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

THE STATE OF WASHINGTON,                           No. 77334-8-1

                         Respondent,

                 V.                                UNPUBLISHED OPINION

MILLER, SCOTT CARY,

                         Appellant.               FILED: April 29, 2019

       SCHINDLER, J. — The State charged Scott Cary Miller with child molestation in the

first degree and rape of a child in the first degree. Following a stipulated trial, the court

found Miller guilty as charged. Miller submitted a sexual deviancy evaluation in support

of his request for a special sex offender sentencing alternative (SSOSA). The court

agreed to impose a SSOSA and suspended 77 months on child molestation in the first

degree and 119 months on rape of a child in the first degree. Miller appeals the

decision to revoke the SSOSA and challenges a number of community custody

conditions. We affirm the decision to revoke the SSOSA. We affirm imposition of

community custody conditions 11, 13, and 14 but remand to strike condition 8 and to

strike or clarify conditions 6 and 15.

                                           FACTS

       In 2012, 15-year-old R.M. told a high school counselor that her father Scott Cary

Miller "raped her when she was five years old." The counselor reported the sexual
No. 77334-8-1/2

assault to the police. R.M. told Everett Police Officer Karen Kowlachyk that when she

was "about 4 1/2 to 5" years old, Miller "would make her touch his penis." R.M. said

Miller put her on his bed and "told her to grab his penis" and "rub her hand up and

down." R.M. described "three or four other incidents" of sexual contact with Miller. R.M.

said they were "in the bedroom""three different times" and "one time on the couch in the

living room." R.M. said on one occasion, Miller "put her mouth on his penis" and told

her to "lick his penis . . . 'Mike a lollipop.'" In a written statement, R.M. said that one

time, Miller "brought a video and told me to do what the lady did" on the video.

       Officer Kowlachyk interviewed Miller. Miller told Officer Kowlachyk he "wasn't

going to deny the 'touching penis thing.'" Miller admitted, "[I]t happened . . . maybe 'two

or three times.'" Miller "remember[ed] the time on the couch and the 'mouth part'"and

"recalled one or two other times in the bedroom where he had her touch him." Miller

said, "During that time, he was drinking a lot" and that he was "'horny and frisky'"and

took "advantage of an opportunity." Miller said he "made a conscious decision to stop"

because "it had gone too far."

       The State charged Miller with child molestation in the first degree and rape of a

child in the first degree of R.M. Miller stipulated to a bench trial. On December 9, 2013,

the court found Miller guilty as charged and entered findings of fact and conclusions of

law.

       Before sentencing, certified sex offender treatment provider Norman Glassman

conducted a sexual deviancy evaluation of Miller. Miller told Glassman he was an

alcoholic and he was "frequently drunk" and "using marijuana at the time he was

abusing his daughter." Miller said that he "subscribed to an [I]nternet pornographic



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No. 77334-8-1/3

website" and he "watched X-rated videos as recently as several weeks before the

evaluation."

       Glassman recommended the court impose a special sex offender sentencing

alternative(SSOSA)and Miller obtain a substance abuse evaluation. Glassman

concluded, "Mr. Miller is an opportunistic offender and has not re-offended in many

years." Glassman said Miller's "issues can be addressed in treatment." Glassman

recommended Miller follow all SSOSA conditions and after a substance abuse

evaluation, all treatment recommendations. Glassman specifically recommended that

Miller "enter and complete a weekly comprehensive sexual deviancy treatment

program"; "not use any alcohol or illegal drugs during the entire treatment period"; "not

buy or have in his possession any pornographic materials," including "computer and/or

[I]nternet generated pornography"; "have [I]nternet access only with permission of his

CCO[1] and therapist"; and "not date women who have minor children or form

relationships with families who have minor children."

       At the sentencing hearing on December 9, 2013, the court agreed to impose a

SSOSA. The court sentenced Miller to 89 months for molestation of a child in the first

degree, count 1; and 131 months for rape of a child in the first degree, count 2. The

court suspended 77 months as to count 1 and 119 months on count 2. The court

ordered Miller to serve 12 months and imposed a term of community custody for life.

       The judgment and sentence states Miller shall undergo sex offender treatment

for three years. The court imposed a number of conditions. But the court did not

impose any conditions related to use of computers or the Internet.



       1 Community corrections officer.


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No. 77334-8-1/4

       After his release from jail, Miller began sex offender treatment with certified

treatment provider Randy Green. On January 15, 2016, Green sent a "Treatment

Violation Report" to the CCO. Green states Miller "reported pornography use" that

violated two provisions of the "Treatment Contract." The two provisions of the

Treatment Contract that Miller violated state:

       Item Number 7) No part of a client's life is considered "private" with
       respect to treatment. This includes issues, feelings, thoughts,
       relationships, behaviors, and activities. Clients are expected to bring up
       anything important which has come up since the last session and to
       discuss major life decisions or changes in advance of making such
       decisions or changes.

       Item Number 16) Clients must not view or possess pornography and
       erotic material. This includes sexually explicit computer or Internet
       images, pornographic magazines (both "soft" and "hard" porn),
       pornographic books; X-rated movies and/or videos; the Playboy channel
       or other sexually explicit TV[2] programs; sexually suggestive or explicit
       telephone services; peepshows and "adult bookstores"; and anything else
       which is pornographic or sexually exploitative. Client must not masturbate
       while watching television or use non-pornographic materials for deviant
       purposes.

       Green stated Miller's "access to pornography was prominent in his offending

behavior, and his doing so now should be recognized as an increase factor in his risk

for reoffense." Green stated Miller's "continued accessing pornography is made more

troubling because of the elaborate denial and avoidance with which he concealed it."

However, Green concluded that "[w]hile we are saddened by revelations that he has

been accessing pornography all the while, we nonetheless resist a conclusion that the

treatment violation is 'fatal' . . . and only informs the path forward." Green

recommended Miller "be restricted from any kind of [I]nternet access for a minimum of




       2 Television.



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No. 77334-8-1/5

six months." On January 19, the CCO submitted a "Notice of Violation" that attached

the Treatment Violation Report.

       On February 5, 2016, the State filed a "Petition for Order Modifying Sentence/

Revoking Sentence/Confining Defendant" with the January 15 Treatment Violation

Report and the January 19 Department of Corrections(DOC) Notice of Violation. The

petition states Miller violated the conditions of his SSOSA by (1)"[flailing to abide by his

Sex Offender Treatment contract by not being transparent about his issues, feelings[,]

thoughts, relationships, behaviors, and activities" and (2)"[flailing to abide by his Sex

Offender Treatment contract by viewing and possessing pornographic/erotic material."

       At the hearing on March 7, 2016, Miller stipulated to the two violations of the

SSOSA conditions. The court continued the hearing to determine whether to impose a

sanction or revoke the SSOSA.

       Green and the supervising CCO testified at the hearing on April 21, 2016. Green

testified Miller's "risk to re-offend is low." Green said Miller "viewing pornography" is "a

factor in his offending" but it does not "necessarily increase our assessment of his risk

to re-offend." Green testified Miller "completed the assignments that I gave him relative

to this violation . . . with the exception I think of getting [1]nternet monitoring software."

       The court found Miller violated the SSOSA conditions. The court entered an

order modifying the SSOSA. The court modified the SSOSA to order Miller to purchase

"monitoring software" and "take all of his Internet-capable devices to 5/03/16

appointment with CCO for installation."

       On December 1, 2016, Green submitted a progress report to the CCO. Green

states Miller violated the terms of the treatment agreement by using "images of b[r]easts



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No. 77334-8-1/6

during lactation . . . for erotic purposes." Green states that in October, Miller "requested

to cancel a few appointments, offering scarcely believable reasons for doing so, and

was still struggling to work on his treatment assignments." Green suspended treatment

in November. Green said Miller wanted "to find another treatment provider" because

Green "'persecute[s]' him because of his Christian faith."

       On December 13, the State filed a petition for an order to modify the SSOSA and

the November 30, 2016 DOC violation report. The petition states Miller did not comply

with the following six SSOSA conditions:

       1.     Failing to abide by Sex Offender Treatment contract by viewing
              non-pornographic for the purposes of sexual gratification,
              masturbating to "lactating breast" video on or about 11-8-16;

       2.     Failing to abide by Sex Offender Treatment contract by viewing or
              possessing pornographic and erotic materials, by viewing nude
              photos of "Helen Fox" on or about 11-8-16;

       3.     Failing to abide by Sex Offender Treatment contract by viewing or
              possessing pornographic and erotic materials, by viewing a
              pornographic website "twistynetwork.com" on or about 11-18-16;

       4.     Uninstalling Covenant Eyes monitoring software on his cell phone
              for an unknown period of time without permission on or about 11-
              22-16;

       5.     Failing to abide by Sex Offender Treatment contract by not being
              transparent about his issues, feelings, thoughts, relationships,
              behaviors, and activities since on or about October 2016; and,

       6.     Failing to abide by Sex Offender Treatment contract by having
              treatment services suspended due to failure to pay balance since
              on or about 11-21-16.

       In January 2017, Miller entered into treatment with certified sex offender

treatment provider Gianna Leoncavallo.




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No. 77334-8-1/7

       At a hearing on March 16,2017, Miller stipulated to masturbating to a lactating

breast, viewing nude photographs, and uninstalling the Internet monitoring software

from his cell phone.

       The court found that Miller willfully violated the conditions of his SSOSA by

"masturbating while looking at a breast," viewing nude photographs, uninstalling Internet

monitoring software from his cell phone, failing to abide by his Treatment Contract by

"not being transparent," and failing to abide by his Treatment Contract for failure to pay.

The court found that Miller did not violate the conditions of his SSOSA by viewing the

website "Twistynetwork.com."

       As previously recommended by the SSOSA treatment provider, the court entered

an order modifying the SSOSA to limit Miller's Internet access for six months:

       Internet access is prohibited until 09/13/17 @ 1:00 pm except for searches
       for employment, access to email, church applications, scheduling medical
       appointments, Spectrum, plasma donations[J . . . to advertise wood
       products,[and] to set up jail visits with his son.

       On July 13, 2017, Leoncavallo terminated treatment with Miller. In a letter to the

CCO, Leoncavallo states Miller "has continued to be resistant, argumentative, defensive

and controlling in group. I do not believe he is capable of making progress in my

program at this time."

       On August 10, 2017, the CCO submitted a Notice of Violation. The Notice of

Violation states that on July 26, the CCO received an "Accountability Report" from

Internet monitoring company Covenant Eyes. The Accountability Report showed Miller

installed Facebook and Instagram applications on his phone and accessed the website

Reddit.com. Covenant Eyes also flagged a YouTube website video accessed by Miller

as "Highly Mature."


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No. 77334-8-1/8

          On August 17, 2017, the State filed a petition to modify or revoke the SSOSA

and the August 10 Notice of Violation. The petition alleged Miller violated the conditions

of his SSOSA by (1)"[nailing to enter into and successfully complete a sex offender

treatment program" and (2)"[u]sing the [1]nternet contrary to court instruction."

          At the revocation hearing on September 1, Miller stipulated to the violations.

Miller testified he "read everything" in the Notice of Violation, as well as what the "other

participants that have written information that you have read, and I can't argue with a lot

of it."

          Defense counsel argued the court should not revoke the SSOSA because a third

treatment provider is "willing to take him on as a patient" and Miller is "amenable to

treatment." Defense counsel argued there was some "confusion" and Miller believed his

"six-month term on the [I]nternet access expired in June."

          The court found Miller violated the conditions of his SSOSA. The court found

Miller "is not at this point making satisfactory progress and he has not successfully

completed" treatment. The court found, "Both treatment providers have indicated that

they felt he was not making successful progress or satisfactory progress."

          The court found Miller violated the conditions of the SSOSA by using the Internet

"contrary to the Court's instructions." The court found that the "court order is clear.

Internet access is prohibited until, and it's clear, September 13, 2017." The court noted

this is not Miller's "first violation." The court stated:

          You've been here before. And I view that your violation here, in direct
          conflict with the order, is proof that you are not going to successfully
          complete treatment, because you're stubborn, you're hardheaded, and
          you're opinionated, and you're going to do whatever you want to do and
          whenever you want to do it."




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No. 77334-8-1/9

       The court concluded revocation of the SSOSA was the "appropriate thing to do

based on the numerous violations that have occurred." The court entered an order

revoking the SSOSA. The order states Miller willfully violated the terms and conditions

of his SSOSA by "[flailing to successfully complete a sex offender treatment program"

and using the Internet "contrary to court instruction." The order states Miller "failed to

make satisfactory progress in treatment."

                                        ANALYSIS

SSOSA Revocation

       Miller contends the court improperly revoked the SSOSA based on violation of

the Internet use condition that infringed on his First Amendment right to free speech,

United States Constitution, amendment I.

       Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,the court

has the statutory authority to revoke a SSOSA if (a) the offender "violates the conditions

of the suspended sentence" or (b)"the court finds that the offender is failing to make

satisfactory progress in treatment." RCW 9.94A.670(11); State v. Miller, 180 Wn. App.

413, 416, 325 P.3d 230 (2014). We review community custody conditions for abuse of

discretion. State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847(2018); State v. Padilla,

190 Wn.2d 672, 677, 416 P.3d 712 (2018). The imposition of an unconstitutional

condition is manifestly unreasonable. Nguyen, 191 Wn.2d at 678; Padilla, 190 Wn.2d at

677.

       The First Amendment prohibits the government from proscribing speech or

expressive conduct. Where a sentencing court interferes with a fundamental

constitutional right, the condition must be reasonably necessary to accomplish the




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No. 77334-8-1/10


essential needs of the State and public order. State v. Warren, 165 Wn.2d 17, 32, 195

P.3d 940 (2008). "[C]onditions that interfere with fundamental rights must be sensitively

imposed." Warren, 165 Wn.2d at 32.

       An offender's constitutional rights during community custody are subject to the

infringements authorized by the SRA. State v. Ross, 129 Wn.2d 279, 287, 916 P.2d

405 (1996). A court has the statutory authority to impose crime-related prohibitions.

Warren, 165 Wn.2d at 32. A "crime-related prohibition" prohibits "conduct that directly

relates to the circumstances of the crime." RCW 9.94A.030(10).

       Miller concedes the State has an interest in preventing him from accessing

pornography because pornographic materials are "related to his crime." Miller cites

Packingham v. North Carolina,        U.S.     , 137 S. Ct. 1730, 198 L. Ed. 2d 273

(2017), to argue the condition limiting his use of the Internet for six months "unlawfully

suppressed significantly more speech than necessary to achieve the government's

interest."

       In Packingham, the United States Supreme Court held that a North Carolina law

that "makes it a felony for a registered sex offender 'to access a commercial social

networking Web site where the sex offender knows that the site permits minor children

to become members or to create or maintain personal Web pages' "violated the First

Amendment because it restricted lawful speech. Packinqham, 137 S. Ct. at 1733, 1738

(quoting N.C. GEN. STAT. § 14-202.5(a)).

       The Supreme Court acknowledged that" '[t]he sexual abuse of a child is a most

serious crime and an act repugnant to the moral instincts of a decent people'"and "a

legislature 'may pass valid laws to protect children' and other victims of sexual assault



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No. 77334-8-1/11

'from abuse.'" Packingham, 137 S. Ct. at 1736 (quoting Ashcroft v. Free Speech Coal.,

535 U.S. 234, 244-45, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)). However, the Court

concluded the North Carolina law that prohibits access to "websites like Facebook,

Linked In, and Twitter" was not narrowly tailored and was "unprecedented in the scope

of First Amendment speech it burdens." Packingham, 137 S. Ct. at 1737. The Court

states that to "foreclose access to social media altogether is to prevent the user from

engaging in the legitimate exercise of First Amendment rights." Packingham, 137 S. Ct.

at 1737. The Court concluded:

      By prohibiting sex offenders from using those websites, North Carolina
      with one broad stroke bars access to what for many are the principal
      sources for knowing current events, checking ads for employment,
      speaking and listening in the modern public square, and otherwise
      exploring the vast realms of human thought and knowledge. These
      websites can provide perhaps the most powerful mechanisms available to
      a private citizen to make his or her voice heard. They allow a person with
      an Internet connection to "become a town crier with a voice that resonates
      farther than it could from any soapbox."

Packinqham, 137 S. Ct. at 1737 (quoting Reno v. Am. Civil Liberties Union, 521 U.S.

844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)).

       Here, unlike in Packingham, the court did not foreclose Miller's access to social

media altogether. The court restricted Miller's Internet access for six months after Miller

violated the conditions of his SSOSA by masturbating to images of a lactating breast,

viewing nude photographs of a woman, and uninstalling the Internet monitoring

software. Because Miller consistently violated the conditions designed to prevent him

from accessing pornographic materials, the six-month condition limiting Miller's access

to the Internet but allowing him to use the Internet to search for employment, access




                                            11
No. 77334-8-1/12

church applications and media, and schedule medical appointments and visits with his

son was narrowly tailored and reasonably necessary.

       The uncontroverted record established Miller repeatedly violated the SSOSA

conditions and the six-month limitation n using the Internet to access pornography.

The court did not abuse its discretion by revoking the SSOSA.

Right to Confrontation

       Miller contends the court violated his right to confront and cross-examine

witnesses at the revocation hearing. "The revocation of a suspended sentence is not a

criminal proceeding." State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). In

SSOSA revocation hearings, offenders are entitled to the same minimal due process

rights as those afforded in probation or parole revocation hearings. Dahl, 139 Wn.2d at

683.

       Minimal due process requires (a) written notice of the claimed violations,(b)

disclosure to the defendant of the evidence against him,(c) the opportunity to be heard

in person and to present witnesses and documentary evidence,(d) the right to confront

and cross-examine witnesses (unless there is good cause for not allowing

confrontation),(e) a neutral and detached hearing body, and (f) a written statement by

the court as to the evidence relied upon and the reasons for the revocation. Morrissey

v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). "Courts have

limited the right to confrontation afforded during revocation proceedings by admitting

substitutes for live testimony, such as reports, affidavits and documentary evidence."

Dahl, 139 Wn.2d at 686. The court ma consider hearsay evidence if there is "good

cause to forego live testimony." Dahl, 1 39 Wn.2d at 686.



                                           12
No. 77334-8-1/13

       Miller contends the court abused its discretion by admitting treatment provider

Leoncavallo's letter terminating his treatment and the CCO's testimony that Leoncavallo

told him Miller "wasn't making progress" and was using "spirituality as a crutch."

       At the hearing, Miller testified that he struggled in treatment because it was "a

very confrontational environment" and 'an environment that's not friendly to hear, oh, I

read in the Bible this or that; that wasn' received well." Miller testified that he is

"stubborn" and "hardheaded" because f "God and Jesus Christ in my life that has given

me a spirit, a fear for the system and fear of God to tell the truth and to be honest."

       The CCO testified:

       So when I spoke with the treatm nt provider,[Leoncavallo], the things that
       she kind of pointed to me in gro0 why he wasn't making progress is
       because of many of the things that Mr. Miller spoke about to you, being
       hardheaded, being argumentative, and one of the things that she
       specifically spoke on was spirituality. That he would use spirituality as a
       crutch and not use SOTP[3] treati-nent. And so he would not go through
       what she wanted him and he wanted to use religion as specifically his
       treatment.

       Even if admission of the hearsay statements was error, the error was harmless.

Dahl, 139 Wn.2d at 688 ("Violations of a defendant's minimal due process right to

confrontation are subject to harmless error analysis."). There is no dispute that Miller

failed to successfully complete a sex ofiender treatment program with either Green or

Leoncavallo. Miller stipulated that he v olated the SSOSA by failing to "successfully

complete" a sex offender treatment program and admitted that he was terminated from

the two treatment programs.




       3 Sex   offender treatment program.


                                              13
No. 77334-8-1/14

Community Custody Conditions

       Miller challenges imposition of the following six community custody conditions:

      6.      Do not frequent areas where minor children are known to
              congregate, as defined by the supervising Community Corrections
              Officer.



      8.      Do not date women as directed by the supervising Community
              Corrections Officer. Mr. Miller may continue his current relationship
              with his wife, Marjorie Miller, and his other children . . . .



       11.    Do not. . . frequent establishments where alcohol is the chief
              commodity for sale.



       13.    Do not associate with known users or sellers of illegal drugs.

       14.    Do not possess drug paraphernalia.

       15.    Stay out of drug areas, a defined in writing by the supervising
              Community Corrections Officer.

       Miller contends the court exceeded the statutory authority to impose the

conditions because the conditions are unconstitutionally vague.

      "The Fourteenth Amendment to he United States Constitution along with article

1, section 3 of the Washington State Constitution require that citizens be afforded fair

warning of proscribed conduct." Nguyen, 191 Wn.2d at 678. A community custody

condition is unconstitutionally vague if(1) it does not sufficiently define the proscribed

conduct so an ordinary person can understand the prohibition or (2) it does not provide

sufficiently ascertainable standards to protect against arbitrary enforcement. State v.

Bahl, 164 Wn.2d 739, 752-53, 193 P.31: 678 (2008)(citing City of Spokane v. Douglass,




                                             14
No. 77334-8-1/15

115 Wn.2d 171, 178, 795 P.2d 693(1990)). But"'a community custody condition is not

unconstitutionally vague merely because a person cannot predict with complete

certainty the exact point at which his a tions would be classified as prohibited

conduct.'" State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)4

(quoting State v. Sanchez Valencia, 14 Wn. App. 302, 321, 198 P.3d 1065 (2009),

rev'd, 169 Wn.2d 782). In determining whether a term is unconstitutionally vague, "the

terms are not considered in a 'vacuum, rather, they are considered in the context in

which they are used." Bahl, 164 Wn.2 at 754. "When a statute does not define a term,

the court may consider the plain and ordinary meaning as set forth in a standard

dictionary." Bahl, 164 Wn.2d at 754.

       Miller contends condition 11 that prohibits him from frequenting establishments

where alcohol is the "chief commodity for sale" is unconstitutionally vague because a

reasonable person would not know what "the term 'chief commodity' means" and the

condition is subject to arbitrary enforcement. We disagree. The dictionary defines

"chief" as "marked by greatest importance, significance, influence" and defines

"commodity" as "an economic good." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

387, 458 (2002). An establishment where "alcohol is the chief commodity for sale" is an

establishment where alcohol is the most important good for sale or whose primary

purpose is the sale of alcohol. Because an ordinary person would understand the

prohibition, condition 11 is not unconstitutionally vague.

       Miller contends condition 13 that prohibits him from associating with "known

users or sellers of illegal drugs" is unco stitutionally vague because it is unclear who



       4   Internal quotation marks omitted.

                                               15
No. 77334-8-1/16

must have knowledge that a person is a "known" user or seller of illegal drugs. In In re

Personal Restraint of Brettell, 6 Wn. App. 2d 161, 169, 430 P.3d 677(2018), we

considered and rejected the same argument. We held Washington case law does not

support the conclusion that "'known,' when used in a community custody condition,

refers to the knowledge of anyone other than the offender." Brettell, 6 Wn. App. 2d at

169; see also United States v. Vega, 545 F.3d 743, 749-50 (9th Cir. 2008)(condition

prohibiting association with "'any member of any criminal street gang'"limited to

people "known" by the defendant to be gang members). Because the condition

prohibits association with people known by Miller to be users or sellers of illegal drugs,

condition 13 is not unconstitutionally vague.

       Citing Sanchez Valencia, 169 Wn.2d 782, Miller argues condition 14 that

prohibits possession of "drug paraphernalia" is unconstitutionally vague. We disagree.

In Sanchez Valencia, the Washington Supreme Court concluded a condition prohibiting

"'any paraphernalia' "generally, rather than "drug paraphernalia," was

unconstitutionally vague. Sanchez Valencia, 169 Wn.2d at 794. Here, unlike in

Sanchez Valencia, condition 14 specifically prohibits possession of "drug

paraphernalia." RCW 69.50.102(a) defines "drug paraphernalia" as follows:

      [A]ll equipment, products, and materials of any kind which are used,
      intended for use, or designed for use in planting, propagating, cultivating,
      growing, harvesting, manufacturing, compounding, converting, producing,
      processing, preparing, testing, analyzing, packaging, repackaging, storing,
      containing, concealing, injecting, ingesting, inhaling, or otherwise
      introducing into the human body a controlled substance.

       Miller contends conditions 6 and 15 that prohibit him from frequenting areas

where minors congregate or drug areas as defined by the supervising CCO are

unconstitutionally vague. The State concedes that the superior court should either


                                            16
No. 77334-8-1/17

clarify or strike these conditions. We accept the concession as well taken. See State v.

Irwin, 191 Wn. App. 644, 655, 364 P.3d 830(2015)(requiring "clarifying language or an

illustrative list of prohibited locations"). We remand to clarify or strike conditions p and

15.

       Miller contends condition 8 that prohibits him from "dat[ing] women as directed by

the supervising Community Corrections Officer" is vague and infringes on his

fundamental right to marry. The right to marry is a fundamental right. Loving v. Virginia,

388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). Any condition affecting a

fundamental right must be narrowly drawn after deciding that no reasonable alternative

exists to achieve the State's interest. Warren, 165 Wn.2d at 34-35.

       There is no dispute that where the crime involves a sexual act against a child

with whom the defendant has contact through a parental relationship or "social

relationship with their parents," the court may impose a community custody cond tion

directing the offender to refrain from dating women who have minor children. State v.

Kinzie, 181 Wn. App. 774, 785, 326 P.3d 870 (2014); see also State v. Autrey, 16 Wn.

App. 460, 465, 468, 150 P.3d 580 (2006)(affirming condition requiring "prior approval"

of therapist and CCO before engaging in sexual contact because "the offender's

freedom of choosing even adult sexual partners is reasonably related to the[] crimes

because potential romantic partners may be responsible for the safety of live-in or

visiting minors"). Such a condition does not improperly infringe on the fundamental right

to marry. Kinzie, 181 Wn. App. at 785.

       But here, unlike in Kinzie, the condition states Miller shall "not date women as

directed by the supervising Community Corrections Officer." Because condition




                                             17
No. 77334-8-1/18

prohibits Miller from dating any women subject to the discretion of his CCO, the

condition implicates the fundamental right to marry and is not narrowly drawn. We

remand to strike the condition without prejudice to imposing a narrowly drawn condition

that prohibits Miller from dating women who have minor children.

       We affirm the decision to revoke the SSOSA. We affirm imposition of community

custody conditions 11, 13, and 14. We remand to strike condition 8 and to strike or

clarify conditions 6 and 15.




                                                 Q,ClizA\NML-, ,
WE CONCUR:




                                           18
