[Nos. 32426-1-II; 32456-3-II. Division Two. January 8, 2008.]
[1] Searches and Seizures — Constitutional Provisions — Federal Constitution — Application to States. The Fourth Amendment applies to the states through the due process clause of the Fourteenth Amendment. [2] Searches and Seizures — Validity — Federal Constitution — In General. The Fourth Amendment grants citizens the right to protection against unreasonable searches and seizures. In general, a search is reasonable within the meaning of the Fourth Amendment if it is executed with a lawfully issued warrant and is based on probable cause. [3] Constitutional Law — Right to Privacy — State Guaranty — Contrast to Federal Constitution. The Washington Constitution provides greater protection to individual privacy interests than does the Fourth Amendment. [4] Criminal Law — Evidence — Suppression — Findings of Fact — Review — Standard of Review. Findings of fact entered by a trial court in support of a ruling on a motion to suppress evidence in a criminal trial are reviewed to determine whether they are supported by substantial evidence and, if so, whether they support the trial court's conclusions of law. [5] Criminal Law — Evidence — Suppression — Conclusions of Law — Review — Standard of Review. Conclusions of law entered by a trial court in support of a ruling on a motion to suppress evidence in a criminal trial are reviewed de novo. [6] Searches and Seizures — Warrant — Scope — Test or Examination of Materials Seized. The lawful seizure of apparent evidence of a crime under a valid search warrant includes a right to test or examine the materials seized to ascertain their evidentiary value. [7] Searches and Seizures — Computer Files — Hard Drives — Search for Evidence — Lawfully Seized Computer. Where police timely seize computer hardware and software pursuant to a valid warrant, the continued testing of the computer's hard drives in search of evidence does not implicate the Fourth Amendment. [8] Searches and Seizures — Warrant — Execution — Timeliness — Test. A search conducted pursuant to a warrant is timely if it begins before the warrant expires and probable cause continues through completion of the search. [9] Searches and Seizures — Computer Files — Hard Drives — Probable Cause — Passage of Time. Inasmuch as the data stored on a computer hard drive is permanent, static, and unchanging, the passage of time does not affect probable cause that a computer hard drive stores evidence of a crime. [10] Searches and Seizures — Computer Files — Search — Delay — Validity — Factors. The Fourth Amendment does not provide for a specific time limit in which a computer may undergo forensic examination after it has been seized with a valid search warrant. If the delay is reasonable, it does not violate the Fourth Amendment. Because computer searches usually occur at a different location from where the computer was seized, involve more preparation than an ordinary search, involve a greater degree of care in the execution of the warrant, and generate more information than ordinary searches, delays in conducting and/or completing the search are expected and reasonable. In determining the reasonableness of a delay by law enforcement officers in conducting a search of computer files or hard drives, a court may consider (1) whether the delay caused a lapse in probable cause, (2) whether the delay created unfair prejudice to the defendant, and (3) whether the investigating officers acted in bad faith. [11] Searches and Seizures — Warrant — Probable Cause — Review — Standard of Review. A magistrate's determination of probable cause in issuing a search warrant is reviewed for an abuse of discretion. [12] Searches and Seizures — Warrant — Probable Cause — Determination — In General. The Fourth Amendment requires that a search warrant be supported by a determination of probable cause as established by an affidavit stating facts and circumstances sufficient to support a reasonable inference that criminal activity has occurred or is occurring and that evidence of the crime can be found at the place to be searched. Probable cause also requires a nexus between the criminal activity and the place to be searched. [13] Searches and Seizures — Warrant — Affidavit — Rules of Evidence — Applicability. An affidavit of probable cause for the issuance of a search warrant need not meet the standards governing the admissibility of evidence at trial. [14] Searches and Seizures — Warrant — Probable Cause — Review — Deference to Magistrate — In General. A magistrate's determination of probable cause in issuing a search warrant is entitled to great deference by a reviewing court. [15] Computers — Searches and Seizures — Computer Files — Warrant — Validity — Investigation of Sex Offense — Connection of Crime to Computer — Sufficiency. An affidavit provides sufficient probable cause for the issuance of a warrant to search a suspected child molestor's computer and its hard drive for evidence of the molestation crime where the affidavit specifies facts from which it may reasonably be inferred that the suspect committed an act of child molestation, that the suspect used the computer for child molestation-related activities, and that there are sexually explicit images stored on the computer that would support a child molestation charge. [16] Criminal Law — Discovery — Protective Order — Computer Files — Factors. When data or images stored on computer files or hard drives in the possession of law enforcement provide evidence of a criminal offense, a copy of that evidence must be made available to defendant for forensic examination or analysis subject to a protective order for the protection of victims. In fashioning a protective order, the trial court should (1) ensure that the evidence is secured and inaccessible to anyone besides defense counsel, (2) limit access by noncounsel without court order, (3) permit access only for purposes of the action, (4) ensure no additional copies are made, (5) require that a copy of the protective order be kept with the evidence, (6) prohibit digitizing of the evidence, (7) order installation of a firewall between the Internet and any computer used to access the protected materials during inspection, (8) require counsel to return the evidence if representation is terminated, (9) require any computer used in the examination of the evidence to be cleared before it is accessed for other purposes, (10) order prompt return the evidence at the end of the criminal proceeding, and (11) require that law enforcement verify the data's destruction and confirm that destruction to the court. [17] Criminal Law — Discovery — Protective Order — Computer Files — Place and Time Restrictions — Police Facility — Inadequate Access. A protective order that limits a criminal defendant's access to computer files or hard drives for forensic analysis to certain times of the day and only at a police facility is unduly restrictive if, due to the nature of the charge, the analysis needed to be made of the files or hard drives requires greater access than can be afforded in the police facility. [18] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Review — Role of Appellate Court — Deference to Trier of Fact. An appellate court reviewing a criminal conviction must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. [19] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Review — In General. The evidence presented in a criminal trial is sufficient to support a conviction of a charged offense if any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the elements of the offense beyond a reasonable doubt. [20] Criminal Law — Former Jeopardy — Reversal of Conviction — Retrial — In General. When a conviction is reversed on grounds other than the sufficiency of the evidence and the evidence in the record is sufficient to support the conviction, double jeopardy is not implicated and the defendant may be retried for the charge. [21] Criminal Law — Discovery — Scope — Review — Discretion of Court. The scope of discovery in a criminal prosecution is within the trial court's discretion. The trial court's discovery decisions will not be disturbed by a reviewing court absent a manifest abuse of discretion. [22] Criminal Law — Discovery — Protective Order — Computer Files — Place and Time Restrictions — Police Facility — Adequate Access. A protective order that limits a criminal defendant's access to computer files or hard drives for forensic analysis to certain times of the day and only at a police facility is not unduly restrictive if, due to the nature of the charge, the analysis needed to be made of the files or hard drives can be accomplished within the confines of the place and time restrictions. [23] Criminal Law — Discovery — Order — Review — Harmless Error. A trial court's erroneous discovery ruling in a criminal trial is harmless if the defendant is not prejudiced by the ruling. The defendant is not prejudiced by the ruling if it does materially affect the outcome of the trial. [24] Jury — Selection — Challenge for Cause — Review — Standard of Review. A trial court's denial of a challenge to a prospective juror for cause is reviewed for a manifest abuse of discretion. [25] Jury — Right to Jury — Criminal Case — Constitutional Right — Impartial Jury — In General. A criminal defendant has a constitutional right to trial by an impartial jury. [26] Jury — Selection — Challenge for Cause — Bias — Actual Bias — In General. A juror must be excused for cause if the juror has an actual bias. [27] Jury — Selection — Challenge for Cause — Bias — Actual Bias — Burden of Proof — In General. A party claiming that a juror should be excused for cause on the grounds of actual bias has the burden of proving actual bias. [28] Jury — Selection — Challenge for Cause — Bias — Actual Bias — Review — Challenger's Burden. A party claiming on appeal that the trial court should have excused a juror for cause on the grounds of actual bias must show more than a mere possibility that the juror was prejudiced. [29] Jury — Selection — Challenge for Cause — Equivocal Answers. A prospective juror's equivocal answers do not, alone, justify removal for cause. The appropriate question is whether a juror with preconceived ideas can set them aside and decide the case on an impartial basis. [30] Jury — Selection — Challenge for Cause — Determination — Deference to Trial Court. The trial court is in the best position to address whether a juror has a bias that would warrant excusing the juror for cause. The trial court has the ability to evaluate factors outside of the written record, such as the juror's demeanor and conduct. [31] Criminal Law — Right To Confront Witnesses — Sixth Amendment — Scope. Under the Sixth Amendment, a criminal defendant has the right to confront witnesses and to meaningful cross-examination. [32] Criminal Law — Right To Confront Witnesses — Sixth Amendment — Application to States. The Sixth Amendment is incorporated in and applies to the states through the due process clause of the Fourteenth Amendment. [33] Criminal Law — Evidence — Hearsay — Right of Confrontation — Unavailability of Declarant — Testimonial Statement — Effect. Under the Sixth Amendment, a testimonial hearsay statement made by a nontestifying witness may not be admitted against a criminal defendant unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. [34] Criminal Law — Evidence — Hearsay — Right of Confrontation — Review — Harmless Error — Test. The erroneous admission of hearsay testimony in violation of the Sixth Amendment right to confront adverse witnesses is subject to harmless error analysis. The error is harmless if a reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result had the error not occurred. Under this test, the error is harmless if the untainted evidence admitted at trial is so overwhelming that it necessarily leads to a finding that the defendant is guilty. [35] Criminal Law — Review — Harmless Error — Admission of Evidence — Overwhelming Evidence. The erroneous admission of evidence in a criminal trial is harmless beyond a reasonable doubt if the untainted evidence admitted at trial is so overwhelming that it necessarily leads to a finding that the defendant is guilty. [36] Criminal Law — Review — Harmless Error — Cumulative Error — Absence of Prejudicial Error — Effect. A conviction will not be overturned on the basis of cumulative error if the reviewing court finds no prejudicial error. [37] Criminal Law — Punishment — Sentence — Review — Constitutional Error — Standard of Review. A constitutional challenge to a trial court's sentencing decision is reviewed de novo. [38] Sexual Offenses — Punishment — Sentence — Nonpersistent Offender — Statutory Provisions — Multiple Current Offenses — Exceptional Consecutive Minimum Sentences — Determination by Court — Validity. A trial court sentencing a nonpersistent offender convicted of multiple delineated sex offenses or offenses with sexual motivation under the indeterminate sentencing scheme of RCW 9.94A.712 may impose an exceptional minimum sentence consisting of standard range minimum sentences ordered to run consecutively based on one or more of the aggravating factors set forth in RCW 9.94A.535(2) as found by the court, not a jury, so long as the exceptional minimum sentence does not exceed the statutory maximum sentence for any of the offenses. [39] Criminal Law — Punishment — Cruel and Unusual Punishment — What Constitutes. A punishment is cruel and unusual within the meaning of the Eighth Amendment if it is of such disproportionate character to the offense as to shock the general conscience and violate principles of fundamental fairness. [40] Criminal Law — Punishment — Cruel Punishment — Proportionate to Crime — Factors — In General. Whether a sentence is grossly disproportionate to the offense for which it is imposed and violates Const. art. I, § 14 and the Eighth Amendment prohibition against cruel and unusual punishment depends on (1) the nature of the offense, (2) the legislative purpose behind the sentencing statute, (3) the punishment the offender would have received in other jurisdictions, and (4) the punishment imposed for other offenses in this jurisdiction. No one factor is dispositive. Nature of Action: Prosecution for 17 counts of first degree rape of a child, 2 counts of attempted first degree rape of a child, 6 counts of first degree child molestation, 26 counts of sexual exploitation of a minor, 1 count of second degree assault of a child, and 20 counts of possession of depictions of a minor engaged in sexually explicit conduct. The second degree assault and possession offenses were alleged to have been committed with sexual motivation. Superior Court: The Superior Court for Pierce County, No. 02-1-01106-5, James R. Orlando, J., on October 22, 2004, entered a judgment on a jury verdict finding the defendant guilty of 16 counts of first degree rape of a child, 26 counts of sexual exploitation of a minor, 6 counts of first degree child molestation, 1 count of second degree assault of a child with sexual motivation, 20 counts of possession of depictions of a minor engaged in sexually explicit conduct with sexual motivation, and 2 counts of attempted first degree rape of a child. At sentencing, the trial court imposed high end standard range sentences for each offense, ran the sentences for the convictions within each class of offense concurrently, and then ran each group of such sentences consecutively. Court of Appeals: Holding that the trial court erroneously restricted the defendant's access to computer hard drive evidence in relation to the child pornography possession charges but that the defendant's other claims of error were unsupported by the record or were not prejudicial, the court affirms the judgment in part, reverses it in part, and remands the case for further proceedings. Rita J. Griffith-, for appellant. Gerald A. Horne-, Prosecuting Attorney, and Donna Y. Masumoto-, Deputy, for respondent. ¶1 PENOYAR, J. — Neil Grenning appeals his multiple convictions for various sexual offenses, claiming that (1) the search warrant was not timely executed, (2) the evidence was insufficient to support his possession of commercial child pornography convictions, (3) the discovery protective order was unduly restrictive, (4) his right to an impartial jury was violated, (5) hearsay statements were admitted in violation of his right to confrontation, (6) testimony was improperly admitted, and (7) he is entitled to a new trial due to cumulative error. Grenning further argues that (8) his consecutive sentences violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and (9) constitute cruel and unusual punishment. FACTS I. INITIAL INVESTIGATION AND SEARCH WARRANT ¶2 On March 3, 2002, the Tacoma police department received a call from a mother concerned that Grenning had sexually molested her five year old son, RW. She explained that Grenning was her neighbor and that he occasionally took care of RW. The officer suggested that the mother take RW to a hospital. RW's mother took him to Mary Bridge Children's Hospital, where a doctor examined him. During the examination, RW told the doctor that "Neil" had touched him on his "pee pee." 6 Report of Proceedings (RP) at 845. ¶3 On March 5, 2002, two days after RW's mother called the police, Detective Baker obtained a search warrant for Grenning's residence. In the affidavit in support of the warrant, Detective Baker indicated that RW's mother found RW in the bathroom, placing an object in his anus. RW told his mother he was "trying to get out what Neil had put into my butt." Clerk's Papers (CP) at 49. Detective Baker stated that RW handed his mother a jar of petroleum jelly and said, "[t]his is what Neil put on his [sic] pee pee and put in my butt." CP at 49. RW's mother also told Detective Baker that Grenning had once showed her a digital picture he took of RW and that RW told her Grenning had taken pictures of him unclothed. ¶4 Detective Baker explained in his affidavit that Grenning told the officers during an interview that he kept personal lubricant near his computer because "it was more enjoyable to do that while sitting at the computer." CP at 50. Grenning's computer was located in his bedroom. When the officers asked Grenning if he had pornographic materials on his personal computer, he stated that it was an older computer and that there may be some "old stuff" on it. RP at 401. ¶5 The search warrant granted the officers permission to search for and seize a variety of items concealed at Grenning's home that were material to the investigation or prosecution of first degree child molestation. It required detectives to enter and search the home within 10 days. ¶6 On March 6, officers entered Grenning's home. Detective Voce, who was assigned to handle all computer equipment during the search, lawfully seized Grenning's computer and hard drives. On March 15, Detective Voce copied Grenning's three hard drives and then began investigating and reviewing the copied hard drives. He recovered two images of what appeared to be commercial child pornography. At this point, he stopped his investigation to obtain another search warrant. II. SECOND WARRANT AND SUBSEQUENT INVESTIGATION ¶7 On March 27, police detectives obtained a second search warrant, expanding the search to include photographs, photograph albums, and drawings depicting minors engaged in sexually explicit activity. The warrant required that the search be done within 60 days. ¶8 More than a year later, on April 3, 2003, Detective Voce continued reviewing the information on the copied hard drives, specifically looking for evidence of child molestation and child pornography. He ultimately uncovered approximately 35,000 to 40,000 photographs of minors engaged in sexually explicit conduct on Grenning's hard drives. He uncovered 300 images depicting RW being sexually assaulted and molested; 40 images of a second victim, BH, being sexually assaulted and molested; and 20 images of commercial child pornography. The commercial child pornography images depicted adult males sexually assaulting or molesting minors. ¶9 According to Detective Voce, the images were located in the "unallocated space" of two of the three hard drives seized from Grenning's house. RP at 640. Grenning's computer was a Macintosh brand computer with an Apple operating system. Macintosh hard drives contain seven different partitions (or sections) of the drive. Two of Grenning's hard drives only contained four of the seven usual partitions and it appeared to Detective Voce that they had been intentionally removed. Detective Voce explained that removing partitions would cause data to be listed as unallocated even if the user had not deleted it. Additionally, the removed partitions made it more difficult to access the images and data on the hard drives. Detective Voce found all of the child pornography pictures on the two hard drives with unallocated space. III. CONTINUING INVESTIGATION ¶10 In April 2003, the Criminal Misconduct Office in Brisbane, Australia contacted Detective Baker. Australian police suspected that pornographic photographs they discovered in a computer in Australia were Grenning's photos. The photos depicted victim BH being sexually assaulted and molested. Detective Voce obtained another search warrant using the information obtained from the Australian police to specifically look for evidence relating to BH on Grenning's copied hard drives. ¶11 Detectives found photos of BH on Grenning's hard drives and instant message chats. Chat participant "Photokind" referred to himself as a recent graduate of Pacific Lutheran University who was looking for work and applying for a teaching license. RP at 669-70. This description matched Grenning. In one chat, Photokind described a camping trip that matched up with the images found on Grenning's computer of BH being sexually assaulted. The chat gave a play-by-play narrative of the camping trip and detailed each of the pictures very specifically. ¶12 On June 7, 2004, prosecutors charged Grenning with 17 counts of first degree child rape, 2 counts of attempted first degree child rape, 6 counts of first degree child molestation, 26 counts of sexual exploitation of a minor, 1 count of second degree child assault, and 20 counts of possession of depictions of a minor engaged in sexually explicit conduct. As an aggravating factor, the State alleged that Grenning committed the second degree child assault and possession of child pornography crimes with sexual motivation. IV. PRETRIAL MOTION ¶13 Grenning made a pretrial motion to suppress the evidence the police obtained from the copies of his hard drives, arguing that the search was untimely. The trial court denied the motion. Grenning also made a pretrial motion for mirror-image copies of his computer hard drives. The trial court granted Grenning's motion, but it crafted a protective order requiring that the mirror-image hard drive copies only be viewed and tested at the Tacoma police facility, because it was a secured location. It directed police detectives to provide a computer, monitor, keyboard, mouse, and operating system for Grenning. ¶14 Grenning was allowed to access the hard drives between 8:30 AM and 4:30 PM Monday through Friday. The drives were to remain in the secured location. Only the defendant, his counsel, and his computer expert could view the data on the imaged drives. Once Grenning completed his examination, he had to notify Detective Voce, who would then remove the imaged drives and store them until completion of the case. While the drives were being stored, Detective Voce was not to view any of the data contained on the imaged drives or investigate what type of forensic evaluation Grenning conducted on the drives or the computer. ¶15 Grenning asked the trial court to reconsider the protective order and to allow him to remove the copied hard drives from the secure location so his expert could use his own lab to analyze the hard drives. The trial court denied the motion, determining that the protective order was necessary to protect the victims and to ensure that material contained on the hard drives was not released on the Internet. V. TRIAL TESTIMONY, CONVICTION, AND SENTENCING ¶16 At trial, BH was nine years old. At the time of the events, BH was approximately six years old. BH testified that he went on a camping trip with his older brother and Grenning. BH slept in the same tent as Grenning, and BH testified that Grenning touched his penis with his mouth. BH was nervous testifying and had difficulty talking about the camping trip. ¶17 RW was seven years old at the time of trial. The trial court found RW unavailable to testify due to his age. ¶18 On June 18, 2004, a jury convicted Grenning of 16 counts of first degree child rape, ¶19 At sentencing, the trial court imposed the high end standard range for each offense, ran the sentences for the convictions within each type of offense concurrently, and then ran each class of offenses consecutively. This resulted in a total sentence of 1,404 months (117 years). Grenning appeals. ANALYSIS I. MOTION TO SUPPRESS THE PHOTOS ¶20 Grenning first argues that the trial court erred in admitting evidence the police found during their search of his computer hard drives because (1) the police search was not completed within 10 days of the warrant's issuance and (2) the search warrant was overbroad and lacked probable cause. He argues that the trial court should have granted his motion to suppress evidence. A. Untimely Execution of the Search Warrant ¶23 Grenning argues that the search of his computer hard drives was untimely under CrR 2.3(c) ¶24 Grenning further argues that there was no probable cause to issue the warrant on March 27, 2002 because discovery of the first two photographs that were the basis for probable cause was untimely. Thus, he contends that all evidence seized under both the March 5 and March 27, 2002 search warrants should be suppressed. ¶29 Detective Voce had to search Grenning's three hard drives. He had to consult with another expert to obtain specialized software in order to complete his search. The information on the hard drives was not transitory, changeable, nor stale when Detective Voce reviewed the copies of the hard drives. There was a significant amount of information on the hard drives and the trial court found that it was not realistic or reasonable for Detective Voce to review it all in 10 days. Probable cause continued to exist throughout Detective Voce's search. The police did not act in bad faith in executing the warrant. The delay was reasonable and Grenning cannot demonstrate prejudice. We hold that the trial court did not err in admitting evidence obtained under the search warrants. B. Probable Cause and the Particularity Requirement of the Search Warrant ¶30 Grenning next argues that the warrants lacked probable cause and were overbroad because Detective Baker's affidavit only cites to noncriminal behavior together with general statements about pedophile's habits. The State responds that the warrant was properly issued and complied with Fourth Amendment requirements. ¶34 Here, unlike in Smith, Baker's affidavit specifies facts about Grenning's molestation of RW. Thus, the issuing court did not rely solely on the profile of a typical pedophile to establish probable cause for searching Grenning's computer. ¶35 Relying on Nordlund, Grenning argues that greater particularity was required for probable cause to search his computer. In Nordlund, the court held that there must be a greater degree of particularity in the search warrant for a defendant's personal computer. Nordlund, 113 Wn. App. at 182. ¶36 However, in Nordlund, the affidavits did not recite particularized information linking the computer to possible evidence of crimes and only established the defendant's noncriminal use of the computer. Nordlund, 113 Wn. App. at 182. The State seized the defendant's computer to search for evidence of his whereabouts on the day he allegedly attacked two young women, not to look for pornography or evidence of child molestation supported by other evidence in the affidavit. Nordlund, 113 Wn. App. at 183. ¶37 Here, Baker's affidavit established a reasonable inference that Grenning sexually molested RW, that he masturbated in front of his computer, and that there were sexually explicit photographs on Grenning's computer supporting a child molestation charge. We affirm the trial court's finding that probable cause existed to authorize the search of Grenning's computer and that the search was sufficiently particularized. II. PROTECTIVE ORDER A. Possession of Commercial Child Pornography Convictions ¶39 The trial court did not have the benefit of the recent case of State v. Boyd, where the Washington Supreme Court held that a defendant is entitled to mirror-image copies of hard drives where the evidence on the computer supports charges of commercial child pornography possession. State v. Boyd, 160 Wn.2d 424, 436, 158 P.3d 54 (2007). The analysis of the hard drives "requires greater access than can be afforded in the State's facility." Boyd, 160 Wn.2d at 436. In child pornography possession cases, defense counsel is entitled to the hard drive copies, subject to a protective order, "where the forensic expert intends to use particular diagnostic equipment from his lab and must review tens of thousands of images from potentially disparate sources." Boyd, 160 Wn.2d at 437. ¶40 The Washington Supreme Court suggests safeguards to protect a victim's interests. As part of the protective order, the trial court should: (1) ensure that the evidence is secured and inaccessible to anyone besides defense counsel, (2) limit access by noncounsel without court order, (3) permit access only for purposes of the action, (4) ensure no additional copies are made, (5) require a copy of the protective order be kept with the evidence, (6) prohibit digitizing of the evidence, (7) order installation of a firewall between the internet and any computer used to access the protected materials during inspection, (8) require counsel to return the evidence if representation is terminated, (9) require any computer used in the evidence's examination to be cleared before it is accessed for other purposes, (10) order prompt return of the evidence at the end of the criminal proceeding, and (11) require that law enforcement verify the data's destruction and confirm that destruction to the court. Boyd, 160 Wn.2d at 438-39. ¶41 Here, the trial court granted Grenning's motion for mirror-image hard drive copies. However, the trial court did not allow Grenning's attorney or computer expert to view or test the hard drive copies outside of the Tacoma police facility. Because expert analysis of the hard drives "requires greater access than can be afforded in the State's facility," the trial court's protection order was unduly restrictive for the commercial child pornography charges. Boyd, 160 Wn.2d at 436. Thus, we reverse Grenning's convictions for 20 counts of possession of depictions of minors engaged in sexually explicit conduct and remand for proceedings consistent with this opinion. B. Sufficiency of Evidence of Possession of Commercial Child Pornography ¶42 Grenning argues that the evidence was insufficient to convict him under RCW 9.68A.070 because the State did not prove that he actually possessed the child pornography. He claims that though the pornography was found on his computer, there is no evidence to indicate he knew the images were there and that his possession conviction should be reversed. We reject this claim. C. Child Rape, Attempted Child Rape, Child Molestation, Sexual Exploitation of a Minor, and Assault of a Child Convictions ¶47 In Grenning's first degree child rape, attempted first degree child rape, first degree child molestation, sexual exploitation of a minor, and second degree assault of a child charges, the discovery provided was adequate. For these charges, the factors the Boyd court considered are not at issue. It is irrelevant (1) "how the evidence made its way onto the computer," (2) who caused the "images to be downloaded," (3) "when the images were downloaded," (4) "how recently [the] images were viewed," and (5) "where the images are stored on the device." Boyd, 160 Wn.2d at 436. ¶48 In the child rape, molestation, exploitation, and assault charges, it does not matter if Grenning purposefully possessed, downloaded, or viewed the pictures. The pictures were entered into evidence because they depict Grenning raping and molesting RW and BH. The issue was whether Grenning committed these acts. The three cases consolidated for Boyd involved commercial child pornography. Boyd, 160 Wn.2d at 429-31. They did not involve child pornography that depicted the defendants engaging in sexual acts with minors. Boyd, 160 Wn.2d at 429-31. Additionally, Boyd did not address charges beyond child pornography possession. Boyd, 160 Wn.2d at 429-31. Because the factors the Boyd court considered are not at issue here, we decline to extend Boyd's holding to charges other than child pornography possession. ¶50 Considering that (1) Grenning had a computer expert that could perform tests on the hard drives; (2) he did not request further duplication of the pictures; (3) the testimony of BH, his mother, and brother; and (4) the nature of what the pictures depict, access to the hard drives in a location other than the secured room in the police station would not have materially affected the trial outcome. Thus, we affirm Grenning's convictions for child rape, attempted child rape, child molestation, sexual exploitation of a minor, and assault of a child. III. IMPARTIAL JURY ¶51 On the first day of trial, the Tacoma News Tribune ran a story about Grenning's case. Grenning argues that juror 31 should have been dismissed because the juror indicated she saw the headline, recognized it might apply to this case, and then did not read the body of the article. The State responds that the trial court did not abuse its discretion in keeping juror 31 on the panel as there was no evidence that the juror was actually biased against Grenning. ¶54 In this case, juror 31 did not read the article in question, only the headline, which did not mention Grenning. The trial court questioned juror 31 and found that the first page of the article contained no prejudice to Grenning. Furthermore, voir dire was not transcribed or recorded for our review. There was no manifest abuse of discretion in finding a lack of prejudice, given that the juror read only the headline and not the article. We find no error in allowing juror 31 to remain. IV. CONFRONTATION CLAUSE ¶55 Grenning next challenges the admission of RW's hearsay testimony from Dr. Duralde and the police detectives. He contends that admission of RW's out-of-court hearsay statements violated his right of confrontation under the United States Constitution. ¶58 Here, the trial court admitted Dr. Duralde's testimony under ER 803(a)(4) as a statement made for the purposes of medical diagnosis or testing. Grenning argues that it violates Crawford because statements to a doctor are testimonial when police are involved. The trial court also allowed hearsay testimony from three police officers about what RW's mother told them. ¶60 Even absent RW's statements to his mother and doctor, the untainted evidence of Grenning's guilt was overwhelming. Each count was supported by graphic photographs found on Grenning's personal computer. Grenning took the photographs while committing the crimes against RW and BH. The pictures depict Grenning raping and molesting the children. Grenning's, BH's, and RW's faces are visible in many of the photographs that depict child rape and molestation. The record is replete with evidence supporting Grenning's convictions. In addition to the photographs, there was an audio recording and physical evidence seized from Grenning's residence that support the convictions. We have no reasonable doubt that even absent the hearsay, the jury viewing the photographs, viewing the items seized from Grenning's residence, hearing BH's testimony, and listening to the audio recording would have found Grenning guilty beyond a reasonable doubt. We hold that any violation of Crawford was harmless. V. OPINION TESTIMONY ¶61 Grenning argues that the trial court admitted opinion testimony in violation of his constitutional right to a jury trial. Grenning challenges Detective Baker's testimony that the child in the photographs was RW, that the perpetrator was Grenning, and that the photographs were taken in Grenning's bedroom. He also challenges Detective Voce's testimony that a majority of the images on Grenning's computer depicted minors engaged in sexually explicit conduct and that "Photokind" referred to Grenning. Additionally, Grenning challenges Dr. Duralde's testimony that the victims depicted in exhibits 94 through 114 were children under the age of 18. Finally, Grenning challenges Customs Agent Darryl Cosme's testimony that the commercial pornographic photographs were of actual children and not computer generated. ¶62 Grenning argues that the above testimony was inadmissible under ER 702, and it was merely the witnesses' personal resolution of factual issues. He further argues that it was for the jurors to decide whether the images satisfied the elements of the crimes and that the above testimony left nothing for the jurors to decide. VI. CUMULATIVE ERROR ¶65 We hold that the cumulative error doctrine does not apply here. Even if any of the asserted errors occurred, the photographic evidence in this case is undisputed and overwhelming. No prejudice could have resulted and we decline to grant Grenning a new trial on this basis. VII. ¶66 Grenning next maintains that his consecutive sentences, imposed under former RCW 9.94A.589(1)(a), violate Blakely, 542 U.S. 296, and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The trial court ruled that the sentences for each type of crime would be served concurrently. It then imposed sentence for each different class of crimes consecutive to each other. For example, all the child rape counts involving RW were to be served concurrently to each other but consecutively to each of the other classes of crimes, such as the molestation convictions. ¶69 The trial court made factual findings under RCW 9.94A.535(2) to support imposing the sentences consecutively. Additionally, the jury returned a special verdict finding that Grenning committed the second degree assault of a child with sexual motivation. A finding of sexual motivation for the offense is an aggravating factor that allows the court to impose an exceptional sentence. RCW 9.94A.535(3)(f). Thus, the consecutive sentences the trial court imposed were proper. VIII. CRUEL AND UNUSUAL PUNISHMENT ¶70 Grenning argues that his sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington Constitution. However, given the nature of the crimes Grenning committed, we hold that his sentence does not constitute cruel and unusual punishment. ¶72 Grenning committed crimes against two young children, RW and BH, both under the age of six at the time of the crimes. Grenning took and saved graphic photographs of the acts. Grenning's sentence does not shock the general conscience, given the severity and gruesome nature of the crimes committed. Given the gravity of Grenning's offenses, we do not feel it necessary to discuss the three remaining factors. Grenning's sentence is entirely reasonable. IX. STATEMENT OF ADDITIONAL GROUNDS ¶73 Finally, Grenning filed a SAG, in which he raises numerous arguments. ¶74 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. HOUGHTON, C.J., and ARMSTRONG, J., concur.