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                                                                                                      DiViSION 11
                                                                                              2G14 MAR 25 A
     IN THE COURT OF APPEALS OF THE STATE OF W.                                               HINGTON
                                                                                               S      E©   CV Sh( NIGTOJi
                                                     DIVISION II                               9 `(

STATE OF WASHINGTON,                                                              No. 43582 - -II
                                                                                            9


                                         Respondent,                         PUBLISHED OPINION


          kv



LAVESTER A. JOHNSON,




          MORGEN, J. —          A jury found Lavester A. Johnson guilty of third degree child molestation.

Johnson appeals his conviction and sentence, alleging that ( 1) the trial court violated his and the

public' s right to a public trial by sealing the juror questionnaires without complying with

necessary procedures and ( 2) his trial attorney provided ineffective assistance of counsel by

failing to subpoena two witnesses. Alternatively, Johnson asks that we remand his case to the

trial court with orders to clarify one community custody condition, strike another, and correct

certain statutory citation errors in an appendix to his judgment and sentence. Rejecting

Johnson' s public trial and ineffective assistance of counsel claims, we affirm his convictions.


However, we remand to the trial court to strike or clarify community custody condition 16, to

strike community custody condition 25, and to correct clerical errors.

                                                           FACTS


          In early spring 2011, 14- year - 'CP1 and her aunt spent the night at the home of Tina
                                         old

Becerra, a family friend. CP testified that Johnson, Becerra' s boyfriend, touched her

inappropriately on three different occasions during the night and the following morning.




1
    We   use   initials to   protect   the privacy in' e' ests
                                                     t r         of sex crime victims
No. 43582 -9 -II


        The State charged Johnson with third degree child molestation and the case proceeded to


trial. To assist in jury selection, the parties used a two -page questionnaire the jurors filled out

before oral voir dire.


        At trial CP testified about the molestation. Johnson testified in his own defense, as did


Becerra and another adult present throughout CP' s visit. Johnson' s cousin and Becerra' s six-


year -old daughter, who were both at Becerra' s house during CP' s molestation, did not testify.

        The jury returned a guilty verdict. The trial court sentenced Johnson to 14 months'

confinement and 36 months of community custody, imposing several conditions as part of his

community custody. One of these conditions prohibited Johnson from contact with " physically

or mentally vulnerable" individuals. Cle'rk' s Papers ( CP) at 112. Another prohibited computer

or Internet access without the permission of the court; this condition also forbad Johnson from


using Internet social media sites. In addition, the part of Johnson' s judgment and sentence

containing these conditions, Appendix H, stated that the trial court had sentenced Johnson under

former RCW 9. 94A.712 ( 2006) and referenced former RCW 9. 94A. 150 ( 2000) and former RCW


9. 94A. 125 ( 1983), all of which had been recodified to other RCW sections.


        Johnson timely appeals his conviction and sentence.

                                             ANALYSIS


                                           Y. PUBLIC TRIAL


        Johnson contends that the trial court abridged both his right to a public trial and the


public' s right to open access to judicial proceedings by sealing the juror questionnaires without

performing the analysis required by State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).

We find no evidence that the trial court sealed the questionnaires and reject Johnson' s claim.



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No. 43582 -9 -II



             The Washington and federal cons'ti'tutions protect a criminal defendant' s right to a public


trial. U.S. CONST. amend. VI; WASH. CONST.                   art.     I, § 22. Both constitutions also protect the


public' s right to open judicial proceedings. Press -Enter. Co. v. Superior Court of Cal., 464 U.S.

501, 509       n. 8,   104 S. Ct. 819, 78 L. Ed. 24, 629 ( 1984), WASH. CONST.            art.   I, § 10; State v.


Easterling,       157 Wn. 2d 167, 174, 137 P. 3d 825 ( 2006). The right to a public trial requires that


jury selection occur in public. State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 ( 2009);

Press -
      Enter., 464 U.S. at 505 -13.


             To succeed on a public trial claim, a defendant must first show " the courtroom was


actually      closed."    In   re   Pers. Restraint of Fates, 1. 77 Wn. 2d 1, 27, 296 P. 3d 872 ( 2013). Even if


we assume that sealing the questionnaires Would constitute a courtroom closure, we cannot grant

Johnson relief without a showing that the trial court did, in fact, seal the questionnaires. See

Yates, 177 Wn.2d at 27.


             Johnson fails to make this showing. The record contains no trial court order sealing the

completed juror questionnaires or stipulations by the parties agreeing to a sealing. See, e. g.,

State   v.   Beskurt, 176 Wn. 2d _4__ 4__ 293 P. 3d 4 159 ( 2013) ( lead
                                 4 1_,_ 4__
                                         4__,_                                         opinion    by Johnson,   J.); State


v.   Smith, 162 Wn.        App. 833, 840 -
                                         41,       262   P. 3d 72 ( 2011). The questionnaire itself contains no


language promising the jurors that the cotnrt would seal the completed questionnaires. In fact,

the trial court confirmed that language in prior questionnaires that guaranteed nondisclosure had


been    removed.          See,   e. g.,   Smith, 162 Wn.   App.   at   840 -
                                                                           41. Johnson did not have voir dire


transcribed, so we lack a record of any oral discussion indicating that the trial court intended to

seal the questionnaires. See Beskurt, 176 Wn.2d at 443 -44. In short, the evidence in the record

is insufficient to establish a court closure.



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No. 43582 -9 -II


       Johnson contends that the juror questionnaire template filed with the court shows that the


questionnaires were sealed. The template, however, shows only that the parties filed it in open

court on April 10, 2012. No part of the template shows that the trial court sealed it, let alone the


completed questionnaires at issue in Johnson' s trial.


        Johnson alleges also that all juror questionnaires are sealed as a matter of course in Pierce


County. However, nothing in the record supports this bare allegation. On direct appeal the

scope of our review is limited to matters in the trial record. State v. McFarland, 127 Wn.2d 322,


335, 899 P. 2d 1251 ( 1995).       Consequently, to raise this issue Johnson must present evidence

supporting the allegation in a collateral proceeding and seek relief through a personal restraint

petition. McFarland, 127 Wn.2d at 335.


                                  II. INEFFECTIV$ ASSISTANCE OF COUNSEL


        In his statement of additional grounds, Johnson contends that he received ineffective


assistance of counsel because his attorney failed to subpoena his cousin and Becerra' s six -year-
old daughter, both of whom were at Becerra' s house when Johnson molested CP. We disagree.


        Both the state and federal constitutions protect a defendant' s right to effective assistance


of counsel   in   criminal   trials. State   v.   Grier, 171 Wn. 2d 17, 32, 246 P.3d 1260 ( 2011), remanded,


168 Wn.   App.     635, 278 P. 3d 225 ( 2012). To prevail on his ineffective assistance of counsel


claim, Johnson must show both that his a'ttorney' s performance was deficient and that this

deficiency prejudiced him. Grier, 171 Wri.2d at 32 -33 ( citing State v. Thomas, 109 Wn.2d. 222,

225 -26, 743 P. 2d 816 ( 1987)).       Demonstrating       prejudice requires   Johnson to   show   that "` there is



a reasonable probability that, but for counsel' s deficient performance, the outcome of the

proceedings would       have been different. "' ' Grier,        171 Wn.2d at 34 (quoting State v. Kyllo, 166


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No. 43582 -9 -II



Wn.2d 856, 862, 215 P. 3d 177 ( 2009)).           We may resolve an ineffective assistance of counsel

claim on either the deficient performance or prejudice prong. Grier, 171 Wn.2d at 33 ( citing

Thomas, 109 Wn.2d at 225 -26).


       Johnson provides no evidence as to the testimony his cousin or Becerra' s daughter would

have offered if called to the stand at his trial. Without knowing what these witnesses would

testify to, we cannot say the outcome of the trial would have differed had they testified. State v.

Johnson, 132 Wn.         App.   400, 414, 132 P. 3d 737 ( 2006);    State v. Stovall, 115 Wn. App. 650, 659-

60, 63 P. 3d 192 ( 2003). Johnson does not establish prejudice, and his ineffective assistance of


counsel claim therefore fails.


                                    III. COMMUNITY CUSTODY CONDITIONS


        Johnson next challenges two of the conditions imposed by the trial court as part of his

sentence.    He first    challenges condition    16,   which states, "   Do not initiate, or have in any way,

physical contact with children under the age of 18 for any reason. Do not have any contact with

physically   or   mentally   vulnerable   individuals."     CP at 112. -Johnson contends that the use of


 vulnerable" in this- condition isunconstitutionally vague. CPat 112. _Johnson also challenges

condition   25,   which provides, "     You shall not have access to the Internet at any location nor shall

you have access to computers unless otherwise approved by the Court. You also are prohibited

from joining      or   perusing any   public social    websites ( Face[] book, MySpace,    etc.)."   CP at 113.


Johnson argues the trial court lacked statutory authority to impose this condition as it is unrelated

to the facts of his crime. We agree with both contentions.


        The Sentencing Reform Act of 1981, chapter 9. 94A RCW, authorizes the trial court to

impose " crime- related prohibitions and affirmative conditions" as part of a sentence. RCW



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No. 43582 -9 -II



9. 94A.505( 8); State    v.   Warren, 165 Wn. 2d 17, 32, 195 P. 3d 940 ( 2008).        Any condition imposed

in excess of this statutory grant of power is void. State v. Paulson, 131 Wn. App. 579, 588, 128

P. 3d 133 ( 2006).    We review de novo whether the trial court had statutory authorization to

impose a community custody condition. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526

2010).     If the trial court had statutory authorization, we review its decision to do so for an abuse

of   discretion. State   v.   Valencia, 169 Wn. 2d 782, 791 -92, 239 P.3d 1059 ( 2010) ( quoting     State v.

Bahl, 164 Wn.2d 739, 753, 193 P. 3d 678 - 2008)). ,
                                          (


A.       Vagueness and Condition 16


         The guarantee of due process of law found in both the state and federal constitutions

 requires   that citizens have fair warning of          proscribed conduct."   Bahl, 164 Wn.2d at 752. A


community custody condition does not satisfy this requirement if it fails to define the forbidden

conduct "`
             with sufficient definiteness that ordinary people can understand what conduct is

proscribed "' or "`   does not provide ascertainable standards of guilt to protect against arbitrary

enforcement. "'    Bahl, 164 Wn.2d at 752 = ( quoting City of Spokane v. Douglass, 115 Wn.2d
                                          53

171, 178, 795 P.2d 693 ( 1990)).           The imposition of-an unconstitutionally vague condition is an

abuse of the trial court' s discretion. Valencia, 169 Wn.2d at 792.


         The Supreme Court' s recent opinion in Valencia is instructive in dealing with Johnson' s

vagueness challenge. The trial court in Valencia had imposed a condition prohibiting the

defendant from possessing " paraphernalia that can be used for the ingestion or processing of

controlled substances or that can be used to facilitate the sale or transfer of controlled

substances."    169 Wn.2d        at   785 ( internal   quotation marks omitted).   On review, the Supreme




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No. 43582 -9 -II



Court found that this      condition   failed both     of   the   prongs used   to test   for   vagueness.   Valencia,


169 Wn.2d at 793 -95.


          The court first determined that this condition failed to provide adequate notice of

proscribed behavior. The court allowed' that the term "paraphernalia" was commonly associated

with   the   materials employed      for using   or   selling drugs. Valencia, 169 Wn.2d at 794. However,

the court noted that " nothing in the condition as written" limited its application to those types of

materials. Valencia, 169 Wn.2d at 794. Given the broad definition of materials encompassed by

the   word " paraphernalia," which       included "` personal belongings "'           or "` articles of equipment, "'



the court held that the condition did not provide reasonable notice as to what the defendants


could or could not possess. Valencia, 169 Wn.2d at 794 ( quoting WEBSTER' S THIRD NEW

INTERNATIONAL DICTIONARY 1638 ( 2002)).


          The court also determined that the condition violated the second prong of the vagueness

test because of.the " wide range" of items ,encompassed by " paraphernalia" and the consequent

discretion this gave probation officers in finding that a violation of the condition had occurred.

ValenCia 169 Wn.2d - 794 -95 -: The cot7rt reasoned that because of the breadth of items covered-
                   at


by    the term, " an   inventive probation officer" could use possession of an everyday item to arrest

the defendant for a violation while another probation officer might adhere more to the intent of


the condition and not arrest the defendant for possessing an everyday item not connected to drug

use or sales.     Valencia, 169 Wn. 2d     at    794 - ( internal
                                                     95                quotation marks omitted).         The court held


that "[   a] condition that leaves so much to the discretion of individual community corrections

officers     is unconstitutionally   vague."     Valencia, 169 Wn.2d at 795.




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No. 43582 -9 -II



        Regardless of whether condition 16 fails to provide adequate notice of proscribed conduct

to Johnson, we hold that the use of the term " vulnerable" fails to provide the safeguards against


arbitrary enforcement required by due process. We test whether a condition guards against

arbitrary enforcement by looking to whether it "proscribes conduct by resort to `inherently

subjective terms. "'     Douglass, 1. 15 Wn.2d at 181 ( quoting State v. Maciolek, 101 Wn.2d 259,

267, 676 P.2d 996 ( 1984)). Subjective terms               allow a "` standardless     sweep "' that enables state

officials   to "` pursue their personal predilections "'        in enforcing the community custody

conditions. Douglass, 115 Wn.2d at 180 n. 6 ( quoting Kolender v. Lawson, 461 U.S. 352, 358,

103 S. Ct. 1855, 75 L. Ed. 2d 903 ( 1983))


        Under Douglass,         condition   16'   s use of "vulnerable"     is   inherently   subjective.   115 Wn.2d


at 794. While the State argues that the term, in context, is confined to those the legislature has

designated for    extra protection     from     sexual assault or misconduct, "       nothing in the condition as

written" requires    this reading. Valencia,        169 Wn.2d      at   794. " Vulnerable" means " capable of


being wounded: defenseless against injury" or " open to attack or damage: readily countered:

inviting    obvious retort, ridicule,_
                            -         or    o     oquy." WEBSTER' S TA              NEWTNTERNATIONAL .


DICTIONARY 2567 ( 1969). With these definitions                 of " vulnerable,"    the breadth of condition 16 is


startling. Given its text, one probation officer might enforce the provision as the State

understands it and only find a violation if 7ohnson contacts a minor, or a person with a physical

or mental    handicap,   or a   frail, elderly   person.   A   more "   inventive   probation officer,"     however,


might deem Johnson to violate his community custody for contacting a person with slow

reflexes, a person with a weak constitution, a person with hemophilia, a person who is gullible, a


person who      is emotionally thin -
                                    skinned or possessed           of a   fragile   psyche, or a person     having   a
No. 43582 -9 -II



bad   week.      Valencia, 169 Wn.2d               at   794 ( internal   quotation marks omitted).    Each of those


individuals is mentally             or   physically " open to      attack or    damage," "   capable of   being   wounded," or




 inviting      obvious ...      ridicule"     in   a    way   exceeding   the   norm.   See WEBSTER' S THIRD NEw

INTERNATIONAL DICTIONARY 2567 ( 1969). The fact that two officers might enforce the


condition in fealty to its terms in such drastically different ways offends the most important

protection offered by the vagueness doctrine. See Valencia, 169 Wn.2d at 794 -95; Kolender, 461

U.S. at 357 -58.


             Finding the term " vulnerable" to be vague also comports with Division One' s opinion in

State   v.   Moultrie, 143 Wn.            App.    387; 177 p.3d 776 ( 2008), to which Johnson analogizes his case.


In Moultrie the trial court had imposed an order forbidding the defendant from contacting

 vulnerable,      ill   or   disabled     adults."      Moultrie, 143 Wn. App. at 396 (internal quotations marks

omitted).      The defendant challenged the term " vulnerable" as vague and overbroad. Moultrie,


143 Wn. App. at 396 -98. The State defended its use similarly to the way it has here, by arguing

that statutory authority gave meaning to the term. Moultrie, 143 Wn. App. at 397. The Moultrie

court rejected -his argument, noting that "t `ere is no indication that the trial court in fact intended
               t

to limit the terms of the order to" the statutory meanings, and therefore refused to read those

meanings into the order. Moultrie, 143 Wn. App. at 397 -98. The court remanded the case to the

trial court to clarify the meaning of " vulnerable."                      Moultrie, 143 Wn. App. at 398. Based on

Moultrie, Johnson asks us to remand his case to the trial court to allow it to clarify the term.

             The State argues that Moultrie does not support Johnson' s request for two reasons. First,


the State claims that the Moultrie court did not find " vulnerable" to be " unconstitutionally vague

or overbroad."          Br.   of   Resp' t   at   11. The ivagueness and overbreadth doctrines, however, do not



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No. 43582 -9 -II



occupy identical conceptual territory. While the Moultrie court did determine that the term

 vulnerable" was not overbroad, this hinged in large part on the First Amendment underpinnings


of the overbreadth doctrine and on the trial court' s ability to curtail First Amendment rights as

part of sentencing. Moultrie,. 143 Wn. App. at 398 -99. The court did consider the term

 vulnerable" to be vague or there would have been no reason to remand to allow the trial court to

clarify the term. Second, the State maintains that Moultrie does not require remand for

resentencing. As discussed below, Johnson' s case requires remand due to the error related to

condition 25. On remand, we order the trial court to either clarify the meaning of "vulnerable" in

condition   16 consistently     with   this   opinion or   to   strike   the portion of condition 16 stating, " Do


not   have any   contact with   physically      or   mentally    vulnerable   individuals." CP at 112.


B.       The Nexus Between Condition 25 -
                                        And the Facts of Johnson' s Crime


         Johnson also challenges the validity of community custody condition 25. Johnson

contends that the court lacked the authority to impose this condition without first finding that

computer use, Internet access, or social networking web site use contributed in some way to his

offense. The-State-concedes this argument and asks that we remand thematter to the trial -
                                                                                         court


so that it may strike the condition. The State' s concession is well offered and we accept it.

         While RCW 9. 94A.505( 8) allows the trial court to " impose and enforce crime -
                                                                                       related


prohibitions and affirmative conditions" as part of a criminal sentence, that authority is

circumscribed.     By the terms    of   RCW 9. 04A. 030( 10),            a " crime related prohibition" must



 directly relate[]   to the circumstances of the crime for which the offender has been convicted."


         Division One of this court has already held that a sentencing court may not prohibit a

defendant from using the Internet if his or her crime lacks a nexus to Internet use. In State v.


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No. 43582 -9 -H



O' Cain, the trial court ordered an offender convicted of second degree rape to refrain from using

the Internet without the      prior approval of      his community custody   officer.     144 Wn. App. 772,

774, 184 P. 3d 1262 ( 2008).       On appeal, Division One noted that no evidence in the record

suggested that the defendant used the Internet to commit his crime or that his Internet use had


contributed to the crime in any other way. O' Cain, 144 Wn. App. at 775. Because of this

absence of evidence, the trial court had not made any findings concerning a nexus between

Internet use and O' Cain' s crime. O' Cain, 144 Wn. App. at 775. The O' Cain court remanded the

case to the trial court with orders to strike the condition based on the lack of the requisite nexus


between the crime and the prohibited activity. O' Cain, 144 Wn. App. at 775.

          Just as in O' Cain, there are no findings suggesting any nexus between Johnson' s offense

and any computer use or Internet use. The trial court exceeded its sentencing powers under

RCW 9. 94A.505( 8) in imposing the condition. Following O' Cain, we remand Johnson' s case to

the trial court   with   instructions to   strike   community custody   condition   25.    144 Wn. App. at 775.

                                   IV. JUDGMENT AND SENTENCE ERRORS


          Finally, Johnson claims that the trial court erred with several statutory citations found in

appendix H to his judgment and sentence. The State concedes that the statutory citations in the

appendix are erroneous and asks that we remand the matter to the trial court to allow it to correct


the errors. Again, the State' s concession is well offered, and we accept it.


          Appendix H of Johnson' s judgment and sentence contains numerous references to code


provisions no longer in effect at the time Johnson committed his crime. Most importantly, the

trial court ostensibly sentenced Johnson tinder RCW 9. 94A.712. However, by 2011 the code

reviser   had   recodified   former RCW 9. 94A.712        as   RCW 9. 94A.507.   Similarly, appendix H


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No. 43582 -9 -II


contains references to former RCW 9. 94A. 150 and RCW 9. 94A. 125, which had been recodified


to RCW 9. 94A.728 and RCW 9. 94A.825, respectively, before Johnson violated RCW

          I;.


          CrR 7. 8( a)   allows a trial court to   fix   clerical errors   in judgments "   at   any time." RAP


7.2( e)( 1) limits this authority once we have taken review of a case: the trial court may not act

without our permission. We remand the ratter with the necessary permission so that the trial

court may correct the statutory references in appendix H. State v. Moten, 95 Wn. App. 927, 929,

976 P. 2d 1286 ( 1999);      In re Pers. Restrair2t of Mayer, 128 Wn. App. 694, 700 -02, 117 P. 3d 353
          2
 2005).


                                                   CONCLUSION


          We affirm Johnson' s conviction, but remand to the trial court to strike or clarify

community custody condition 16 consistently with this opinion, to strike condition 25, and to

correct the statutory citation errors in appendix H to the judgment and sentence




                                                               BJOR ,MEN, J.
We




2The State argues that, on remand, the trial court should correct the judgment and sentence to
reflect that Johnson was sentenced under RCW 9. 94A.507. Johnson contends that this is
erroneous and the judgment and sentence should reflect that he was sentenced under RCW
9. 94A.505. Johnson appears correct. See RCW 9. 94A.507( 1), ( 2). Despite the incorrect
citation, Johnson does not allege that he received an improper sentence.
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