State Of Washington v. Andre Watts ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 70146-1-1
Respondent,
v. UNPUBLISHED OPINION
ANDRE LAMAR WATTS,
Appellant. FILED: July 28, 2014
Schindler, J. — Andre Lamar Watts pleaded guilty to one count of incest in the
first degree of his daughter T.D. Watts challenges the community custody condition
prohibiting him from having unsupervised contact with minors, including his children.
We affirm.
FACTS
On May 21, 2012, the State charged Andre Lamar Watts with two counts of
incest in the first degree of his daughter, date of birth November 22,1988. The State
alleged that between November 22, 2006 and September 30, 2011, Watts engaged in
sexual intercourse with his daughter T.D.
On January 10, 2013, Watts pleaded guilty to one count of incest in the first
degree of T.D. between November 22, 2006 and September 30, 2011. Watts admitted
that "[d]uring a period of time between 11/22/2006 and 9/30/2011, Iengaged in sexual
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intercourse with a person I knew to be related to me - [T.D.], my descendant." As part
of the felony plea agreement, Watts stipulated to the "real and material facts for
purposes of this sentencing [as] set forth in the certification(s) for determination of
probable cause and the prosecutor's summary."
The plea agreement states that the State will recommend a sentence of 24
months of confinement, 36 months of community custody, entry of a no-contact order
prohibiting Watts from contact with T.D., and no contact with "any minors without the
supervision of a responsible adult who has knowledge of this conviction and order.
Defendant may have supervised contact with his biological children, unless sex offender
treatment provider concludes such contact is not in the best interests of his treatment."
Watts filed a presentence memorandum. Watts objected to sexual offender
treatment and imposition of a no-contact order prohibiting unsupervised contact with
minors. Watts argued that he already underwent sexual deviancy treatment as a
condition of his 2009 gross misdemeanor conviction of communicating with a minor for
immoral purposes. Watts asserted that because T.D. "was 17 or 18 years old" when the
sexual relationship began, there was "no nexus between this case and the imposition of
a [no-contact order] with minors." The memorandum states that Watts has four minor
children, two minor grandchildren, and regularly sees the minor daughter of his ex-
girlfriend. Watts also states that upon his release, he plans to live with his fiancee and
her two minor children.
At sentencing, the defense objected to imposition of a no-contact order with
minors because Watts could not live with his fiance and her two children, or see his
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children. Defense counsel argued, in pertinent part:
[A]s I laid out in my report, Mr. Watts has several young children and then
there's also many other young children that are involved in his life, that
he's a part of their life, and he would like to continue to be able to be a
part of their life. Now the order that the state's requesting does say, you
know, except for ~ with a ~ you know, adults, who are aware of the
charges and they're all aware; all of the individuals in his family are aware
of this charge, but the reason we're asking the Court to not impose that
order is because in 2009, with the [communicating with a minor for
immoral purposes] conviction; the Court imposed an identical order there
and although all the adults in his life were aware of that conviction - of the
order, [Washington State Department of Corrections] would not let him live
in his home. Because of that order. And so he was homeless for several
months, which delayed him from getting a job; delayed him from getting
into treatment; that left him no stable residence, no - no home and
stability and that sort of thing and we're asking the Court to not impose an
order.
The court imposed a standard-range sentence of 24 months confinement, 36
months of community custody, no contact with T.D., and no unsupervised contact with
minors for the maximum term of 10 years. The court in its oral ruling states, in pertinent
part:
A no-contact order will be entered as the state proposes; I don't
have a problem with something in it indicating that [Watts] can reside in a
home where the other adults are aware of this case and he's to not be left
alone with the children. I don't think this is an automatic he can't live in
the home with children; he just can't be alone in the home with children.
Section 4.6 of the judgment and sentence provides that Watts cannot have
contact with "[a]ny minors without supervision of a responsible adult who has knowledge
of this conviction," but that he may reside in a home with minors "if an adult who has
knowledge of this conviction resides there" and he is not left "alone with minors in that
residence." Section 4.6 provides:
4.6 NO CONTACT: For the maximum term of 10 years, defendant shall
have no contact, direct or indirect, in person, in writing, by telephone,
or through third parties with: T.D. (DOB: 11/22/88)
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[ ^ ] Any minors without supervision of a responsible adult who has
knowledge of this conviction. Defendant may have supervised
contact with his biological children unless sex offender treatment
provider concludes such contact is not in the best interests of
defendant's treatment. Defendant may reside in a residence where
minors live if an adult who has knowledge of this conviction resides
there also but the defendant may not be alone with minors in that
residence at any time.
The court is not denying the opportunity for a future motion to modify
the no-contact order.[1]
The community custody condition prohibits Watts from having "direct and/or
indirect contact with minors" but adds the notation, "See [section 4.6] of judgment and
sentence."
ANALYSIS
Watts contends the court erred by imposing the no-contact order and community
custody condition limiting his contact with minors, including his own children. Watts
asserts there is no nexus between the crime of incest in the first degree of T.D. and the
limitation on contact with minors.
Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a court has the
authority to impose "crime-related prohibitions" as a condition of a sentence. RCW
9.94A.505(8). " 'Crime-related prohibition' means an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the offender has
been convicted." RCW 9.94A.030(10). A court may order compliance "with any crime-
related prohibitions" as a condition of community custody. RCW 9.94A.703(3)(f).
Additionally, a court may order an offender to have no contact with victims or a
"specified class of individuals." RCW 9.94A.703(3)(b). The specified class must bear
1 Emphasis in original.
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some relationship to the crime. State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655(1998), abrogated on other grounds by State v. Valencia, 169 Wn.2d 782, 239 P.3d
1059(2010).
Whether a crime and a condition of sentence are related " 'will always be
subjective, and such issues have traditionally been left to the discretion of the
sentencing judge.'" State v. Berg, 147 Wn. App. 923, 942, 198 P.3d 529 (2008)
(quoting State v. Parramore, 53 Wn. App. 527, 530, 768 P.2d 530 (1989)), abrogated on
other grounds by State v. Mutch. 171 Wn.2d 646, 254 P.3d 803 (2011). Thus, we
review the imposition of crime-related prohibitions for abuse of discretion. In re Pers.
Restraint of Rainev. 168 Wn.2d 367, 374, 299 P.3d 686 (2010); State v. Bahl, 164
Wn.2d 739, 753, 193 P.3d 678 (2008). "Abuse of discretion occurs when a decision is
manifestly unreasonable or exercised on untenable grounds or for untenable reasons."
State v. Corbett, 158 Wn. App. 576, 597, 242 P.3d 52 (2010).
Watts relies on Riles to argue the no-contact order and community custody
condition are not crime related. In Riles, the sentencing court imposed a special
condition of sentence prohibiting the defendant from contact with minors after he was
convicted of raping a 19-year-old woman. Riles. 135 Wn.2d at 336-37. The
Washington Supreme Court struck down the condition noting, "There is no reasonable
relationship between [the defendant's] offense and the provision for no contact with
minors. There is nothing in the record to indicate he is a danger to children." Riles. 135
Wn.2d at 352.
Here, unlike in Riles, the undisputed facts establish that T.D. "reconnected" with
her "biological father Andre Lamar Watts when she was 17 years of age" and repeatedly
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engaged in oral sex and sexual intercourse with Watts between November 22, 2006
and September 30, 2011 while intermittently living with him. The certificate of probable
cause states that although T.D. said that sex with Watts "was consensual, she felt that
she had been manipulated into having sex with him." Watts's willingness to exploit his
relationship with his 17-year-old daughter raises serious concerns about the safety of
other minor children. The prohibition on unsupervised contact is reasonably necessary
to serve the State's compelling interest in protecting Watts's minor children.
We also reject the argument that the no-contact order restrictions violate Watts's
fundamental right to parent his children. "Parents have a fundamental right to raise their
children without State interference." Corbett. 158 Wn. App. at 598. "But in criminal
cases, a sentencing court may impose limitations on this right when reasonably
necessary to further the State's compelling interest in protecting children." Berg. 147
Wn. App. at 942; see ajso State v. Letoumeau. 100 Wn. App. 424, 439, 997 P.2d 436(2000). A sentencing condition that affects the fundamental right to parent must be
"sensitively imposed" so that it is "reasonably necessary to accomplish the essential
needs of the State and public order." State v. Warren, 165 Wn.2d 17, 32, 195P.3d940
(2008).
In Corbett. the court held a no-contact order prohibiting the defendant from
contact with all minor children was a "valid crime-related prohibition that does not unduly
burden [the defendant's fundamental parenting rights." Corbett. 158 Wn. App. at 601.
In upholding the order, the court concluded the defendant's children were at risk
because he acted as a parent to the victim. Corbett. 158 Wn. App. at 600. Likewise, in
Berg, the court affirmed an order prohibiting the defendant from unsupervised contact
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with female minors. Berg. 147 Wn. App at 943. The victim, a female minor, lived with
the defendant and the defendant committed the crime in the home. Berg. 147 Wn. App
at 942-43. The court concluded, "An order restricting contact with other female children
who lived in the home was therefore reasonable to protect those children from the same
type of harm." Berg. 147 Wn. App at 943.
Here, as in Corbett and Berg, because Watts sexually exploited the relationship
with his 17-year-old daughter, the no-contact order with minors was reasonable.
Further, the court crafted a no-contact order that expressly permits Watts to live with
minor children "if an adult who has knowledge of this conviction resides there" and he is
not left alone with minors. The judgment and sentence also expressly allows the right to
amend the order in the future.
We affirm.
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WE CONCUR:
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