       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

THE STATE OF WASHINGTON,       )                  No. 75258-8-I
                               )
                   Respondent, )
                               )
           v.                  )                 PUBLISHED OPINION
                               )
DOMINIQUE DEBRA NORRIS,        )
                               )
                   Appellant.  )                 FILED: October 30, 2017

       SCHINDLER, J. — 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
No. 75258-8-1/2

statutory authority to prohibit "consumption" but not "use" of alcohol. We affirm in

part, reverse in part, and remand.

Imposition of SSOSA

       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).

       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.

       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.

       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


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No. 75258-8-1/3


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."

      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

       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

       Norris challenges several of the community custody conditions. Norris

contends the conditions are either(1) void for vagueness or(2) not crime-




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No. 75258-8-1/4

related.' 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 Wn.2d 739, 751, 193 P.3d 678(2008).

(1) Vagueness

        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 Wn.2d at 753. The imposition of an unconstitutional condition is

manifestly unreasonable. State v. Sanchez Valencia, 169 Wn.2d 782, 792, 239

P.3d 1059(2010). There is no presumption that a community custody condition

is constitutional. Sanchez Valencia, 169 Wn.2d at 793. 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 Wn.2d 17, 32, 195 P.3d 940 (2008).

        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 Wn.2d at 752. 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 Wn.2d at 752-53(quoting City of Spokane v. Douglass, 115 Wn.2d


         1 Norris and the State cite a number of unpublished opinions. GR 14.1 allows parties to
cite unpublished   opinions as nonbinding authority. But the rule states unequivocally that
"Washington appellate courts should not, unless necessary for a reasoned decision, cite or
discuss unpublished opinions in their opinions." GR 14.1(c).


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No. 75258-8-1/5

171, 178, 795 P.2d 693(1990)). If either requirement is not met, the condition is

unconstitutional. Bahl, 164 Wn.2d at 753. 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 Wn.2d at 7932

(quoting State v. Sanchez Valencia, 148 Wn. App. 302, 321, 198 P.3d 1065

(2009)).

       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]

      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 Wn.2d at 179. "Terms must be

considered in the context in which used," and " li]mpossible standards of

specificity' are not required since language always involves some degree of

vagueness." Bahl 164 Wn.2d at 7594 (quoting State v. Halstien, 122 Wn.2d 109,

118, 857 P.2d 270 (1993)).

       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


       2 Internalquotation marks omitted.
      3 Emphasis added.

      4 Internal quotation marks omitted.



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No. 75258-8-1/6

an adequate ascertainable standard, the condition does not prevent arbitrary

enforcement. Reeves does not support her argument.

        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-

83.6

        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.

        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.

        Norris also contends Special Sex Offense Condition 18 is

unconstitutionally vague. Condition 18 states,"Do not enter any parks/



        5Emphasis added.
        6We note the legislature defined "dating relationship" in the context of domestic relations
to mean "a social relationship of a romantic nature." RCW 26.50.010(2).

                                                6
No. 75258-8-1/7

playgrounds/schools and or any places where minors congregate." Citing State

v. Irwin, 191 Wn. 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.

        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 Wn. App. at 650-

55. We held that "Mjithout some clarifying language or an illustrative list of

prohibited locations," the condition "does not give ordinary people sufficient

notice to 'understand what conduct is proscribed.'" Irwin, 191 Wn. App. at 6557

(quoting Bahl, 164 Wn.2d at 753). Because the condition was subject to

definition by the CCO,the court also concluded that "it would leave the condition

vulnerable to arbitrary enforcement." Irwin, 191 Wn. App. at 655.

        At oral argument, Norris' attorney conceded, and we agree, that the

imposition of a condition that deletes "and or any places" and states,"Do not

enter any parks/playgrounds/schools where minors congregate" gives notice to

ordinary persons of what is prohibited and is not unconstitutionally vague.8 We

hold the imposition of a condition that states,"Do not enter any parks,

playgrounds, or schools where minors congregate" is not unconstitutionally

vague or void for vagueness.



        7 Internal quotation marks omitted.
        8 Wash. Court of Appeals oral   argument, State v. Norris, No. 75258-8-1 (Sept. 27, 2017),
at 1 min., 40 sec. through 2 min., 48 sec.(on file with court).


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No. 75258-8-1/8

(2) Crime-Related Conditions

          Norris contends the community custody conditions that impose a curfew,

prohibit her from entering sex-related businesses, and prohibit her from

possessing, using, or accessing sexually explicit material are not crime-related

and must be stricken.9

        The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW;

specifically, former RCW 9.94A.505(8)(LAws OF 2009, ch. 389,§ 1)and RCW

9.94A.703(3)(f), authorize the court to order a defendant to comply with crime-

related prohibitions while on community custody. Former RCW 9.94A.505(8)

states:

        As a part of any sentence, the court may impose and enforce
        crime-related prohibitions and affirmative conditions as provided in
        this chapter.09]

RCW 9.94A.703(3)(f) states,"As part of any term of community custody, the

court may order an offender to...[c]omply with any crime-related prohibitions."

The SRA defines a "crime-related prohibition," in pertinent part, as an "order of a

court prohibiting conduct that directly relates to the circumstances of the crime for

which the offender has been convicted." RCW 9.94A.030(10).

        Community custody conditions are "usually upheld if reasonably crime

related." Warren, 165 Wn.2d at 32; see also State v. Parramore, 53 Wn. App.

527, 531, 768 P.2d 530(1989)(there must be a factual basis for concluding the



        9 The court applies the statute in effect when the offense was committed. State v.
Munoz-Rivera, 190 Wn. App. 870, 891 n.3 & n.4, 361 P.3d 182(2015).
         10 The current version of the statute uses the same language and states, in pertinent part,
"As a part  of any sentence, the court may impose and enforce crime-related prohibitions and
affirmative conditions as provided in this chapter." RCW 9.94A.505(9).


                                                 8
No. 75258-8-1/9

sentence condition is crime-related)(citing DAVID BOERNER,SENTENCING IN

WASHINGTON § 4.5 (1985)). "[B]ecause the imposition of crime-related

prohibitions is necessarily fact-specific and based upon the sentencing judge's

in-person appraisal of the trial and the offender," the appropriate standard of

review is abuse of discretion. In re Pers. Restraint of Rainey, 168 Wn.2d 367,

374-75, 229 P.3d 686 (2010).

       Curfew Condition

       Special Sex Offense Condition 7 states:

       Abide by a curfew of 10pm-5am unless directed otherwise. Remain
       at registered address or address previously approved by CCO
       during these hours.

The State concedes that the curfew condition is not crime-related and must be

stricken. We accept the concession of error.

       Sex-Related Businesses Condition

       Special Sex Offense Condition 10 states:

       Do not enter sex-related businesses, including: x-rated movies,
       adult bookstores, strip clubs, and any location where the primary
       source of business is related to sexually explicit material.

       Norris contends condition 10 is not crime-related. The State cites State v.

Magana, 197 Wn. App. 189, 389 P.3d 654 (2016), to argue the nature of the

crime alone justifies imposition of condition 10 as crime-related. In Magana,

Division Three held that because the defendant was convicted of "a sex offense,

conditions regarding access to X-rated movies, adult book stores, and sexually

explicit materials were all crime related and properly imposed." Magana, 197

Wn. App. at 201. To the extent Magana stands for either a categorical approach



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No. 75258-8-1/10

or the broad proposition that a sex offense conviction alone justifies imposition of

a crime-related prohibition, we disagree. As previously noted, there must be

some evidence supporting a nexus between the crime and the condition. See

State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262(2008)(striking condition

prohibiting defendant's Internet use after finding "no evidence" defendant

"accessed the Internet before the rape" or "Internet use contributed in any way to

the crime"); State v. Kinzie, 181 Wn. App. 774, 785, 326 P.3d 870(2014)(State

conceded, and we agreed, conditions prohibiting a sex offender from possessing

sexually explicit material and frequenting establishments selling such materials

were not crime-related "because no evidence suggested that such materials

were related to or contributed to his crime.").

       In support of a categorical approach, the State submitted Paul J. Wright,

et al., A Meta-Analysis of Pornography Consumption and Actual Acts of Sexual

Awression in General Population Studies, 66 J. Comm., 183(2015); and Drew

A. Kingston, et al., Pornography Use and Sexual Aggression: The impact of

frequency and type of pornography use on recidivism among sexual offenders,

34 Aggressive Behavior, 341 (2008), as additional authority. RAP 10.8 allows

parties to file additional case law authority, not additional evidence. Further,

public policy decisions are the prerogative of the legislature, not the courts. John

Doe A v. Wash. State Patrol, 185 Wn.2d 363, 384, 374 P.3d 63(2016); State v.

Costich, 152 Wn.2d 463,479, 98 P.3d 795(2004).




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No. 75258-8-1/11

       Because there is no evidence in the record showing that frequenting sex-

related businesses is reasonably related to the circumstances of the crime, the

trial court must strike Special Sex Offense Condition 10.

       Sexually Explicit Materials Condition

       Norris challenges Special Sex Offense Condition 11. 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.

       Norris claims condition 11 is not crime-related. We disagree. So long as

there is some evidence that the offense and the challenged condition are

"reasonably" related, the condition should be upheld. Kinzle, 181 Wn. App. at

785.

       Norris stipulated the court could consider the certification of determination

of probable cause as real facts at sentencing. The certification establishes Norris

and the 13-year-old boy had a code for sex, exchanged sex-related text

messages, and Norris sent the boy "a photo of herself in pants and a bra."

       We conclude the prohibition on possessing, using, accessing, or viewing

sexually explicit or erotic materials is "reasonably" related to her offense. See

Irwin, 191 Wn. App. at 657-59(where defendant took and stored pornographic

images as part of his act of molesting underage females, condition prohibiting

possession of or access to computers was reasonably related to child

molestation convictions).




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No. 75258-8-1/12

Use of Alcohol Condition

         Norris challenges Special Sex Offense Condition 12. Condition 12 states,

"Do not use or consume alcohol."11

         Norris concedes former RCW 9.94A.703(3)(e)(LAWS OF 2009, ch. 214,§

3) authorizes the court to impose a condition that prohibits offenders "from

consuming alcohol," regardless of whether alcohol contributed to the offense.12

See State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258(2003)(analyzing

the similar language of former RCW 9.94A.120(8)(c)(iv)(LAWS OF 1988, ch. 153,

§ 2), "offender shall not consume alcohol").

         But Norris contends the court did not have the authority to prohibit her

from the "use" of alcohol. Norris asserts there is no evidence that use of alcohol

is crime-related. The State disagrees, arguing that although redundant and

unnecessary,"consume" and "use" are synonymous. We disagree with the

State.

         "Use" of alcohol is different from the consumption of alcohol. Because

former RCW 9.94A.703(3)(e) authorizes the imposition of a condition only on

"consuming alcohol," on remand, the court shall strike the words "use or" from

condition 12.

Appellate Costs

         The State has not requested costs on appeal. However, Norris asks us to

deny appellate costs if the State claims it is entitled to costs as the substantially



       11 Emphasis added.
            2015, the legislature amended RCW 9.94A.703(3)(e) to state, "Refrain from
         12 In
possessing or consuming alcohol." LAWS OF 2015, ch. 81,§ 3(emphasis in original).


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 No. 75258-8-1/13

 prevailing party. Appellate costs are generally awarded to the substantially

 prevailing party. RAP 14.2. However, where a trial court makes a finding of

 indigency, that finding remains throughout review "unless the commissioner or

 clerk determines by a preponderance of the evidence that the offender's financial

• circumstances have significantly improved since the last determination of

 indigency." RAP 14.2. Under RAP 14.2, the State may file a motion for costs

 with the commissioner if financial circumstances have significantly improved

 since the finding of indigency. State v. St. Clare, 198 Wn. App. 371, 382, 393

 P.3d 836(2017).

        We affirm in part, reverse in part, and remand for proceedings consistent

 with this opinion.




 WE CONCUR:




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