                                                                    FILED
                                                            COURT OF APPEALS,O1V-I
                                                             STATE OF WASHINUTON

                                                            2010 OCT 15 All 8:35




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

STATE OF WASHINGTON,                         )         No. 76676-7-1
                                             )
                    Respondent,              )
                                             )
            v.                               )         UNPUBLISHED OPINION
                                             )
BRIAN T. STARK,                              )
                                             )
                    Appellant.               )
                                             )         FILED: October 15, 2018


       ANDRUS, J. — In 2010, Brian T. Stark was convicted of four domestic

violence sex offenses: attempted first-degree child molestation, first-degree child

molestation, first-degree incest, and third-degree child molestation.            His

convictions were affirmed on direct appeal in 2013. In 2016, this court granted

Stark's personal restraint petition and vacated the first count as time barred. Stark

was resentenced in 2017. He now appeals seven conditions of community custody

imposed on resentencing, arguing that these conditions are not crime related or

are unconstitutionally vague. We affirm in part, reverse in part, and remand.
No. 76676-7-1/2

                                             FACTS

        Stark dated a woman, DaneIle, who had a young daughter, C.W.1 Stark

and DaneIle later married and had a son. Stark abused C.W. for several years,

beginning when she was in first grade. The abuse was disclosed to law

enforcement when C.W. was in high school. The State charged Stark with four

domestic violence sex offenses: attempted first-degree child molestation, first-

degree child molestation, first-degree incest, and third-degree child molestation. A

jury found Stark guilty as charged, and this court affirmed.

        In a personal restraint petition, Stark argued that count one, which was

based on the incident when C.W. was in first grade, was time barred. The State

conceded the error.         This court vacated Stark's conviction for attempted first-

degree child molestation and remanded for resentencing. At resentencing, the

court imposed an indeterminate sentence with a minimum term of 125 months on

the first degree child molestation conviction, count 2, and standard range

sentences of 61 months and 54 months on counts 3 (incest) and 4 (third degree

child molestation), respectively. The sentencing court also imposed several

conditions of community custody. Stark challenges seven of these conditions


                                          ANALYSIS

Crime related challenges

        A sentencing court may impose conditions of community custody, including

prohibitions on "conduct that directly relates to the circumstances of the crime for


         1 This court considered the facts underlying Stark's 'convictions in In re Pers. Restraint
Petition of Stark, 196 Wn. App. 1030 (Wash. Ct. App. Oct. 17, 2016) (unpublished),
http://www.courts.wa.goviopinions/pdf/735802.pdf, and State v. Stark, noted at 172 Wn.App. 1041,
slip op. at 1(2013).

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No. 76676-7-1/3

which the offender has been convicted." RCW 9.94A.030(1); RCW 9.94A.703(3).

Because the imposition of crime-related prohibitions is necessarily fact-specific

and based on the sentencing judge's in-person appraisal of the trial and offender,

the appropriate standard of review is abuse of discretion. State v. Norris, 1 Wn.

App. 2d 87, 97, 404 P.3d 83 (2017). The State need not establish that the

prohibited conduct directly contributed to the offense. State v. Nguyen, No. 94883-

6, slip op. at 13(Wash. Sept. 13, 2018).2 "So long as it is reasonable to conclude

that there is a sufficient connection between the prohibition and the crime of

conviction, we will not disturb the sentencing court's community custody

conditions." Id. at 13-14.

          In Nguyen, the Supreme Court upheld a prohibition on accessing sexually

explicit material as reasonably related to the crimes of child rape and molestation.

Id. at 16. The Nguyen court held that by committing sex crimes, the defendant

established his inability to control sexual urges. Id. at 14. It was thus reasonable

to prohibit the offender, Nguyen, from accessing materials whose only purpose

was to stimulate sexual urges. Id. In considering conditions imposed on a

separate offender, Norris, the Nguyen court upheld a prohibition on entering sex-

related businesses as reasonably related to the crime of rape of child. Id. at 15-

16. Although there was no evidence that sex-related businesses played a role in

the offender's crime, the court held that the condition was related to Norris's

inability to control her sexual urges. Id.




2   http://www.courts.wa.gov/opinions/pdf/948836.pdf
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No. 76676-7-1/4

      Stark first challenges Condition 5, which concerns sexual contact. The

condition requires Stark to:

      Inform the supervising CCO [Community Corrections Officer] and
      sexual deviancy treatment 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
      and/or CCO approves of such, with the exception that sexual contact
      with the defendant's wife, DaneIle Stark, is permitted.

Stark argues the prohibition on "[s]exual contact in a relationship" without prior

approval of a CCO or treatment provider is not crime related. The State concedes

that the prohibition is not related to Stark's crime.        We accept the State's

concession and remand for the sentencing court to strike the prohibition.

       Stark also challenges as not crime related the portion of Condition 5

requiring him to disclose his sex offender status prior to any sexual contact. This

challenge, however, is based on Stark's constitutional right to privacy, not on the

statutory "crime related" requirement, which applies to prohibitions. See RCW

9.94A.703(3). We address the challenge below.

       Stark next challenges Condition 9, which prohibits him from entering sex-

related businesses, and Condition 10, which prohibits him from accessing sexually

explicit material. At oral argument, Stark relied on State v. Padilla, 190 Wn.2d 672,

683,416 P.3d 712 (2018), to argue that there must be evidence in the record

linking the prohibition to the circumstances of the crime. Because there is no

evidence that Stark frequented sex-related businesses or viewed sexually explicit

materials, he argues that Conditions 9 and 10 are not crime related. The State's

position is that Padilla is distinguishable on its facts, as the defendant in that case

was convicted of communication with a minor for immoral purposes, not child rape

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No. 76676-7-1/5

or molestation. The State argues that Stark's offenses involved the inability to

control sexual urges, urges which are stimulated by access to sexually explicit

materials.

       In light of the Supreme Court's recent decision in Nguyen, we agree with

the State.   Like the defendants in that case, Stark committed offenses that

demonstrate an inability to control sexual urges.       Prohibitions on accessing

materials and entering businesses whose purpose is to stimulate sexual urges is

reasonably crime related.

       Finally, Stark contends Condition 16, which requires him to:"Have no direct

and/or indirect contact with minors under the age of 16 without the prior approval

of the CCO," is not crime related. This argument is without merit. Stark committed

sex crimes against a child. The prohibition on contact with minors is crime related.

See State v. Riles, 135 Wn.2d 326, 347, 957 P.2d 655 (1998) (upholding a

prohibition on contact with minors as crime related where the defendant was

convicted of rape of a child).

Vagueness challenges

       The guarantee of due process requires that laws not be vague. U.S. CONST.

amend. XIV, §1; WASH. CoNs-r. art. 1, §3. A condition is unconstitutionally vague

if it (1) does not sufficiently define the prohibition so an ordinary person can

understand the prohibition; or (2) does not provide sufficiently ascertainable

standards to protect against arbitrary enforcement. State v. Bahl, 164 Wn.2d 739,

752-53, 193 P.3d 678 (2008).       Conditions that implicate an offender's First

Amendment rights must meet a stricter standard of definiteness. Id. at 753. But


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No. 76676-7-1/6

impossible standards of specificity are not required. Id. at 760. "If persons of

ordinary intelligence can understand what the [law] proscribes, notwithstanding

some possible areas of disagreement,the[law] is sufficiently definite." Id. (internal

quotation marks omitted)(quoting City of Spokane v. Douglass, 115 Wn.2d 171,

179, 795 P.2d 693 (1990)).             A community custody condition is not

unconstitutionally vague merely because a person cannot predict with complete

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

conduct. Nguyen, slip op. at 6.

       In Nguyen, the Supreme Court rejected two vagueness challenges. The

court upheld a community custody condition that required the offender to inform

the CCO of any "dating relationship," holding that a person of ordinary intelligence

can distinguish a dating relationship from other types of relationships. Id. at 10.

The Nguyen court also upheld a prohibition on accessing sexually explicit material.

Id. at 14. The condition in that case required the offender not to "possess, use,

access or view any sexually explicit material as defined by RCW 9.68.130." Id. at

3. The referenced statute defines sexually explicit material as:

       [A]ny pictorial material displaying direct physical stimulation of
       unclothed genitals, masturbation, sodomy (i.e. bestiality or oral or
       anal intercourse), flagellation or torture in the context of a sexual
       relationship, or emphasizing the depiction of adult human genitals:
       PROVIDED HOWEVER, That works of art or of anthropological
       significance shall not be deemed to be within the foregoing definition.

Id. at 8 (quoting RCW 9.68.130(2)). The Nguyen court held that the phrase

"sexually explicit material" is sufficiently clear. Id. The court rejected an argument

that the statutory definition invites arbitrary enforcement, holding that persons of

ordinary intelligence can discern works of art and anthropological significance. Id.

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No. 76676-7-1/7

       In this case, Condition 9 prohibits Stark from entering "sex-related

businesses, including . .. any location where the primary source of business is

related to sexually explicit material." Condition 10 prohibits accessing or viewing

"any sexually explicit material as defined by RCW 9.68.130." Stark contends

"sexually explicit material," as used in these conditions, is impermissibly vague.

The argument is foreclosed by Nguyen. The conditions are not unconstitutionally

vague.

       Stark also raises a vagueness challenge to Condition 18, which requires

him to avoid "areas where children's activities regularly occur or are occurring."

We considered similar conditions in State v. Irwin, 191 Wn. App. 644, 364 P.3d

830(2015) and Norris, 1 Wn. App. 2d at 87.

       In Irwin, we struck a condition requiring the defendant not to "frequent areas

where minor children are known to congregate, as defined by the supervising

CCO," holding that, "Mithout some clarifying language or an illustrative list of

prohibited locations," the phrase was impermissibly vague. Irwin, 191 Wn. App. at

652,655. And, because the condition allowed the CCO to define which areas were

prohibited, it invited arbitrary enforcement. Id.

       In Norris, the condition at issue prohibited the defendant from "any

parks/playgrounds/schools and or any places where minors congregate." Norris,

1 Wn. App. 2d at 95. The State conceded that "and or any places" should be

stricken from the condition. Id. at 95-96. With that concession, the condition




                                          7
No. 76676-7-1/8

prohibited entering "any parks, playgrounds, or schools where minors congregate."

Id. at 96. We upheld the amended condition as sufficiently clear.3 Id.

        The condition at issue in this case requires that Stark:

        Stay out of areas where children's activities regularly occur or are
        occurring without the prior approval of the CCO and/or treatment
        provider. This includes parks used for youth activities, schools,
        daycare facilities, playgrounds, wading pools, swimming pools being
        used for youth activities, play areas (indoor or outdoor), sports fields
        being used for youth sports, arcades, and any specific location
        identified in advance by DOG or CCO.

Stark objects to the phrase "areas where children's activities regularly occur,"

arguing that it is unclear when children's activities "regularly occur" and how far an

"area" extends. He also asserts that the condition gives unbridled discretion to the

CCO. And, at oral argument, Stark argued that the condition is vague because it

refers to "children" and "youth" without establishing if these terms are synonymous.

        We agree in part. The phrase "regularly occur" is unclear because it

provides no standards for determining the frequency or regularity with which a

children's activity must take place for the area to be permanently off limits. And

the State has provided no rationale for requiring Stark to stay out of areas where

children's activities sometimes occur, such as a sports field, even when no children

are present. The phrase "areas where children's activities are occurring," in



         3 The Supreme Court accepted review of two issues in Norris and consolidated the case
with Nguyen. Nguyen, slip op. at 1-2. The prohibition on entering "any parks, playgrounds, or
schools where minors congregate" was not before the Supreme Court. Since Norris, Divisions Two
and Three have divided over whether the phrase "places where children congregate," accompanied
by an illustrative list, is sufficiently clear. State v. Johnson, Wn. App._,421 P.3d 969(2018);
State v. Wallmuller,         Wn. App._,423 P.3d 282(2018). A majority of the Johnson court held
that the condition provided fair notice that the offender must "avoid locations where individuals
under 16 collect together in groups. Outside of special circumstances (such as a children's day or
event), universities, national parks, and adult areas of worship would not be covered." Johnson,
421 P.3d at 973. The majority in Wallmuller, in contrast, held that the word "congregate" is
impermissibly vague, the illustrative list did not cure the inherent vagueness, and the condition
invited arbitrary enforcement. 423 P.3d at 285.

                                              -8-
No. 76676-7-1/9

contrast, is not unconstitutionally vague. A person of ordinary intelligence can

discern and avoid an area where a children's activity is occurring. We remand for

the sentencing court to strike the words "regularly occur" or fashion a new condition

consistent with this opinion.

       We agree with Stark that the use of "children" and "youth" is impermissibly

vague because it is unclear whether, in this context, the words are synonymous.

Upon remand, the sentencing court may replace the word "youth" with the word

"children's" or otherwise redact the condition for consistency.

       We reject Stark's argument that Condition 18 gives unbridled discretion to

the CCO. In this case,the first sentence establishes a standard and requires Stark

to stay out of areas where children's activities are occurring. The second sentence

provides an illustrative list, ending with "any specific location identified in advance

by DOC or CCO." Unlike the condition in Irwin the condition in this case only

authorizes the CCO to designate in advance a specific location where children's

activities are occurring. It does not invite arbitrary enforcement.

Other constitutional challenges

       Stark challenges several conditions on the grounds that they impermissibly

restrict constitutional rights. The sentencing court may impose limitations upon

fundamental rights provided they are imposed sensitively. State v. Riley, 121

Wn.2d 22, 37, 846 P.2d 1365 (1993). Such restrictions must be reasonably

necessary to accomplish the essential needs of the state and public order. Id. at

37-38 (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir.1974)). See




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No. 76676-7-1/10

also Bahl, 164 Wn.2d at 757-58 (discussing conditions that restrict First

Amendment rights).

       A portion of Condition 5, discussed above, requires Stark to disclose his sex

offender status prior to any sexual contact. Stark argues that a future relationship

between consenting adults is unrelated to his offense and, thus, a restriction on

such a relationship is not reasonably necessary to protect the public. He cites

Janus v. Am. Fed'n of State, County, and Mun. Emps., Council 31,                      U.S.

138 S. Ct. 2448, 2463-64, 201 L. Ed. 2d 924 (2018), for the proposition that

compelling speech implicates a person's First Amendment rights.

        Although the challenged condition implicates Stark's First Amendment

rights, it is sensitively imposed and reasonably necessary. Stark was convicted of

sex crimes against the minor child of a woman with whom he was having sexual

contact. Requiring Stark to disclose his sex offender status before commencing a

sexual relationship is reasonably necessary to protect the public.4

        Stark next challenges Condition 8, which requires him to:

        Consent to DOC home visits to monitor compliance with supervision.
        Home visits include access for the purposes of visual inspection of
        all areas of residence in which the offender lives or has
        exclusive/joint control/access.

Stark argues that this condition violates his rights under the Fourth and Fourteenth

Amendments. The constitutionality of an inspection condition, however, depends



        4 Stark's case is distinguishable from United States v. Reeves, 591 F.3d 77, 80(2nd Cir.
2010), in which the court struck a condition requiring an offender to "notify the Probation
Department when he establishes a significant romantic relationship and... inform the other party
of his prior criminal history concerning his sex offenses." The offender in that case maintained
relationships with his children and there had been no allegations of abuse or domestic violence in
those relationships. Id. at 81-82.

                                             -10-
No. 76676-7-1/1 1

on the particular circumstances of enforcement. State v. Cates, 183 Wn.2d 531,

535-36, 354 P.3d 832(2015)(quoting Sanchez v. Valencia, 169 Wn.2d 782, 789,

239 P.3d 1059(2010)). The condition is not ripe for pre-enforcement review. Id.

       Next, Stark challenges a condition requiring him to submit to urinalysis and

breathanalysis. The sentencing court imposed a standard condition requiring

Stark to refrain from controlled substances except where lawfully prescribed. See

RCW 9.94A.703(2)(c)(stating that this condition shall be imposed unless waived

by the court). But the court declined to impose a prohibition on consuming alcohol

because there was no connection between alcohol and Stark's offenses.

Condition 12 requires Stark to "[b]e available for and submit to urinalysis and/or

breathanalysis upon the request of the CCO and/or the chemical dependency

treatment provider."

       Stark contends Condition 12 violates his privacy interests under the Fourth

Amendment and article I, section 7 of the Washington Constitution. He argues

that random drug testing is only constitutional where it promotes rehabilitation, as

where the defendant has been convicted of a drug offense. The State concedes

that the breathanalysis portion of Condition 12 is invalid because the sentencing

court did not prohibit Stark from consuming alcohol. But the State argues that,

because the court properly prohibited Stark from using controlled substances, it

may require him to submit to urinalysis to monitor compliance with this prohibition.

       The parties rely on State v. Olsen, in which the Washington State Supreme

Court upheld random urinalysis for probationers convicted of driving under the

influence (DUI). 189 Wn.2d 118, 134, 399 P.3d 1141 (2017). The Olsen court


                                       -11-
No. 76676-7-1/12

held that, because random drug testing implicates probationers' privacy interests,

the intrusion is only lawful where it is narrowly tailored to meet a compelling state

interest. Id. at 127-28. The court upheld the condition because the State has a

strong interest in supervising DUI probationers and random urinalysis is narrowly

tailored to meet that interest. Id. at 128, 134.

       In discussing this issue, the Olsen court stated that random drug tests may

be imposed "to assess compliance with a valid prohibition on drug and alcohol

use." Id. at 130. The Olsen court reasoned that the trial court properly conditioned

the defendant's release upon her agreement to refrain from drugs and alcohol and

"[i]t follows that the trial court also has authority to monitor compliance with that

condition through narrowly tailored means." Id. The court rejected an argument

that upholding the condition would open the door to permitting random,

suspicionless searches in all situations. Id. at 132. The Olsen court held that the

condition authorized only a search to test for drugs and alcohol, a search that was

reasonable in the circumstances of that case:

       Olsen was convicted of DUI, a crime involving the abuse of drugs
       and alcohol. A probationer convicted of DUI can expect to be
       monitored for consumption of drugs and alcohol, but should not
       necessarily expect broader-ranging intrusions that expose large
       amounts of private information completely unrelated to the
       underlying offense.

Id. at 133. Reiterating its conclusion that random drug testing, in that case, was

narrowly tailored and directly related to the probationer's rehabilitation, the Olsen

court stated that "random UAs [urine analyses], under certain circumstances, are

a constitutionally permissible form of close scrutiny of DUI probationers." Id. at

134.

                                        - 12 -
No. 76676-7-1/13

      Stark argues that, under Olsen, random urinalysis is permissible in a DUI

probation case but not in a case such as his, where the crime is unrelated to drugs

or alcohol. Stark also asserts that Olsen is distinguishable because the defendant

in that case was subject to a maximum of five years' probation, whereas Stark is

subject to lifetime supervision. The State contends that, under Olsen, the court

may require suspicionless drug testing in any case where a prohibition on

controlled substances is imposed.

       We read Olsen to hold that requiring random urinalyses was permissible in

that case because it was narrowly tailored to address the probationer's DUI

offense. jçj. at 129, 133. Olsen does not support the general proposition that

random urinalysis is constitutional to monitor a standard condition prohibiting the

use of controlled substances. Stark was not convicted of a drug offense, and the

State points to no evidence of a connection between Stark's offenses and drugs.

We conclude that the urinalysis requirement is not narrowly tailored or reasonably

necessary. Condition 12 must therefore be stricken.

       Finally, Stark challenges Condition 16 on constitutional grounds. The

condition, discussed above, prohibits Stark from contact with minors under the age

of 16. Stark argues that this condition interferes with his fundamental right to

familial relationships because it will prevent contact with future children or

grandchildren. The State argues that, because the existence of future children or

grandchildren is speculative, this issue is not ripe for review.

       An issue is not ripe for review when it requires further factual development.

Bahl, 164 Wn.2d at 751. Likewise, a claim that is speculative and hypothetical is


                                        - 13-
No. 76676-7-1/14

not ripe for review. Lewis County v. State, 178 Wn. App. 431, 440, 315 P.3d 550

(2013). In this case, Stark points to no evidence that he has minor children or

grandchildren. C.W. and Stark's child with DaneIle are both over the age of 16.

Because any infringement of Stark's right to a relationship with future children or

grandchildren is speculative, Stark's challenge to Condition 16 as a violation of his

fundamental right to parent is not ripe for review.

       We remand for the sentencing court to strike that portion of Condition 5

prohibiting sexual contact in a relationship and Condition 12 in its entirety. We

remand for the court to redact Condition 18 or fashion a new condition consistent

with this opinion. We affirm the remaining conditions.



                                                 kAteth.4,,4 1 ,52.
WE CONCUR:




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