State Of Washington v. Scott Miller ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, No. 77334-8-1
Respondent,
V. UNPUBLISHED OPINION
MILLER, SCOTT CARY,
Appellant. FILED: April 29, 2019
SCHINDLER, J. — The State charged Scott Cary Miller with child molestation in the
first degree and rape of a child in the first degree. Following a stipulated trial, the court
found Miller guilty as charged. Miller submitted a sexual deviancy evaluation in support
of his request for a special sex offender sentencing alternative (SSOSA). The court
agreed to impose a SSOSA and suspended 77 months on child molestation in the first
degree and 119 months on rape of a child in the first degree. Miller appeals the
decision to revoke the SSOSA and challenges a number of community custody
conditions. We affirm the decision to revoke the SSOSA. We affirm imposition of
community custody conditions 11, 13, and 14 but remand to strike condition 8 and to
strike or clarify conditions 6 and 15.
FACTS
In 2012, 15-year-old R.M. told a high school counselor that her father Scott Cary
Miller "raped her when she was five years old." The counselor reported the sexual
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assault to the police. R.M. told Everett Police Officer Karen Kowlachyk that when she
was "about 4 1/2 to 5" years old, Miller "would make her touch his penis." R.M. said
Miller put her on his bed and "told her to grab his penis" and "rub her hand up and
down." R.M. described "three or four other incidents" of sexual contact with Miller. R.M.
said they were "in the bedroom"three different times" and "one time on the couch in the
living room." R.M. said on one occasion, Miller "put her mouth on his penis" and told
her to "lick his penis . . . 'Mike a lollipop.'" In a written statement, R.M. said that one
time, Miller "brought a video and told me to do what the lady did" on the video.
Officer Kowlachyk interviewed Miller. Miller told Officer Kowlachyk he "wasn't
going to deny the 'touching penis thing.'" Miller admitted, "[I]t happened . . . maybe 'two
or three times.'" Miller "remember[ed] the time on the couch and the 'mouth part'"and
"recalled one or two other times in the bedroom where he had her touch him." Miller
said, "During that time, he was drinking a lot" and that he was "'horny and frisky'"and
took "advantage of an opportunity." Miller said he "made a conscious decision to stop"
because "it had gone too far."
The State charged Miller with child molestation in the first degree and rape of a
child in the first degree of R.M. Miller stipulated to a bench trial. On December 9, 2013,
the court found Miller guilty as charged and entered findings of fact and conclusions of
law.
Before sentencing, certified sex offender treatment provider Norman Glassman
conducted a sexual deviancy evaluation of Miller. Miller told Glassman he was an
alcoholic and he was "frequently drunk" and "using marijuana at the time he was
abusing his daughter." Miller said that he "subscribed to an [I]nternet pornographic
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website" and he "watched X-rated videos as recently as several weeks before the
evaluation."
Glassman recommended the court impose a special sex offender sentencing
alternative(SSOSA)and Miller obtain a substance abuse evaluation. Glassman
concluded, "Mr. Miller is an opportunistic offender and has not re-offended in many
years." Glassman said Miller's "issues can be addressed in treatment." Glassman
recommended Miller follow all SSOSA conditions and after a substance abuse
evaluation, all treatment recommendations. Glassman specifically recommended that
Miller "enter and complete a weekly comprehensive sexual deviancy treatment
program"; "not use any alcohol or illegal drugs during the entire treatment period"; "not
buy or have in his possession any pornographic materials," including "computer and/or
[I]nternet generated pornography"; "have [I]nternet access only with permission of his
CCO[1] and therapist"; and "not date women who have minor children or form
relationships with families who have minor children."
At the sentencing hearing on December 9, 2013, the court agreed to impose a
SSOSA. The court sentenced Miller to 89 months for molestation of a child in the first
degree, count 1; and 131 months for rape of a child in the first degree, count 2. The
court suspended 77 months as to count 1 and 119 months on count 2. The court
ordered Miller to serve 12 months and imposed a term of community custody for life.
The judgment and sentence states Miller shall undergo sex offender treatment
for three years. The court imposed a number of conditions. But the court did not
impose any conditions related to use of computers or the Internet.
1 Community corrections officer.
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After his release from jail, Miller began sex offender treatment with certified
treatment provider Randy Green. On January 15, 2016, Green sent a "Treatment
Violation Report" to the CCO. Green states Miller "reported pornography use" that
violated two provisions of the "Treatment Contract." The two provisions of the
Treatment Contract that Miller violated state:
Item Number 7) No part of a client's life is considered "private" with
respect to treatment. This includes issues, feelings, thoughts,
relationships, behaviors, and activities. Clients are expected to bring up
anything important which has come up since the last session and to
discuss major life decisions or changes in advance of making such
decisions or changes.
Item Number 16) Clients must not view or possess pornography and
erotic material. This includes sexually explicit computer or Internet
images, pornographic magazines (both "soft" and "hard" porn),
pornographic books; X-rated movies and/or videos; the Playboy channel
or other sexually explicit TV[2] programs; sexually suggestive or explicit
telephone services; peepshows and "adult bookstores"; and anything else
which is pornographic or sexually exploitative. Client must not masturbate
while watching television or use non-pornographic materials for deviant
purposes.
Green stated Miller's "access to pornography was prominent in his offending
behavior, and his doing so now should be recognized as an increase factor in his risk
for reoffense." Green stated Miller's "continued accessing pornography is made more
troubling because of the elaborate denial and avoidance with which he concealed it."
However, Green concluded that "[w]hile we are saddened by revelations that he has
been accessing pornography all the while, we nonetheless resist a conclusion that the
treatment violation is 'fatal' . . . and only informs the path forward." Green
recommended Miller "be restricted from any kind of [I]nternet access for a minimum of
2 Television.
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six months." On January 19, the CCO submitted a "Notice of Violation" that attached
the Treatment Violation Report.
On February 5, 2016, the State filed a "Petition for Order Modifying Sentence/
Revoking Sentence/Confining Defendant" with the January 15 Treatment Violation
Report and the January 19 Department of Corrections(DOC) Notice of Violation. The
petition states Miller violated the conditions of his SSOSA by (1)"[flailing to abide by his
Sex Offender Treatment contract by not being transparent about his issues, feelings[,]
thoughts, relationships, behaviors, and activities" and (2)"[flailing to abide by his Sex
Offender Treatment contract by viewing and possessing pornographic/erotic material."
At the hearing on March 7, 2016, Miller stipulated to the two violations of the
SSOSA conditions. The court continued the hearing to determine whether to impose a
sanction or revoke the SSOSA.
Green and the supervising CCO testified at the hearing on April 21, 2016. Green
testified Miller's "risk to re-offend is low." Green said Miller "viewing pornography" is "a
factor in his offending" but it does not "necessarily increase our assessment of his risk
to re-offend." Green testified Miller "completed the assignments that I gave him relative
to this violation . . . with the exception I think of getting [1]nternet monitoring software."
The court found Miller violated the SSOSA conditions. The court entered an
order modifying the SSOSA. The court modified the SSOSA to order Miller to purchase
"monitoring software" and "take all of his Internet-capable devices to 5/03/16
appointment with CCO for installation."
On December 1, 2016, Green submitted a progress report to the CCO. Green
states Miller violated the terms of the treatment agreement by using "images of b[r]easts
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during lactation . . . for erotic purposes." Green states that in October, Miller "requested
to cancel a few appointments, offering scarcely believable reasons for doing so, and
was still struggling to work on his treatment assignments." Green suspended treatment
in November. Green said Miller wanted "to find another treatment provider" because
Green "'persecute[s]' him because of his Christian faith."
On December 13, the State filed a petition for an order to modify the SSOSA and
the November 30, 2016 DOC violation report. The petition states Miller did not comply
with the following six SSOSA conditions:
1. Failing to abide by Sex Offender Treatment contract by viewing
non-pornographic for the purposes of sexual gratification,
masturbating to "lactating breast" video on or about 11-8-16;
2. Failing to abide by Sex Offender Treatment contract by viewing or
possessing pornographic and erotic materials, by viewing nude
photos of "Helen Fox" on or about 11-8-16;
3. Failing to abide by Sex Offender Treatment contract by viewing or
possessing pornographic and erotic materials, by viewing a
pornographic website "twistynetwork.com" on or about 11-18-16;
4. Uninstalling Covenant Eyes monitoring software on his cell phone
for an unknown period of time without permission on or about 11-
22-16;
5. Failing to abide by Sex Offender Treatment contract by not being
transparent about his issues, feelings, thoughts, relationships,
behaviors, and activities since on or about October 2016; and,
6. Failing to abide by Sex Offender Treatment contract by having
treatment services suspended due to failure to pay balance since
on or about 11-21-16.
In January 2017, Miller entered into treatment with certified sex offender
treatment provider Gianna Leoncavallo.
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At a hearing on March 16,2017, Miller stipulated to masturbating to a lactating
breast, viewing nude photographs, and uninstalling the Internet monitoring software
from his cell phone.
The court found that Miller willfully violated the conditions of his SSOSA by
"masturbating while looking at a breast," viewing nude photographs, uninstalling Internet
monitoring software from his cell phone, failing to abide by his Treatment Contract by
"not being transparent," and failing to abide by his Treatment Contract for failure to pay.
The court found that Miller did not violate the conditions of his SSOSA by viewing the
website "Twistynetwork.com."
As previously recommended by the SSOSA treatment provider, the court entered
an order modifying the SSOSA to limit Miller's Internet access for six months:
Internet access is prohibited until 09/13/17 @ 1:00 pm except for searches
for employment, access to email, church applications, scheduling medical
appointments, Spectrum, plasma donations[J . . . to advertise wood
products,[and] to set up jail visits with his son.
On July 13, 2017, Leoncavallo terminated treatment with Miller. In a letter to the
CCO, Leoncavallo states Miller "has continued to be resistant, argumentative, defensive
and controlling in group. I do not believe he is capable of making progress in my
program at this time."
On August 10, 2017, the CCO submitted a Notice of Violation. The Notice of
Violation states that on July 26, the CCO received an "Accountability Report" from
Internet monitoring company Covenant Eyes. The Accountability Report showed Miller
installed Facebook and Instagram applications on his phone and accessed the website
Reddit.com. Covenant Eyes also flagged a YouTube website video accessed by Miller
as "Highly Mature."
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On August 17, 2017, the State filed a petition to modify or revoke the SSOSA
and the August 10 Notice of Violation. The petition alleged Miller violated the conditions
of his SSOSA by (1)"[nailing to enter into and successfully complete a sex offender
treatment program" and (2)"[u]sing the [1]nternet contrary to court instruction."
At the revocation hearing on September 1, Miller stipulated to the violations.
Miller testified he "read everything" in the Notice of Violation, as well as what the "other
participants that have written information that you have read, and I can't argue with a lot
of it."
Defense counsel argued the court should not revoke the SSOSA because a third
treatment provider is "willing to take him on as a patient" and Miller is "amenable to
treatment." Defense counsel argued there was some "confusion" and Miller believed his
"six-month term on the [I]nternet access expired in June."
The court found Miller violated the conditions of his SSOSA. The court found
Miller "is not at this point making satisfactory progress and he has not successfully
completed" treatment. The court found, "Both treatment providers have indicated that
they felt he was not making successful progress or satisfactory progress."
The court found Miller violated the conditions of the SSOSA by using the Internet
"contrary to the Court's instructions." The court found that the "court order is clear.
Internet access is prohibited until, and it's clear, September 13, 2017." The court noted
this is not Miller's "first violation." The court stated:
You've been here before. And I view that your violation here, in direct
conflict with the order, is proof that you are not going to successfully
complete treatment, because you're stubborn, you're hardheaded, and
you're opinionated, and you're going to do whatever you want to do and
whenever you want to do it."
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The court concluded revocation of the SSOSA was the "appropriate thing to do
based on the numerous violations that have occurred." The court entered an order
revoking the SSOSA. The order states Miller willfully violated the terms and conditions
of his SSOSA by "[flailing to successfully complete a sex offender treatment program"
and using the Internet "contrary to court instruction." The order states Miller "failed to
make satisfactory progress in treatment."
ANALYSIS
SSOSA Revocation
Miller contends the court improperly revoked the SSOSA based on violation of
the Internet use condition that infringed on his First Amendment right to free speech,
United States Constitution, amendment I.
Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,the court
has the statutory authority to revoke a SSOSA if (a) the offender "violates the conditions
of the suspended sentence" or (b)"the court finds that the offender is failing to make
satisfactory progress in treatment." RCW 9.94A.670(11); State v. Miller, 180 Wash. App.
413, 416, 325 P.3d 230 (2014). We review community custody conditions for abuse of
discretion. State v. Nguyen, 191 Wash. 2d 671, 678, 425 P.3d 847(2018); State v. Padilla,
190 Wash. 2d 672, 677, 416 P.3d 712 (2018). The imposition of an unconstitutional
condition is manifestly unreasonable. Nguyen, 191 Wash. 2d at 678; Padilla, 190 Wash. 2d at
677.
The First Amendment prohibits the government from proscribing speech or
expressive conduct. Where a sentencing court interferes with a fundamental
constitutional right, the condition must be reasonably necessary to accomplish the
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No. 77334-8-1/10
essential needs of the State and public order. State v. Warren, 165 Wash. 2d 17, 32, 195
P.3d 940 (2008). "[C]onditions that interfere with fundamental rights must be sensitively
imposed." Warren, 165 Wash. 2d at 32.
An offender's constitutional rights during community custody are subject to the
infringements authorized by the SRA. State v. Ross, 129 Wash. 2d 279, 287, 916 P.2d
405 (1996). A court has the statutory authority to impose crime-related prohibitions.
Warren, 165 Wash. 2d at 32. A "crime-related prohibition" prohibits "conduct that directly
relates to the circumstances of the crime." RCW 9.94A.030(10).
Miller concedes the State has an interest in preventing him from accessing
pornography because pornographic materials are "related to his crime." Miller cites
Packingham v. North Carolina, U.S. , 137 S. Ct. 1730, 198 L. Ed. 2d 273
(2017), to argue the condition limiting his use of the Internet for six months "unlawfully
suppressed significantly more speech than necessary to achieve the government's
interest."
In Packingham, the United States Supreme Court held that a North Carolina law
that "makes it a felony for a registered sex offender 'to access a commercial social
networking Web site where the sex offender knows that the site permits minor children
to become members or to create or maintain personal Web pages' "violated the First
Amendment because it restricted lawful speech. Packinqham, 137 S. Ct. at 1733, 1738
(quoting N.C. GEN. STAT. § 14-202.5(a)).
The Supreme Court acknowledged that" '[t]he sexual abuse of a child is a most
serious crime and an act repugnant to the moral instincts of a decent people'"and "a
legislature 'may pass valid laws to protect children' and other victims of sexual assault
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No. 77334-8-1/11
'from abuse.'" Packingham, 137 S. Ct. at 1736 (quoting Ashcroft v. Free Speech Coal.,
535 U.S. 234, 244-45, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)). However, the Court
concluded the North Carolina law that prohibits access to "websites like Facebook,
Linked In, and Twitter" was not narrowly tailored and was "unprecedented in the scope
of First Amendment speech it burdens." Packingham, 137 S. Ct. at 1737. The Court
states that to "foreclose access to social media altogether is to prevent the user from
engaging in the legitimate exercise of First Amendment rights." Packingham, 137 S. Ct.
at 1737. The Court concluded:
By prohibiting sex offenders from using those websites, North Carolina
with one broad stroke bars access to what for many are the principal
sources for knowing current events, checking ads for employment,
speaking and listening in the modern public square, and otherwise
exploring the vast realms of human thought and knowledge. These
websites can provide perhaps the most powerful mechanisms available to
a private citizen to make his or her voice heard. They allow a person with
an Internet connection to "become a town crier with a voice that resonates
farther than it could from any soapbox."
Packinqham, 137 S. Ct. at 1737 (quoting Reno v. Am. Civil Liberties Union, 521 U.S.
844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)).
Here, unlike in Packingham, the court did not foreclose Miller's access to social
media altogether. The court restricted Miller's Internet access for six months after Miller
violated the conditions of his SSOSA by masturbating to images of a lactating breast,
viewing nude photographs of a woman, and uninstalling the Internet monitoring
software. Because Miller consistently violated the conditions designed to prevent him
from accessing pornographic materials, the six-month condition limiting Miller's access
to the Internet but allowing him to use the Internet to search for employment, access
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No. 77334-8-1/12
church applications and media, and schedule medical appointments and visits with his
son was narrowly tailored and reasonably necessary.
The uncontroverted record established Miller repeatedly violated the SSOSA
conditions and the six-month limitation n using the Internet to access pornography.
The court did not abuse its discretion by revoking the SSOSA.
Right to Confrontation
Miller contends the court violated his right to confront and cross-examine
witnesses at the revocation hearing. "The revocation of a suspended sentence is not a
criminal proceeding." State v. Dahl, 139 Wash. 2d 678, 683, 990 P.2d 396 (1999). In
SSOSA revocation hearings, offenders are entitled to the same minimal due process
rights as those afforded in probation or parole revocation hearings. Dahl, 139 Wash. 2d at
683.
Minimal due process requires (a) written notice of the claimed violations,(b)
disclosure to the defendant of the evidence against him,(c) the opportunity to be heard
in person and to present witnesses and documentary evidence,(d) the right to confront
and cross-examine witnesses (unless there is good cause for not allowing
confrontation),(e) a neutral and detached hearing body, and (f) a written statement by
the court as to the evidence relied upon and the reasons for the revocation. Morrissey
v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). "Courts have
limited the right to confrontation afforded during revocation proceedings by admitting
substitutes for live testimony, such as reports, affidavits and documentary evidence."
Dahl, 139 Wash. 2d at 686. The court ma consider hearsay evidence if there is "good
cause to forego live testimony." Dahl, 1 39 Wash. 2d at 686.
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Miller contends the court abused its discretion by admitting treatment provider
Leoncavallo's letter terminating his treatment and the CCO's testimony that Leoncavallo
told him Miller "wasn't making progress" and was using "spirituality as a crutch."
At the hearing, Miller testified that he struggled in treatment because it was "a
very confrontational environment" and 'an environment that's not friendly to hear, oh, I
read in the Bible this or that; that wasn' received well." Miller testified that he is
"stubborn" and "hardheaded" because f "God and Jesus Christ in my life that has given
me a spirit, a fear for the system and fear of God to tell the truth and to be honest."
The CCO testified:
So when I spoke with the treatm nt provider,[Leoncavallo], the things that
she kind of pointed to me in gro0 why he wasn't making progress is
because of many of the things that Mr. Miller spoke about to you, being
hardheaded, being argumentative, and one of the things that she
specifically spoke on was spirituality. That he would use spirituality as a
crutch and not use SOTP[3] treati-nent. And so he would not go through
what she wanted him and he wanted to use religion as specifically his
treatment.
Even if admission of the hearsay statements was error, the error was harmless.
Dahl, 139 Wash. 2d at 688 ("Violations of a defendant's minimal due process right to
confrontation are subject to harmless error analysis."). There is no dispute that Miller
failed to successfully complete a sex ofiender treatment program with either Green or
Leoncavallo. Miller stipulated that he v olated the SSOSA by failing to "successfully
complete" a sex offender treatment program and admitted that he was terminated from
the two treatment programs.
3 Sex offender treatment program.
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Community Custody Conditions
Miller challenges imposition of the following six community custody conditions:
6. Do not frequent areas where minor children are known to
congregate, as defined by the supervising Community Corrections
Officer.
8. Do not date women as directed by the supervising Community
Corrections Officer. Mr. Miller may continue his current relationship
with his wife, Marjorie Miller, and his other children . . . .
11. Do not. . . frequent establishments where alcohol is the chief
commodity for sale.
13. Do not associate with known users or sellers of illegal drugs.
14. Do not possess drug paraphernalia.
15. Stay out of drug areas, a defined in writing by the supervising
Community Corrections Officer.
Miller contends the court exceeded the statutory authority to impose the
conditions because the conditions are unconstitutionally vague.
"The Fourteenth Amendment to he United States Constitution along with article
1, section 3 of the Washington State Constitution require that citizens be afforded fair
warning of proscribed conduct." Nguyen, 191 Wash. 2d at 678. A community custody
condition is unconstitutionally vague if(1) it does not sufficiently define the proscribed
conduct so an ordinary person can understand the prohibition or (2) it does not provide
sufficiently ascertainable standards to protect against arbitrary enforcement. State v.
Bahl, 164 Wash. 2d 739, 752-53, 193 P.31: 678 (2008)(citing City of Spokane v. Douglass,
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115 Wash. 2d 171, 178, 795 P.2d 693(1990)). But"'a community custody condition is not
unconstitutionally vague merely because a person cannot predict with complete
certainty the exact point at which his a tions would be classified as prohibited
conduct.'" State v. Sanchez Valencia, 169 Wash. 2d 782, 793, 239 P.3d 1059 (2010)4
(quoting State v. Sanchez Valencia, 14 Wash. App. 302, 321, 198 P.3d 1065 (2009),
rev'd, 169 Wash. 2d 782). In determining whether a term is unconstitutionally vague, "the
terms are not considered in a 'vacuum, rather, they are considered in the context in
which they are used." Bahl, 164 Wn.2 at 754. "When a statute does not define a term,
the court may consider the plain and ordinary meaning as set forth in a standard
dictionary." Bahl, 164 Wash. 2d at 754.
Miller contends condition 11 that prohibits him from frequenting establishments
where alcohol is the "chief commodity for sale" is unconstitutionally vague because a
reasonable person would not know what "the term 'chief commodity' means" and the
condition is subject to arbitrary enforcement. We disagree. The dictionary defines
"chief" as "marked by greatest importance, significance, influence" and defines
"commodity" as "an economic good." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
387, 458 (2002). An establishment where "alcohol is the chief commodity for sale" is an
establishment where alcohol is the most important good for sale or whose primary
purpose is the sale of alcohol. Because an ordinary person would understand the
prohibition, condition 11 is not unconstitutionally vague.
Miller contends condition 13 that prohibits him from associating with "known
users or sellers of illegal drugs" is unco stitutionally vague because it is unclear who
4 Internal quotation marks omitted.
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No. 77334-8-1/16
must have knowledge that a person is a "known" user or seller of illegal drugs. In In re
Personal Restraint of Brettell, 6 Wash. App. 2d 161, 169, 430 P.3d 677(2018), we
considered and rejected the same argument. We held Washington case law does not
support the conclusion that "'known,' when used in a community custody condition,
refers to the knowledge of anyone other than the offender." Brettell, 6 Wash. App. 2d at
169; see also United States v. Vega, 545 F.3d 743, 749-50 (9th Cir. 2008)(condition
prohibiting association with "'any member of any criminal street gang'"limited to
people "known" by the defendant to be gang members). Because the condition
prohibits association with people known by Miller to be users or sellers of illegal drugs,
condition 13 is not unconstitutionally vague.
Citing Sanchez Valencia, 169 Wash. 2d 782, Miller argues condition 14 that
prohibits possession of "drug paraphernalia" is unconstitutionally vague. We disagree.
In Sanchez Valencia, the Washington Supreme Court concluded a condition prohibiting
"'any paraphernalia' "generally, rather than "drug paraphernalia," was
unconstitutionally vague. Sanchez Valencia, 169 Wash. 2d at 794. Here, unlike in
Sanchez Valencia, condition 14 specifically prohibits possession of "drug
paraphernalia." RCW 69.50.102(a) defines "drug paraphernalia" as follows:
[A]ll equipment, products, and materials of any kind which are used,
intended for use, or designed for use in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packaging, repackaging, storing,
containing, concealing, injecting, ingesting, inhaling, or otherwise
introducing into the human body a controlled substance.
Miller contends conditions 6 and 15 that prohibit him from frequenting areas
where minors congregate or drug areas as defined by the supervising CCO are
unconstitutionally vague. The State concedes that the superior court should either
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No. 77334-8-1/17
clarify or strike these conditions. We accept the concession as well taken. See State v.
Irwin, 191 Wash. App. 644, 655, 364 P.3d 830(2015)(requiring "clarifying language or an
illustrative list of prohibited locations"). We remand to clarify or strike conditions p and
15.
Miller contends condition 8 that prohibits him from "dat[ing] women as directed by
the supervising Community Corrections Officer" is vague and infringes on his
fundamental right to marry. The right to marry is a fundamental right. Loving v. Virginia,
388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). Any condition affecting a
fundamental right must be narrowly drawn after deciding that no reasonable alternative
exists to achieve the State's interest. Warren, 165 Wash. 2d at 34-35.
There is no dispute that where the crime involves a sexual act against a child
with whom the defendant has contact through a parental relationship or "social
relationship with their parents," the court may impose a community custody cond tion
directing the offender to refrain from dating women who have minor children. State v.
Kinzie, 181 Wash. App. 774, 785, 326 P.3d 870 (2014); see also State v. Autrey, 16 Wn.
App. 460, 465, 468, 150 P.3d 580 (2006)(affirming condition requiring "prior approval"
of therapist and CCO before engaging in sexual contact because "the offender's
freedom of choosing even adult sexual partners is reasonably related to the[] crimes
because potential romantic partners may be responsible for the safety of live-in or
visiting minors"). Such a condition does not improperly infringe on the fundamental right
to marry. Kinzie, 181 Wash. App. at 785.
But here, unlike in Kinzie, the condition states Miller shall "not date women as
directed by the supervising Community Corrections Officer." Because condition
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No. 77334-8-1/18
prohibits Miller from dating any women subject to the discretion of his CCO, the
condition implicates the fundamental right to marry and is not narrowly drawn. We
remand to strike the condition without prejudice to imposing a narrowly drawn condition
that prohibits Miller from dating women who have minor children.
We affirm the decision to revoke the SSOSA. We affirm imposition of community
custody conditions 11, 13, and 14. We remand to strike condition 8 and to strike or
clarify conditions 6 and 15.
Q,ClizA\NML-, ,
WE CONCUR:
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