State Of Washington, V. Jordan T. Godsey ( 2023 )

Filed
Washington State
Court of Appeals
Division Two
November 14, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57419-5-II
Respondent,
v. UNPUBLISHED OPINION
JORDAN THOMAS GODSEY,
Appellant.
MAXA, P.J. – Jordan Godsey appeals his sentence for convictions of four counts of first
degree possession of depictions of minors engaged in sexually explicit conduct and the trial
court’s imposition of community custody supervision fees. In a statement of additional grounds
(SAG), Godsey challenges his convictions.
We hold that (1) as the State concedes, the trial court imposed a term of confinement and
a term of community custody that exceeded the statutory maximum sentence; (2) as the State
concedes, the community custody supervision fees imposed in the judgment and sentence must
be stricken; and (3) we reject or decline to consider under RAP 10.10(c) Godsey’s SAG claims
relating to his convictions. Accordingly, we affirm Godsey’s convictions, but we remand for the
trial court to correct the term of community custody so Godsey’s sentence does not exceed the
statutory maximum and to strike the community custody supervision fees from the judgment and
sentence.
No. 57419-5-II
FACTS
Background
In November 2020, the Chehalis police department received a tip from the Seattle
Internet Crimes against Children (“ICAC”) task force that Godsey was downloading images of
children engaged in sexual activity. CP 37. ICAC is a law enforcement agency task force that
investigates crimes against children on the internet, including child pornography. The ICAC
report stated that the images were downloaded by Godsey associated with the e-mail
Jordan_godsey@hotmail.com. Daniel Dozois, a detective with Chehalis police, conducted an IP
address search and confirmed that the images had been accessed from an address where Godsey
resided.
The ICAC report contained links to six images. Dozois reviewed the images and
determined that they appeared to be depictions of young girls engaged in sexual activity.
Search Warrants for Electronic Devices
Chehalis police obtained a warrant to search the electronic devices at Godsey’s residence.
The original warrant authorized law enforcement to “[e]xtract the information which are
evidence of the above crimes.” Clerk’s Papers (CP) at 25. The relevant “above crimes” were
listed as “RCW 9.68A.075 Viewing Depictions of a Minor Engaged in Sexually Explicit
Conduct” and “RCW 9.65A.070 Possession of Depictions of Minor Engaged in Sexually Explicit
Conduct.” CP at 24. The warrant did not specify what information should be extracted from the
electronic devices.
When the warrant was executed, law enforcement seized two phones in Godsey’s
possession and a desktop computer. The phones and the computer contained hundreds of images
and/or videos depicting minors engaged in sexually explicit conduct.
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In June 2021, the State charged Godsey with four counts of first degree possession of
depictions of a minor engaged in sexually explicit conduct.
Godsey moved to suppress the evidence obtained from his electronic devices pursuant to the
original search warrant, arguing that the warrant failed to describe with particularity the things to
be seized. In response, Chehalis police requested a new warrant. The new warrant declaration
stated,
This Affidavit for Warrant has been amended and is being submitted to correct any
arguable over breadth of the original warrant. The Affidavit and Warrant were
previously submitted and granted and the defense has filed a motion to exclude
evidence based on warrant over breadth. Pursuant to State v. Betancourth, 190
Wn.2d 357 (2018) and State v. Miles, 159 Wn. App. 282 (2011), the State is asking
for a “do-over” warrant. The information submitted to support this affidavit is not
altered in any way based on evidence found during the original search(es). Further,
the State does not intend to re-search the devices, this is merely being done in an
effort to rectify any arguable errors in the original warrant.
CP at 35. The declaration essentially was the same as the declaration to obtain the original
warrant. The trial court issued a new warrant, which specifically directed law enforcement to
search for “depictions of minors engaged in sexually explicit conduct as defined by RCW
9.68A.011(4) (a thru g).” CP at 43.1
Following a CrR 3.6 hearing, the trial court issued an order denying the motion to
suppress. The court concluded that the first warrant was not overbroad and was sufficiently
specific, and the second warrant “provided an added layer of protection, and is an independent
source for the evidence collected.” CP at 51.
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The trial court actually issued two essentially identical warrants, one that expired after 10 days
and another that was issued 11 days later.
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No. 57419-5-II
Trial and Conviction
At trial, Dozois testified that when officers executed the search warrant, they seized two
cell phones that were in Godsey’s pocket and a desktop computer that was in Godsey’s room.
Godsey was using the computer when law enforcement arrived.
Godsey provided Dozois with the passcode for the phones. When Dozois accessed the
phones, he found suspected depictions of minors engaged in sexually explicit conduct in the
Google Photos application and other applications.
A forensic search was conducted of the two phones and the computer. This search
revealed likely depictions of minors engaged in sexually explicit conduct on all three devices,
412 images and/or videos on one phone, 188 images and/or videos on the second phone, and 114
images and/or videos on the computer. The trial court admitted into evidence 10 images of
young girls engaged in sexually explicit conduct.
The jury found Godsey guilty of all four counts as charged. The trial court sentenced
Godsey to 89.5 months in confinement and 36 months of community custody. The judgment and
sentence contained a provision that mandated payment of community custody supervision fees.
Godsey appeals his convictions and sentence.
ANALYSIS
A. SENTENCE EXCEEDING STATUTORY MAXIMUM
Godsey argues, and the State concedes, that his sentence is unlawful because the
combination of his term of confinement and his term of community custody exceeds the statutory
maximum sentence. We agree.
A defendant’s total sentence cannot exceed the statutory maximum for the offense,
including sentence enhancements and community custody. RCW 9.94A.505(5); State v.
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LaBounty, 17 Wn. App. 2d 576, 582, 487 P.3d 221 (2021). First degree possession of depictions
of minors engaged in sexually explicit conduct is a class B felony. RCW 9.68A.070(b). The
statutory maximum for a class B felony is 120 months. RCW 9A.20.020(1)(b).
The trial court sentenced Godsey to 89.5 months in confinement and 36 months of
community custody, for a total of 125.5 months. This sentence exceeds the statutory maximum
of 120 months. Therefore, the term of community custody must be reduced so the total sentence
does not exceed the statutory maximum. RCW 9.94A.701(10).
We remand for the trial court to correct the term of community custody in Godsey’s
judgment and sentence.
B. COMMUNITY CUSTODY SUPERVISION FEES
Godsey argues, and the State concedes, that the community custody supervision fees
should be stricken from the judgment and sentence. We agree.
Godsey was sentenced in October 2022. Effective July 2022, RCW 9.94A.703(2) no
longer authorizes the imposition of community custody supervision fees. State v. Ellis, 27 Wn.
App. 2d 1, 17, 530 P.3d 1048 (2023). Therefore, we remand for the trial court to strike the
imposition of the community custody supervision fees.
C. SAG CLAIMS
1. Improper Search Warrant
Godsey asserts that the trial court erred in denying his motion to suppress evidence seized
from his electronic devices because the search warrant failed to describe with sufficient
particularity the things to be seized. We disagree.
a. Legal Principles
The Fourth Amendment to the United States Constitution provides that “no [w]arrants
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No. 57419-5-II
shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” This amendment
was designed to prohibit “general searches,” and to prevent “ ‘general, exploratory rummaging in
a person’s belongings.’ ” State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992) (quoting
Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976)). Similarly,
article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed
in his private affairs, or his home invaded, without authority of law.”
Under these constitutional provisions, a search warrant must be sufficiently particular so
that the officer executing the warrant can reasonably ascertain and identify the property
authorized to be seized. State v. Besola, 184 Wn.2d 605, 610, 359 P.3d 799 (2015). The
particularity requirement both “limit[s] the executing officer’s discretion” and “inform[s] the
person subject to the search what items the officer may seize.” State v. Riley, 121 Wn.2d 22, 29,
846 P.2d 1365 (1993). “Warrants for materials protected by the First Amendment require a
heightened degree of particularity.” Besola, 184 Wn.2d at 611. For these materials, the
particularity requirement must be strictly applied. Id.b. Validity of First Search Warrant
It is unclear whether Godsey is challenging the first warrant or the second warrant. But
whether the first search warrant satisfied the particularity requirement is immaterial because the
trial court issued a second search warrant that was more particular.
If the evidence procured by unlawful police action was “obtained pursuant to a valid
warrant or other lawful means independent of the unlawful action,” the evidence is not subject to
exclusion under the independent source doctrine. State v. Betancourth, 190 Wn.2d 357, 364-
365, 413 P.3d 566 (2018). Courts determine whether challenged evidence has an independent
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source by inquiring whether the illegally obtained information affected (1) the magistrate’s
decision to issue the warrant or (2) the decision of the state agents to seek the warrant. Id. at
365. If the illegally obtained information did not affect the magistrate’s decision to issue the
warrant or the decision of the state agents to seek the warrant, then the evidence is “admissible
through the lawful warrant under the independent source doctrine.” Id.In Betancourth, the district court issued a search warrant for an out-of-state cell phone
carrier and the carrier provided the records. 190 Wn.2d at 360-61. However, the superior court
later ruled in a separate case that only superior courts were authorized to issue out-of-state
warrants. Id. at 361. Following this ruling, a detective obtained a second warrant from the
superior court based on an affidavit that essentially was identical to the affidavit used to obtain
the first warrant. Id. at 362. The detective sent the second warrant to the cell phone carrier, but
they did not provide any new records because the records already had been provided. Id.The Supreme Court held that the phone records were admissible based on the second,
valid warrant under the independent source doctrine even though law enforcement did not
reseize the records. Id. at 370-73. The court reasoned that the records were “untainted by any
prior illegality” because the “decision to issue the 2013 superior court warrant [was not] affected
by, or made in reliance on, information obtained from the illegal search.” Id. at 370.
Here, the trial court’s decision to issue the second warrant was not affected by or made in
reliance on information obtained in the search pursuant to the first search warrant. The second
search warrant declaration essentially was the same as the first search warrant declaration, and
was based on the ICAC report. Therefore, under the independent source rule, the information
obtained pursuant to the first search warrant is admissible regardless of whether it was valid, as
long as the second search warrant was valid.
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c. Validity of Second Search Warrant
The first warrant simply referenced the applicable statutes but did not specifically
identify the information for which law enforcement was authorized to search. The second
warrant corrected this problem by authorizing law enforcement to search specifically for
“depictions of minors engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) (a
thru g).” CP at 43. We conclude that this language satisfied the particularity requirement.
Therefore, we hold that the trial court did not err in denying Godsey’s suppression
motion.
2. Sufficiency of Evidence
Godsey asserts that his convictions must be reversed because the State failed to produce
sufficient evidence that he knowingly possessed depictions of minors engaged in sexually explicit
conduct. We disagree.
The test for determining the sufficiency of evidence is whether any rational trier of fact
could find the elements of the charged crime beyond a reasonable doubt after viewing the
evidence in a light most favorable to the State. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d
960 (2019). We resolve all reasonable inferences based on the evidence in favor of the State and
interpret inferences most strongly against the defendant. Id. Circumstantial evidence is as
equally reliable as direct evidence. State v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152(2016).
RCW 9.68A.070(1)(a) states that a person is guilty of first degree possession of
depictions of a minor engaged in sexually explicit conduct “when he or she knowingly possesses
a visual or printed matter depicting a minor engaged in sexually explicit conduct as defined
in RCW 9.68A.011(4) (a) through (e).” A person acts knowingly when “(i) He or she is aware of
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a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) He or
she has information which would lead a reasonable person in the same situation to believe that
facts exist which facts are described by a statute defining an offense.” RCW 9A.08.010(1)(b).
Here, the two phones in Godsey’s possession and the computer seized by law
enforcement pursuant to the search warrant contained hundreds of images and/or videos
depicting minors engaged in sexually explicit conduct. When Dozois accessed Godsey’s phones,
he was able to see images depicting minors engaged in sexually explicit conduct.
Viewed in the light most favorable to the State, a rational trier of fact could reasonably
infer that Godsey knew that depictions of minors engaged in sexually explicit conduct were on
his phones and his computer. Therefore, we hold that there was sufficient evidence to support
Godsey’s convictions.
3. Vague Claims
In request for relief 3, Godsey references the “scope of [the] search warrant,” but he does
not explain the basis for any claim. SAG at 2. In request for relief 5, Godsey references
“probable cause in the information granting [the] search warrant” and then references
“defendant’s known place of residence,” “property to be searched ownership,” and “owner of IP
address/internet provider.” SAG at 2. But Godsey does not explain the nature of any alleged
errors.
Under RAP 10.10(c), we will not consider a SAG claim “if it does not inform the court of
the nature and occurrence of alleged errors.” Accordingly, we decline to address these claims.
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CONCLUSION
We affirm Godsey’s convictions, but we remand for the trial court to correct the term of
community custody in Godsey’s sentence so as not to exceed the statutory maximum and to
strike the imposition of community custody supervision fees from the judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
VELJACIC, J.
CHE, J.
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