State v. Nguyen, 091318 WASC, 94883-6

Docket Nº:94883-6, 95274-4
Opinion Judge:MADSEN, J.
Party Name:STATE OF WASHINGTON, Respondent, v. HAIMINH NGUYEN, Petitioner. STATE OF WASHINGTON Respondent, v. DOMINIQUE DEBRA NORRIS, Petitioner.
Case Date:September 13, 2018
Court:Supreme Court of Washington

STATE OF WASHINGTON, Respondent,

v.

HAIMINH NGUYEN, Petitioner.

STATE OF WASHINGTON Respondent,

v.

DOMINIQUE DEBRA NORRIS, Petitioner.

Nos. 94883-6, 95274-4

Supreme Court of Washington, En Banc

September 13, 2018

MADSEN, J.

These consolidated cases concern whether certain community custody conditions imposed by sentencing courts were sufficiently crime related or unconstitutionally vague. Each case involves a defendant who was convicted of sexually assaulting a minor.

For Hai Minh Nguyen, the sentencing court imposed a condition prohibiting the defendant from possessing or viewing "sexually explicit material." We hold that this condition is not unconstitutionally vague and is crime related.

For Dominique Debra Norris, the sentencing court imposed conditions requiring the defendant to inform the community corrections officer of any "dating relationship" and prohibiting the defendant from entering any "sex-related business." We hold that the condition requiring the defendant to disclose any "dating relationship" is not unconstitutionally vague. We also hold that the condition prohibiting the defendant from entering any "sex-related business" is crime related.

FACTS

State v. Hai Minh Nguyen

In 2015, Nguyen was convicted of first degree child molestation, first degree child rape, second degree child molestation, and second degree child rape.

His victim, T.P., was born in 1999 and lived in South Seattle with her parents and younger sister. T.P.'s parents rented one of the bedrooms in their house to Nguyen. T.P. spent a considerable amount of time with Nguyen, as he would come home from work around the same time that she came home from school. They grew quite close—T.P. referred to Nguyen as "uncle," and Nguyen would let T.P. use his computer for her leisure.

Nguyen began sexually assaulting T.P. when she was 6 years old. Nguyen put his hand under T.P.'s shirt and began massaging her breasts. Around this time, Nguyen began putting his mouth on T.P.'s breasts and also bit her chest. By the time T.P. was 8 or 9 years old, Nguyen's activity escalated. Nguyen began penetrating T.P.'s vagina with his fingers on a near weekly basis and also began engaging in oral sex. By the time T.P. was 11 years old, Nguyen had penetrated her vagina with his penis. The last time Nguyen sexually assaulted her, T.P. was 13 years old, and Nguyen put his mouth on her vagina.

Initially, T.P. did not tell her parents about the sexual assault because she felt uncomfortable discussing it. T.P eventually wrote a note to her mother, disclosing that Nguyen had touched her. 3 Verbatim Report of Proceedings (Oct. 22, 2015) at 173. T.P. also told her therapist about Nguyen, and the police subsequently became involved.

The trial court sentenced Nguyen to a prison term of 279 months to life, with lifetime community custody. The trial court also imposed several community custody conditions, including special condition 11: Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.

Clerk's Papers (CP) at 65.

On appeal, Nguyen argued, among other things, that special condition 11 is invalid because it is unconstitutionally vague and not crime related. The Court of Appeals, in an unpublished decision, affirmed the trial court, holding that "sexually explicit material" is not unconstitutionally vague and that the condition was sufficiently related to Nguyen's crimes. State v. Hai Minh Nguyen, No. 74358-9-1, slip op. (Wash.Ct.App. July 17, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/743589.pdf.

Nguyen sought review of the Court of Appeals' decision.

State v. Norris

In 2012, Norris pleaded guilty to three counts of second degree child molestation.

Her victim, D.T., was the younger brother of her children's father and was 12 years old when Norris first sexually assaulted him. In 2009, Norris and D.T. willfully began having sexual intercourse with each other while Norris and her children were staying at D.T.'s home in Federal Way, Washington. Norris was 25 years old at the time. Norris and D.T. had sexual intercourse several times throughout the relationship, both at D.T.'s Federal Way home and Norris' home in Kent, Washington. Norris also sent text messages to D.T., expressing her love for him, and sent photo messages of herself in a bra and pants.

Eventually, D.T. told a basketball teammate about his relationship with Norris. The teammate notified the basketball coach, who subsequently informed D.T.'s mother. In 2010, Norris was arrested for rape of a child.

The court imposed a 72-month standard range sentence, which it suspended in favor of imposing a special sex offender sentencing alternative (SSOSA) under RCW 9.94A.670(4). The court subsequently revoked Norris' SSOSA because she violated the terms of the special sentence by ingesting marijuana and failing to consume prescribed medication. As a result, the court imposed the previously suspended sentence of 72 months' confinement, including several community custody conditions.

Norris challenged six of the community custody conditions. State v. Norris, 1 Wn.App. 2d 87, 404 P.3d 83 (2017). The Court of Appeals, in a published decision, held that four of the six conditions were invalid. Id. at 90. Notably, the court held that the condition requiring Norris to inform the community corrections officer of any "dating relationship" is valid, as it is not unconstitutionally vague. Id. The court also held that the condition prohibiting Norris from entering any "sex-related business" is invalid because it is not crime related. Id.

Norris sought review of the Court of Appeals decision affirming the "dating relationship" condition. Additionally, in a cross petition for review, the State sought review of the Court of Appeals decision reversing the "sex-related business" condition.

ANALYSIS

We review community custody conditions for an abuse of discretion and will reverse them if they are manifestly unreasonable. State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008) (citing State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). A trial court's imposition of an unconstitutional condition is manifestly unreasonable. Id.

Vagueness Challenges

The Fourteenth Amendment to the United States Constitution along with article I, section 3 of the Washington State Constitution require that citizens be afforded fair warning of proscribed conduct. Id. at 752 (citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). To that end, a community custody condition is unconstitutionally vague if it "(1) . . . does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2). . . does not provide ascertainable standards of guilt to protect against arbitrary enforcement."

Id. (alterations in original) (quoting Douglass, 115 Wn.2d at 178 (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983))). Importantly, the disputed terms are considered in the context in which they are used, and "[i]f persons of ordinary intelligence can understand what the [law] proscribes, notwithstanding some possible areas of disagreement, the [law] is sufficiently definite." Douglass, 115 Wn.2d at 179. 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." City of Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366 (1988). However, a stricter standard of definiteness applies where the community custody condition prohibits material protected by the First Amendment. Bahl, 164 Wn.2d at 753.

"Sexually Explicit Material"—Nguyen

Nguyen argues that the community custody condition prohibiting him from possessing, using, accessing, or viewing any sexually explicit material is "intolerably vague." Suppl. Br. of Pet'r Hai Minh Nguyen at 12. Specifically, special condition 11 states: Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.

CP at 65.

Nguyen primarily relies on our decision in Bahl, where we held the term "pornographic materials" was unconstitutionally vague. Suppl. Br. of Pet'r Hai Minh Nguyen at 11. Nguyen correctly asserts that "pornographic material" "may 'include any nude depiction, whether a picture from Playboy Magazine or a photograph of Michelangelo's sculpture of David.'" Id. (quoting Bahl, 164 Wn.2d at 756). However, this case does not concern the ascertainability of "pornographic material" but, rather, the ascertainability of "sexually explicit material." In Bahl, we drew a distinction between the two.

Unlike "pornographic material," we held that the term "sexually explicit material" was not unconstitutionally vague. Bahl, 164 Wn.2d at 760. Specifically, we held "[w]hen all of the challenged terms, with their dictionary definitions, are considered together, we believe the condition is sufficiently clear." Id. at 759. In Bahl, the condition prohibited Bahl from frequenting '"establishments whose primary business pertains to sexually explicit. . . material.'" Id. at 758. We found that a person of ordinary intelligence, considering the dictionary definition of establishments whose primary business pertains to...

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