State Of Washington v. Matthew Joseph Metcalf ( 2018 )

IlLED
COURT OF APPEALS DIV!
STATE OF WASH1N6TON
2018 AUG -6 AM (0: 141
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 79456-0-I
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
MATTHEW JOSEPH METCALF,
Appellant. FILED: August 6, 2018
TRICKEY, J. — Matthew Metcalf pleaded guilty to four counts of second
degree child molestation. The trial court imposed community custody conditions
that in part prohibited Metcalf from possessing or viewing pornography or sexually
explicit material; entering into any dating, romantic, or;sexual relationships without
the express written approval of his community corrections officer (CCO); and
entering into any dating, romantic, sexual, or friend relationships with adults with
minor children without the express written approval of his CCO. Because the terms
"pornography" and "romantic" are unconstitutionally vague in the context of
Metcalfs community custody conditions, we reverse in part and remand. We
otherwise affirm.
FACTS
Metcalf pleaded guilty to four counts of second degree child molestation.
The victims were not related to him.
No. 76456-0-1/ 2
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'MetCalts"judgiiidn't and 'tentence',- the 'trial coUrt imposed several
community custody conditions. The conditions included:
6. Do not possess or view any pornography or sexually explicit
material.
7. Do not enter into any dating, romantic, or sexual relationships
without the express written approval of your[CCO].
8. Do not enter into any dating, romantic, sexual, or friend
relationships with people who have minor children without the
express written approval of your[CCO].[1]
Metcalf appeals.
ANALYSIS
Unconstitutional Vagueness
Metcalf argues that the trial court abused its discretion when it imposed
community custody conditions containing unconstitutionally vague terms. We
examine each of the challenged terms in turn.
"[T]he due process vagueness doctrine under the Fourteenth Amendment
and article I, section 3 of the state constitution requires that citizens have fair
warning of proscribed conduct." State v. Bahl, 164 Wn.2d 739,752, 193 P.3d 678
(2008). Thus, laws must both "``(1) provide ordinary people fair warning of
proscribed conduct and (2) have standards that are definite enough to 'protect
against arbitrary enforcement." State v. Irwin, 191 Wash. App. 644, 652-53, 364
P.3d 830 (2015)(internal quotation marks omitted)(quoting Bahl, 164 Wash. 2d at
752-53).
When determining whether challenged language is sufficiently definite to
provide fair warning, the reviewing court must read the language in context and
'Clerk's Papers(CP) at 41.
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give it a "sensible, meaningful, and practical interpretation." City of Spokane v.
Douglass, 115 Wash. 2d 171, 180, 795 P.2d 693(1990). If a term is undefined, "the
court may consider the plain and ordinary meaning as set forth in a standard
dictionary." Bahl, 164 Wash. 2d at 754.
"[A] community custody condition is not unconstitutionally vague merely
because a person cannot predict with complete certainty the exact point at which
his actions would be classified as prohibited conduct." State v. Sanchez Valencia,
169 Wash. 2d 782, 793, 239 P.3d 1059 (2010) (internal quotation marks omitted)
(quoting State v. Sanchez Valencia, 148 Wash. App. 302, 321, 198 P.3d 1065
(2009)). Rather, a community custody condition is sufficiently definite if persons
of ordinary intelligence would understand what behavior is proscribed. Douglass,
115 Wash. 2d at 179.
"This court reviews community custody conditions for abuse of discretion."
Irwin, 191 Wash. App. at 652. "Imposing an unconstitutional condition will always be
'manifestly unreasonable." Irwin, 191 Wn.App. at 652(quoting Sanchez Valencia,
169 Wash. 2d at 792).
Pornography
Metcalf argues that the trial court abused its discretion when it imposed a
community custody condition prohibiting him from possessing or viewing
"pornography."2 Community custody conditions that restrict "accessing or
possessing pornographic materials" are unconstitutionally vague. Bahl, 164
Wash. 2d at 758. Therefore, we conclude that the trial court abused its discretion,
2 CP at 41.
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and remand for the trial court to strike the term from the community custody
condition.
Sexually Explicit Material
Metcalf argues that the trial court abused its discretion when it imposed a
community custody condition prohibiting him from possessing or viewing "sexually
explicit material" because the term "sexually explicit material" is unconstitutionally
vague.3 We disagree.
Community custody conditions that implicate material protected under the
First Amendment are held to a stricter standard of definiteness to avoid a chilling
effect on the exercise of First Amendment rights. Bahl, 164 Wash. 2d at 753.
The dictionary definition of "explicit" is "characterized by full clear
expression : being without vagueness or ambiguity . . . UNEQUIVOCAL."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 801 (2002).
In Bahl, the Washington Supreme Court upheld a community custody
condition that prohibited the defendant from frequenting "establishments whose
primary business pertains to sexually explicit or erotic material." 164 Wash. 2d at
758. The court relied on the dictionary definition of "explicit" to conclude that the
term "sexually explicit" was not unconstitutionally vague in the context of the
community custody condition. Bahl, 164 Wash. 2d at 758-60. The court also looked
to the statutory definition of "sexually explicit material" under RCW 9.68.130(2)4 to
3 CP at 41.
4 ROW 9.68.130(2) defines "sexually explicit material" as
any pictorial material displaying direct physical stimulation of unclothed
genitals, masturbation, sodomy (i.e. bestiality or oral or anal intercourse),
flagellation or torture in the context of a sexual relationship, or emphasizing
the depiction of adult human genitals: PROVIDED HOWEVER,That works
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No. 76456-0-1 /5
support its conclusion, although it noted that the defendant was not convicted
under the statute. Bahl, 164 Wash. 2d at 759-60.
Here, the community custody condition imposed on Metcalf prohibited him
from possessing or viewing sexually explicit material. Under the reasoning in Bahl,
the dictionary definition of "explicit" renders the term "sexually explicit material" not
unconstitutionally vague, as it applies only to material that is unequivocally sexual
in nature. Thus, it sufficiently warns Metcalf of what material is within the scope of
the community custody condition, and prevents arbitrary enforcement of the
condition by his CCO. But on remand, the trial court may consider adding
additional language or statutory references to provide further clarification of what
material is prohibited.
Romantic Relationships
Metcalf argues that the trial court abused its discretion when it imposed
community custody conditions prohibiting him from entering into "romantic"
relationships without the consent of his CCO because the term is unconstitutionally
vague.5 We agree.6
The dictionary definition of "romantic" is, in relevant part, "consisting of or
similar in form or content to a romance . . .: having an inclination or desire for
of art or of anthropological significance shall not be deemed to be within
the foregoing definition.
5 CP at 41.
6 Metcalf also argues that the term "dating" is unconstitutionally vague in the heading of
the relevant section of his opening brief. Appellant's Opening Br. at 12. But he does not
provide substantive argument in support of this contention. See Appellant's Opening Br.
at 12; see also Appellant's Reply Br. at 9-10 (reference to "dating" without substantive
argument that it is unconstitutionally vague). Because Metcalf has not provided
substantive argument in support of his claim, we decline to address this issue. RAP
10.3(a)(6).
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romance...: characterized by a strong personal sentiment, highly individualized
feelings of affection, or the idealization of the beloved or the love relationship."
WEBSTER'S, supra, at 1970.
The dictionary definition of the related term "romance" is, in relevant part,
"the quality or state of being romantic. . . : a love, love affair, or marriage of a
romantic nature...:LOVEMAKING...:an attraction or aspiration of an emotional
or romantic character. ..: to seek the favor or influence of by personal attention,
flattery, or gifts." WEBSTER'S, supra, at 1969-70 (internal footnotes omitted).
Here, based on the dictionary definitions of "romantic" and the related term
"romance," a romantic relationship includes heightened feelings of affection toward
an individual, rising to the level of love. Such feelings are inherently unique to an
individual, making the existence of a romantic relationship highly subjective. Given
this subjectivity, the dictionary definitions of "romantic" and the related term
"romance" fail to provide ordinary people with fair warning of the conduct
proscribed by the community custody conditions. Further, relying on the outside
perspective of Metcalf's CCO to determine whether Metcalf is exhibiting such
subjective emotions does not protect him from arbitrary enforcement of the
conditions.
Therefore, we conclude that the trial court abused its discretion when it
imposed the community custody conditions because the term "romantic" is
unconstitutionally vague. On remand, the trial court should strike the term
"romantic" from the conditions in which it appears.
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Friend Relationships
Metcalf argues that the trial court abused its discretion when it imposed a
community custody condition prohibiting him from entering into "friend"
relationships with people who have minor children without the consent of his CCO.
Because the dictionary definition of "friend" provides sufficient guidance about
what types of relationships are within the scope of the condition, we disagree.
The dictionary definition of "friend" is, in relevant part,
one that seeks the society or welfare of another whom he holds in
affection, respect, or esteem or whose companionship and
personality are pleasurable : an intimate associate esp. when other
than a lover or relative. . .: one not hostile or not an enemy.. . : a
favored date : a boyfriend or girlfriend.. . .
. . . FRIEND applies to a person one has regarded with liking
and a degree of respect and has known for a time in a pleasurable
relationship neither notably intimate nor dependent wholly on
business or professional ties.
WEBSTER'S, supra, at 911.
Here, the dictionary definition of "friend" applies to relationships Metcalf
seeks because he enjoys the company of another, or because he holds an
individual in some "affection, respect, or esteem." WEBSTER'S, supra, at 911. It
specifically excludes relationships that are notably intimate or are developed
through business or professional ties. The broad scope of the dictionary definition
of "friend," along with its specific exclusions, is sufficient to notify Metcalf of when
he must seek his CCO's approval prior to entering certain relationships and
prevents arbitrary enforcement of the condition by his CCO. Therefore, we
conclude that the term "friend" is not unconstitutionally vague in the context of the
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community custody condition requiring Metcalf to obtain the permission of his COO
prior to entering into "friend" relationships with adults who have minor children.
In sum, we agree with Metcalf that the trial court abused its discretion when
it imposed community custody conditions containing unconstitutionally vague
terms. Therefore, on remand,the trial court should strike the terms "pornography"
and "romantic" where relevant. We also conclude that although the term "sexually
explicit material" is not unconstitutionally vague, the trial court may add additional
language or statutory citations to clarify the scope of the term on remand. We
affirm the trial court's imposition of the community custody condition requiring
Metcalf to obtain the permission of his CCO prior to entering into "friend"
relationships with adults who have minor children.
Infringement of Constitutional Rights
Metcalf argues that the trial court interfered with his constitutional rights to
parent and to many when it did not exempt his wife and children from the
community custody condition prohibiting him from entering into various
relationships with people who have minor children without the consent of his COO.
Because Metcalf failed to object to the community custody condition on this ground
below and has not shown on appeal that any error was manifest, we decline to
reach the merits of this issue.
"The rights to marriage and to the care, custody, and companionship of
one's children are fundamental constitutional rights." State v. Warren, 165 Wash. 2d
17, 34; 195 P.3d 940(2008).
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An appellant may raise a claim of "manifest error affecting a constitutional
right" for the first time on appeal. RAP 2.5(a)(3). "[T]he appellant must 'identify a
constitutional error and show how the alleged error actually affected the
[appellant]'s rights at trial." State v. O'Hara, 167 Wash. 2d 91, 98, 217 P.3d 756
(2009)(second alteration in original) (quoting State v. Kirkman, 159 Wash. 2d 918,
926-27, 155 P.3d 125 (2007)). "To demonstrate actual prejudice, there must be a
'plausible showing by the [appellant] that the asserted error had practical and
identifiable consequences in the trial of the case." O'Hara, 167 Wash. 2d at 99
(alteration in original)(quoting Kirkman, 159 Wash. 2d at 935).
Here, Metcalf did not object to the imposition of the community custody
condition prohibiting him from entering various relationships with people who have
minor children on the ground that it interfered with his constitutional rights.
Therefore, on appeal, he bears the burden of both identifying a constitutional right
that was infringed and establishing that the error was manifest.
Metcalf has identified his constitutional rights to parent and to marry, and
thus has likely satisfied the first prong of his burden. But he has not argued on
appeal that the error was manifest. Rather, his arguments focus exclusively on
the existence of the constitutional rights he asserts. Because Metcalf has not
carried his burden of establishing that the claimed constitutional error was
manifest, we decline to review his argument on appeal under RAP 2.5.
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Affirmed in part, reversed in part, and remanded.
WE CONCUR:
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