A Pasco man did not know it was a crime when he took pictures and videos of himself having consensual and “legal sex” with his 16-year-old girlfriend, his lawyer said.
Frank Murillo IV, now 21, has found himself in a unique situation and should not be punished with a lengthy prison sentence “for some pictures on his phone,” attorney Todd Harms told the court.
But Franklin County Judge Alex Ekstrom disagreed, telling Murillo that his “behavior showed a disregard for (the girl’s) privacy by filming and keeping the record of the sex acts on your phone.”
Ekstrom, in finding that each illicit image is a “separate incident of conduct,” ordered Murillo on Tuesday to serve seven years in state prison.
The sentencing range was six years and five months to 8 1/2 years, with Deputy Prosecutor Maureen Lorincz recommending the top.
Harms had asked for one year and nine months behind bars, arguing that all of the images should be treated as one crime so his client would have a lower offender score, which would shorten the sentence range.
Though it may have been legal for Murillo to have sex with the girl, the pictures and videos are considered child pornography under Washington law. There was no evidence that Murillo distributed the images.
Murillo was convicted in May by a Franklin County Superior Court jury of 10 counts of first-degree possession of depictions of a minor engaged in sexually explicit conduct.
The jury acquitted him on one count each of sexual exploitation of a minor and possession with intent to deliver marijuana.
Murillo was arrested in February 2014 for driving a vehicle with a suspended license and for violating probation conditions. Pasco Officer Chad Pettijohn had seen Murillo driving near the Tahitian Motor Inn and, after numerous contacts with Murillo over the years, knew Murillo shouldn’t be driving.
An initial search of Murillo’s vehicle for violating his Department of Corrections conditions turned up evidence that led Pettijohn to get a search warrant signed by a judge.
Police found 78 grams of marijuana in 12 baggies, and a jar of pot, court documents said. Murillo, who gave police his medical marijuana authorization, said the pot was his medicine for migraine headaches and “he just liked to smoke a lot,” according to documents.
Pettijohn was looking at Murillo’s three cellphones for drug-related activity when he discovered sex videos with a teen girl, so he got a follow-up warrant which uncovered hundreds of pornographic images of the girl on one of the phones.
Murillo was living at the Tahitian Motor Inn at the time. The girl confirmed it was her in the images and said Murillo never talked to her about filming the sex acts but just started recording, court documents said.
A later forensic analysis of the phone recovered about 1,600 porn images of the girl, documents said.
Community Corrections Officer Charles Dorendorf made several attempts to reach the victim for a presentencing report but was unsuccessful.
Murillo told Dorendorf “he didn’t think there was anything illegal about making the videos, and said he would have never done it had he known it was illegal,” the report said. He admitted making the images on different days in December 2013, and said he had forgotten about them on the cellphone until discovered by police.
Harms argued “there just serves no purpose to put my client in jail” for more than two years because Murillo is not a threat to the public. He said prisons aren’t about rehabilitating but just learning to survive behind bars, and don’t teach the offender about living in a law-abiding society.
Lorincz disputed the defense claims that this would never happen again. She said that while Murillo has been locked up in jail since April 2014, he’s written the mother of one of his children requesting pictures of her coworkers in their underwear.
“Clearly he thought he did nothing wrong here, but what he did was violate a young girl’s trust,” Lorincz said. “He had no care or concern for (the victim) for what he did.”
She described Murillo as a “user,” saying he has demanded money from his child’s mother and asked her to provide him with an MP3 player and television for his prison cell.
Murillo told the court that it’s “been a big learning experience for me” because the longest he was incarcerated before this crime was four months.
“It’s just been hard because I have three children out there that need me,” he told Ekstrom. “I grew up without a real father and don’t want my children to grow up without a father.”
Ekstrom said he did not believe Murillo initiated the relationship out of some desire to help the girl, but out of his desire to have sex.
“Sir, you express a desire to be a good father and to care for your children, but your behavior needs to match that and your behavior did not here,” Ekstrom said. “You have to accept responsibility. Most troubling here is your lack of remorse and ... you have to understand that while (Harms) raised those arguments, the state of Washington defines this as a crime.”
“Fundamentally I find it unconvincing that you wouldn’t know that that’s something you shouldn’t do,” the judge added.
Murillo has convictions for unlawfully manufacturing marijuana in 2013 and residential burglary in 2008, along with a lengthy misdemeanor history.
He must register as a sex offender and is ordered to have no contact with the girl as part of this new conviction.
Harms told the court he will file a notice of appeal on Murillo’s behalf.