                                                                           FILED
                                                                        JUNE 16, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 36396-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
THOMAS LEE BRAMBLEE,                          )         UNPUBLISHED OPINION
also known as THOMAS BRAMBLEE,                )
                                              )
                     Appellant.               )

       KORSMO, J. — Thomas Bramblee appeals his conviction for attempted second

degree rape of a child. He argues the trial court erred by excluding an exculpatory

statement, imposing a community custody condition, and imposing unauthorized legal

financial obligations (LFOs). We affirm the conviction, but remand to the trial court to

re-evaluate a community custody condition and possibly strike the LFOs.

       Detective Kristl Pohl, part of a Washington State Patrol Task Force investigating

child sex offenses, examined Craigslist advertisements that suggested interest in sexual

activities with minors. She responded to a Craigslist advertisement posted by Mr.

Bramblee that sought individuals interested in parent-child or siblings incest roleplay.

Detective Pohl posed as a mother with a 12-year-old daughter named “Anna.” The

detective conversed with Bramblee to determine whether he wanted to have sex with
No. 36396-1-III
State v. Bramblee


“Anna,” a minor. While Mr. Bramblee feared police involvement, he eventually agreed

to have sex with “Anna.” Mr. Bramblee described the sexual acts he planned to perform

on “Anna” and brought a condom to the house where he was to meet the mother and

child.

         Mr. Bramblee travelled to the house and officers arrested him. During his arrest,

Mr. Bramblee made a statement that he was there for the mother (Detective Pohl).

During a search, officers found a condom on Bramblee.

         The trial court did not allow Mr. Bramblee to offer the statement that he went to

the house only for the mother because Bramblee did not intend to testify. The court

never determined whether the statement constituted an excited utterance.

         A jury ultimately convicted Mr. Bramblee of attempted second degree child rape.

The court imposed a low end standard range sentence. The LFOs included a $500 victim

compensation fee, $200 criminal filing fee, and a $100 DNA collection fee. The court

also imposed interest on the LFOs. Mr. Bramblee’s community custody conditions

included a requirement that he “not access social media sites to include chat forums,

dating sites, or solicit sex on the Internet.”

         Mr. Bramblee timely appealed his conviction. A panel considered his appeal

without hearing oral argument.




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                                        ANALYSIS

       The appeal presents three issues, which we address in the following order: (1) the

excluded statement, (2) the noted community custody condition, and (3) LFOs.

       Excluded Statement

       Under both the Sixth Amendment to the United States Constitution and art. I § 22

of the Washington Constitution, a defendant is entitled to present evidence in support of

his defense. State v. Strizheus, 163 Wn. App. 820, 829-830, 262 P.3d 100 (2011). That

right, however, does not include a right to present irrelevant or inadmissible evidence.

State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010); State v. Hudlow, 99 Wn.2d 1,

15, 659 P.2d 514 (1983). As the proponent of the evidence, the defendant bears the

burden of establishing relevance and materiality. State v. Pacheco, 107 Wn.2d 59, 67,

726 P.2d 981 (1986).

       Trial court decisions to admit or exclude evidence are entitled to great deference

and will be overturned only for manifest abuse of discretion. State v. Luvene, 127 Wn.2d

690, 706-707, 903 P.2d 960 (1995). Discretion is abused where it is exercised on

untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,

26, 482 P.2d 775 (1971). A court also abuses its discretion when it applies the wrong

legal standard. State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009). We will only

reverse for evidentiary error if the appellant demonstrates that the error likely affected the

trial outcome. State v. Barry, 183 Wn.2d 297, 313, 352 P.3d 161 (2015).

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       Trial errors can be harmless. Error of constitutional magnitude is harmless if it is

proved to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18,

24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Evidentiary error is harmless if, within

reasonable probability, it did not materially affect the verdict. State v. Zwicker, 105

Wn.2d 228, 243, 713 P.2d 1101 (1986).

       The admission of an excited utterance is not dependent on whether the declarant is

available as a witness. State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273 (2007). A

statement qualifies as an excited utterance under ER 803(2) if “(1) a startling event

occurred, (2) the declarant made the statement while under the stress or excitement of the

event, and (3) the statement relates to the event.” State v. Magers, 164 Wn.2d 174, 187-

188, 189 P.3d 126 (2008). Hearsay that is self-serving still may be admissible under ER

803. State v. Pavlik, 165 Wn. App. 645, 655-656, 268 P.3d 986 (2011).

       The trial court erred when it excluded Mr. Bramblee’s statement on the grounds

that he did not testify. The declarant’s availability is immaterial for ER 803. Ohlson,

162 Wn.2d at 8. Since the court did not analyze the statement, we are not in a position to

determine whether the statement constituted an excited utterance.

       Any error in excluding the statement was harmless. The exclusion of the

statement did not deprive Mr. Bramblee of the opportunity to present his defense. He

called a witness in support of an entrapment defense and otherwise challenged the State’s



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evidence against him. The court’s decision to exclude the statement constituted, at most,

an evidentiary error.

       Admission of the statement would not have changed the trial outcome. Evidence

before the jury included Mr. Bramblee’s communication in which he expressed his desire

to engage in sexual acts with “Anna.” He arrived at the sting house with condoms as part

of his plans to engage in sex with the fictitious minor. Meanwhile, Mr. Bramblee’s

statement during arrest did not align with his previous conversation where he agreed not

to have sex with the mother, only the minor. The statement likely constituted an

attempted alibi. We are convinced that admitting the statement would not change the

trial outcome in light of all the other evidence.

       If the court erred in excluding the statement, the error was harmless.

       Community Custody Condition

       Mr. Bramblee next argues that the court erred by imposing a requirement that he

“not access social media sites to include chat forums, dating sites, or solicit sex on the

Internet” during his term of community custody. There was no discussion concerning the

necessity of this broad limitation. We therefore remand for the court to consider the

scope of this condition.

       A defendant’s rights during community custody are subject to infringements

authorized by the Sentencing Reform Act of 1981, ch. 9.94A RCW. State v. Ross, 129

Wn.2d 279, 287, 916 P.2d 405 (1996). Restrictions placed on a defendant’s conduct

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must be reasonably related to the offense for which the defendant was convicted. RCW

9.94A.030(10); State v. Johnson, 4 Wn. App. 2d 352, 358, 421 P.3d 969 (2018). In the

absence of a timely objection in the trial court, we will not entertain on appeal a

challenge to the factual basis for a crime-related condition. State v. Casimiro, 8 Wn.

App. 2d 245, 249, 438 P.3d 137 (2019). However, a constitutional challenge to an overly

broad condition can be considered on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193

P.3d 678 (2008).

       A condition is unconstitutionally overbroad when it infringes on a defendant’s

right to free speech or free association beyond what the State may legitimately regulate.

State v. Riles, 135 Wn.2d 326, 346, 957 P.2d 655 (1998), overruled on other grounds by

State v. Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010). The trial court must establish

on the record that the condition is narrowly drafted to achieve the State’s interest and that

there is no other reasonable alternative to prevent undesired conduct related to the

convicted offense. State v. DeLeon, 11Wn. App. 2d. 837, 840-841, 456 P.3d 405 (2020).

Restrictions on social media use may violate an individual’s First Amendment rights.

Packingham v. North Carolina, 137 S. Ct. 1730, 1732, 198 L. Ed. 2d 273 (2017).

       The trial court did not provide any analysis on the record regarding the social

media restriction. We cannot determine whether the condition unnecessarily restricts Mr.

Bramblee from legitimate First Amendment activities that are unrelated to the State’s

interest in preventing him from soliciting sex with minors. We remand this matter to the

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trial court to perform the appropriate overbreadth analysis before imposing any social

media restriction on Mr. Bramblee.

       Legal Financial Obligations

       Lastly, Mr. Bramblee challenges the $200 criminal filing fee and a provision

imposing interest on his LFOs due to his indigency. The trial court may not impose

discretionary LFOs on indigent defendants. State v. Ramirez, 191 Wn.2d 732, 750, 426

P.3d 714 (2018). Since we are remanding for reconsideration of the community custody

condition, the trial court should strike the interest provision and, if Mr. Bramblee is

indigent, strike the filing fee.

       Affirmed and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                              _________________________________
                                                      Korsmo, A.C.J.

WE CONCUR:


_________________________________
      Fearing, J.


_________________________________
      Siddoway, J.


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