State Of Washington, V. Jacob Dee Vernon ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, No. 83873-3-I
Respondent,
v. UNPUBLISHED OPINION
JACOB DEE VERNON,
Appellant.
BOWMAN, J. — Jacob Dee Vernon appeals his conviction for domestic
violence (DV) second degree rape, arguing the trial court erred by granting the
State’s GR 37 challenge to his peremptory strike of a Black juror, excluding
evidence as hearsay, and inaccurately instructing the jury. Vernon also argues
that RCW 9A.44.050(1)(b) is unconstitutionally vague and overbroad. Finally,
Vernon argues that the trial court abused its discretion by imposing
unconstitutionally vague conditions of community custody. We affirm.
FACTS
Vernon and M.Y. met in high school in 2011. Vernon is a white male and
M.Y. is a Black female. They dated briefly until M.Y. moved to another state in
November 2011. Three years later, M.Y. returned to Washington, and the couple
resumed their relationship in June 2014.1 Almost two months later, M.Y. moved
into Vernon’s Burien house, which they shared with his grandmother and mother,
Amber Akai. Akai’s boyfriend, Bentley Artisan, was often in the home, too.
1
M.Y. was 19 years old and Vernon was 18.
No. 83873-3-I/2
Vernon and M.Y. had an unstable relationship. Vernon often broke up
with M.Y. for a “variety” of reasons and would kick her out of his home, forcing
her to stay with family. Then he would apologize and M.Y. would return. During
conflicts, Vernon sometimes told M.Y. that he would prefer to date a white person
and questioned whether their children “would be [B]lack.”
In late 2017, M.Y. began living with her aunt in Federal Way. On
Saturday, September 9, 2018, Vernon and M.Y. got in a fight while out dancing
with M.Y.’s friend. Vernon told M.Y., “ ‘I don’t want to be with you,’ ” “ ‘You’re a
bitch,’ ” and, “ ‘It’s better if I date a white girl.’ ” Feeling embarrassed about how
he treated her in front of other people, M.Y. tried to end the relationship. But
after Vernon said he would go to therapy, M.Y. agreed to “attempt to start fresh.”
Later that week on September 13, 2018, M.Y. planned to spend the night
at Vernon’s house. She arrived at his house in the early evening. M.Y.’s friend
Kamari Mack also came over. Vernon’s mother Akai and her boyfriend Artisan
were also home but mostly stayed in Akai’s room.
Vernon, M.Y., and Mack drank alcohol for a couple hours and then
decided to get in the hot tub. While in the hot tub, Vernon expressed that he no
longer wanted to go to therapy, which provoked an argument. After soaking
about 30 minutes, Vernon and M.Y. left the hot tub to take a shower. M.Y.
described herself as “tipsy, especially after the hot tub.”2
After showering, the couple dried off in Vernon’s room and got ready for
bed. M.Y. asked Vernon to rub oil on her back. As he did, he began to rub his
2
M.Y. testified that she had “[m]aybe two” drinks.
2
No. 83873-3-I/3
erection against her. M.Y. told Vernon that she “wasn’t interested in having sex
that night.” Vernon backed off for a moment, but then continued to rub against
her. M.Y. turned around, pushed Vernon away, and told him again, “ ‘I do not
want to have sex tonight.’ ”
Vernon grabbed M.Y. and “threw” her onto the bed. M.Y. continued to tell
Vernon to stop, but he did not. Vernon “crawled” toward her while she tried to
kick him away, “telling him to stop.” Vernon grabbed her legs and put them over
his shoulders. He then pinned her hands above her head. M.Y. continued to tell
Vernon “no” and “stop,” but Vernon ignored her and forced her to have sex.
Throughout the rape, she continued to pull away and tell Vernon to stop. After a
few minutes, M.Y. started to cry, and Vernon “began smiling at [her].” He then
stopped and moved under the bed covers.
M.Y. got dressed and told Vernon that “he raped [her].” Vernon
responded by asking, “ ‘You’re seriously crying right now?’ ” M.Y. grabbed her
things and left. She drove about five blocks, then decided to return to Vernon’s
house to confront him. When she arrived back at his house, Vernon and Mack
were sitting in the living room, “joking” and “laughing.” M.Y. sat down with them
and after a short conversation, she said, “ ‘Rape is bad,’ ” upsetting Vernon and
prompting Mack to leave.
After Mack left, Vernon apologized for the assault and said it would not
happen again. But then he accused M.Y. of “being dramatic and trying to start
problems.” M.Y. decided to leave again. As she left the house, Akai came into
the kitchen and overheard M.Y. tell Vernon, “ ‘You know what happened.’ ” M.Y.
3
No. 83873-3-I/4
then called Akai from the car and told her about the rape.3 A few days later, she
reported the rape to Burien police.
The State charged Vernon with one count of DV second degree rape. At
trial, Vernon tried to use a peremptory strike on juror 22, a Black man. The State
challenged the strike under GR 37. The court granted the State’s objection and
refused to strike the juror.
Vernon testified at trial and denied raping M.Y. According to Vernon,
when M.Y. returned to his house to “confront” him, he left for about 10 minutes to
get food from Taco Bell. When he returned, Mack had left, and his mom was
coming and going from the kitchen while he and M.Y. sat in the living room
talking. Akai testified that she heard M.Y. and Vernon in the shower, and about
35 minutes later, saw M.Y. and Mack in the hallway, “talking and laughing.”
Shortly after, Vernon arrived home with Taco Bell, and he and M.Y. sat in the
living room talking while he ate the food. Artisan testified that he went to the
kitchen at about 10:15 p.m., saw M.Y. and Mack “talking and laughing,” then
Vernon arrived home with Taco Bell. On cross-examination, M.Y. testified that
she did not remember Vernon leaving to get food.
Vernon sought to elicit testimony from Akai that on the night of the
incident, she heard M.Y. tell Vernon, “ ‘I never said you raped me, but I said stop
and you didn’t.’ ” The State objected to the testimony as hearsay and the court
excluded it.
3
M.Y. also told her mother, her aunt, and a friend about the rape that night.
When she got home, her friend picked her up and drove her to the hospital. M.Y.
underwent a sexual assault examination but did not tell hospital staff who raped her.
4
No. 83873-3-I/5
The court gave the jury the to-convict instruction as proposed by both
parties. The jury found Vernon guilty as charged. The trial court imposed a low-
end, standard-range, indeterminate sentence of 78 months to life and several
community custody conditions.
Vernon appeals.
ANALYSIS
Vernon argues that the trial court erred by granting the State’s GR 37
challenge to his peremptory strike of a Black juror, excluding evidence as
hearsay, and inaccurately instructing the jury. And he argues that the second
degree rape statute, RCW 9A.44.050(1)(b), is unconstitutionally vague,
overbroad, and violates his substantive due process rights. Finally, Vernon
argues that the trial court abused its discretion by imposing unconstitutionally
vague conditions of community custody. We address each argument in turn.
1. GR 37
Vernon argues the trial court erred by granting the State’s GR 37
challenge to his peremptory strike of a Black juror. We disagree.
We review a trial court’s decision on a GR 37 challenge de novo. State v.
Omar, 12 Wn. App. 2d 747, 751, 460 P.3d 225 (2020).4 Under GR 37(c), a party
or the court “may object to the use of a peremptory challenge to raise the issue of
4
In State v. Tesfasilasye, 200 Wn.2d 345, 355-56, 518 P.3d 193 (2022), our
Supreme Court applied de novo review to a GR 37 challenge when “there were no
actual findings of fact and none of the trial court’s determinations apparently depended
on an assessment of credibility.” Because the parties do not assert that a different
standard applies here, we review the trial court’s decision de novo. And because we
review the decision de novo, we do not address Vernon’s arguments about procedural
error.
5
No. 83873-3-I/6
improper bias.” If there is such an objection, the party exercising the challenge
must “articulate the reasons the peremptory challenge has been exercised.” GR
37(d). The court evaluates those reasons in light of the totality of the
circumstances, and if “an objective observer could view race or ethnicity as a
factor in the use of the peremptory challenge, then the peremptory challenge
shall be denied.” GR 37(e). “[A]n objective observer is aware that implicit,
institutional, and unconscious biases, in addition to purposeful discrimination,
have resulted in the unfair exclusion of potential jurors in Washington.” GR 37(f).
The same standards apply whether the State or a defendant makes a GR 37
challenge to a peremptory strike. State v. Booth, 22 Wn. App. 2d 565, 572, 510
P.3d 1025 (2022).
Under the objective observer standard, we take a rational view of the
totality of the circumstances. Booth, 22 Wn. App. 2d at 572. We evaluate the
reasons given to justify the challenge in light of the totality of the circumstances
to understand whether the striking party’s reasons for exercising the strike could
have masked either a conscious or unconscious decision based on race. Id. at
572-73. Under GR 37(g), some circumstances we consider are
(i) the number and types of questions posed to the
prospective juror, which may include consideration of whether the
party exercising the peremptory challenge failed to question the
prospective juror about the alleged concern or the types of
questions asked about it;
(ii) whether the party exercising the peremptory challenge
asked significantly more questions or different questions of the
potential juror against whom the peremptory challenge was used in
contrast to other jurors;
6
No. 83873-3-I/7
(iii) whether other prospective jurors provided similar
answers but were not the subject of a peremptory challenge by that
party;
(iv) whether a reason might be disproportionately
associated with a race or ethnicity; and
(v) whether the party has used peremptory challenges
disproportionately against a given race or ethnicity, in the present
case or in past cases.
Here, during voir dire, Vernon’s attorney questioned juror 22, a former
prosecuting attorney:
[DEFENSE COUNSEL]: Good morning. I see that you’ve
never served on a jury, but you certainly have some experience in
the criminal justice system. Is that right?
JUROR 22: That is true. Professional experience, to be
clear.
[DEFENSE COUNSEL]: Professional, of course. What
are some of the things that you look at in your capacity as an
attorney to evaluate people’s credibility?
JUROR 22: The facts. Look at the information that’s
presented, and the logic behind it as well. If one thing is true, then
that means that several other things along the line have to be true
as well. So, I look at the facts and the information and take the
information that’s presented, compare it to the objective information
to the extent that we have it.
[DEFENSE COUNSEL]: When you’re evaluating
credibility, do you also consider the bias or motivations of one or
the other of the parties?
JUROR 22: If it’s made clear. I think it’s part of the
evaluation process, sure.
[DEFENSE COUNSEL]: And how many versions of the
truth are there? Kind of an interesting question, but how many
versions of the actual truth exist?
JUROR 22: In my mind, there’s one, but there’s many
perspectives that could bear on how we arrive on that one piece of
the truth.
[DEFENSE COUNSEL]: Explain that a little bit more.
JUROR 22: If everyone has their own perspective in terms
of how they see things, — and this is from my experience. But in
terms of what actually happened and what the truth is, there’s only
one truth. Sometimes we may not get to it. Sometimes we may get
close to it. But you look at different people’s perspectives and then
7
No. 83873-3-I/8
as jurors it would be our job to determine what the actual facts are
as to what occurred.
[DEFENSE COUNSEL]: So would you agree with the
statement that there may be one truth but there may be more than
one perception of that truth?
JUROR 22: Agreed.
After voir dire, three Black jurors remained subject to peremptory strikes.5
The court allowed Vernon to strike juror 8 first, a Black juror and former police
officer suffering from anxiety. As his fourth strike, Vernon asked to excuse juror
22. The State objected under GR 37. Vernon’s attorney explained that he
personally knew the juror for over 25 years and sought to excuse him because
juror 22 was a former prosecutor and city attorney. He argued that juror 22
would favor the State’s evidence and influence the other jurors. The court upheld
the State’s GR 37 challenge.
The trial court did not err by granting the State’s GR 37 objection to
striking juror 22. Vernon did not ask juror 22 about whether his experience as a
former prosecutor would affect his ability to serve as an impartial juror. And two
of Vernon’s first four strikes suggested a pattern of eliminating Black jurors.6
Viewed in context of the accusation that a white defendant raped his Black
girlfriend, especially where race played a role in the dynamics of their
relationship, an objective observer could conclude that race contributed to
Vernon’s use of the peremptory strike.
5
The court allowed each side eight peremptory strikes.
6
The record also shows Vernon asked to strike juror 30, the third Black juror in
the venire. The trial court upheld the State’s GR 37 challenge and denied Vernon’s
peremptory strike. Vernon does not challenge that decision on appeal.
8
No. 83873-3-I/9
2. Hearsay Evidence
Vernon argues that the trial court erred by excluding as hearsay Akai’s
testimony that she overheard M.Y. tell him, “ ‘I never said you raped me, but I
said stop and you didn’t.’ ” According to Vernon, the statement was admissible
as an excited utterance.7
We review a trial court’s evidentiary rulings for an abuse of discretion.
Saldivar v. Momah, 145 Wn. App. 365, 394, 186 P.3d 1117 (2008). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on
untenable grounds. Id. A decision is “manifestly unreasonable” if it “falls ‘outside
the range of acceptable choices, given the facts and the applicable legal
standard.’ ” State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013) (quoting In
re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
“ ‘[E]videntiary error is grounds for reversal only if it results in prejudice.’ ”
Bengtsson v. Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 99, 469 P.3d 339 (2020)
(quoting City of Seattle v. Pearson, 192 Wn. App. 802, 817, 369 P.3d 194(2016)).
“Hearsay” is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” ER 801(c). Hearsay is not admissible except as provided by
rule or statute. ER 802. Statements made as an excited utterance are one such
7
Vernon also argues for the first time on appeal that the statement was
admissible “to complete the picture and offer evidence from others that contradicted
M.Y.’s testimony about her own hearsay.” Because Vernon did not argue admissibility
on that basis below, we do not address the claim on appeal. See State v. Scott, 110
Wn.2d 682, 685, 757 P.2d 492 (1988) (citing RAP 2.5(a) giving appellate court discretion
to refuse to review any claim of error not raised below).
9
No. 83873-3-I/10
exception to the hearsay rule. ER 803(a)(2). The proponent of excited utterance
evidence must satisfy three closely connected requirements that (1) a startling
event occurred, (2) the declarant made the statement while under the stress of
excitement of the startling event, and (3) the statement related to the startling
event. State v. Young, 160 Wn.2d 799, 806, 161 P.3d 967 (2007); ER 803(a)(2).
The excited utterance exception presumes that “ ‘under certain external
circumstances of physical shock, a stress of nervous excitement may be
produced which stills the reflective faculties and removes their control.’ ” State v.
Briscoeray, 95 Wn. App. 167, 173, 974 P.2d 912 (1999) (quoting State v. Chapin,
118 Wn.2d 681, 686, 826 P.2d 194 (1992)). So, often, the key determination is
whether the statement “was made while the declarant was still under the
influence of the event to the extent that the statement could not be the result of
fabrication, intervening actions, or the exercise of choice or judgment.” State v.
Woods, 143 Wn.2d 561, 597, 23 P.3d 1046 (2001). A delayed statement is not
necessarily precluded as an excited utterance if the witness made the statement
while still under the continued stress of the incident. See State v. Thomas, 150
Wn.2d 821, 854-55, 83 P.3d 970 (2004) (statement made one and a half hours
after startling event admissible as excited utterance), abrogated on other grounds
by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004). So, while we look to the time between the startling event and the
utterance, we also consider “any other factors that indicate whether the witness
had an opportunity to reflect on the event and fabricate a story about it.”
Briscoeray, 95 Wn. App. at 174.
10
No. 83873-3-I/11
Whether a declarant was still under the influence of an event at the time
they made statements about it is a preliminary finding of fact for the trial judge.
ER 104(a); State v. Bache, 146 Wn. App. 897, 903, 193 P.3d 198 (2008). We
review that decision for substantial evidence. Bache, 146 Wn. App. at 903.
Substantial evidence is evidence sufficient to persuade a fair-minded, rational
person of the finding’s truth. State v. Stewart, 12 Wn. App. 2d 236, 240, 457
P.3d 1213 (2020).
Here, the trial court found:
[Defense] counsel’s attempting to bring [M.Y.’s statement] under
excited utterance, but you’ve had two witnesses testify[,] “I came
out. [M.Y.] was talking with [Mack]. They were laughing and joking
in the kitchen.” [Vernon] was getting something at Taco [Bell], then
comes back. Where’s the excited utterance when this time period
goes by? I mean, your witnesses are testifying that there’s this
jovial conversation happening while somebody else is going off to
get food and coming back. That falls completely outside the
parameters of excited utterance.
The finding is supported by substantial evidence. Akai and Artisan both
testified that they saw M.Y. and Mack laughing together after the rape. And they
recalled that at some point, Vernon left to get Taco Bell. After Vernon returned,
Mack left, and the witnesses testified that Vernon ate the food while he and M.Y.
sat in the living room talking. Akai testified that M.Y. then became
“confrontational,” and she heard M.Y. say, “ ‘I never said you raped me, but I said
stop and you didn’t.’ ”
Vernon argues that M.Y.’s own testimony shows she was still experiencing
stress from the rape at the time she allegedly made the statement. While M.Y.
did testify that she was still “shock[ed]” and upset after the encounter with
11
No. 83873-3-I/12
Vernon, the evidence also shows she drove for five blocks before choosing to
return to Vernon’s house to confront him. In any event, we do not reweigh the
evidence on appeal and will uphold the trial court’s factual determinations so long
as they are supported by substantial evidence. See State v. Ramos, 187 Wn.2d
420, 451-53, 387 P.3d 650 (“Although we cannot say that every reasonable
judge would necessarily make the same decisions as the court did here, we
cannot reweigh the evidence on review,” and the trial court did not err in finding
substantial and compelling reasons to impose an exceptional sentence
downward.), cert. denied, 538 U.S. 995, 138 S. Ct. 467, 199 L. Ed. 2d 355(2017).
The trial court did not abuse its discretion by refusing to admit Akai’s
hearsay testimony.
3. Jury Instructions
Vernon argues that the trial court provided the jury an inaccurate to-
convict instruction. According to Vernon, the instruction’s wording left room for
the jury to convict him even if it concluded M.Y. initiated sexual intercourse by
force. The State argues that Vernon invited any error. We agree with the State.
The invited error doctrine precludes a criminal defendant from seeking
appellate review of an error he helped create. State v. Mercado, 181 Wn. App.
624, 629-30, 326 P.3d 154 (2014). Under the doctrine, we will not review a
party’s assertion of error to which the party affirmatively assented, materially
contributed, or benefited from at trial. Id. at 630. We apply the doctrine when the
defendant proposed a jury instruction or agreed to its wording. State v. Winings,
12
No. 83873-3-I/13
126 Wn. App. 75, 89, 107 P.3d 141 (2005). The doctrine applies even to
manifest constitutional errors that would otherwise be reviewable for the first time
on appeal under RAP 2.5. State v. Elmore, 139 Wn.2d 250, 280, 985 P.2d 289(1999) (citing State v. Henderson, 114 Wn.2d 867, 869-70, 792 P.2d 514 (1990)).
We apply the invited error doctrine strictly, sometimes with harsh results. See,
e.g., State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999) (even though
it was a standard pattern instruction at the time, invited error doctrine prohibited
review of legally erroneous jury instruction because defendant proposed it).
Before trial, Vernon proposed the following to-convict jury instruction:
To convict the defendant of the crime of rape in the second
degree, each of the following three elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about September 13, 2018 the defendant
engaged in sexual intercourse with [M.Y.];
(2) That the sexual intercourse occurred by forcible
compulsion; and
(3) That this act occurred in the State of Washington.
The State proposed an identical instruction, and the court agreed to give
the instruction to the jury. Vernon now argues that the instruction’s passive voice
suggested the State needed to prove only that sexual intercourse occurred by
forcible compulsion, “whether he was the one who used force or not.” And the
second degree rape statute requires that the State prove Vernon was the person
who used force. See RCW 9A.44.050(1)(a) (“A person is guilty of rape in the
second degree when, under circumstances not constituting rape in the first
degree, the person engages in sexual intercourse with another person . . . [b]y
forcible compulsion.”). Because Vernon proposed the instruction from which he
now complains, his challenge is barred as invited error.
13
No. 83873-3-I/14
Vernon tries to sidestep the invited error doctrine by reframing the issue
as a violation of his due process rights. According to Vernon, he was “convicted
of conduct that does not constitute a crime in . . . Washington — having
[consensual] sexual intercourse that occurred by forcible compulsion.” In support
of his argument, Vernon relies on In re Personal Restraint of Hinton, 152 Wn.2d
853, 100 P.3d 801 (2004), and Fiore v. White, 531 U.S. 225, 121 S. Ct. 712, 148
L. Ed. 2d 629 (2001).
In Hinton, our Supreme Court invalidated the petitioners’ convictions for
second degree murder, determining they were “convicted of crimes under a
statute that, as construed in Andress, did not criminalize their conduct as second
degree felony murder.” 152 Wn.2d at 859-60; see In re Pers. Restraint of
Andress, 147 Wn.2d 602, 615-16, 56 P.3d 981 (2002) (holding assault cannot
serve as the predicate crime to convict a defendant of second degree felony
murder under former RCW 9A.32.050(1)(b) (1976)). In Fiore, the United States
Supreme Court held that under the due process clause, a state cannot convict a
defendant for conduct that its criminal statute, as later interpreted by the state’s
highest court, did not prohibit. 531 U.S. at 228-29. The Court noted that under
the circumstances in Fiore, the State’s failure to prove all the elements of the
crime beyond a reasonable doubt violated due process. Id.Vernon’s reliance on Hinton and Fiore is misplaced. He does not
challenge the sufficiency of the elements of the second degree rape statute.
Instead, he argues that the language in his proposed to-convict jury instruction
14
No. 83873-3-I/15
leaves room for the jury to convict him based on facts that do not amount to a
crime. Invited error precludes his challenge.
4. Constitutionally of Second Degree Rape Statute
Vernon argues that RCW 9A.44.050(1)(b) is unconstitutionally vague and
overbroad. We review the constitutionality of a statute de novo. State v.
Watson, 160 Wn.2d 1, 5, 154 P.3d 909 (2007). We presume a statute is
constitutional, and the party challenging a statute has the heavy burden of
proving it is unconstitutional beyond a reasonable doubt. State v. Coria, 120
Wn.2d 156, 163, 839 P.2d 890 (1992).
A. Vagueness
The due process clauses of the Fifth and Fourteenth Amendments to the
United States Constitution require that statutes afford citizens a fair warning of
prohibited conduct. State v. Murray, 190 Wn.2d 727, 736, 416 P.3d 1225 (2018).
A party challenging a statute as vague must show that either (1) the statute does
not define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is proscribed, or (2) the statute does not provide
ascertainable standards of guilt to protect against arbitrary enforcement. Coria,
120 Wn.2d at 163.
A statute “is ‘void for vagueness if it is framed in terms so vague that
persons of common intelligence must necessarily guess at its meaning and differ
as to its application.’ ” City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366(1988) (quoting O’Day v. King County, 109 Wn.2d 796, 810, 749 P.2d 142(1988)). But a statute is not unconstitutionally vague just because it fails to
15
No. 83873-3-I/16
define some terms. In re Pers. Restraint of Troupe, 4 Wn. App. 2d 715, 723, 423
P.3d 878 (2018). We attribute to those terms their plain and ordinary dictionary
definitions, looking to the entire enactment’s context. Id.Nor do we require “impossible standards of specificity.” Eze, 111 Wn.2d
at 26. That is, “a statute 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.” Id. at 27. If persons “ ‘of ordinary
intelligence can understand a penal statute, notwithstanding some possible areas
of disagreement, it is not wanting in certainty.’ ” Id. (quoting State v. Maciolek,
101 Wn.2d 259, 265, 676 P.2d 996 (1984)). For a statute to be unconstitutionally
vague, its terms must be so loose and obscure that no one can apply them
clearly in any context. State v. Alphonse, 147 Wn. App. 891, 907, 197 P.3d 1211(2008).
Our first step in resolving a vagueness challenge is to determine whether
we review the statute facially or as applied to the facts of a particular case. City
of Spokane v. Douglass, 115 Wn.2d 171, 181-82, 795 P.2d 693 (1990). A
defendant whose conduct is clearly prohibited cannot be the one to facially
challenge a statute. State v. Duncalf, 177 Wn.2d 289, 297, 300 P.3d 352 (2013)
(citing Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19, 130 S. Ct. 2705,
177 L. Ed. 2d 355 (2010)). But a defendant challenging a statute that impacts
their right to free speech can bring a facial challenge because both the federal
and Washington constitutions protect the right to free speech. State v. Mireles,
16 Wn. App. 2d 641, 649, 482 P.3d 942 (2021); U.S. CONST. amend. I; WASH.
16
No. 83873-3-I/17
CONST. art. I, § 5. If a statute does not involve First Amendment rights, then we
evaluate a vagueness challenge by examining the statute as applied to the
particular facts of the case.8 Douglass, 115 Wn.2d at 182.
Vernon brings a facial challenge to the second degree rape statute. Citing
several cases that “recognize the importance of a person’s ability to make their
own decisions regarding private, sexual matters,” he argues that the First
Amendment protects his “right to use very mild force in a private sexual
relationship.” But none of the cases cited by Vernon support his argument that
the First Amendment protected his conduct here. See Lawrence v. Texas, 539
U.S. 558, 578-79, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (right to consensual
sexual activity in the home protected under the Fourteenth Amendment’s due
process clause); Carey v. Population Servs. Int’l, 431 U.S. 678, 693-94, 97 S. Ct.
2010, 52 L. Ed. 2d 675 (1977) (minors’ privacy rights in accessing contraceptives
constitutionally protected); Griswold v. Connecticut, 381 U.S. 479, 480, 484-85,
85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (prosecuting physicians for educating
married persons about “the means of preventing conception” violates
constitutional rights to privacy); Skinner v. Oklahoma, 316 U.S. 535, 537-38, 541,
8
Citing two United States Supreme Court cases, Vernon argues this long-
standing rule no longer applies to vagueness challenges. See Johnson v. United States,
576 U.S. 591, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015); Sessions v. Dimaya, 584 U.S.
148, 138 S. Ct. 1204, 200 L. Ed. 2d 549 (2018). But the Ninth Circuit clarified that
“Johnson and Dimaya did not alter the general rule that a defendant whose conduct is
clearly prohibited cannot be the one to make a facial vagueness challenge to a statute.”
Kashem v. Barr, 941 F.3d 358, 376 (9th Cir. 2019). And our Supreme Court continues
to apply the rule. See State v. Fraser, 199 Wn.2d 465, 484, 509 P.3d 282 (2022) (when
a “statute does not implicate First Amendment rights, [it] ‘must be evaluated in light of
the particular facts of each case’ ”) (quoting State v. Halstien, 122 Wn.2d 109, 117, 857
P.2d 270 (1993)).
17
No. 83873-3-I/18
62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (fundamental right to marriage and
procreation protected under equal protection and due process clauses).
Because Vernon cites no persuasive authority that he engaged in conduct
protected under the First Amendment, we decline to address his facial challenge
to RCW 9A.44.050(1)(b).
Vernon also fails to show that the second degree rape statute is
unconstitutional as applied to the facts of his case. RCW 9A.44.050(1)(a)
prohibits engaging “in sexual intercourse with another person . . . [b]y forcible
compulsion.” RCW 9A.44.010(3) defines “forcible compulsion” as “physical force
which overcomes resistance, or a threat, express or implied, that places a person
in fear of death or physical injury to herself or himself or another person, or in
fear that she or he or another person will be kidnapped.”
Vernon argues that RCW 9A.44.010(3) is vague because it focuses on the
victim’s “level of resistance to mild force.” He asserts that he could be “convicted
and imprisoned for a highly stigmatizing crime” for engaging in consensual
forcible sex without knowing that he had crossed this “subjective” line. But the
facts here do not support finding that Vernon engaged in consensual sex.
M.Y. testified that Vernon forced sexual intercourse with her after she
clearly told him at least twice that she did “not want to have sex.” Despite her
refusals, Vernon shoved M.Y. onto the bed, got on top of her, forced her legs
over his shoulders, held her hands above her head, and forced sexual
intercourse. M.Y. tried to push Vernon away, told him “no” and “stop,” kicked at
18
No. 83873-3-I/19
him, and repeated her objections throughout the rape. An ordinary person in
Vernon’s position would know that M.Y. was resisting sexual intercourse.
Vernon fails to show that RCW 9A.44.050(1)(b) is unconstitutionally vague
as applied to the facts of his case.
B. Overbreadth
Vernon argues that the second degree rape statute is overbroad because
“it sweeps within it constitutionally protected sexual behavior without a necessity
of finding of lack of consent and without a mens rea requirement.”
Our overbreadth analysis under article I, section 5 of the Washington
Constitution follows that of the First Amendment to the federal constitution.
Mireles, 16 Wn. App. 2d at 649. A statute is overbroad under the Washington
and federal constitutions if it unlawfully prohibits a substantial amount of
protected speech. Id. In determining whether a statute is overbroad, we first
consider whether the statute reaches a substantial amount of constitutionally
protected speech. Id. If so, we then determine whether the constitution allows
regulation of the protected speech. Id.But while the doctrine of overbreadth has been accorded standing
because of the “ ‘chilling effect’ ” that a statute might have on the right to free
speech, the doctrine is not applied in contexts other than those relating to the
First Amendment. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 168, 92 S. Ct.
1965, 32 L. Ed. 2d 627 (1972). As discussed above, Vernon fails to show that
the First Amendment protected his conduct. So, we decline to address his
overbreadth challenge.
19
No. 83873-3-I/20
5. Community Custody Conditions
Vernon argues that several of his community custody conditions are
unconstitutionally vague. We disagree.
As part of any term of community custody, a sentencing court may order
an offender to comply with crime-related prohibitions. RCW 9.94A.703(3)(f). A
crime-related condition “prohibit[s] conduct that directly relates to the
circumstances of the crime for which the offender has been convicted.” RCW
9.94A.030(10). We review a trial court’s imposition of crime-related conditions of
community custody for abuse of discretion. State v. Irwin, 191 Wn. App. 644,
656, 364 P.3d 830 (2015). A trial court necessarily abuses its discretion if it
imposes an unlawfully vague condition that curtails constitutional rights. State v.
Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).
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.” Padilla, 190 Wn.2d at 677.
When considering the meaning of a community custody condition, “the terms are
not considered in a ‘vacuum,’ rather, they are considered in the context in which
they are used.” State v. Bahl, 164 Wn.2d 739, 754, 193 P.3d 678 (2008)
(quoting Douglass, 115 Wn.2d at 180). “ ‘[I]f persons of ordinary intelligence can
understand what the [law] proscribes, notwithstanding some possible areas of
20
No. 83873-3-I/21
disagreement, the [law] is sufficiently definite.’ ” State v. Nguyen, 191 Wn.2d
671, 679, 425 P.3d 847 (2018)9 (quoting Douglass, 115 Wn.2d at 179).
Here, the trial court ordered that Vernon shall:
4. Within 30 days of release from confinement (or sentencing, if no
confinement is ordered) obtain a sexual deviancy evaluation with
a State certified therapist approved by your Community
Corrections Officer (CCO) and follow all recommendations of the
evaluator. . . .
5. Inform the supervising CCO 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 approves of such.
Vernon argues that the condition to “[d]isclose sex offender status prior to
any sexual contact” is vague because it does not specify to whom he must
disclose. He suggests that it is unclear whether the condition requires him to
disclose his sex offender status to his CCO or a sexual partner. But a person of
ordinary intelligence would understand that the condition is meant to warn
potential partners of the risks he may pose. Vernon’s CCO is already aware of
Vernon’s sex offender status. So, the condition clearly requires Vernon to
disclose his sex offender status to persons with whom he intends to engage in
sexual contact.
Vernon also argues that the term “sex offender status” is vague. He says
it does “not make it clear whether [he] is to disclose his registration status, the
conviction, or the nature of the facts that gave rise to the conviction.” But the
plain language of the condition requires that Vernon disclose his status as a sex
offender. A “sex offense” is “[a] felony that is a violation of chapter 9A.44 RCW,”
9
Second and third alterations in original.
21
No. 83873-3-I/22
which includes rape in the second degree. RCW 9.94A.030(47)(a)(i); RCW
9A.44.050(2). So, a person of ordinary intelligence would understand that “sex
offender status” means being a convicted felony sex offender.
Finally, Vernon argues that the language “[s]exual contact in a relationship
is prohibited until the treatment provider approves of such” is vague because
Vernon may not have a treatment provider. But Vernon’s challenge is not ripe for
review.
Community custody conditions are ripe for review on direct appeal “ ‘if the
issues raised are primarily legal, do not require further factual development, and
the challenged action is final.’ ” Bahl, 164 Wn.2d at 751 (quoting First United
Methodist Church of Seattle v. Hr’g Exam’r for Seattle Landmarks Pres. Bd., 129
Wn.2d 238, 255-56, 916 P.2d 374 (1996) (Dolliver, J., dissenting)). “The court
must also consider ‘the hardship to the parties of withholding court
consideration.’ ” Id. (quoting First United, 129 Wn.2d at 255). Vernon’s
challenge requires further factual development—a sexual deviancy evaluation
that will determine whether he will have a treatment provider from whom to seek
approval. And deferring consideration of Vernon’s argument until that time does
not create an undue hardship. So, we do not address his challenge to this
condition.
In sum, the trial court did not err by granting the State’s GR 37 challenge
to his peremptory strike of a Black juror, excluding evidence as hearsay, and
giving the parties’ proposed to-convict jury instruction. And Vernon fails to show
that RCW 9A.44.050(1)(d) is unconstitutionally vague or overbroad or that the
22
No. 83873-3-I/23
trial court’s conditions of community custody are unconstitutionally vague. We
affirm.
WE CONCUR:
23