State Of Washington v. Brian T. Stark ( 2018 )


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  •                                                                     FILED
    COURT OF APPEALS,O1V-I
    STATE OF WASHINUTON
    2010 OCT 15 All 8:35
    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,                         )         No. 76676-7-1
    )
    Respondent,              )
    )
    v.                               )         UNPUBLISHED OPINION
    )
    BRIAN T. STARK,                              )
    )
    Appellant.               )
    )         FILED: October 15, 2018
    ANDRUS, J. — In 2010, Brian T. Stark was convicted of four domestic
    violence sex offenses: attempted first-degree child molestation, first-degree child
    molestation, first-degree incest, and third-degree child molestation.            His
    convictions were affirmed on direct appeal in 2013. In 2016, this court granted
    Stark's personal restraint petition and vacated the first count as time barred. Stark
    was resentenced in 2017. He now appeals seven conditions of community custody
    imposed on resentencing, arguing that these conditions are not crime related or
    are unconstitutionally vague. We affirm in part, reverse in part, and remand.
    No. 76676-7-1/2
    FACTS
    Stark dated a woman, DaneIle, who had a young daughter, C.W.1 Stark
    and DaneIle later married and had a son. Stark abused C.W. for several years,
    beginning when she was in first grade. The abuse was disclosed to law
    enforcement when C.W. was in high school. The State charged Stark with four
    domestic violence sex offenses: attempted first-degree child molestation, first-
    degree child molestation, first-degree incest, and third-degree child molestation. A
    jury found Stark guilty as charged, and this court affirmed.
    In a personal restraint petition, Stark argued that count one, which was
    based on the incident when C.W. was in first grade, was time barred. The State
    conceded the error.         This court vacated Stark's conviction for attempted first-
    degree child molestation and remanded for resentencing. At resentencing, the
    court imposed an indeterminate sentence with a minimum term of 125 months on
    the first degree child molestation conviction, count 2, and standard range
    sentences of 61 months and 54 months on counts 3 (incest) and 4 (third degree
    child molestation), respectively. The sentencing court also imposed several
    conditions of community custody. Stark challenges seven of these conditions
    ANALYSIS
    Crime related challenges
    A sentencing court may impose conditions of community custody, including
    prohibitions on "conduct that directly relates to the circumstances of the crime for
    1 This court considered the facts underlying Stark's 'convictions in In re Pers. Restraint
    Petition of Stark, 
    196 Wash. App. 1030
    (Wash. Ct. App. Oct. 17, 2016) (unpublished),
    http://www.courts.wa.goviopinions/pdf/735802.pdf, and State v. Stark, noted at 
    172 Wash. App. 1041
    ,
    slip op. at 1(2013).
    -2-
    No. 76676-7-1/3
    which the offender has been convicted." RCW 9.94A.030(1); RCW 9.94A.703(3).
    Because the imposition of crime-related prohibitions is necessarily fact-specific
    and based on the sentencing judge's in-person appraisal of the trial and offender,
    the appropriate standard of review is abuse of discretion. State v. Norris, 1 Wn.
    App. 2d 87, 97, 
    404 P.3d 83
    (2017). The State need not establish that the
    prohibited conduct directly contributed to the offense. State v. Nguyen, No. 94883-
    6, slip op. at 13(Wash. Sept. 13, 2018).2 "So long as it is reasonable to conclude
    that there is a sufficient connection between the prohibition and the crime of
    conviction, we will not disturb the sentencing court's community custody
    conditions." 
    Id. at 13-14.
    In Nguyen, the Supreme Court upheld a prohibition on accessing sexually
    explicit material as reasonably related to the crimes of child rape and molestation.
    
    Id. at 16.
    The Nguyen court held that by committing sex crimes, the defendant
    established his inability to control sexual urges. 
    Id. at 14.
    It was thus reasonable
    to prohibit the offender, Nguyen, from accessing materials whose only purpose
    was to stimulate sexual urges. 
    Id. In considering
    conditions imposed on a
    separate offender, Norris, the Nguyen court upheld a prohibition on entering sex-
    related businesses as reasonably related to the crime of rape of child. 
    Id. at 15-
    16. Although there was no evidence that sex-related businesses played a role in
    the offender's crime, the court held that the condition was related to Norris's
    inability to control her sexual urges. 
    Id. 2 http://www.courts.wa.gov/opinions/pdf/948836.pdf
                                                  - 3-
    No. 76676-7-1/4
    Stark first challenges Condition 5, which concerns sexual contact. The
    condition requires Stark to:
    Inform the supervising CCO [Community Corrections Officer] and
    sexual deviancy treatment provider of any dating relationship.
    Disclose sex offender status prior to any sexual contact. Sexual
    contact in a relationship is prohibited until the treatment provider
    and/or CCO approves of such, with the exception that sexual contact
    with the defendant's wife, DaneIle Stark, is permitted.
    Stark argues the prohibition on "[s]exual contact in a relationship" without prior
    approval of a CCO or treatment provider is not crime related. The State concedes
    that the prohibition is not related to Stark's crime.        We accept the State's
    concession and remand for the sentencing court to strike the prohibition.
    Stark also challenges as not crime related the portion of Condition 5
    requiring him to disclose his sex offender status prior to any sexual contact. This
    challenge, however, is based on Stark's constitutional right to privacy, not on the
    statutory "crime related" requirement, which applies to prohibitions. See RCW
    9.94A.703(3). We address the challenge below.
    Stark next challenges Condition 9, which prohibits him from entering sex-
    related businesses, and Condition 10, which prohibits him from accessing sexually
    explicit material. At oral argument, Stark relied on State v. Padilla, 
    190 Wash. 2d 672
    ,
    683,416 P.3d 712 (2018), to argue that there must be evidence in the record
    linking the prohibition to the circumstances of the crime. Because there is no
    evidence that Stark frequented sex-related businesses or viewed sexually explicit
    materials, he argues that Conditions 9 and 10 are not crime related. The State's
    position is that Padilla is distinguishable on its facts, as the defendant in that case
    was convicted of communication with a minor for immoral purposes, not child rape
    -4-
    No. 76676-7-1/5
    or molestation. The State argues that Stark's offenses involved the inability to
    control sexual urges, urges which are stimulated by access to sexually explicit
    materials.
    In light of the Supreme Court's recent decision in Nguyen, we agree with
    the State.   Like the defendants in that case, Stark committed offenses that
    demonstrate an inability to control sexual urges.       Prohibitions on accessing
    materials and entering businesses whose purpose is to stimulate sexual urges is
    reasonably crime related.
    Finally, Stark contends Condition 16, which requires him to:"Have no direct
    and/or indirect contact with minors under the age of 16 without the prior approval
    of the CCO," is not crime related. This argument is without merit. Stark committed
    sex crimes against a child. The prohibition on contact with minors is crime related.
    See State v. Riles, 
    135 Wash. 2d 326
    , 347, 
    957 P.2d 655
    (1998) (upholding a
    prohibition on contact with minors as crime related where the defendant was
    convicted of rape of a child).
    Vagueness challenges
    The guarantee of due process requires that laws not be vague. U.S. CONST.
    amend. XIV, §1; WASH. CoNs-r. art. 1, §3. A condition is unconstitutionally vague
    if it (1) does not sufficiently define the prohibition so an ordinary person can
    understand the prohibition; or (2) does not provide sufficiently ascertainable
    standards to protect against arbitrary enforcement. State v. Bahl, 
    164 Wash. 2d 739
    ,
    752-53, 
    193 P.3d 678
    (2008).       Conditions that implicate an offender's First
    Amendment rights must meet a stricter standard of definiteness. 
    Id. at 753.
    But
    5
    No. 76676-7-1/6
    impossible standards of specificity are not required. 
    Id. at 760.
    "If persons of
    ordinary intelligence can understand what the [law] proscribes, notwithstanding
    some possible areas of disagreement,the[law] is sufficiently definite." 
    Id. (internal quotation
    marks omitted)(quoting City of Spokane v. Douglass, 
    115 Wash. 2d 171
    ,
    179, 
    795 P.2d 693
    (1990)).             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. Nguyen, slip op. at 6.
    In Nguyen, the Supreme Court rejected two vagueness challenges. The
    court upheld a community custody condition that required the offender to inform
    the CCO of any "dating relationship," holding that a person of ordinary intelligence
    can distinguish a dating relationship from other types of relationships. 
    Id. at 10.
    The Nguyen court also upheld a prohibition on accessing sexually explicit material.
    
    Id. at 14.
    The condition in that case required the offender not to "possess, use,
    access or view any sexually explicit material as defined by RCW 9.68.130." 
    Id. at 3.
    The referenced statute defines sexually explicit material as:
    [A]ny 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 of art or of anthropological
    significance shall not be deemed to be within the foregoing definition.
    
    Id. at 8
    (quoting RCW 9.68.130(2)). The Nguyen court held that the phrase
    "sexually explicit material" is sufficiently clear. 
    Id. The court
    rejected an argument
    that the statutory definition invites arbitrary enforcement, holding that persons of
    ordinary intelligence can discern works of art and anthropological significance. 
    Id. -6- No.
    76676-7-1/7
    In this case, Condition 9 prohibits Stark from entering "sex-related
    businesses, including . .. any location where the primary source of business is
    related to sexually explicit material." Condition 10 prohibits accessing or viewing
    "any sexually explicit material as defined by RCW 9.68.130." Stark contends
    "sexually explicit material," as used in these conditions, is impermissibly vague.
    The argument is foreclosed by Nguyen. The conditions are not unconstitutionally
    vague.
    Stark also raises a vagueness challenge to Condition 18, which requires
    him to avoid "areas where children's activities regularly occur or are occurring."
    We considered similar conditions in State v. Irwin, 
    191 Wash. App. 644
    , 364 P.3d
    830(2015) and Norris, 
    1 Wash. App. 2d
    at 87.
    In Irwin, we struck a condition requiring the defendant not to "frequent areas
    where minor children are known to congregate, as defined by the supervising
    CCO," holding that, "Mithout some clarifying language or an illustrative list of
    prohibited locations," the phrase was impermissibly vague. Irwin, 191 Wn. App. at
    652,655. And, because the condition allowed the CCO to define which areas were
    prohibited, it invited arbitrary enforcement. 
    Id. In Norris,
    the condition at issue prohibited the defendant from "any
    parks/playgrounds/schools and or any places where minors congregate." Norris,
    
    1 Wash. App. 2d
    at 95. The State conceded that "and or any places" should be
    stricken from the condition. 
    Id. at 95-96.
    With that concession, the condition
    7
    No. 76676-7-1/8
    prohibited entering "any parks, playgrounds, or schools where minors congregate."
    
    Id. at 96.
    We upheld the amended condition as sufficiently clear.3 
    Id. The condition
    at issue in this case requires that Stark:
    Stay out of areas where children's activities regularly occur or are
    occurring without the prior approval of the CCO and/or treatment
    provider. This includes parks used for youth activities, schools,
    daycare facilities, playgrounds, wading pools, swimming pools being
    used for youth activities, play areas (indoor or outdoor), sports fields
    being used for youth sports, arcades, and any specific location
    identified in advance by DOG or CCO.
    Stark objects to the phrase "areas where children's activities regularly occur,"
    arguing that it is unclear when children's activities "regularly occur" and how far an
    "area" extends. He also asserts that the condition gives unbridled discretion to the
    CCO. And, at oral argument, Stark argued that the condition is vague because it
    refers to "children" and "youth" without establishing if these terms are synonymous.
    We agree in part. The phrase "regularly occur" is unclear because it
    provides no standards for determining the frequency or regularity with which a
    children's activity must take place for the area to be permanently off limits. And
    the State has provided no rationale for requiring Stark to stay out of areas where
    children's activities sometimes occur, such as a sports field, even when no children
    are present. The phrase "areas where children's activities are occurring," in
    3 The Supreme Court accepted review of two issues in Norris and consolidated the case
    with Nguyen. Nguyen, slip op. at 1-2. The prohibition on entering "any parks, playgrounds, or
    schools where minors congregate" was not before the Supreme Court. Since Norris, Divisions Two
    and Three have divided over whether the phrase "places where children congregate," accompanied
    by an illustrative list, is sufficiently clear. State v. Johnson, Wn. App._,421 P.3d 969(2018);
    State v. Wallmuller,         Wn. App._,423 P.3d 282(2018). A majority of the Johnson court held
    that the condition provided fair notice that the offender must "avoid locations where individuals
    under 16 collect together in groups. Outside of special circumstances (such as a children's day or
    event), universities, national parks, and adult areas of worship would not be covered." 
    Johnson, 421 P.3d at 973
    . The majority in Wallmuller, in contrast, held that the word "congregate" is
    impermissibly vague, the illustrative list did not cure the inherent vagueness, and the condition
    invited arbitrary 
    enforcement. 423 P.3d at 285
    .
    -8-
    No. 76676-7-1/9
    contrast, is not unconstitutionally vague. A person of ordinary intelligence can
    discern and avoid an area where a children's activity is occurring. We remand for
    the sentencing court to strike the words "regularly occur" or fashion a new condition
    consistent with this opinion.
    We agree with Stark that the use of "children" and "youth" is impermissibly
    vague because it is unclear whether, in this context, the words are synonymous.
    Upon remand, the sentencing court may replace the word "youth" with the word
    "children's" or otherwise redact the condition for consistency.
    We reject Stark's argument that Condition 18 gives unbridled discretion to
    the CCO. In this case,the first sentence establishes a standard and requires Stark
    to stay out of areas where children's activities are occurring. The second sentence
    provides an illustrative list, ending with "any specific location identified in advance
    by DOC or CCO." Unlike the condition in Irwin the condition in this case only
    authorizes the CCO to designate in advance a specific location where children's
    activities are occurring. It does not invite arbitrary enforcement.
    Other constitutional challenges
    Stark challenges several conditions on the grounds that they impermissibly
    restrict constitutional rights. The sentencing court may impose limitations upon
    fundamental rights provided they are imposed sensitively. State v. Riley, 
    121 Wash. 2d 22
    , 37, 
    846 P.2d 1365
    (1993). Such restrictions must be reasonably
    necessary to accomplish the essential needs of the state and public order. 
    Id. at 37-38
    (quoting Malone v. United States, 
    502 F.2d 554
    , 556 (9th Cir.1974)). See
    9
    No. 76676-7-1/10
    also 
    Bahl, 164 Wash. 2d at 757-58
    (discussing conditions that restrict First
    Amendment rights).
    A portion of Condition 5, discussed above, requires Stark to disclose his sex
    offender status prior to any sexual contact. Stark argues that a future relationship
    between consenting adults is unrelated to his offense and, thus, a restriction on
    such a relationship is not reasonably necessary to protect the public. He cites
    Janus v. Am. Fed'n of State, County, and Mun. Emps., Council 31,                      U.S.
    
    138 S. Ct. 2448
    , 2463-64, 
    201 L. Ed. 2d 924
    (2018), for the proposition that
    compelling speech implicates a person's First Amendment rights.
    Although the challenged condition implicates Stark's First Amendment
    rights, it is sensitively imposed and reasonably necessary. Stark was convicted of
    sex crimes against the minor child of a woman with whom he was having sexual
    contact. Requiring Stark to disclose his sex offender status before commencing a
    sexual relationship is reasonably necessary to protect the public.4
    Stark next challenges Condition 8, which requires him to:
    Consent to DOC home visits to monitor compliance with supervision.
    Home visits include access for the purposes of visual inspection of
    all areas of residence in which the offender lives or has
    exclusive/joint control/access.
    Stark argues that this condition violates his rights under the Fourth and Fourteenth
    Amendments. The constitutionality of an inspection condition, however, depends
    4 Stark's case is distinguishable from United States v. Reeves, 
    591 F.3d 77
    , 80(2nd Cir.
    2010), in which the court struck a condition requiring an offender to "notify the Probation
    Department when he establishes a significant romantic relationship and... inform the other party
    of his prior criminal history concerning his sex offenses." The offender in that case maintained
    relationships with his children and there had been no allegations of abuse or domestic violence in
    those relationships. 
    Id. at 8
    1-82.
    -10-
    No. 76676-7-1/1 1
    on the particular circumstances of enforcement. State v. Cates, 
    183 Wash. 2d 531
    ,
    535-36, 354 P.3d 832(2015)(quoting Sanchez v. Valencia, 
    169 Wash. 2d 782
    , 789,
    239 P.3d 1059(2010)). The condition is not ripe for pre-enforcement review. 
    Id. Next, Stark
    challenges a condition requiring him to submit to urinalysis and
    breathanalysis. The sentencing court imposed a standard condition requiring
    Stark to refrain from controlled substances except where lawfully prescribed. See
    RCW 9.94A.703(2)(c)(stating that this condition shall be imposed unless waived
    by the court). But the court declined to impose a prohibition on consuming alcohol
    because there was no connection between alcohol and Stark's offenses.
    Condition 12 requires Stark to "[b]e available for and submit to urinalysis and/or
    breathanalysis upon the request of the CCO and/or the chemical dependency
    treatment provider."
    Stark contends Condition 12 violates his privacy interests under the Fourth
    Amendment and article I, section 7 of the Washington Constitution. He argues
    that random drug testing is only constitutional where it promotes rehabilitation, as
    where the defendant has been convicted of a drug offense. The State concedes
    that the breathanalysis portion of Condition 12 is invalid because the sentencing
    court did not prohibit Stark from consuming alcohol. But the State argues that,
    because the court properly prohibited Stark from using controlled substances, it
    may require him to submit to urinalysis to monitor compliance with this prohibition.
    The parties rely on State v. Olsen, in which the Washington State Supreme
    Court upheld random urinalysis for probationers convicted of driving under the
    influence (DUI). 
    189 Wash. 2d 118
    , 134, 
    399 P.3d 1141
    (2017). The Olsen court
    -11-
    No. 76676-7-1/12
    held that, because random drug testing implicates probationers' privacy interests,
    the intrusion is only lawful where it is narrowly tailored to meet a compelling state
    interest. 
    Id. at 127-28.
    The court upheld the condition because the State has a
    strong interest in supervising DUI probationers and random urinalysis is narrowly
    tailored to meet that interest. 
    Id. at 128,
    134.
    In discussing this issue, the Olsen court stated that random drug tests may
    be imposed "to assess compliance with a valid prohibition on drug and alcohol
    use." 
    Id. at 130.
    The Olsen court reasoned that the trial court properly conditioned
    the defendant's release upon her agreement to refrain from drugs and alcohol and
    "[i]t follows that the trial court also has authority to monitor compliance with that
    condition through narrowly tailored means." 
    Id. The court
    rejected an argument
    that upholding the condition would open the door to permitting random,
    suspicionless searches in all situations. 
    Id. at 132.
    The Olsen court held that the
    condition authorized only a search to test for drugs and alcohol, a search that was
    reasonable in the circumstances of that case:
    Olsen was convicted of DUI, a crime involving the abuse of drugs
    and alcohol. A probationer convicted of DUI can expect to be
    monitored for consumption of drugs and alcohol, but should not
    necessarily expect broader-ranging intrusions that expose large
    amounts of private information completely unrelated to the
    underlying offense.
    
    Id. at 133.
    Reiterating its conclusion that random drug testing, in that case, was
    narrowly tailored and directly related to the probationer's rehabilitation, the Olsen
    court stated that "random UAs [urine analyses], under certain circumstances, are
    a constitutionally permissible form of close scrutiny of DUI probationers." 
    Id. at 134.
    - 12 -
    No. 76676-7-1/13
    Stark argues that, under Olsen, random urinalysis is permissible in a DUI
    probation case but not in a case such as his, where the crime is unrelated to drugs
    or alcohol. Stark also asserts that Olsen is distinguishable because the defendant
    in that case was subject to a maximum of five years' probation, whereas Stark is
    subject to lifetime supervision. The State contends that, under Olsen, the court
    may require suspicionless drug testing in any case where a prohibition on
    controlled substances is imposed.
    We read Olsen to hold that requiring random urinalyses was permissible in
    that case because it was narrowly tailored to address the probationer's DUI
    offense. jçj. at 129, 133. Olsen does not support the general proposition that
    random urinalysis is constitutional to monitor a standard condition prohibiting the
    use of controlled substances. Stark was not convicted of a drug offense, and the
    State points to no evidence of a connection between Stark's offenses and drugs.
    We conclude that the urinalysis requirement is not narrowly tailored or reasonably
    necessary. Condition 12 must therefore be stricken.
    Finally, Stark challenges Condition 16 on constitutional grounds. The
    condition, discussed above, prohibits Stark from contact with minors under the age
    of 16. Stark argues that this condition interferes with his fundamental right to
    familial relationships because it will prevent contact with future children or
    grandchildren. The State argues that, because the existence of future children or
    grandchildren is speculative, this issue is not ripe for review.
    An issue is not ripe for review when it requires further factual development.
    
    Bahl, 164 Wash. 2d at 751
    . Likewise, a claim that is speculative and hypothetical is
    - 13-
    No. 76676-7-1/14
    not ripe for review. Lewis County v. State, 
    178 Wash. App. 431
    , 440, 
    315 P.3d 550
    (2013). In this case, Stark points to no evidence that he has minor children or
    grandchildren. C.W. and Stark's child with DaneIle are both over the age of 16.
    Because any infringement of Stark's right to a relationship with future children or
    grandchildren is speculative, Stark's challenge to Condition 16 as a violation of his
    fundamental right to parent is not ripe for review.
    We remand for the sentencing court to strike that portion of Condition 5
    prohibiting sexual contact in a relationship and Condition 12 in its entirety. We
    remand for the court to redact Condition 18 or fashion a new condition consistent
    with this opinion. We affirm the remaining conditions.
    kAteth.4,,4 1 ,52.
    WE CONCUR:
    - 14 -
    

Document Info

Docket Number: 76676-7

Filed Date: 10/15/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021