## Facts

- T.R., a 22-year-old woman, reported a year of harassing restricted-number calls and suspected Eric D. Gray.
- She received a text containing a photograph of an erect penis with accompanying text identifying it as sent from “Pinger” and addressed to her in sexually suggestive terms.
- A sheriff’s deputy contacted Gray; Gray admitted sending the image.
- Gray was 17 years old at the time and had Asperger’s syndrome.
- The State charged Gray with second degree dealing in depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.050, based on the self-produced image, and with telephone harassment (later dismissed).
- After a bench trial, the court found Gray guilty on the RCW 9.68A.050 charge, imposed confinement and community service, and required sex-offender registration.

## Issues

1. Whether RCW 9.68A.050 applies to a minor who creates and transmits a sexually explicit image of himself.
2. Whether applying RCW 9.68A.050 to a minor’s self-produced image violates the First Amendment or renders the statute substantially overbroad.
3. Whether RCW 9.68A.050 is unconstitutionally vague as applied to self-produced sexting by minors, including the definition of “sexually explicit conduct.”

## Decision

- The Washington Supreme Court affirmed the conviction.
- The court held RCW 9.68A.050 unambiguously applies to “any person” who disseminates a depiction of “any minor,” including a minor distributing a self-produced depiction.
- The court held the statute, as applied, did not violate the First Amendment and was not substantially overbroad.
- The court held the statute was not void for vagueness and provided adequate notice and enforceable standards.
- The court concluded the image and accompanying message supported finding “sexually explicit conduct” because the transmission was for sexual stimulation of the viewer.

## Legal Principles

- When statutory text is unambiguous, courts apply its plain meaning and do not add limiting terms not enacted by the legislature.
- RCW 9.68A.050 reaches dissemination of depictions of a minor engaged in sexually explicit conduct by “any person,” including the depicted minor.
- “Sexually explicit conduct” may be established by the depiction and surrounding context showing a purpose of sexual stimulation of the viewer.
- Child-pornography prohibitions may be applied to the dissemination of sexually explicit depictions of minors without creating First Amendment protection for the material; an as-applied overbreadth claim fails when the challenged application falls within unprotected conduct addressed by the statute.
- A statute is not void for vagueness if it provides fair notice to a person of ordinary intelligence and contains sufficient standards to prevent arbitrary enforcement.

## Conclusion

The Washington Supreme Court upheld Gray’s conviction under RCW 9.68A.050, holding the statute covers a minor’s self-produced and transmitted sexually explicit image and rejecting constitutional challenges based on the First Amendment and vagueness.


State v. Gray, 402 P.3d 254 (Wash. 2017)