State of Washington v. Thomas Lee Bramblee ( 2020 )

FILED
JUNE 16, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36396-1-III
Respondent, )
)
v. )
)
THOMAS LEE BRAMBLEE, ) UNPUBLISHED OPINION
also known as THOMAS BRAMBLEE, )
)
Appellant. )
KORSMO, J. — Thomas Bramblee appeals his conviction for attempted second
degree rape of a child. He argues the trial court erred by excluding an exculpatory
statement, imposing a community custody condition, and imposing unauthorized legal
financial obligations (LFOs). We affirm the conviction, but remand to the trial court to
re-evaluate a community custody condition and possibly strike the LFOs.
Detective Kristl Pohl, part of a Washington State Patrol Task Force investigating
child sex offenses, examined Craigslist advertisements that suggested interest in sexual
activities with minors. She responded to a Craigslist advertisement posted by Mr.
Bramblee that sought individuals interested in parent-child or siblings incest roleplay.
Detective Pohl posed as a mother with a 12-year-old daughter named “Anna.” The
detective conversed with Bramblee to determine whether he wanted to have sex with
No. 36396-1-III
State v. Bramblee
“Anna,” a minor. While Mr. Bramblee feared police involvement, he eventually agreed
to have sex with “Anna.” Mr. Bramblee described the sexual acts he planned to perform
on “Anna” and brought a condom to the house where he was to meet the mother and
child.
Mr. Bramblee travelled to the house and officers arrested him. During his arrest,
Mr. Bramblee made a statement that he was there for the mother (Detective Pohl).
During a search, officers found a condom on Bramblee.
The trial court did not allow Mr. Bramblee to offer the statement that he went to
the house only for the mother because Bramblee did not intend to testify. The court
never determined whether the statement constituted an excited utterance.
A jury ultimately convicted Mr. Bramblee of attempted second degree child rape.
The court imposed a low end standard range sentence. The LFOs included a $500 victim
compensation fee, $200 criminal filing fee, and a $100 DNA collection fee. The court
also imposed interest on the LFOs. Mr. Bramblee’s community custody conditions
included a requirement that he “not access social media sites to include chat forums,
dating sites, or solicit sex on the Internet.”
Mr. Bramblee timely appealed his conviction. A panel considered his appeal
without hearing oral argument.
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ANALYSIS
The appeal presents three issues, which we address in the following order: (1) the
excluded statement, (2) the noted community custody condition, and (3) LFOs.
Excluded Statement
Under both the Sixth Amendment to the United States Constitution and art. I § 22
of the Washington Constitution, a defendant is entitled to present evidence in support of
his defense. State v. Strizheus, 163 Wash. App. 820, 829-830, 262 P.3d 100 (2011). That
right, however, does not include a right to present irrelevant or inadmissible evidence.
State v. Jones, 168 Wash. 2d 713, 720, 230 P.3d 576 (2010); State v. Hudlow, 99 Wash. 2d 1,
15, 659 P.2d 514 (1983). As the proponent of the evidence, the defendant bears the
burden of establishing relevance and materiality. State v. Pacheco, 107 Wash. 2d 59, 67,
726 P.2d 981 (1986).
Trial court decisions to admit or exclude evidence are entitled to great deference
and will be overturned only for manifest abuse of discretion. State v. Luvene, 127 Wash. 2d
690, 706-707, 903 P.2d 960 (1995). Discretion is abused where it is exercised on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12,
26, 482 P.2d 775 (1971). A court also abuses its discretion when it applies the wrong
legal standard. State v. Rafay, 167 Wash. 2d 644, 655, 222 P.3d 86 (2009). We will only
reverse for evidentiary error if the appellant demonstrates that the error likely affected the
trial outcome. State v. Barry, 183 Wash. 2d 297, 313, 352 P.3d 161 (2015).
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Trial errors can be harmless. Error of constitutional magnitude is harmless if it is
proved to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Evidentiary error is harmless if, within
reasonable probability, it did not materially affect the verdict. State v. Zwicker, 105
Wash. 2d 228, 243, 713 P.2d 1101 (1986).
The admission of an excited utterance is not dependent on whether the declarant is
available as a witness. State v. Ohlson, 162 Wash. 2d 1, 8, 168 P.3d 1273 (2007). A
statement qualifies as an excited utterance under ER 803(2) if “(1) a startling event
occurred, (2) the declarant made the statement while under the stress or excitement of the
event, and (3) the statement relates to the event.” State v. Magers, 164 Wash. 2d 174, 187-
188, 189 P.3d 126 (2008). Hearsay that is self-serving still may be admissible under ER
803. State v. Pavlik, 165 Wash. App. 645, 655-656, 268 P.3d 986 (2011).
The trial court erred when it excluded Mr. Bramblee’s statement on the grounds
that he did not testify. The declarant’s availability is immaterial for ER 803. Ohlson,
162 Wash. 2d at 8. Since the court did not analyze the statement, we are not in a position to
determine whether the statement constituted an excited utterance.
Any error in excluding the statement was harmless. The exclusion of the
statement did not deprive Mr. Bramblee of the opportunity to present his defense. He
called a witness in support of an entrapment defense and otherwise challenged the State’s
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evidence against him. The court’s decision to exclude the statement constituted, at most,
an evidentiary error.
Admission of the statement would not have changed the trial outcome. Evidence
before the jury included Mr. Bramblee’s communication in which he expressed his desire
to engage in sexual acts with “Anna.” He arrived at the sting house with condoms as part
of his plans to engage in sex with the fictitious minor. Meanwhile, Mr. Bramblee’s
statement during arrest did not align with his previous conversation where he agreed not
to have sex with the mother, only the minor. The statement likely constituted an
attempted alibi. We are convinced that admitting the statement would not change the
trial outcome in light of all the other evidence.
If the court erred in excluding the statement, the error was harmless.
Community Custody Condition
Mr. Bramblee next argues that the court erred by imposing a requirement that he
“not access social media sites to include chat forums, dating sites, or solicit sex on the
Internet” during his term of community custody. There was no discussion concerning the
necessity of this broad limitation. We therefore remand for the court to consider the
scope of this condition.
A defendant’s rights during community custody are subject to infringements
authorized by the Sentencing Reform Act of 1981, ch. 9.94A RCW. State v. Ross, 129
Wash. 2d 279, 287, 916 P.2d 405 (1996). Restrictions placed on a defendant’s conduct
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must be reasonably related to the offense for which the defendant was convicted. RCW
9.94A.030(10); State v. Johnson, 4 Wash. App. 2d 352, 358, 421 P.3d 969 (2018). In the
absence of a timely objection in the trial court, we will not entertain on appeal a
challenge to the factual basis for a crime-related condition. State v. Casimiro, 8 Wn.
App. 2d 245, 249, 438 P.3d 137 (2019). However, a constitutional challenge to an overly
broad condition can be considered on appeal. State v. Bahl, 164 Wash. 2d 739, 744, 193
P.3d 678 (2008).
A condition is unconstitutionally overbroad when it infringes on a defendant’s
right to free speech or free association beyond what the State may legitimately regulate.
State v. Riles, 135 Wash. 2d 326, 346, 957 P.2d 655 (1998), overruled on other grounds by
State v. Valencia, 169 Wash. 2d 782, 239 P.3d 1059 (2010). The trial court must establish
on the record that the condition is narrowly drafted to achieve the State’s interest and that
there is no other reasonable alternative to prevent undesired conduct related to the
convicted offense. State v. DeLeon, 11Wn. App. 2d. 837, 840-841, 456 P.3d 405 (2020).
Restrictions on social media use may violate an individual’s First Amendment rights.
Packingham v. North Carolina, 137 S. Ct. 1730, 1732, 198 L. Ed. 2d 273 (2017).
The trial court did not provide any analysis on the record regarding the social
media restriction. We cannot determine whether the condition unnecessarily restricts Mr.
Bramblee from legitimate First Amendment activities that are unrelated to the State’s
interest in preventing him from soliciting sex with minors. We remand this matter to the
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trial court to perform the appropriate overbreadth analysis before imposing any social
media restriction on Mr. Bramblee.
Legal Financial Obligations
Lastly, Mr. Bramblee challenges the $200 criminal filing fee and a provision
imposing interest on his LFOs due to his indigency. The trial court may not impose
discretionary LFOs on indigent defendants. State v. Ramirez, 191 Wash. 2d 732, 750, 426
P.3d 714 (2018). Since we are remanding for reconsideration of the community custody
condition, the trial court should strike the interest provision and, if Mr. Bramblee is
indigent, strike the filing fee.
Affirmed and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Siddoway, J.
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