STATE v. MOSS (2026)

¶1 David Moss appeals his convictions of sexual exploitation of a minor and second degree child molestation. Moss's convictions arose from allegations that he asked his 12-year-old stepdaughter, AJ, to expose her breasts to him several times and that he once pressed a cold beverage container against her bare breast.

¶2 RCW 9.68A.040(1) states, “A person is guilty of sexual exploitation of a minor if the person: ․ (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be ․ part of a live performance.” RCW 9.68A.011(4) defines “live performance” as “any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.” Moss argues that the evidence was insufficient to show that AJ exposing her breasts constituted a “live performance.”

¶3 We hold that the State presented sufficient evidence to prove that AJ exposing her breasts while Moss watched was a “live performance” as defined by RCW 9.68A.011(4). In the unpublished portion of this opinion, we reject Moss's argument that he received ineffective assistance of counsel. Accordingly, we affirm Moss's convictions.

FACTS

¶4 In September 2022, AJ told her mother, Elizabeth Moss, that Moss had been getting her to “flash” him. AJ meant that Moss was asking her to show Moss her breasts. AJ stated that Moss had requested that she flash him several times over the course of two to four months. During the time period in which these requests allegedly occurred, AJ was 12 years old.

¶5 Elizabeth ¹ reported this conduct to law enforcement. Subsequently, the State charged Moss with sexual exploitation of a minor and two counts of child molestation, along with domestic violence aggravators associated with each charge.²

¶6 At trial, AJ testified that Moss was her stepfather and that he had lived with her and Elizabeth. She stated that when she was between the ages of 10 and 12, she came to distrust Moss because he began asking her to flash him.

¶7 Moss would make these requests by asking her to flash him or to “do the thing.” Rep. of Proc. (RP) at 95. She understood these requests to mean that he was asking her to expose her breasts. AJ would sometimes flash him by pulling her shirt and bra up, and sometimes by just pulling her shirt up. Whether AJ pulled her shirt and bra up or just her shirt depended on what Moss asked her to do. Sometimes when she lifted just her shirt he would tell her to lift her bra as well. AJ stated that after she flashed Moss, he would smile or laugh. AJ stated that Moss told her that he was asking her to flash him to help build her self-confidence.

¶8 AJ described three specific incidents where Moss asked her to flash him. In addition, AJ described an incident in which Moss took her shirt and bra off, wrapped his arm around her, and pressed a cold beverage container against her bare nipple.

¶9 Moss testified and denied ever asking AJ to flash him or touching AJ's breasts.

¶10 During closing argument, the prosector argued that AJ exposing her breast to Moss constituted a “show” as listed in RCW 9.68A.011(4). Defense counsel argued that AJ's conduct did not constitute a live performance.

¶11 The jury found Moss guilty of sexual exploitation of a minor and second degree child molestation, and found that domestic violence aggravators applied. Moss appeals his convictions.

ANALYSIS

¶12 Moss argues that there was insufficient evidence to prove beyond a reasonable doubt that he committed sexual exploitation of a minor because the conduct he asked AJ to engage in did not constitute a “live performance” as defined by RCW 9.68A.011(4). We disagree.

A. Standard of Review

¶13 When evaluating the sufficiency of evidence for a conviction, we view the evidence in the light most favorable to the State and ask whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Bergstrom, 199 Wash.2d 23, 40-41, 502 P.3d 837 (2022). We assume the truth of the State's evidence and all reasonable inferences that may be drawn therefrom. Id. at 41, 502 P.3d 837. These inferences must be construed in the State's favor and strongly against the defendant. State v. Scanlan, 193 Wash.2d 753, 770, 445 P.3d 960 (2019). And we defer to the trier of fact's resolution of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Bergstrom, 199 Wash.2d at 41, 502 P.3d 837.

B. Statutory Interpretation

¶14 Moss's argument depends on how we interpret the term “live performance” as defined in RCW 9.68A.011(4). Statutory interpretation is a question of law that we review de novo. State v. Abdi-Issa, 199 Wash.2d 163, 168, 504 P.3d 223 (2022). The primary goal of statutory interpretation is to determine and give effect to the legislature's intent. Id. To determine the legislature's intent, we first look to the plain language of the statute, considering the language of the provisions in question, how the provisions fit within the context of the statute, and the statutory scheme as a whole. Id. at 168-69, 504 P.3d 223. We may consider dictionary definitions to ascertain a word's ordinary meaning. State v. Hribar, 34 Wash. App. 2d 546, 554, 569 P.3d 743, review denied, 5 Wash.3d 1014, 577 P.3d 381 (2025).

¶15 The language of a statute is ambiguous if it is susceptible to more than one reasonable interpretation. State v. M.V., 33 Wash. App. 2d 658, 662, 564 P.3d 564 (2025). We “first attempt to resolve the ambiguity and determine the legislature's intent by considering other indicia of legislative intent, including principles of statutory construction, legislative history, and relevant case law.” Id. “If these indications are insufficient to resolve the ambiguity, the rule of lenity requires that we interpret the ambiguous statute in favor of the defendant.” Id.

¶16 One rule of statutory construction is ejusdem generis, under which “a court will deem a general term used in conjunction with specific terms to include only those things of the same class or nature as the specific ones.” State v. Hampton, 35 Wash. App. 2d 150, 165, 574 P.3d 150 (2025).

C. Legal Principles – Sexual Exploitation of a Minor

¶17 RCW 9.68A.040(1) states, “A person is guilty of sexual exploitation of a minor if the person: ․ (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance.” (Emphasis added.) RCW 9.68A.011(4) defines a live performance as “any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.” (Emphasis added.)

¶18 The preamble to RCW 9.68A.011 states that the listed definitions apply “[u]nless the context clearly indicates otherwise.” The Supreme Court stated that this language “shows that lawmakers intended the definitions be used with a measure of flexibility and in the context of sexual crimes against minors.” State v. J.H.-M., 4 Wash.3d 648, 661, 566 P.3d 847 (2025).

¶19 In addition, the legislative finding section that precedes the sexual exploitation statute states that “the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The care of children is a sacred trust and should not be abused by those who seek commercial gain or personal gratification based on the exploitation of children.” RCW 9.68A.001. The legislative findings also state that “[t]he definition of ‘sexually explicit conduct’ and other operative definitions demarcate a line between protected and prohibited conduct.” RCW 9.68A.001.

¶20 Division One of this court considered the meaning of a “live performance” in State v. Wissing, 66 Wash. App. 745, 833 P.2d 424 (1992). In that case, the defendant asked to see a child's pubic hair. Id. at 748, 833 P.2d 424. The child refused, and the interaction ended. Id. The court addressed RCW 9.68A.040(1)(b) and the definition of “live performance” in former RCW 9.68A.140(3) (1987), which is identical to the definition in RCW 9.68A.011(4). Id. at 752, 833 P.2d 424.

¶21 The defendant argued that there was no evidence that the conduct was part of a live performance. Id. He asserted that to be an exhibition under the definition of live performance, conduct must involve “some type of performance or staging.” Id. The State argued that an exhibition means to present to view, citing a dictionary definition. Id. at 752-53, 833 P.2d 424 (internal quotation marks omitted).

¶22 The court stated,

[W]e conclude that the phrase “other exhibition” connotes a type of performance similar in nature to those terms immediately preceding it in the statute, e.g., play, show, skit, or dance. Indeed, if the term “exhibition” was intended to impart a meaning different from or independent of “play, show, skit, or dance”, then use of the word “other” immediately preceding “exhibition” would be superfluous. Moreover, if we were to interpret “exhibition” as including the type of private request here, there would be no ascertainable standard for determining what kinds of conduct constitute an exhibition.

Id. at 753, 833 P.2d 424.

D. “Other Exhibition” Analysis

¶23 The State argues that AJ's conduct constituted an “exhibition.” Because RCW 9.68A.011(4) does not define exhibition, we must give that term its plain and ordinary meaning. Abdi-Issa, 199 Wash.2d at 168, 504 P.3d 223. We turn to the dictionary definitions to understand the plain meaning of exhibition. Hribar, 34 Wash. App. 2d at 554, 569 P.3d 743.

¶24 The dictionary defines “exhibition” to include “an act or instance of showing, evincing, or showing off.” Webster’s Third New Int’l Dictionary 796 (2002). This is a very broad definition, and exposing one's breasts would constitute an “act ․ showing.” Id.

¶25 However, we agree with the court in Wissing that the word “other” before “exhibition” in RCW 9.68A.011(4) means that “exhibition” must be understood with reference to the other terms in the list. See Wissing, 66 Wash. App. at 753, 833 P.2d 424; see also Hampton, 35 Wash. App. 2d at 165, 574 P.3d 150. Therefore, to be an “other exhibition,” the relevant conduct must be similar in nature to a play, show, skit, or dance as those terms are ordinarily understood. See Wissing, 66 Wash. App. at 753, 833 P.2d 424. However, an “other exhibition” need not fall within the exact definition of play, show, skit, or dance. An exhibition must only be similar in nature to those activities.

¶26 The dictionary defines a “play” to include “the representation or exhibition of some action or story on the stage or in some other medium.” Webster’s at 1737. A “show” is defined to include “something or someone exhibited” and “a theatrical presentation.” Id. at 2106. A “skit” is defined as “a satirical or humorous story or sketch” and “a brief burlesque or comic sketch.” Id. at 2135. A “dance” is defined to include “ rhythmic movement having as its aim the creation of visual designs by a series of poses and tracing of patterns through space.” Id. at 572.

¶27 Here, Moss asked AJ to expose her breast several times, showing a pattern of conduct rather than the one-time event in Wissing.³ And Moss directed AJ's activities, sometimes having her lift only her shirt and sometimes demanding that she lift her bra as well. All this was done while Moss watched and reacted. Under these circumstances, showing one's breast to another person easily falls within the ordinary meaning of an “exhibition.” And RCW 9.68A.011(4) states that “live performance” includes an audience of one, and here AJ had an audience of one – Moss – when she exposed her breasts. In addition, RCW 9.68A.011(4) did not require any economic exploitation of AJ's conduct because it states that a “live performance” includes conduct performed without consideration.

¶28 RCW 9.68A.011(4) refers to “other exhibition” after listing a play, show, skit or dance. We conclude that repeatedly showing one's breasts to another person at his request and direction is similar enough in nature to those activities to fall within the meaning of “other exhibition” in RCW 9.68A.011(4).

¶29 To the extent that there is any ambiguity, we can look other indicia of legislative intent. M.V., 33 Wash. App. 2d at 662. Here, in enacting the sexual exploitation of minors statutes, the legislature emphasized that “the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” RCW 9.68.001 And the Supreme Court directed that based on the preamble to RCW 9.68A.011, the listed definitions should be “used with a measure of flexibility.” J.H.-M., 4 Wash.3d at 661, 566 P.3d 847. Technical definitions aside, it seems clear that an adult making a child expose her breasts while the adult watches is a type of sexual exploitation that the legislature would want to prevent. Interpreting RCW 9.68A.011(4) with a measure of flexibility, we conclude that exposing one's breast while another person watches is an “exhibition” and therefore is a live performance that constitutes sexual exploitation of a minor under RCW 9.68A.040(1)(b).

¶30 Accordingly, we hold that sufficient evidence supported Moss's conviction of sexual exploitation of a minor.

CONCLUSION

¶31 We affirm Moss's convictions.

¶32 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

¶33 At trial, the State introduced evidence that Moss had cheated on his wife and that he engaged in certain breast-related sexual activities. A forensic interviewer testified regarding what she believed that AJ was saying when she made a statement in the interview. In the unpublished portion of this opinion, we address and reject Moss's argument that he received ineffective assistance of counsel because defense counsel did not object to this evidence.

ADDITIONAL FACTS

¶34 AJ testified that she learned that Moss had cheated on Elizabeth when she was around 10 years old. She stated that she knew Elizabeth was upset about these affairs. AJ stated that she felt hatred toward Moss because he cheated on her mother. She testified that this hatred continued into the period of time when Moss asked AJ to flash him. Defense counsel did not object to AJ's testimony about Moss cheating on Elizabeth.

¶35 AJ discussed a forensic interview she had with Deedee Pegler. AJ stated that she did not tell Pegler that Elizabeth was home during a flashing request. Subsequently, Moss presented AJ with a transcript of her forensic interview that stated that “there was a time that he did it and my mom -- my mom was in his room and he told me -- told my brother to go downstairs over and over and over. And then he told me to do it.” RP at 120. AJ agreed that the transcript stated that Elizabeth “was in his room.” RP at 120. But then AJ stated, “I don't think that's exactly what I said,” and that she “was meaning like him in my mom's room, but that's not what I recall.” RP at 120.

¶36 Outside of the presence of the jury, counsel and the trial court listened to the recording several times. After listening to the recording, the prosecutor stated that it was hard to tell what AJ said.

¶37 Later, AJ testified that she did not say that her mom was in his room during the forensic interview, and that “I remember saying that we were in his and my mom's room.” RP at 126.

¶38 The forensic interviewer, Pegler, testified that she conducted a forensic interview with AJ. The portion of AJ's forensic interview in which AJ may have said “my mom was in his room and he told my brother to go downstairs” was played to the jury as impeachment evidence. RP at 187, 189; Ex. 102 at 6:05-6:15. On redirect, the prosecutor asked Pegler, “[D]o you know what [AJ] was saying in that portion of the interview?” RP at 189. Pegler responded that AJ had said, “There was a time he did it in my mom's and his room.” RP at 190. Moss did not object to this testimony.

¶39 Elizabeth testified that she was open about her sexuality. Elizabeth testified that the children knew about her sex life with Moss because she and Moss would talk about it. She stated that AJ knew that she would flash Moss.

¶40 Elizabeth testified about two instances of Moss having affairs with other women during their marriage. She stated that she started flashing Moss because he had an affair, and he told her it was because they were not having enough sex. She testified that she would send Moss pictures of her breasts and that she and Moss used nipple clamps during sex. Elizabeth also said that Moss had a breast-specific pornographic DVD. Moss's counsel did not object to any of this evidence.

¶41 During closing argument, Moss's defense counsel argued that AJ made false allegations against Moss because she was mad at him for cheating on Elizabeth. Defense counsel also argued that AJ was not credible because her version of events was inconsistent and lacked detail.

ANALYSIS

¶42 Moss argues that he received ineffective assistance of counsel when his defense counsel failed to object to (1) evidence that Moss cheated on Elizabeth, (2) evidence regarding the details of Moss's breast-related activities, and (3) Pegler's trial testimony regarding AJ's statements during her forensic interview. We disagree.

A. Legal Principles

¶43 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to effective assistance of counsel. State v. Bertrand, 3 Wash.3d 116, 128, 546 P.3d 1020 (2024). A defendant asserting that they received ineffective assistance of counsel must show both that counsel's representation was deficient and that the deficient representation prejudiced the defendant. Id.

¶44 Defense counsel's representation is deficient if after considering all the circumstances, the performance falls below an objective standard of reasonableness. State v. Vasquez, 198 Wash.2d 239, 247-48, 494 P.3d 424 (2021). There is a strong presumption that defense counsel's performance was reasonable. Bertrand, 3 Wash.3d at 128, 546 P.3d 1020. To rebut that presumption, a defendant bears the burden of establishing the absence of any legitimate strategic or tactical reason explaining counsel's conduct. Vazquez, 198 Wash.2d at 248, 494 P.3d 424. Prejudice exists if there is a reasonable probability that the result of the trial would have been different but for defense counsel's deficient performance. Bertrand, 3 Wash.3d at 129, 546 P.3d 1020.

¶45 Whether and when to object is typically a strategic or tactical decision. Vasquez, 198 Wash.2d at 248, 494 P.3d 424. It is a legitimate trial strategy to forgo an objection when defense counsel wishes to avoid highlighting certain evidence. Id. In addition, to establish deficient performance based on a failure to object, a defendant must show that the trial court would have sustained the objection. Id. “A few or even several failures to object are not usually cause for finding that an attorney's conduct has fallen below the objective standard of conduct.” Id. at 250, 494 P.3d 424.

¶46 Prejudice exists if there is a reasonable probability that the result of the trial would have been different but for defense counsel's deficient performance. Bertrand, 3 Wash.3d at 129, 546 P.3d 1020. This standard is lower than the preponderance of the evidence standard. Id. But the defendant must show more than that a different outcome is conceivable. Id.

B. Ineffective Assistance Analysis

1. Moss's Affairs

¶47 Moss argues that his defense counsel was deficient for failing to object to evidence that he cheated on Elizabeth. We disagree.

¶48 Moss argues that this evidence was irrelevant and inadmissible under ER 404(b) because it was evidence of other bad acts. However, evidence that Moss had affairs supported Moss's theory of the case. AJ testified that she knew her mother was upset because of Moss's affairs, and that she hated Moss because he was cheating on her mother. And AJ stated that this hatred continued into the period in which Moss allegedly asked her to flash him. During closing argument, defense counsel argued that AJ made false allegations against Moss because she was mad at him for cheating on Elizabeth. Therefore, defense counsel had a legitimate strategic reason not to object to this evidence.

¶49 Accordingly, we hold that defense counsel was not deficient for failing to object to evidence that Moss cheated on Elizabeth.

2. Moss's Sexual Activities

¶50 Moss argues that his trial counsel was deficient because he did not object to testimony that Moss engaged in certain sexual activities involving breasts and that Moss possessed breast-related pornography. We agree in part, but we conclude that Moss fails to show prejudice.

¶51 Relevant evidence generally is admissible. ER 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401.

¶52 To prove sexual exploitation of a minor, the State was required to show that Moss caused AJ to engage in “sexually explicit conduct.” RCW 9.68A.040(1)(b). “Sexually explicit conduct” includes viewing the unclothed breasts of a female minor and must be for “the purpose of sexual stimulation of the viewer.” RCW 9.68A.011(7)(f). And to prove second degree child molestation, the State had to show that Moss had “sexual contact” with AJ. RCW 9A.44.086(1). “Sexual contact” is defined as touching a person's intimate parts “for the purpose of gratifying sexual desire of either party.” RCW 9A.44.010(13).

¶53 As a result, to convict Moss of the two charges the State had to prove that Moss's viewing AJ's breasts was for the purpose of his sexual stimulation and touching AJ's nipple with a cold beverage container was for the purpose of gratifying his sexual desire. Some evidence regarding the breast-focused sexual activities Moss engaged in was relevant because it tended to show that Moss received sexual stimulation or gratification from viewing breasts and that he asked AJ to flash him for this reason. Therefore, Moss has failed to show that the trial court would have sustained an objection to evidence regarding some of the details of his sexual history.

¶54 On the other hand, defense counsel arguably was deficient when he failed to object to evidence regarding the more lurid details of Moss's and Elizabeth's sex lives. For example, details regarding Elizabeth's use of nipple clamps likely were cumulative of the other evidence regarding Moss's interest in breasts and could have been excluded under ER 403. In addition, the prosecutor brought this detail up in closing arguments without drawing any connection to the evidence regarding Moss's interactions with AJ.

¶55 Nevertheless, even if defense counsel's failure to object to this evidence constituted deficient performance, we conclude that the result of the trial would not have been different had Moss objected. The objectionable comments were brief, and the State relied primarily on the admissible details of Moss's sexual interests in its closing arguments.

¶56 Therefore, we hold that Moss did not receive ineffective assistance of counsel when his defense counsel did not object to evidence regarding the details of his sex life.

3. Pegler's Statement

¶57 Moss argues that his trial counsel was ineffective because he failed to object to Pegler's testimony regarding what AJ was saying when she made a statement during her forensic interview. We disagree.

¶58 Moss argues that this evidence was improper because witnesses may not testify about the credibility of another witness and because it bolstered AJ's credibility. A witness may not testify to their opinion regarding the veracity of another witness. See State v. Case, 13 Wash. App. 2d 657, 674, 466 P.3d 799 (2020). However, testimony is not improper if it does not directly comment on the veracity of a witness, helps the jury, and is supported by the evidence. See State v. Fleeks, 25 Wash. App. 2d 341, 369, 523 P.3d 220 (2023). The term “bolstering” refers to the general rule that a party cannot introduce evidence for the sole purpose of enhancing a witness's credibility unless an opposing party has attacked that witness's credibility. See Vazquez, 198 Wash.2d at 259-60, 494 P.3d 424.

¶59 Here, a written transcript of the forensic interview reflected that at one point during the interview, AJ stated that “there was a time that he did it and my mom -- my mom was in his room.” RP at 119-20. At trial, AJ testified that Elizabeth was never home during the flashing incidents. When Moss confronted AJ with this transcript at trial, AJ agreed that it stated that her mom was in the room. But AJ also stated, “I don't think that's exactly what I said,” and that she “was meaning like him in my mom's room, but that's not what I recall.” RP at 120.

¶60 Moss played this section of the recording of the forensic interview during Pegler's testimony as impeachment evidence. Subsequently, the prosecutor asked Pegler if she knew what AJ was saying at that point in the interview. Pegler stated that AJ had said, “There was a time he did it in my mom's and his room.” RP at 190.

¶61 Pegler did not comment on AJ's veracity. Instead, Pegler's statement reflected her interpretation of what AJ said in the interview. And Pegler's testimony arguably was helpful to the jury because it helped to clarify the ambiguity created by the recording, the transcript, and AJ's testimony. Because Pegler was not commenting on or improperly bolstering AJ's credibility, Moss has not shown that the trial court would have sustained an objection to this question.

¶62 Even if defense counsel was deficient in failing to object to this testimony, Moss has not shown prejudice. The jurors had the recording of the forensic interview, and could hear for themselves what AJ said. AJ testified about what she meant. Moss has not shown that Pegler's interpretation of what was said would have affected the outcome of the trial.

¶63 Therefore, we hold that Moss did not receive ineffective assistance when his defense counsel did not object to Pegler's statement about what AJ said during the forensic interview.

4. Cumulative Error

¶64 Moss argues that even if the identified errors do not constitute prejudicial error on their own, he was prejudiced by the combined effect of each of these errors. Under the cumulative error doctrine, the defendant bears the burden to show that the combined effect of counsel's multiple errors requires a new trial. State v. Clark, 187 Wash.2d 641, 649, 389 P.3d 462 (2017). As discussed above, the only possible deficiency was failing to object certain aspects of Moss's sexual history and to Pegler's testimony about AJ's statement. But those failures caused no prejudice. Therefore, we conclude that there is no cumulative error that requires a new trial.

CONCLUSION

¶65 We affirm Moss's convictions.

FOOTNOTES

1.   We use Elizabeth's first name because she shares a last name with David Moss. No disrespect is intended.

2.   The trial court later dismissed one of the child molestation charges.

3.   Although there was a pattern of conduct here, we do not hold that a pattern of conduct is necessary to constitute a live performance.

Maxa, J.