencing Motion

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Published by Ben Winslow
Defense motion to dismiss most of the voyeurism charges against Steven Powell.
Defense motion to dismiss most of the voyeurism charges against Steven Powell.

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Published by: Ben Winslow on Jun 09, 2012
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06/09/2012

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SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTYVs.STEVEN CRAIG POWELL,STATE OF WASHINGTONPlaintiff,DEFENSE MOTIONS ONSENTENCING:(1) DOUBLE JEOPARDY -UNITOF PROSECUTION
/
(2) SAME CRIMINAL CONDUCTCAUSE NO. 11-1-03893-1Defendant.
I
COMES NOW THE DEFENDANT, STEVEN CRAIG POWELL, by andthrough his Attorneys Mark Quigley and Travis Currie, and hereby moves this court forthe following:(1) An order dismissing 12 of the 14 counts of Voyeurism based on a violation ofhis constitutional right to be free from double jeopardy guaranteed by the FifthAmendment of the United States Constitution. This motion is based on the FifthAmendment of the U.S. Constitution, Washington Constitution,
art.
I, sec. 9, thememorandum of counsel, the file and record herein, and the evidence produced at trial.(2) The Defense also moves this Court to find that any remaining counts as toeach respective victim amount to the "same criminal conduct" for purposes of sentencingunder RCW 9.94A.589.
I. PROCEDURAL HISTORY
The Pierce County Prosecuting Attorney originally charged the Defendant, StevenPowell, by way of Information, filed on September 23, 201 1, with 14 counts ofMotion to Dismiss CountsDouble Jeopardy Page 1 of 13
Department
of
Assigned
Counsel
949
Market
Street,
Suite
334
Tacoma,
Washington
98402-3696
Telephone:
(253)
798-6062
E-FILEDIN COUNTY CLERK'S OFFICEPIERCE COUNTY, WASHINGTONJune 07 2012 4:03 PMKEVIN STOCKCOUNTY CLERK
NO: 11-1-03893-1
 
Voyeurism, and one count of Possession of Depictions of Minor Engaged in SexuallyExplicit Conduct in the Second Degree. The charge of Possession of Depictions ofMinor Engaged in Sexually Explicit Conduct in the Second Degree has been previouslydismissed by the Court. The remaining 14 counts of Voyeurism, all allege that betweenJune of 2006 and August of 2007 the defendant did, for the purpose of arousing orgratifying the sexual desire of any person, knowingly view, photograph, or film A.H.(Counts 1-7), and J.H. (Counts 8-14), without that person's knowledge and consent,while that person was in a place where that person would have a reasonable expectationof privacy. The State had also alleged that each of these counts was aggravated by thefollowing circumstances: the offense involved an invasion of the victim's privacy, and/orthe defendant committed multiple current offenses and the defendant's high offenderscore results in some of the current offenses going unpunished. The first of theseaggravators, that the offense involved an invasion of the victim's privacy was concededand dismissed by the State on Defense motion prior to the court issuing its instructions tothe jury.At the close of the State's case, the Defense filed and argued a motion to dismissall but 2 counts based on insufficient evidence to support separate offenses. The Statefiled a response, arguing in part that this was a sentencing issue and should be revisitedafter any verdict.On May 16,2012, the Jury returned a verdict of guilty on counts 1 14.
11.
RELEVANT FACTS PRODUCED AT TRIAL
At trial, the State admitted 15 photographs in support of their 14 remaining countsof Voyeurism. (Trial Exhibits 1-15) The lead case Detective Sanders testified that theseMotion to Dismiss CountsDouble Jeopardy Page 2 of 13
Department of Assigned Counsel949 Market Street, Suite 334
I
Tacoma, Washington 98402-3696
1
Telephone: (253) 798-6062
1
 
images were single shots removed from a large number of .jpg files created from a digitalvideo camera recording. Detective Sanders testified that these are the images the State isrelying on for the counts; all come from one disk; and that they are images of a total of2alleged victims (counts 1 through
7
involve Victim 1 (A.H.), and counts
8
through 14involve Victim
2
(J.H.)). Detective Sanders testified that there was no way to tell who, ifanyone had ever viewed the images. When questioned as to how he had come to thevarious counts, he said he had tried to figure out counts based on the content of thepictures (i.e. the apparent time of day, the items in the background, and based on theactions that were going on-using the toilet or taking a bath). Detective Sanders alsotestified that there was no way to know when exactly the pictures had been created.Furthermore, he testified that it is possible they were all taken the same day. TheDetective conceded that the images used in support of Count
8
and 10 were of the samevictim engaged in a bath from the same time.The images themselves contain a number of items in the background that thedetective apparently relied on. Seven of the photos include a short tumbler type waterglass sitting in the same spot on the comer of a low wall separating the upstairs "loft" orlanding area from the stairs. In five of the photos, there is what appears to be a pink itemof clothing in the foreground. In some of those photos and several others, there alsoappears to be some other item of clothing sitting on this pink item with a distinctivebulge. Still other photos all contain the same pillow, also in the foreground. Still others,could be from the same filming period but it may be unclear because of a change of angleor focus.
111.
LAW AND ARGUMENT
Motion to Dismiss CountsDouble Jeopardy Page 3 of 13
Department of Assigned Counsel949 Market Street, Suite 334Tacoma, Washington 98402-3696Telephone: (253) 798-6062

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