                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                          July 17, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 50263-1-II

                               Respondent,

        v.

 KRIS KEITH BENNETT,                                         UNPUBLISHED OPINION

                               Appellant.

       LEE, A.C.J. – Kris Keith Bennett pleaded guilty to attempted second degree rape of a child

and first degree possession of depictions of a minor engaged in sexually explicit conduct.

Bennett’s sentence includes 36 months of community custody where he is restricted from

frequenting places where children congregate.     He appeals this community custody condition,

arguing the condition is not crime related and is unconstitutionally vague. We hold that the

community custody condition is crime related, but we accept the State’s concession that the

condition is unconstitutionally vague, and remand for the sentencing court to strike the condition.

                                             FACTS

       Bennett responded to an online advertisement posted by an undercover Washington State

Patrol detective. The detective posed as a single mother looking for a man to teach her children,

ages 6, 11, and 13, about sex. Bennett responded and engaged in internet correspondence with the

undercover detective. Ultimately, Bennett made arrangements to meet in person, and was arrested
No. 50263-1


when he arrived. Officers discovered 596 images of minors engaged in sexually explicit conduct

on Bennett’s media storage devices, involving 65 children.

       The State charged Bennett with attempted first degree rape of a child and two counts of

first degree possession of depictions of a minor engaged in sexually explicit conduct. Bennett

agreed to plead guilty to attempted second degree rape of a child and one count of first degree

possession of depictions of a minor engaged in sexually explicit conduct.

       The sentencing court sentenced Bennett to confinement plus 36 months of community

custody.   Community Custody Condition 6 states, “Do not frequent places where children

congregate.” Clerk’s Papers (CP) at 98. Bennett appeals.

                                           ANALYSIS

       Bennett argues that Condition 6, which prohibits him from going to places where children

congregate is not crime related. Bennett also argues that Condition 6 is unconstitutionally vague

by failing to notify him of what he had to avoid. We disagree that Condition 6 is not crime related.

However, we agree that Condition 6 is unconstitutionally vague.

A.     STANDARD OF REVIEW

       A sentencing court lacks authority to impose a community custody condition unless the

legislature has authorized it. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008),

review denied, 165 Wn.2d 1050 (2009). We review de novo whether the sentencing court had

statutory authorization to impose a community custody condition. Id. If the sentencing court had

statutory authorization, we review its decision to do so for an abuse of discretion and will reverse

only if the condition is “manifestly unreasonable.” State v. Sanchez Valencia, 169 Wn.2d 782,




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No. 50263-1


791-92, 239 P.3d 1059 (2010). Imposing an unconstitutional condition will always be “manifestly

unreasonable.” Id. at 792.

B.     CRIME RELATED

       The sentencing court prohibited Bennett from frequenting “places where children

congregate.” CP at 98. RCW 9.94A.703(3)(b) authorizes the sentencing court to require offenders

to “[r]efrain from direct or indirect contact with the victim of the crime or a specified class of

individuals.”

       Bennett attempted to meet a fictitious mother to have sex with her minor children and

possessed numerous depictions of children engaged in sexually explicit conduct. Prohibiting

Bennett from going to places where children of the same class as his victims congregate is a

reasonably crime related condition. State v. Eaton, 82 Wn. App. 723, 733, 919 P.2d 116 (1996).

Therefore, this community custody condition is sufficiently crime related.

C.     VAGUENESS

       Bennett next challenges Condition 6 as unconstitutionally vague, relying on State v. Irwin,

191 Wn. App. 644, 652, 364 P.3d 830 (2015). He argues that the condition regarding where

children congregate is unconstitutionally vague because it is overly broad and does not give

sufficient notice of what conduct is proscribed.

       Due process requires that laws not be unconstitutionally vague. State v. Bahl, 164 Wn.2d

739, 752, 193 P.3d 678 (2008). Laws must (1) provide ordinary people fair warning of proscribed

conduct, and (2) have standards that are definite enough to “‘protect against arbitrary

enforcement.’” Id. at 752-53 (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d




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693 (1990)). A community custody condition is unconstitutionally vague if it fails to do either.

Bahl, 164 Wn.2d at 753.

        In Irwin, one of the defendant’s conditions prevented him from frequenting “‘areas where

minor children are known to congregate.’” Irwin, 191 Wn. App. at 649. The court decided the

condition could not satisfy the vagueness test because it needed either clarifying language or an

illustrative list so that an ordinary person would have fair warning of the proscribed conduct. Id. at

655.

        Similarly, here, Bennett’s condition does not satisfy the vagueness test because it needs either

clarifying language or an illustrative list so that an ordinary person would have fair warning of the

proscribed conduct. The State correctly concedes this point. We accept the State’s concession and

remand to the sentencing court to strike Condition 6.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                       Lee, A.C.J.
 We concur:



 Worswick, J.




 Sutton, J.




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