                                                                 FILED
                                                             DECEMBER 14, 2017
                                                           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. 34719-2-111
                                              )
                        Respondent,           )
                                              )
      V.                                      )         UNPUBLISHED OPINION
                                              )
DENNIS NEAL GASTON,                           )
                                              )
                        Appellant.            )

      PENNELL,   J. -    Dennis Gaston appeals the imposition of two community custody

conditions, sustained as a result of his conviction for second degree child molestation.

He has also submitted a statement of additional grounds for review, challenging his

conviction. Finding merit to Mr. Gaston's appeal, but not his statement of additional

grounds, we remand this matter so the contested community custody conditions can be

stricken or modified. The conviction is affirmed.

                                          FACTS

      After his second degree child molestation conviction was reversed and remanded

by this court in 2016, Mr. Gaston was re-tried to the bench and his conviction was
No. 34719-2-111
State v. Gaston


reimposed. At sentencing, Mr. Gaston received a term of 18 months in prison and

36 months' community custody.

       Two of Mr. Gaston's community custody conditions are pertinent to this appeal:

"14. Do not purchase, possess or view any pornographic material. ... 20. No frequent

[sic] playgrounds, parks, schools, or any locations where children are known to

congregate." Clerk's Papers at 110.

                                       ANALYSIS

Community custody condition 14

       Mr. Gaston argues and the state concedes that the pornography condition is not

crime related. We accept the state's concession. Condition 14 shall be stricken.

Community custody condition 20

       Mr. Gaston argues community custody condition 20 is unconstitutionally vague

because it fails to provide fair notice of prohibited conduct and exposes him to arbitrary

enforcement. Due process prohibits the imposition of vague community custody

conditions. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). A community

custody condition is not vague so long as it: (1) provides ordinary people with fair

warning of the proscribed conduct, and (2) has standards that are definite enough to

protect against arbitrary enforcement. Id. at 652-53.


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State v. Gaston


       As explained in our recent decision in State v. Velazquez, 1 condition 20 is not

unconstitutionally vague. Unlike the condition deemed problematic in State v. Irwin,

Mr. Gaston's condition provides fair warning of proscribed conduct because the

illustrative list of playgrounds, parks, and schools demonstrates what the court meant by

"locations where 'children are known to congregate."' See Irwin, 191 Wn. App. at 655

(an otherwise vague term can be made definite by an illustrative list). In addition,

condition 20 is not vulnerable to arbitrary enforcement because Mr. Gaston's community

corrections officer is not empowered to define whether or not a given location meets the

terms of the court's order. Id.

       Although not unconstitutionally vague, the State recognizes that condition 20

could be more precise. The term "children" is somewhat indefinite. It could refer to an

individual under 16 years of age, or one under 18. However, in the context of child rape

and child molestation, our laws are concerned with children under 16, not those under 18.

RCW 9A.44.073-.089. Given this circumstance, the trial court's order restricting Mr.

Gaston's access to areas where children congregate should be interpreted as applying only

to locations specific to children under 16. This limitation provides better notice to




       1
        State v. Velazquez, No. 34713-3-III (Wash. Ct. App. Oct. 17, 2017)
(unpublished), http://www.courts.wa.gov/opinions/pdf/347133 _unp.pdf

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State v. Gaston


Mr. Gaston and ensures he will not be prohibited from frequenting locations such as work

settings or colleges where older children may congregate.

       In sum, because this matter is subject to remand to strike condition 14 and because

the term "children" lacks some precision, we also remand so that the trial court may

modify condition 20 to prohibit Mr. Gaston from frequenting playgrounds, parks, schools,

or any locations where children under 16 are known to congregate. This remedy is

consistent with our decision in Velazquez, supra.

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his statement of additional grounds for review (SAG), Mr. Gaston argues:

(1) the trial judge was biased since he presided over both of Mr. Gaston's trials, (2) the

court commissioner was biased because he is related to the child molestation victim,

(3) there was ineffective assistance because defense counsel failed to follow Mr. Gaston's

request to change venue or judges, or object to the term "urges" being used out of context

or suggestively, (4) the trial judge and prosecutor were afraid of Mr. Gaston suing the

county or State due to the first trial, (5) defense counsel, the prosecutor Mr. Gaston

originally hired to be his defense counsel, 2 and the prosecutor from the second trial had a


       2
       Mr. Gaston initially retained David Quesnel as his defense attorney, prior to Mr.
Quesnel becoming a prosecutor. Christopher Lanz ended up stepping in and defended
Mr. Gaston through trial.

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State v. Gaston


plan to convict Mr. Gaston because the day before trial Mr. Gaston called defense

counsel's office and was told defense counsel, both prosecutors, and the trial judge had a

conference call without Mr. Gaston present to decide how the trial would proceed, and

(6) violations of attorney-client privilege and prosecutorial misconduct because Mr.

Gaston hired an attorney who then arranged for Mr. Gaston's defense counsel to step in

for him since he ran for prosecutor.

       To prevail on an ineffective assistance of counsel claim, Mr. Gaston must establish

both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S.

668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222,

225-26, 743 P.2d 816 (1987). Mr. Gaston's arguments do not meet this standard. The

use of the term "urges" was approved by the court under ER 404(b) through an in limine

pretrial ruling. Given this circumstance, any objections during trial would have been

futile. Trial counsel's conduct was not deficient in this regard.

       As to the change of venue and judge request, along with the rest of Mr. Gaston's

contentions in his SAG, these arguments relate to facts and materials that exist outside the

record. The proper avenue for bringing claims based on evidence outside the record is

through a personal restraint petition, not an appeal. State v. McFarland, 127 Wn.2d 322,

335, 899 P.2d 1251 (1995). Also, if a SAG argument does not inform the court of the



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State v. Gaston


nature and occurrence of the alleged errors, review may be declined. State v. Alvarado,

164 Wn.2d 556, 569, 192 P.3d 345 (2008); RAP 10.IO(c). We decline to review as Mr.

Gaston's SAG does not cite to any portion of the record, nor are these arguments found in

the record.

                                     CONCLUSION

       We remand for the trial court to strike condition 14 and modify condition 20 as set

forth in this opinion. Mr. Gaston's conviction is affirmed.

       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.


                                          Pennell, J.
WE CONCUR:




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