## Facts

- Gary Powell Chester was charged under RCW 9.68A.040 with sexual exploitation of a minor after secretly videotaping his 14-year-old stepdaughter while she was nude and partially nude in her bedroom.
- On January 12, 1994, while the stepdaughter was in the shower, Chester placed a video camera under her bed, aimed toward a mirror on a closet door, partially concealed the camera, and left the room.
- The recording showed Chester setting up the camera; it then showed the stepdaughter entering wrapped in a towel and later moving in and out of view while dressing, including images of her unclothed and partially clothed from the front and back.
- Chester initially characterized the incident as a “dumb joke,” but evidence also indicated he expected to see her in some state of undress and thought he might see her bending over in her underwear.
- The State charged Chester under RCW 9.68A.040(1)(b) and (c), which criminalize employing/authorizing/causing a minor to engage in sexually explicit conduct knowing it will be photographed, and (for parents/guardians or similar persons) permitting a minor to engage in such conduct knowing it will be photographed.
- A jury convicted Chester and entered a special finding that he acted with sexual motivation.
- The Court of Appeals reversed for insufficient evidence, concluding the statute did not reach the conduct proved.
- The Washington Supreme Court granted review.

## Issues

1. Whether RCW 9.68A.040(1)(b) and (c) prohibited secretly videotaping a nude or partially nude minor who was unaware the filming was occurring.
2. Whether Chester’s conduct satisfied the statutory requirements that the defendant “employ, authorize, or cause” (or, as a parent/guardian equivalent, “permit”) a minor to engage in sexually explicit conduct knowing it would be photographed.

## Decision

- The Washington Supreme Court affirmed the Court of Appeals.
- The court held RCW 9.68A.040(1)(b) and (c), as then written, did not criminalize Chester’s conduct.
- The court declined to reinstate the conviction because the evidence did not show Chester caused or permitted the minor to engage in sexually explicit conduct knowing it would be recorded.
- The court emphasized that criminal statutes must be applied as written and should not be judicially expanded to cover conduct not clearly within their scope.

## Legal Principles

- Criminal statutes are strictly construed; courts apply the statute’s text rather than extending it to cover reprehensible conduct not clearly included.
- RCW 9.68A.040(1)(b) requires proof that the defendant “employs, authorizes, or causes” a minor to engage in sexually explicit conduct with knowledge that the conduct will be photographed or part of a live performance.
- RCW 9.68A.040(1)(c) requires proof that a parent/guardian (or person in a similar position) “permits” a minor to engage in sexually explicit conduct with knowledge that the conduct will be photographed or part of a live performance.
- Secret filming of a minor who is unaware of the recording does not, without more, establish that the defendant caused or permitted the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction.
- Courts avoid interpretations that “stretch” statutory language into ambiguity and thereby risk vagueness or overbreadth concerns; closing gaps in criminal coverage is for the legislature.

## Conclusion

The Washington Supreme Court held that RCW 9.68A.040, as then written, targeted using minors in sexually explicit conduct with knowledge it would be recorded and did not reach secret videotaping of a nude minor who was unaware of the filming, so Chester’s conviction was not reinstated.


State v. Chester, 133 Wash. 2d 15, 940 P.2d 1374 (Wash. 1997)