State v. Norris

• Decision Date: 30 October 2017
• Docket Number: No. 75258-8-I.,75258-8-I.
• Citation: 404 P.3d 83
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Dominique Debra NORRIS, Appellant.

404 P.3d 83

The STATE of Washington, Respondent,

v.Dominique Debra NORRIS, Appellant.

No. 75258-8-I.

Court of Appeals of Washington, Division 1.

FILED: October 30, 2017

Jennifer M. Winkler, Attorney at Law, Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Ian Ith, King County Prosecuting Attorney's Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent.

PUBLISHED OPINION

Schindler, J.

¶1 A court has the statutory authority to impose crime-related prohibitions as a condition of community custody. Dominique Debra Norris pleaded guilty to three counts of child molestation in the second degree. Norris challenges several of the community custody conditions. We hold the condition that requires Norris to inform the community corrections officer of a "dating relationship" and imposition of a condition that prohibits Norris from entering "any parks/playgrounds/schools where minors congregate" are not void for vagueness. The condition that prohibits her from possessing, using, accessing, or viewing sexually explicit material is crime-related. But the condition that imposes a curfew and the condition that prohibits Norris from entering sex-related businesses are not crime-related. We also conclude the court had the statutory authority to prohibit "consumption" but not "use" of alcohol. We affirm in part, reverse in part, and remand.

Imposition of SSOSA

¶2 In August 2010, the State charged 25-year-old Dominique Debra Norris with two counts of rape in the second degree of a 13-year-old boy. Norris pleaded guilty to three counts of second degree child molestation. The State agreed to recommend imposition of a special sex offender sentencing alternative (SSOSA).

¶3 In the statement of defendant on plea of guilty, Norris admits:

Between Dec. 1, 2009 and Feb 28, 2010 in King Co. WA I had sexual contact for the purpose of sexual gratification with D.T. who was 13 years old at the time and not married to me or in a state registered domestic partnership at the time of the contact. I was at least 36 mo. older than D.T. This happened on three occasions.

As part of the plea agreement, Norris stipulated the court could consider the certification for determination of probable cause as real facts.

¶4 The certification of probable cause states that on August 12, 2010, D.T.'s mother contacted the police after his basketball coach told her that D.T. "had been having sex with an adult female for a period of a few months." D.T.'s mother told the police, "Dominique has known the family since DT was a small boy and was aware of how old he was. [Norris] is also the mother of DT's brother's children." D.T. gave a statement to police.

¶5 The certification states Norris repeatedly had sexual intercourse with 13-year-old D.T. beginning in December 2009 and had sex "several times at Dominique's residence" and the boy's home. Norris and D.T. communicated by cell phone and had a "code" for sex. "During the relationship as well as afterwards, Dominique sent DT messages about her love for him and also sent a photo of herself in pants and a bra. The cell phone involved ... was being used solely by DT." The certification also states that on August 12, 2010,

Norris disclosed to a member of her church "that she had been having sex with DT."

¶6 At sentencing on March 30, 2012, the court imposed a concurrent SSOSA sentence of 72 months on each count suspended on condition that Norris engage in and successfully complete sex offender treatment. The judgment and sentence states that revocation of the suspended sentence will result in 36 months of community custody and compliance with "the conditions of Community Custody set forth in Appendix H herein or any other conditions imposed by the Court." Appendix H includes standard conditions, sex offense conditions, and additional prohibitions related to crimes involving minors.

Revocation of SSOSA

¶7 Four years later, the court entered an order on May 17, 2016 revoking the SSOSA and the suspended 72-month sentence. The order states Norris shall comply with the terms of the 2012 judgment and sentence and the community custody conditions "as set forth in Appendix H of the original Judgment and Sentence."

Appeal of Community Custody Conditions

¶8 Norris challenges several of the community custody conditions. Norris contends the conditions are either (1) void for vagueness or (2) not crime-related.¹ A defendant may assert a preenforcement challenge to community custody conditions for the first time on appeal if the challenge is primarily legal, does not require further factual development, and the challenged action is final. State v. Bahl, 164 Wash.2d 739, 751, 193 P.3d 678 (2008).

(1) Vagueness

¶9 As a general rule, the imposition of community custody conditions is within the discretion of the court and will be reversed only if manifestly unreasonable. Bahl, 164 Wash.2d at 753, 193 P.3d 678. The imposition of an unconstitutional condition is manifestly unreasonable. State v. Sanchez Valencia, 169 Wash.2d 782, 792, 239 P.3d 1059 (2010). There is no presumption that a community custody condition is constitutional. Sanchez Valencia, 169 Wash.2d at 793, 239 P.3d 1059. A sentencing condition that interferes with a constitutional right must be "sensitively imposed" and "reasonably necessary to accomplish the essential needs of the State and public order." State v. Warren, 165 Wash.2d 17, 32, 195 P.3d 940 (2008).

¶10 The Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution require fair warning of proscribed conduct. Bahl, 164 Wash.2d at 752, 193 P.3d 678. A condition is void for vagueness if the condition either (1) does not define the prohibition with sufficient definitiveness that ordinary people can understand what conduct is proscribed or (2) does not provide ascertainable standards that " ‘protect against arbitrary enforcement.’ " Bahl, 164 Wash.2d at 752-53, 193 P.3d 678 (quoting City of Spokane v. Douglass, 115 Wash.2d 171, 178, 795 P.2d 693 (1990) ). If either requirement is not met, the condition is unconstitutional.

Bahl, 164 Wash.2d at 753, 193 P.3d 678. However, a community custody condition is not unconstitutionally vague " ‘merely because a person cannot predict with complete certainty the exact point at which [her] actions would be classified as prohibited conduct.’ " Sanchez Valencia, 169 Wash.2d at 793, 239 P.3d 1059² (quoting State v. Sanchez Valencia, 148 Wash.App. 302, 321, 198 P.3d 1065 (2009) ).

¶11 Norris claims the condition that requires her to inform the community corrections officer (CCO) of "any dating relationship" is unconstitutionally vague. Crime-related "Special Sex Offense Condition" 5 states:

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.^{[3 ]}

¶12 A condition will withstand a vagueness challenge if "persons of ordinary intelligence can understand what the [law] proscribes, notwithstanding some possible areas of disagreement." Douglass, 115 Wash.2d at 179, 795 P.2d 693. "Terms must be considered in the context in which used," and " ‘[i]mpossible standards of specificity’ are not required since language always involves some degree of vagueness." Bahl, 164 Wash.2d at 759, 193 P.3d 678⁴ (quoting State v. Halstien, 122 Wash.2d 109, 118, 857 P.2d 270 (1993) ).

¶13 Citing United States of America v. Reeves, 591 F.3d 77 (2d Cir. 2010), Norris argues because the term "dating relationship" does not provide notice of an adequate ascertainable standard, the condition does not prevent arbitrary enforcement. Reeves does not support her argument.

¶14 In Reeves, the Second Circuit concluded a condition that required the defendant to notify the probation department " ‘when he establishes a significant romantic relationship’ " was unconstitutionally vague. Reeves, 591 F.3d at 80-83.⁵

What makes a relationship "romantic," let alone "significant" in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be "significant."

Reeves, 591 F.3d at 81.

¶15 Use of the term "dating relationship" is easily distinguishable from the condition in Reeves. The requirement to report a "dating relationship" does not contain highly subjective qualifiers like "significant" and "romantic." A "date" is commonly defined as "an appointment between two persons" for "the mutual enjoyment of some form of social activity," "an occasion (as an evening) of social activity arranged in advance between two persons." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 576 (2002).⁶ We conclude the condition is neither unconstitutionally vague nor subject to arbitrary enforcement.

¶16 Norris also contends Special Sex Offense Condition 18 is unconstitutionally vague. Condition 18 states, "Do not enter any parks/playgrounds/schools and or any places where minors congregate." Citing State v. Irwin, 191 Wash.App. 644, 364 P.3d 830 (2015), the State concedes the portion of the condition that prohibits Norris from entering "any places where minors congregate" is unconstitutionally void for vagueness. We accept the State's concession.

¶17 In Irwin, we addressed a community custody condition that prohibited the defendant from frequenting " ‘areas where minor children are known to congregate, as defined by the supervising CCO.’ " Irwin, 191 Wash.App. at 650-55, 364 P.3d 830. We held that "[w]ithout some clarifying language or an illustrative list of prohibited locations," the condition "does not give ordinary people sufficient notice to ‘understand what...