 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,
                                                       No. 78460-9-I
                         Respondent,
                                                       DIVISION ONE
                 V.
                                                       UNPUBLISHED OPINION
 LEVI QUERILLA STAPLES, JR.,

                         Appellant.                    FILED: December 30, 2019


       APPELWICK, C.J.     —   A jury found Staples guilty of breaking into a woman’s

home and forcibly groping her. Staples contends that the use of the victim’s initials

in various court documents violated the public trial right and in the jury instructions

was a judicial comment on the evidence. He contends that community custody

conditions imposed upon him are not crime-related and infringe on his

constitutional rights to free speech and privacy. He also challenges sufficiency of

the evidence. We affirm.

                                         FACTS

       On November 25, 2007, Levi Staples observed the victim1 talking on her

cell phone through her window in the Country Hills Apartments in Renton. Staples

knocked on the victim’s door and asked if he could borrow her phone.

       Staples claims that the victim then invited him into her home to use the

phone. Once inside the house, he claims that he tried to take the phone, but that


       1   The identity of the victim is not necessary for the analysis in this opinion.
No. 78460-9-1/2


the victim hit him with a pot that she had been holding in her hand since opening

the door, and he fled.

       The victim’s version of events is different. She claims that she partially

opened her door and gave him the phone. She then observed Staples pretend to

make a phone call. He then returned the phone to the victim. Staples forced his

way into the apartment through the door. He shut the door and locked it behind

him.

       The victim started screaming, and Staples covered her mouth, put a knife

to her throat, and said, “[b]itch shut the f[***) up, I’ve got a knife.” Staples then

began groping the victim and whispering “perverse” comments in her ear. The

victim resisted, and the two wrestled around the apartment, with Staples continuing

to grope the victim. The wrestling eventually moved into the kitchen, where the

victim was able to grab a pot from the stove and strike Staples in the head. The

blow caused Staples’s blood to splatter in the kitchen and allowed the victim to

escape. She fled the apartment but observed Staples enter her bedroom before

he fled.

       The victim banged on her neighbor’s door, screaming, “Let me in, let me in.

He tried to rape me.” Her neighbor let her in and locked the door. She described

the victim as “hysterical” and “petrified.” She called the police.

       The victim told the officer that arrived that she had been sexually assaulted.

The officer described her as “visibly upset” and crying. The officer did not notice

any visible injuries on the victim. Upon walking through the apartment, the officer

found blood in the kitchen, the hallway, and on the victim’s bedroom door.


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No. 78460-9-1/3


       The victim had never met or seen her assailant prior to the assault. The

case went unsolved until police collected Staples’ DNA (deoxyribonucleic acid) in

a separate investigation in 2015 and matched it to the DNA collected from the

victim’s apartment.

       Staples was charged with indecent liberties.2 Both the State and defense

identified the victim by her initials in their documents. Her name was used at the

CrR 3.5 hearing. She testified under her full name and was referred to by her full

name throughout trial.

       The jury found Staples guilty as charged. He was sentenced to 62 months

to life imprisonment, with a lifetime of community custody if released from prison.

As conditions of community custody, Staples is required to notify his supervising

community corrections officer (CCO) of any dating relationship, disclose his sex

offender status prior to any sexual contact, and refrain from sexual contact unless

approved by a treatment provider.      He is also required to obtain his COO’s

permission before changing work locations.

      Staples appeals.

                                  DISCUSSION

      Staples alleges four errors. First, he argues that the use of the victim’s

initials rather than her full name in various court documents violated article I,

section 10 of the Washington Constitution. Second, he claims the use of the


      2  Staples was also charged with assault in the second degree as a result of
the above referenced investigation. That crime involved Staples having sexual
contact with an acquaintance while she was sleeping. Staples pleaded guilty to
that charge.

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No. 78460-9-1/4


victim’s initials in the jury instruction constituted a judicial comment on the

evidence. Third, he argues the court erred in imposing various special conditions

of community custody upon him, because those conditions were not crime-related

and infringed on his constitutional rights. Last, he argues that there was insufficient

evidence to support his conviction.

I.   Public Trial Right

        Staples argues that the use of the victim’s initials in various court documents

violated article I, section 10 of the Washington Constitution. The Washington

Constitution demands that “justice in all cases shall be administered openly” and

also gives defendants an individual right to a public trial. CONST. art. I,   §~ 10, 22.
These related constitutional provisions are often collectively called the “public trial

right.” State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (201 5). Staples does not

allege a violation of his own right to a public trial under section 22. Rather, he

asserts a violation of section 10, “justice in all cases shall be administered openly,”

which is a “command to the judiciary” rather than an individual right of the

defendant. State v. Herron, 177 Wn. App 96, 105, 318 P.3d 281 (2013), aff’d, 18

Wn.2d 737, 356 P.3d 709 (2015). Article I, section 10 protects all members of the

public. In re Det. of Ticeson, 159 Wn. App. 374, 381-82, 246 P.3d 550 (2011),

abrogated on other grounds by State v. Sublett, 176 Wn.2d 58, 292 P.3d 715

(2012). As a member of the public, Staples has standing to challenge a violation

of article I, section 10. kI. Staples did not object to the use of the victim’s initials

at trial. He nevertheless argues that he is not precluded from raising the issue for

the first time on appeal because it is a manifest error affecting a constitutional right.


                                               4
No. 78460-.9-l15


Improper courtroom closure is a constitutional error that may be raised for the first

time on appeal. Ticeson, 159 Wn. App. at 382-83. Whether the public trial right

has been violated is a question of law reviewed de novo. ki. at 379.

       Courts may restrict the public’s access to court records to protect other

interests. Hundtofte v. EncarnaciOn, 181 Wn.2d 1, 5-6, 330 P.3d 168 (2014);

Seattle Times Co. v. lshikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982).              The

Ishikawa court laid out five factors3 that must be considered before a restriction of

the public’s article I, section 10 right may take place. See ~l at 37-39. However,

not all arguable courtroom closures require satisfaction of the five-part test. State

v. Slert, 181 Wn.2d 598, 604, 334 P.3d 1088 (2014). The court must first utilize

the “experience and logic” test to determine whether the public trial right is

implicated by a purported court closure. ki. The “experience” prong asks whether

the place and process have historically been open to press and general public. ki.

The logic” prong asks whether public access plays a significant positive role in the

functioning of the particular process in question. Id. If the answer to both questions

is yes, then the public trial right attaches. j~ The court must then determine if a

closure has in fact occurred. Love, 183 Wn.2d at 605. The appellant bears the

burden of showing both that the public trial right has attached, and that a closure



       ~ (1) the proponent of the closure and/or sealing must make a showing of
need; (2) anyone present when the closure motion is made must be given an
opportunity to object; (3) the court, proponents, and objectors should analyze
whether the requested method of curtailing access is the least restrictive means
available to protect the threatened interest; (4) the court must weigh the competing
interests of the defendant and the public and (5)The order must be no broader than
necessary to serve its purpose. Ishikawa, 97 Wn.2d at 37-39.

                                             5
No. 78460-9-1/6


has occurred. j~at 605. If the appellant can carry their burden, it shifts to the

proponent of the closure to prove that it was justified. j.4~

       We need not engage in a full experience and logic analysis when case law

has applied the public trial right to the proceeding at issue. jçj. at 605. Prior cases

make clear that court records are open to the public unless sealed by the court.

See Rufer v. Abbott Labs., 154 Wn.2d 530, 540, 114 P.3d 1182 (2005). This

presumption applies to all records filed with the court in anticipation of a court

decision. ~ j4~ at 549. Our Supreme Court has also held in the past that the

use of initials in these records is a redaction. Hundtofte, 181 Wn.2d at 5-6. Such

a redaction can be considered a closure.4 See kJ. at 6-7. However, Staples has

failed to establish that a closure has occurred.

       The facts here are similar to Love, 183 Wn.2d at 601-04. There, both parties

conducted preemptory challenges during jury selection in writing rather than orally.

ki. at 602-03. After that process concluded the struck jury list was filed in the court

record. j.4. at 603. The argument was that this restricted the public’s access to

that information. ki. at 604. Our Supreme Court, however, found no closure had

occurred because the public was able to witness the entire process, including the

judge later reading in open court the names of the jurors who remained. ki. at 603,

607.



      ~ In Hundtofte, the use of initials was ordered by the court to remove
information that was previously in the record. 181 Wn.2d at 3-4. Here, the party’s
spontaneously utilized initials without order of the court, and so did not remove
information that was previously in the record. Finding no case directly on point,
we choose to treat the use of initials as a redaction.

                                              6
No. 78460-9-117


       Here, as in Love, information that was temporarily inaccessible to the public

was made readily available elsewhere in the record. The victim’s name was used

at the CrR 3.5 hearing. She testified under her full name and was referred to by

her full name throughout trial. As in Love, the goals of transparency that animate

article I, section 10 are served here because the public was able to monitor the

proceedings and observe the victim testify under her full name in open court.

       We hold that the Staples has failed to establish that a closure has occurred.

II. Judicial Comment on the Evidence

       Staples contends that the use of the victim’s initials in the to convict

instruction constituted a judicial comment on the evidence.         The Washington

Constitution article IV, section 16 prohibits judges from commenting on matters of

fact. A jury instruction constitutes an improper comment on the evidence when it

reveals the court’s personal evaluation of the credibility, weight, or sufficiency of

the evidence presented at trial. See State v. Sivins, 138 Wn. App. 52, 58, 155

P.3d 982 (2007). This court reviews jury instructions de novo within the context of

the jury instructions as a whole. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d

1076 (2006).

       Staples contends that the use of the victim’s initials implied to the jury that

the court considered her a victim of sexual assault in need of protection. The first

element of the pattern instruction used in this case as the to convict instruction,

reads as follows: “That on or about (date) the defendant knowingly caused (name

of victim) to have sexual contact with the defendant.” 11 WASHINGTON Pp.p~cTIcE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 49.02, at 1005 (4th ed. 2016).


                                             7
No. 78460-9-118


Staples argues that “(name of victim)” may be replaced only with the victims full

name or the term “alleged victim” to avoid judicial comment on the evidence.5 We

disagree.

          We have held that the use of a victim’s full name in the jury instructions does

not constitute a comment on the evidence. See Levy, 156 Wn.2d at 722. We have

also found that the use of the term “the victim” does not ordinarily convey to the

jury the court’s personal opinion on the case. State v. Alger, 31 Wn. App 244, 249,

640 P.2d 44 (1982).6 We reject Staples argument that the use of initials is a

comment on the evidence.

          We hold that the jury instruction was not a judicial comment on the

evidence.

   Ill.      Due Process Violation

          Staples also contends that the use of the victim’s initials in the jury

instructions undermined the presumption of innocence by identifying her as a

victim. As noted above, a juror would likely not presume the victim was a victim

simply because of the use of her initials. The jury was also specifically instructed

that Staples was presumed innocent, and that the state must prove all elements

beyond as reasonable doubt. The instructions, when viewed as a whole, did not

lower the burden of proof.

          We hold that use of initials did not violate due process.



         ~ Staples made this argument explicitly for the first time at oral argument.
         6 Our Supreme Court has found no issue with the use of the word “victim”
in jury instructions. Statev. Mayers, 164 Wn.2d 174, 186-87, 189 P.3d 126 (2008).

                                                8
No. 78460-9-1/9


IV. Community Custody Conditions

       Staples argues that the trial court erred in imposing various community

custody conditions upon him. The imposition of community custody conditions are

governed by RCW 9.94A.703. RCW 9.94A.703(3)(c) gives the sentencing court

discretion to order the offender to participate in crime-related counselling services.

RCW 9.9A.703(3)(d) gives the sentencing court discretion to order the offender to

participate in rehabilitative programs or perform affirmative conduct reasonably

related to the circumstances of the offense, the offender’s risk of reoffending, or

the safety of the community.       We review imposition of community custody

conditions for abuse of discretion and will reverse them only if they are manifestly

unreasonable. State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). A

sentencing court abuses its discretion when it imposes an unconstitutional

condition. Id.

   A. Special Condition Number 5

       Staples objects to special condition number 5, which requires Staples to

       [i]nform the supervising CCO and sexual deviancy 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.
He contends that the condition is not crime related and infringes upon his

constitutional rights to free speech and due process.

       1. Crime Related

       Staples contends that special condition number 5 was not crime related

under RCW 9.9A.703(3)(c)-(d). There need be only “some basis” connecting the



                                             9
No. 78460-9-1/10


community custody condition to the crime. State v. Irwin, 191 Wn. App. 644, 657,

364 P.3d 830 (2015). Staples argues that there is no basis for this condition

because the two incidents for which he was sentenced did not involve a domestic

partner. Staples’s sentencing was for both his 2007 attack on the victim, and a

2015 incident where he had sexual contact with an acquaintance while she was

sleeping. This second conviction forms a reasonable basis for special condition

number 5 because it shows that Staples’s propensity for sex crimes is not limited

to strangers. That neither woman was in a dating relationship with Staples does

not preclude the trial court from utilizing its discretion to impose this condition.

         We find that special condition number 5 is crime related.

         2. Free Speech

         Staples contends that special condition number 5 violates his free speech

rights. He specifically objects to the conditions requiring him to disclose his status

as a sex offender status prior to any sexual contact, and to disclose any dating

relationship to his CCO and treatment provider. The state generally cannot force

an individual to speak against his will. State v. K.H.-H, 185 Wn.2d 745, 749, 374

P.3d 1141 (2016). Speech rights are lessened in the context of prison or probation.

jç[. Sentencing judges have broad discretion to impose conditions affecting free

speech rights if they are reasonably related to permissible purposes. ~ at 750.

         Staples claims this condition is overly broad and not reasonably tied to his

crime.    Staples was convicted of attempting nonconsensual sex on separate

occasions with a stranger and an acquaintance. The requirement that he inform

his treatment provider of any dating relationship is rationally related to the success


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No. 7846 0-9-Ill I


of his treatment program. The requirement that he disclose his status as a sex

offender prior to engaging in future sexual behavior is rationally related to ensuring

his future sexual pursuits are entirely consensual.

          We find special condition number 5 does not violate Staples’s free speech

rights.

          3. Due Process

          Staples also argues that special condition number 5 is an infringement of

his rights to privacy and marriage. People are entitled to privacy, including to have

consensual sex in their own homes. See generally Lawrence v. Texas, 539 U.S.

558, 123 5. Ct. 2472, 156 L. Ed. 2d 508 (2003). Physical intimacy is recognized

as an important part of the marital bond.           Obergefell v. Hodges, 135 S. Ct.

2584, 2599, 192 L. Ed. 2d 609 (2015).

          Restrictions on privacy in community custody conditions are justified when

reasonably necessary to protect the community. In re Pers. Restraint of Waggy,

111 Wn. App. 511, 517-18, 45 P.3d 1103 (2002). The conditions are justified here

because of Staples’s criminal sexual conduct towards both strangers and

acquaintances. Condition number 5 refers to “dating relationships” and therefore

is not applicable to Staples’s existing marriage.

          We find no due process violation in the community custody conditions.

   B. Special Condition Number 6

          Staples contends that the trial court abused its discretion by imposing

special condition number 6 because is not crime related and not required by

statute. Special condition number 5 requires Staples to “[o]btain prior permission


                                             11
No. 78460-9-1/12


of the supervising CCC before changing work location.” This condition is related

to the condition that Staples must work at “department approved employment,”

which is a waivable condition under ROW 9.9A.703(2)(b). Unlike conditions under

ROW 9.94A703(3)(c)-(d), this condition does not contain language requiring the

condition to be crime related.        Compare ROW 9.9A.703(2)(b), with ROW

9.9A.703(3)(c)-(d). The condition is reasonably necessary to help Staples’s CCC

to know of his whereabouts and movements.           Its imposition is not manifestly

unreasonable by the trial court.

       Staples further contends that the condition is unconstitutionally vague

because it invites arbitrary enforcement. A condition is vague if (1) it does not

define the offense such that an ordinary person can understand the prohibition; or

(2) the condition does not provide sufficiently ascertainable standards to protect

against arbitrary enforcement. See State v. BahI, 164 Wn.2d 739, 752-53, 193

P.3d 678 (2008). The condition here is easy for an ordinary person to understand:

prior to changing work location, you must obtain approval from your CCC. The

condition does not provide standards for the CCC to utilize in approving a work

location change request. But, the vagueness doctrine is concerned with arbitrary

enforcement resulting from uncertainty in terms. State v. Smith, 130 Wn. App.

721, 728, 123 P.3d 896 (2005). Here, the terms are clear: whenever a change in

work location is sought, the condition is implicated.

       We find no abuse of discretion or unconstitutional vagueness in special

condition number 6.




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No. 78460-9-1/13


V. Statement of Additional Grounds

       Staples contends that there was insufficient evidence to convict him at trial.

He contends this is so because (1) no knife was recovered from the scene, (2) the

victim presented no visible injuries, and (3) the victim’s shirt was not ripped.

Sufficiency of the evidence is a question of constitutional law that this court reviews

de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). The State is

required to prove all elements of the charged offense beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000). The elements the state needed to prove in this case were that Staples

knowingly caused the victim to have sexual contact with him by forcible

compulsion, and that he was not married to her. Evidence is sufficient to support

a conviction if “‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” State v. Green, 94 Wn.2d 216, 221, 616

P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979)), overruled on other grounds by Schlup

v. Delo, 513 U.S. 928, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). It is the function

of the jury to determine the credibility of witnesses. State v. Holbrook, 66 Wn.2d

278, 279, 401 P.2d 971 (1965). When a defendant challenges the sufficiency of

the evidence, they admit the truth of all the state’s evidence. State v. Cardenas

Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

       Here, the victim testified to all the elements of the crime. Assuming her

testimony was true, a rational juror need not have found any of the shortcomings


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No. 78460-9-1/14


that Staples raised to find the elements of the crime proven beyond a reasonable

doubt.

         We reject Staples’ claim of insufficiency of the evidence.

         We affirm.



                                                //
                                                          7,,
WE CONCUR:



         I   LA   I   i                            ___
