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IN COUNTY~tEED , RKS OFFICE
11_1-03893-1 38467113 MMPA

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PIERCtl.., KEVIN
By

AM

MAY 07 2012

----.L.-_:__ ~gl.mty Clerk

ST~tK,:\.X\·f.\;:'HIIVGTON
r--"'"-DEPUTY

PM

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SUPERIOR STATE OF WASHINGTON,

COURT OF WASHINGTON

FOR PIERCE COUNTY

Plaintiff, vs. STEVEN CRAIG POWELL, Defendant.

CAUSE NO. 11~1~03893-1 STATE'S TRIAL MEMORANDUM

COMES NOW THE STATE OF WASHINGTON,

by and through Deputy Prosecuting

Attorneys Grant Blinn and Bryce Nelson, and hereby advises the trial court of issues that are expected to arise during trial. I. FACTS On December 7, 2009, Susan Powell was reported missing in West Valley City, UT. She was last seen on December 6, 2009, while going to bed after eating a meal prepared by her

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State's Trial Memorandum -I Office of the Prosecuting Attorney 930 Tacoma Avenue South. Room 946 Tacoma, Washmgton 98402-2171 Mam Office (253) 798-7400

husband, Josh Powell. law enforcement

An extensive search ensued, involving a heavily publicized large scale To this day, Susan Powell remains missing. West Valley City Police Department

investigation-

Immediately

after Susan'sl disappearance,

(WVCPD) investigators contacted Josh. Josh quickly became a person of interest in the aggravated kidnapping and homicide of Susan Powell. Josh was interviewed by WVCPD

Detectives twice, but after the second interview on December 8,2009, was no longer willing to cooperate with police. On January 8, 2010, Josh Powell moved with his sons Charlie and Braden

State v powell - 11·1-03893·)

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to Puyallup. identified

The three moved in with Josh's father, STEVEN CRAIG POWELL,

hereinafter

as the defendant. a consent search was performed the defendant on the defendant's residence. On

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On May 11,2010, numerous occasions

after her disappearance,

had publicly described

his love for

and infatuation

with Susan.

During the consent search, multiple images of Susan were located in bedroom. In some of these images Susan was clothed, and in Some of the images appeared to have

a locked cabinet in the defendant's

some of the images she appeared to be in her underwear.

been taken of Susan through a slightly opened door without her knowledge. Several images showed screen captures of a video the defendant took of himself while masturbating. television The defendant set up a video camera that recorded a television The defendant screen. On the

screen were video images of Susan.

placed his penis directly adjacent all while being recorded. and said

to the image of Susan's mouth, and masturbated

until he ejaculated,

Also inside the locked cabinet were multiple video cassette tapes labeled "Susan" underwear.

When asked how he had obtained the images of Susan, the defendant

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that he had taken some himself, and had taken some off of Josh's computer without Josh 16 17 knowing. During the course of the investigation, investigators recovered a journal that had been The journal covered January 3, from the time she

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written by Susan from the Wells Fargo where she had worked.

2002, though October 26, 2009. The journal indicates that Susan kept journals was eight years old and the rest of her journals were packed away Josh and the defendant possession.

After Susan disappeared, in their

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told the media and friends that they had some of Susan's journals

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We refer to the various Powells by their first name to aVOIdconfusion. No disrespect is intended
Office of the Prosecuting Attorney
930 Tacoma Avenue South. Room 946 Tacoma, Washmgton 98402-2171 Mam Office (253) 798-7400

State's Tnal Memorandum - 2 State v powell- 11-1-03893-1

WVCPD Detectives asked Josh and the defendant to tum over Susan'sjoumals in their possession.

that were

The defendant and Josh agreed, but conditioned their agreement on WVCPD

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Detectives giving them Susan's journals that were in the possession oflaw enforcement. Essentially, Josh and the defendant wanted to trade the evidence in their possession for the evidence in the possession ofWVCPO. WVCPD did not agree to Josh and the defendant's offer.

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At that point, the defendant notified mvestigators that he and Josh were not going to release any journals and would not cooperate any further in the investigation. The defendant and Josh created a website (www.susanpowell.org) and placed selected scanned digital Images of Susan's Journal entries online. The defendant and Josh appeared on the Today Show and said that they had over 2000 pages of Susan's journal entries in their possession. The defendant and Josh allowed the cameraman from the Today Show to record Susan's journals that were currently in their possession. Seven journals were visible and

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recorded. The defendant told the media that Susan's journals were important to the ongoing investigation into Susan's disappearance. The defendant claimed that these journals showed how unstable Susan was, and detailed her sexual fantasies and relationships with men before she became involved with Josh. The defendant also stated that he and Josh planned on releasing more of Susan's journals over time. After the defendant and Josh showed Susan's journals on the Today Show, Pierce County Shenffs Department (PCSO) Detective Gary Sanders drafted a search warrant for the defendant's home to obtain possession of Susan's Journals, with the assistance ofWVCPD. Since the defendant and Josh had claimed the journals contained mformation pertinent to Susan's disappearance, they became potentially vital evidence in the ongoing investigation. On August

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State's Trral Memorandum- 3 State v Powell- Il·I"()3893·1

Office of the Prosecuting Attorney
930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402·2171 Mam Office (253) 798·7400

25,2011, the warrant was served on the defendant's residence at 18615 94th Avenue Ct. E. Both WVCPD and PCSD personnel assisted with the service of the search warrant.

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A large amount of evidence was seized from the defendant's house, including computers, hard drives, discs, notes, documents, cameras, videos, and journals All of the evidence was

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released to WVCPD for review. During the course of this review, it became apparent that the defendant had been surreptitiously video recording women in public places without their knowledge. These videos were meticulously organized on the defendant's computer. Investigators also discovered images on the defendant's computer that had been captured from these videos. When it became apparent that there was potential evidence of crimes committed by the defendant, investigators obtained additional warrants in Utah and Washington for the defendant's computer and associated material After obtaining warrants, investigators cataloged the evidence against the defendant. The defendant had recorded hundreds of videos of women in public, generally organizing the video captures on his computer by title. The titles typically contained a description of the woman filmed, along with a date and location. The videos generally focused on the intimate areas of the women being filmed. The defendant also recorded many videos of himself nude and masturbating. One of the discs recovered from the defendant's bedroom, identified as Disc #12, contained a folder titled "Neighbors." Within that folder were subfolders titled "Taking bath-l ," "Taking bath-2," and "Open window in back house." In these subfolders were images of two girls that appeared to be between the ages of seven and twelve. After later investigation, the girls were identified as former neighbors of the defendant, who were approximately 10 and 8 years old at the time they were filmed. There were a total of over 2000 images of the two girls on the

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Slate's Tnal Memorandum - 4 State v Powell- 11-1-03893-1

Office of the Prosecuting Attorney 930 Tacoma Avenue South. Room 946 Tacoma, Washington 98402-2171 Main Office (253) 798·7400

disc located in the defendant's video recording

residence.

These images appeared to be screen captures from a home from the defendant's residence. The

that was focused into the victims'

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victims appeared to have been video recorded without their knowledge. showed the victims unclothed,

Some of the images

taking a bath, using the toilet, and getting dressed or undressed. focused in on the victims' exposed breasts, buttocks,

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In many of the images the photographer and genital area. On the same disc were numerous these folders. follows:
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folders with individual titles.

Images were contained inside are as

in

The titles of the folders and descriptions

of the images contained

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Actresses: 31 photo files of various actresses posing partially nude and in lingerie Albertson's Blonde: numerous close up photos of a young female Albertson's employee in a parking lot Ama: numerous adult and late teen females modeling nude and in lingerie Audrey 2004: several photos of one female adult in the street and through a window from 2004 Bikini at Rest Stop: numerous photos of a female in a bikini walking around a rest stop Blue sun dress, Tacoma Mall: numerous photos ofa female wearing a sun dress in the Tacoma Mall parking lot Bodysuit: numerous adult females modeling swimwear and body suits Castle girls, Tri cities 2005: numerous close up photos of a female walking in a parking lot Cat-eye lady 2004: numerous close up photos of a female putting groceries in a car Cavanaugh's swim suits 2006: numerous close up photos of two female juveniles approximate 11-13 years of age in swimming suits and a pool Cheerleader, Puy, June 2004: female in a swimsuit and shorts displaying a car wash sign Childbirth: photos of a woman who gave birth in a tub Cigarette break 2004: numerous photos of a female eating food in a parking lot Crouching mom, Tacoma Mall: several photos of an unknown female's legs in a parking lot Cute Latina, 2004: photos of female walking in parking lot Denim skirt Shill mall 040717: photos of female walking in parking lot

State's Tnal Memorandum-

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State v Powell - 11-1·03893-1

Office of the Prosecutmg Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402·2171 Main Office (253) 798-7400

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DMV girl: photos of female walking in parking lot Dress shop, Spokane April 2004: photos of female customers standing Inside clothing store Edmonds girl 1, 2005: numerous photos of female walking in parking lot Edmonds girl 2, sitting on curb: close up groin and breast photos of female SItting on curb Ellensburg girls: close up photos of two teenage girls walking on sidewalk Federal Way mise 1: numerous photos of female adults in parking lot FTV Girls: various photos of adult pornography Girl and mom 2004: photos of two women loading items into a vehicle Girl eating icre cream: several photos of female adult standing in a parking lot Girl in car, with chain numerous close up groin photos of female sitting in

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vehicle Girl masturbating 040723: female juvenile sitting in open doorway of minivan. She momentarily puts her left hand up her shorts. Gum-chewing cutie: several photos of female juvenile walking in parking lot Hair removal: harr removal commercial Hair trainee, Tmall: photos of female walking in parking lot Hearst girl June 2004: photos of young female standing in line on sidewalk Ice Cream, Puy June 2004: photos of female adult through window of ice cream shop Indian girl, 2004: photos of female walkmg in parking lot Kirkland mise I : numerous photos of various women in city park Lingerie: numerous women modeling lingerie Long, tight, blue skirt: female walking in parking lot Long-skirt beauty, Puy 2004: female walking to her vehicle in parking lot Low cut lady 2004: female loading groceries in her car. Focused in on her breasts and low cut shirt Mise ladies: numerous females modeling lingerie Mise leg and skirt shots, May 2006: numerous women walking in parking lot Mise legs 2004: photos of numerous women in public places Mise mall shots 1: numerous women walking in parking lot Mise mall shots 2: numerous women walking in parking lot Mise mall shots 3: numerous women walking in parking lot Mise mall shots 4: numerous women walking in parking lot MIse moms: numerous women walking in parking lot Neighbors: numerous sub folders with individual titles or names • Alexandra: photos of a teenage female walking a dog around the defendant's home. There is one photo of Steven posing in hIS underwear in the bathroom. Created 2/2006.

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Stale's Tnal Memorandum - 6 Slate v powell- 11-1-03893·1

Office of the Prosecuting Anorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Main Office (253) 798-7400

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Alex-Cindy: photos of two females, one of which is walking a dog. Created 6/2007. Cindy: photos of female walking on sidewalk across from the defendant's residence. Created 11/06. Cindy, 2006: photos of two females standing in yards of homes. Created

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7/2006.
Cindy's sister: close up photos of several teenage females. Appears to be across from the defendant's residence. House # is 18618. Created 7/06. Girl en route: photographs of two people, one being a teenage female in a white sweatshirt. The other is an unknown race person in a brown sweatshirt on a street. Created 3/07. GIrls at Asian household: photos taken through open windown into bedroom of home Photos are of three teenage females in bedroom, one of which is getting dressed. Created 7/04. JW's or Mormons: photos of two teenage females walking on sidewalk. The homes in the background match the description of Steven's neighborhood. Created 2/07. Lady across street: photos of female carrying baby. 7/06. Laura on 166th: numerous photos taken of a teenage female through an open window. Created 11106. Open windown in back house: contains numerous photos of charged victims. Created 11106. Taking bath-I: contains numerous photos of charged victims. Created

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11/06.
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Taking bath-2: contains numerous

photos of charged victims.

Created

1107.
Olympia mise 1: numerous photos of various women walking around retail store and parking lot Olympia street shots: numerous photos of various women walking on street including two teenage females Pac Av, making up, May 2006: photos of female adult sitting in vehicle Pac lady June 2004: photos of one adult female standing in building. Additional photos of people walking up a dirt trail. Pacific Av Walker, May 2006: numerous photos of female adults walkmg and sitting on sidewalk. Several photos have close up shots of their groin, buttock, and breasts. Pantyhose ad, May 2006: lingerie magazine advertisement Pretty Mom 2004: photos female adult standing in parkmg lot with small child. Several close up shots of her breasts. Puyallup mise 1: numerous photos of adult female putting a child in a car. Several photos are close up shots of her buttocks and groin. Puyallup mise 2: numerous photos of teenagers walking in parking lot. Seat companion 2004: photos of female adult who appears to be sitting in seat on airplane. Seattle sidewalks: numerous photos of females walking on sidewalk down streets.
Office of the Prosecutmg Attorney 930 Tacoma Avenue South, Room 946 Tacoma. Washmgton 98402·2171 Main Office (253) 798-7400

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State's Tnal Memorandum - 7 State v Powell- 11-1-03893-1

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Short beige skirt, baby stroller: female adult walking baby stroller across parking lot Skirt, blue, ultra short: several photos of female in blue skirt walking into a business SMP' numerous subfolders with individual titles EI SMP black pants: photos of Susan Powell walking to her van. Created 7/06. EI SMP chess pieces: Susan sitting at table playing chess. Created 3/04. EI SMP eating, laundry: photos of Susan eating food and domg laundry. Created 12/04 EI SMP green t-shirt close up photos of Susan in a green shirt. Created 5/06. EI SMP grey top: photos of Susan walking from a vehicle to a building. Created 7/06. IJ SMP in Utah: folder contains six additional sub folders of Susan, Josh, family photos and children while in Utah. Majority of photos are from 2005. EI SMP Josh's UW graduation: photos of Susan at Josh's UW graduation in 2006. D SMP July 4th, 2006: Photos of Susan, the kids, and her father in 2006. EI SMP paraphernalia. photos of Susan's dirty garments that the defendant was displaying on his bed. Created in 2006. D SMP play equipment: Susan at a park on playground equipment with children in 2006. EI SMP Silver Falls 060928: photos of Susan in 2006. The majority of photos focus on her buttocks. EI SMP striped pants: photos of Susan in 2006 walking in parking lot. D SMP WWU: photos of Susan and Josh at a family graduation. Created in 2004. EI Susan Ballard Locks: photos of Susan, Josh, and the children. Several close up photos of Susan breast feeding. Created m 2007. EI Susan mise: numerous close up photos of Susan. There are several photos and cut outs of Susan's face on a tv screen The defendant is standing in front of the tv. The defendant has an erection and is simulating putting his pems in Susan's mouth while masturbating. There are also several photos of a young teenage female. Created in 2006. EI Susan applying makeup: .various photos of Susan created in 2006. EI Susan reception: numerous photos of Josh and Susan's wedding reception. IJ Susan SItting on stool: photos of Susan sitting on a bar stool. Created in 2006. D Susan walking with phone: several photos of Susan walking in a parking lot talking on a cellular phone. Created in 2006. EI Susan, busty with lunch pail: Susan walking in parking lot. Created in 2006. EI SMP look alike, Tacoma Mall: numerous photos of a female that possibly resembles Susan. Created in 2006. Steve Miscellaneous: contains several sub folders that individually titled.
Office of the Prosecuting Attorney 930 Tacoma Avenue South. Room 946 Tacoma, Washmgton 98402·2171 Main Office (253) 798·7400

State's Tnal Memorandum- 8 Slate y Powell - 11·1·03893·1

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Steve mise 1: the defendant is standing in a hotel room partially nude. He is focusing the camera on his buttocks and genitals through the mirror. Created in 2006. Steve, bed in Yakima 2002: the defendant strips naked while sitting on a bed and standing in a room. He takes several pictures while posing. Created in 2004. Steve hair 2001: five photos of the defendant and his hair. Created in 2004. Jerking over Susan's face 2002: numerous photos of the defendant masturbatmg and ejaculating on a tv screen with Susan's face. Created in 2006. Jerkmg over Susan's face: numerous photos of the defendant masturbating and ejaculating on a tv screen showing Susan's face. Created in 2006. Jerking over Susan's face 2006-2: numerous photos of the defendant masturbating and ejaculating on a tv screen showing Susan's face, Created in 2006, Steven peeing: photos of the defendant urinating in a toilet. Created in 2004. Steven bedroom nude: photos of the defendant stripping naked in his bedroom. Created in 2006. Steve, deck nude: photos of the defendant stripping naked on his deck. Created in 2006. Steve, hot tub nude: the defendant strips naked in his hot tub. Created in 2006. Steve, seamless underwear May 2006: the defendant films himself in the bathroom while he models his underwear. Created in 2006. Steve, shower summer 2005: photos of the defendant taking a shower. Steve undressing 2003: photos of the defendant undressing and posing in his bedroom. Steve Ridpath Hotel: the defendant strips naked in a hotel room and makes several poses. Created in 2006. Steve-holy jeans: the defendant is wearing jeans with a hole cut in the crotch of the pants, The defendant displays his erect penis through the hole. The defendant then models his underwear again m his bedroom. Storage skirt 2004: photos of the defendant taking close up photos of a female in a dress at a storage facility. Created in 2004. Striped pants, Nordstrom bench: numerous close up photos of a female adult in a parking lot. Tacoma mise I: numerous close up photos of two females sitting in front of a retail store on a sidewalk. There is a particular focus on the crotch, buttocks, and breasts. Created in 2006. Vancouver skirts, June 2004: numerous photos of females walking in the street. Created in 2004. Volleyball girl, June 2006: numerous photos of a young teenage female playing volleyball. Created in 2006. White skirts, boots, TMall: photos of a female adult entering a building.
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State's Trial Memorandum - 9 State v powell11-[-03893-[

Office of the Prosecuting Attorney 930 Tacoma'Avenue South, Room 946 Tacoma, Washington 98402-2 [7 [ Main Office (253) 798-7400

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WW mise 1: numerous photos of women walking in parking lot. WW mise 2: numerous photos of women walking in parking lot. WW mise 3: numerous photos of women walking in parking lot. WW mise 4: numerous photos of women walking in parking lot. There are several pornographic photos in between other files. There is also a photo of a personal check in the name of Steven Powell. WW mise 5: numerous photos of women in parking lots. Several photos focus on female genitals, buttocks, breasts, etc. WW mise 6: numerous photos of women walking in parking lots and sitting in vehicles. WWU panty shot 2002: photos of one female wearing a dress. The camera zooms in between her legs and up her crotch. WWU purple dress 2002: photos of female wearing a purple dress. residence were several of his journals, ofthe defendant's totaling several

Also seized from the defendant's pages of writing. The majority

writing details his obsession with videotaped
ill

and love for Susan. knowledge, fashioned

The defendant discusses to the videos.

how he repeatedly

Susan without her

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later masturbating

The defendant details

his journal that he

a mirror that allowed him to look under a closed door at Susan while she was in the This allowed the defendant to see Susan while changing clothes, showering, or using

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the bathroom. At one time Susan and Josh had stored some items at the defendant's moved. The defendant went through these items, discovering house after they had

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photos and journals of Susan's and read through them

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The defendant repeatedly. Journals

took Susan's journals,

scanned them into his computer,

The defendant

discussed in great detail in his journals

the contents of Susan's

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In the course of his journal writing over several years, the defendant that he is a voyeur, or that he had committed
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repeatedly

admitted

voyeuristic

acts.

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On 4/5/03, the defendant wrote that "Susan likes to admired and I am a voyeur." On 10/6/03, the defendant wrote that Susan is aware he films her and has caught him trying to take pictures of her.

State's Trull Memorandum - 10 State v Powell - 11·1"()3893·1

Office of the Prosecutmg Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washington 98402-2171 MaIOOffice (253)798·7400

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On 12/9/03, the defendant admitted in his journal that he had been stalking Susan and had taken secret videos of her. On 3/11/04, the defendant wrote that he is a voyeur and Susan is an exhibitionist and they are a perfect match. On 6/26/04, the defendant wrote that he is 90% sure that Susan knew he used to film her under the bathroom door. On 8117104, the defendant wrote that he likes taking video shots of pretty girls in shorts and skirts, beautiful women of every age. The defendant wrote that he uses these images for self-stimulation. On 11/21/04, the defendant wrote that he secretly watched Susan from a hall at the old house. The defendant got it on tape but was unable to get a clear shot of her crotch because she moved. The defendant wrote that he was afraid Susan might see him. The defendant also said that it seemed to him that Susan was aware he was taping her. On 9/27/10, the defendant wrote "I have been going nuts and nearly out of control sexually my entire life." He also wrote of Susan, "I think she knew after that, that I was a voyeur."

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The defendant details in his journals how he would repeatedly that he had taken, both with and without her knowledge.

view images and video of Susan

The defendant was charged in this case with fourteen counts of Voyeurism of Possession Degree. of Depictions

and one count

of Minors Engaged in Sexually Explicit Conduct in the Second

II. MOTIONS IN LIMINE
A. THE COURT SHOULD ALLOW CERTAIN PASSAGES OF THE DEFENDANT'S JOURNALS AS OET AILED ABOVE TO BE ADMITTED. The defendant in this case is charged with fourteen counts of Voyeurism. repeatedly Voyeurism made admissions as follows: in hisjoumals that he engaged in voyeurism. The defendant

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WPIC 43.01 defines

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A person commits the crime of voyeurism when, for the purposes of arousmg or gratifying the sexual desire of any person, the person knowingly views or photographs or films a second person without the second person's knowledge and consent, and while the second person is being viewed or photographed or filmed, the second person IS in a place where he or she would have a reasonable expectation of privacy.

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State's Trial Memorandum - II State v Powell
>

11-1-03893-[

Office of the Prosecuting Anorney 930 Tacoma Avenue South, Room 946 Tacoma. Washmgton 98402-2171 Main orn« (253) 798-7400

,,

Relevant evidence
1

IS

evidence having any tendency to make the existence of any fact more

probable or less probable than it would be without the evidence. ER 401. Relevant evidence is generally admissible. ER 402. Evidence that is relevant may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. The jury is usually instructed that a reasonable doubt is a doubt for which a reason exists and may arise from the evidence or lack of evidence. It is such as doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. WPIC 4.01. In other words, the JUry will be instructed to consider the lack of evidence and any reason for the lack of evidence. ER 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to show action in conformity therewith, Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ER 404(b). The admissions by the defendant contained in his journals are relevant under ER 401. They tend to make a fact - that the defendant committed the crimes charged in this case - more probable than it would be without the evidence. The State is required to prove that the defendant not only photographed the victims in this case, but that it was done so for the purpose of arousing or gratifying his sexual desire. Repeated admissions by the defendant that he is a voyeur and is sexually aroused or gratified by viewing such images are directly relevant to this issue, and extremely compelling direct evidence that the defendant committed the crimes charged in order to obtain sexual gratification. In this case, without the defendant's admissions contained in his journals, the jury will be left to wonder whether the defendant recorded the images at issue and whether the images at

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State's Tnal Memorandum - 12 State v Powell11-1-03893-1

Office of the Prosecunng Attorney
930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Marn Office (253) 798-7400

j
issue were recorded and used with the intent to arouse or gratify the defendant's sexual desires.
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The defendant would be able to proffer a defense that he did not record the images at issue, without the State being able to provide evidence that the defendant repeatedly admits to being a voyeur and recording "women of every age." While there is a possibility of some prejudice to

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the defendant in admitting this evidence, the probative value of the defendant's admissions outweighs any potential prejudice. In fact, there is little if any prejudice in the defendant's statements, as they are essentially confessions to criminal activity. An admission that the defendant is a voyeur and sexually aroused by recording voyeuristic images is extraordinarily compelling, relevant, probative evidence in this case. Essentially, should the court not allow the State to admit this evidence due to ER 403, the evidence in this case would be excluded because it is powerful and damaging to the defendant's case. The defendant's admissions are also admissible under ER 404(b), as they are proof of his motive and intent, namely that he recorded the victims in this case with the intent to arouse himself and gratify his sexual desires. For example, in State v. Myers, the defendant was

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convicted of Sexual Exploitation of a Minor for videotaping his daughter's vaginal area while she was in a bathtub. Myers, 82 Wn. App. 435, 918 P.2d 183, (1996). The defendant had on the same day videotaped the vaginal areas of other children in pubhc at a picnic. hl_, at 436. The video taken
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public was admitted and presented to the jury. hl_, at 438. The appellate court

found that the trial court did not abuse its discretion by holding the picnic video to be more probative than prejudicial under ER 404(b), as the video showed the defendant's "intent was to alter his daughter's behavior so she would exhibit herself for his sexual stimulation, and the scenes of her vaginal area were a continuation of that prurient purpose." Id., at 439-440. This

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State's Trial Memorandum-

13

State v Powell - 11·1·03893·1

Office of the Prosecuting Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Mam Office (253)798-7400

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case is analogous to Myers, and the court should find that the defendant's prior statements show 1 his intent in videotaping his neighbors was to arouse or gratify his sexual desires. Additionally, the evidence the State seeks to admit is limited in scope. The defendant was a prolific journal writer, hand writing over 2000 pages worth of journal entries. The vast majority of the defendant's writings detail his obsession with Susan, often in sexually explicit, graphic detail The State does not seek to admit this prejudicial, irrelevant evidence, only the limited sections of the defendant's journal that are directly relevant to the State's case against the defendant
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As the defendant's admissions are relevant, probative, and not prejudicial, the court should allow them to be admitted.
B. THE COURT SHOULD EXCLUDE OTHER SUSPECT EVIDENCE ABSENT

PROPER FOUNDA nON BEING LAID BY THE DEFENDANT. The constitutional right to present a defense is not unfettered. State v. Rehak, 67 Wn. App. 157, 654, 834 P.2d 651 (1992). Before a defendant can introduce evidence connecting another person with the crime charged, a proper foundation must be laid State v. Mak, 105 Wn 2d 692, 716, 718 P.2d 407 (1986). The rule is stated in State v. Downs, 168 Wash. 664,667, 13 P.2d 1 (1932): Before such testimony can be received, there must be such proof of connection with the crime, such a train of facts or circumstances as tend to clearly to point out someone besides the accused as the guilty party. State v. Mak, 105 Wn.2d at 716. Mere evidence of another party's motive, or motive coupled with threats by such other person, is inadmissible, unless coupled with other evidence tending to connect such other person with the actual commission of the crime charged. State v. Clark, 78

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The State will offer as an exhibit an electronic copy of the defendant's Journals for the purpose of this motion to admit only, so that a proper record IS made of the volume of the defendant's wnting A review of the entirety of the defendant's writings Will make clear the limited scope of the evidence the State seeks to admit
2

State s Tria] Memorandum - 14 State v powell- 11-1-03893-1

Office of the Prosecutmg Attorney
930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Main Office (253) 798·7400

Wn. App. 471,478,

898 P .2d 854 (1995).

Not only must there be a showing that the third party

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had the ability to place him or herself at the scene of the crime, there also must be some step taken by the third party that indicates App. 157, 163,834 P.2d 651 (1992). an intention to act on that ability. The Washington State v. Rehak, 67 Wn. by Holmes v.

rule has not been implicated

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9 10 South Carolina, a US Supreme excluding Court case holding unconstitutional a South Carolina rule

other suspect evidence

based upon a court's review of the strength of the State's case. S.Ct. 1727, (2006l husband had been shot three

Holmes, 547 U.S. 319, 329,126

In Rehak, a domestic violence murder case, the defendant's times in the head With a pistol. victim's

The trial court denied the defense request to show that the by the defendant's

son often quarreled with the victim, would gain financially

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conviction,

knew where the murder weapon was kept, and had no alibi at the time of the murder. Such evidence was held to be an unsupported Id, 67 Wn. App. at 163. accusation and

Rehak, 67 Wn. App. at 160-61. mere speculation

and therefore properly excluded.

In State v. Drummer,

54 Wn. App. 751, 775 P.2d 981 (1989), a murder defendant the victim, who had in tum Additionally, the

attempted to introduce evidence that a third party had burglarized 16 17 18 19 20 21 22 23 24 25
3

assaulted the third party, who then threatened to kill the murder victim.

defense had evidence that the victim had attempted to borrow money because "he was in deep shit with some black guys" who had threatened his life; that two white men were looking for the victim, who in tum had threatened property from his house to kill one of them; and that the victim was dealing stolen foundation, was

This evidence, properly excluded for insufficient

Holmes described the South Carolina rule as follows' "Under this rule, the mal Judge does not focus on the

probatrve value or the potential adverse effects of admrtting the defense evidence of third-party guilt Instead, the
cntical mquiry concerns the strength of the prosecution's case. If the prosecution's case is strong enough, the evidence of third-party guilt ISexcluded even If that evidence, If viewed independently, would have great probative value and even if It would not pose an undue nsk of harassment, prejudice, or confusion of the issues." Holmes, at 329
State's Trial Memorandum - 15 State v Po~ell11·1-03893-1 Office of the Prosecuung Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402·2) 7) Mam Office (253) 798-7400

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"offered solely to encourage the jury to speculate as to possible other assailants." Id, 54 Wn.

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App. at 755. Similar arguments were heard in State v. Mak, 105 Wn.2d 692, 718 P.2d 407 (1986)4, where the defendant was convicted of 13 counts of aggravated murder and one count of Assault in the First Degree. 1n Mak, a club in Seattle's International District was robbed. The 14 patrons and customers present were tied up and then shot in the head. One of the victims survived and identified the defendant as one of the perpetrators. At trial, the defendant sought to introduce evidence that "(1) a certain third party had a plan to control gambling in the International DIstrict; (2) that party contacted Benjamin Ng, one of the perpetrators of the crimes at the Wah Mee Club, on the day of the robbery and killings; (3) Benjamin Ng's car was at that party's restaurant for an hour before the crime; (4) that party offered to sell Ng a bulletproof vest a week before the crime; (5) the party was a 'banker' for an International District gambling club that had just closed down; and (6) an anonymous informant told police that this party directed young gang members" Mak, 105 Wn.2d at 716. Citing to Downs, supra, the State Supreme Court held

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that the trial court did not abuse its discretion by excluding this evidence. Examples of admissible "other suspect" evidence can be found in State v. Clark, 78 Wn. App. 471, 898 P.2d 854 (1995) and State v. Maupin, 128 Wn.2d 918, 913 P.2d 808 (1996). In Clark, an arson case, a house that the defendant had used for his business was destroyed by fire. The defendant had admitted to an msurance company investigator that his business had been slow and that he was having financial difficulties. The State's theory was that the defendant was motivated by insurance proceeds. Although he was at his office on the night of the fire and removed a fish tank, he had two witnesses who established that he was with them at least an hour

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Mak was rejected by State v Hill, 123 Wn 2d 641, 870 P 2d 313 (1994) on other grounds
- 16 Office of the Prosecuting Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 MaIO Office (253) 798-7400

State's Tnal Memorandum

State v Powell~ 11-1-03893-1

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before the fire was discovered. There was no evidence that directly linked the defendant to the
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fire. The defense's theory was that the fire had been set by the estranged husband of the defendant's girlfriend, Doug Arrington. The defense made the following offer of proof: (l) Arrington's motive, molested his daughter;
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e his belief Clark had an affair with his Wife and
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(2) Arrington's admission he called the telephone company two days before the fire and, misrepresenting himself as Clark, had Clark's telephone shut off one day before the fire; (3) Arrington's note, which was obtained by his former wife, with the fire marshall's telephone number on the front and Clark's business telephone number on the back: (4) Arrington's whereabouts were unknown between approximately 9:15 and 10:30 p.m., when the fire may have been started, and, even if his alibi is accepted, he nonetheless had time to set the fire and meet with his alibi witness; (5) Arrington's obsession with damaging Clark; (6) Arrington's complaints to law enforcement and letters to DSHS alleging Clark was having an affair with his Wife and molesting his daughter; (7) Arrington's actively working with the Department of Licensing to have Clark's counseling license suspended; (8) Arrington's call to the licensing department two weeks before the fire, suggesting seizure of Clark's records immediately because he might try to destroy them; (9) Arrington's numerous other attempts to discredit Clark in the local community, through contacts with the Better Business Bureau, school, the Department of Health, and the local newspaper; (10) Arrington's statement to Clark's ex-wife, Tamara Sharp, that it was "too bad" Clark was in jail for something he did not do; (11) Arrington's statement to his ex-wife that he had learned how to set fires without detection while in the military, and she had better "watch it'', noted in a restraining order she filed against Arrington within two months prior to the fire;

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State's Trial Memorandum -17
State v Powel1-11-1-03893-1

Office of the Prosecunng Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Mam Office (253) 798-7400

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(12) Firefighters responding to the fire found a broken window. After the State had rested, the defense made the following additional offer of proof: (1) Arrington told both Clark's ex-wife and her boyfriend he was the reason Clark was in jail; (2) Arrington's truck was seen by Clark's neighbors going up the driveway to Clark's house twice within two weeks prior to the fire; (3) Arrington's notes, taken by his ex-wife, indicating he was keeping track of Clark's whereabouts, (4) Arrington told Tammy Sharp "sometimes somebody has to get busted for something they didn't do so they can get busted for something they did do." (5) Clark accused Arrington of setting the fire 1 day after the fire, both to insurance investigators and to the fire department. The court in Clark held that, given the lack of overwhelming evidence against the defendant and the compelling nature of the evidence implicating Arrington, a sufficient foundation was laid for the admission of such evidence. Id, 78 Wn. App. at 479-80. The Clark court went on to note that Rehak is distinguishable "because Arrington took affirmative steps against Clark indicating he intended to harm him: Arrington had Clark's phone shut off the day before the fire, accused him of various crimes, and instigated a campaign to have Clark's counseling license revoked." Id, at 480. Similarly, in Maupin, supra, the defendant was charged with kidnapping and murder of a child, The court ruled that the defense should be allowed to present testimony that the victim was seen with a third party after the kidnapping took place. Distinguishing the Maupin case from Downs, supra, and its progeny, the court noted that the testimony was neither evidence of another's motive nor mere speculation about the possibility that someone else might have committed the crime. Instead, the witness would have testified
SLate's Tnal Memorandum - 18 SLate v Powell - 11-1-03893-1

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Office of the Prosecuting Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Mam Office (253) 798-7400

he saw the kidnapped girl with someone other than the defendant after the time of kidnapping. An eyewitness account of the kidnapped girl in the company of someone other 2 3 4 5 6 7 is no compelling evidence implicating another person with the charged crime as there was in Clark and Maupin. In this case, there
IS

than Maupin after the time of kidnapping certainly does point directly to someone else as the guilty party, as Downs requires. Maupin, 128 Wn.2d at 928. Clearly, in this case, there

no evidence to suggest that anyone other than the defendant

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committed the crimes charged. The court should preclude the defense from utilizing other suspect evidence absent laying the appropriate foundation. Should the defendant wish to argue other suspect evidence, the court should require a hearing outside the presence of the jury prior to such an argument being made. C. THE COURT SHOULD ADMIT EVIDENCE LOCATED ON THE SAME STORAGE DEVICES AS THE PHOTOGRAPHSNIDEO OF THE CHARGED VICTIMS IN THIS CASE. An extensive Jist of the evidence discovered on Disc #12 is outlined above. The court should allow the State to admit evidence of the other files contained on Disc #12. The State is required to prove that the defendant knowingly filmed or viewed the victims in this case, and did so for the purposes of arousing or gratifying his sexual desires. The State is also required to authenticate the evidence discovered on Disc # 12 for it to be admitted at trial. The evidence contained in Disc #12 allows the State to prove that the defendant filmed the victims in this case for the purpose of gratifymg his sexual desires. The various images of the defendant are proof that the images on the disc were the defendant's, and not pictures belonging to someone else.

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State's Tnal Memorandum - 19 State v Powell- 11-1-03893-1

Office of the Prosecuting Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Main Office (253) 798·7400

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D. THE COURT SHOULD EXCLUDE WITNESSES FROM THE COURTROOM DURING THE TRIAL.
Per ER 615, the State requests the court exclude potential witnesses from the courtroom.

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E. THE COURT SHOULD EXCLUDE EVIDENCE OR ARGUMENT CONCERNING THE DEFENDANT'S POTENTIAL PUNISHMENT OR TERM OF CONFINEMENT.
At the end of the case, the jury
WIll

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receive the followmg

instruction:

You have nothing whatever to do with any punishment that may be imposed III case of a violation of the law. The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.

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WPIC 1.02. The jury has nothing to do with the defendant's
Any argument related to punishment court should therefore or term of confinement

potential punishment

in this case. and the

is irrelevant and prejudicial,

exclude any reference to it in this case.

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F. THE COURT SHOULD EXCLUDE EVIDENCE OF THE CHARACTER OR REPUT ATION OF WITNESSES.
Evidence of a witness's exceptions. character or reputation is generally inadmissible, with limited The court

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ER 404(a), 404(b), 405, 608. The court should exclude such evidence.

should order that any attempt to utilize such evidence should only occur after an offer of proof outside the presence of the jury.

G. THE COURT SHOULD EXCLUDE ANY SELF-SERVING HEARSAY EVIDENCE OFFERED BY THE DEFENDANT.
In this case, the defendant there are no statements did not make a statement to law enforcement under ER 80I(d)(2). As a result, The court

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by the defendant that are admissible

should order that the defendant make no reference to any other statements of the defendant (should they exist) that are self-serving 801(b), 80l(c). Such self-serving hearsay prior to making an offer of proof. and should be excluded.

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ER S01(a),

hearsay is inadmissible

State's Tnal Memorandum - 20 State v Powell - 11-1-03893-1

Office of the Prosecuting Attorney
930 Tacoma Avenue South, Room 946 Tacoma, Washmgton 98402-2171 Main Office (253) 798-7400

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CONCLUSION The State respectfully requests that the court grant the various motions in limine as 2 3 4 detailed above. RESPECTFULLY SUBMITTED this

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day of May, 2012.

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MARK LINDQUIST Prosecuting Attorney

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BY.~~======--==:::=r.
GRANT BLINN Deputy Prosecuting Attorney WSB #25570

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By:

~ BRYCE NELSON Deputy Prosecuting Attorney WSB #33142

tfI. tt/~

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State's Trial Memorandum21

State v Powell ~ 11·1·03893·1

om ce of the Prosecuung Attorney 930 Tacoma Avenue South, Room 946 Tacoma, Washrngton 98402·2171 Main Office (253) 798·7400

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