       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 75627-3-1
              Respondent,
                                                DIVISION ONE
       V.
                                                UNPUBLISHED OPINION
DRANOEL ENAJ BROWN,

              Appellant.                 )      FILED: February 12, 2018
                                         )
       LEACH, J. — A jury convicted Dranoel Brown of two counts of felony

violation of a no-contact order.      Brown makes several challenges to his

conviction and sentence.     He asserts that his counsel was ineffective, that

insufficient evidence supports the jury's verdict on count 2, and that the

prosecutor committed misconduct. But these claims lack merit, so we affirm

Brown's conviction.

       We agree, however, with Brown's contention that insufficient evidence

supports the domestic violence designation on count 2. In addition, the trial court

abused its discretion when it imposed no-contact orders without adequately

considering their impact on Brown's fundamental parental rights.        Thus, we

remand for the trial court to reconsider the no-contact orders and amend the

judgment and sentence consistent with this opinion.
No. 75627-3-1 /2


                                     FACTS

      Melody Sykes and her husband, Dranoel Brown, had three children

together, including a daughter, E.S., who was six years old in 2015.         In

September 2015, no-contact orders prevented Brown from contacting Sykes or

E.S. or from coming within 500 feet of their residence.

      On September 17, 2015, several King County sheriffs deputies, believing

that Brown was at Sykes's residence, went to the residence. The deputies

knocked on the front door. After receiving no immediate answer, they walked the

perimeter of the house. All the windows that the deputies observed were closed.

Eventually, Sykes answered the door and let the deputies into the house.

      Inside the house, Deputy Jaron Smith encountered a locked bedroom

door. He heard noises that sounded like a window being slammed open and

someone jumping out of it. Deputy Smith forced the door open. He saw no one

in the room but did see men's shoes and clothing on the bed and a wide open

window. The deputies had seen the same window closed during their perimeter

search.

      The police dispatched a helicopter and a K-9 tracking unit. The K-9 dog

tracked Brown's scent from outside the open bedroom window to some thick

sticker bushes. With a thermal-detecting device, the helicopter confirmed a heat

signature in those bushes. Deputies found Brown in those thick sticker bushes.


                                       -2-
No. 75627-3-1/ 3


They took him into custody. Brown had cuts all over him and had no shoes on.

      The State charged Brown with two counts of felony violation of a court

order, count 1 for violating the no-contact order for Sykes and count 2 for

violating the no-contact order for E.S. The jury convicted Brown of both counts.

The jury found that the crime charged in count 1 was an aggravated domestic

violence offense that was part of an ongoing pattern of abuse. The jury also

found that both Sykes and E.S. were members of the same family or household

as Brown.

      The court sentenced Brown to 60 months' confinement on count 1 and 0

days' confinement and 12 months' community custody on count 2. Because of

the domestic violence aggravator, the court imposed an exceptional sentence

and ordered the sentences to be served consecutively) The court also ordered

Brown to have no contact with Sykes or E.S. for 10 years.

      Brown appeals his conviction and sentence and challenges the no-contact

orders.

                                  ANALYSIS

                             Ineffective Assistance

      First, Brown claims he received ineffective assistance of counsel. To

prove a felony violation of a no-contact order, the State must establish that the



      I See RCW 9.94A.535(2).
                                      -3-
No. 75627-3-1 /4


defendant has two prior convictions for violating the provisions of a court order.2

Defendants often stipulate to two prior convictions to avoid any prejudice from

introducing the details of those convictions.3 The United States Supreme Court

held in Old Chief v. United States4 that a trial court must accept a defendant's

offer to stipulate to the existence of a prior conviction when evidence of the prior

conviction is unduly prejudicial.      Brown claims defense counsel provided

ineffective assistance by failing to stipulate to Brown's prior convictions

       Claims of ineffective assistance present mixed questions of law and fact

that this court reviews de novo.5       We examine the entire record to decide

whether the appellant received effective representation and a fair tria1.6 To

succeed on his ineffective assistance claim, Brown must show that his attorney's

performance fell below an objective standard of reasonableness and that this

deficient performance prejudiced him.7 If Brown fails to establish either prong of

this test, we need not consider the other.5




       2 RCW 26.50.110(5).
       3 State v. Case, 187 Wn.2d 85, 87, 384 P.3d 1140(2016).
       4 519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); see also
State v. Johnson, 90 Wn. App. 54, 62-63, 950 P.2d 981 (1998).
       5 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610
(2001).
       6 State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008)(quoting State
v. Ciskie, 110 Wn.2d 263, 284, 751 P.2d 1165 (1988)).
       7 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
       8 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).
                                       -4-
No. 75627-3-1/ 5


       On review, we give defense counsel's performance a great deal of

deference and employ a strong presumption of reasonableness.9                      The

reasonableness inquiry requires the defendant to show the absence of legitimate

strategic or tactical reasons for the challenged conduct.1° We first note that Old

Chief does not require the defense to stipulate to prior convictions.11 And, as we

have previously observed, a defendant may have a strategic reason for deciding

not to stipulate.12

       Here, the record shows that defense counsel intended to use the

judgment and sentence (J&S) documents as part of the defense strategy. Brown

was charged with felony violations of no-contact orders issued in 2014. To

convict Brown of these offenses, the State had to prove that Brown knew about a

no-contact order and knowingly violated a provision of the order.13 To show two

prior convictions of a court order, the State offered the J&S documents for 2012

and 2015 convictions for a domestic felony violence of a no-contact order. The

court admitted redacted versions of the J&S documents. At defense counsel's

request, the court did not redact a portion of the 2015 J&S about Brown's contact

       9 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
       19 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
       11 See State v. Humphries, 181 Wn.2d 708, 717, 336 P.3d 1121 (2014)
(stating that Old Chief holds "that a trial court abuses its discretion when it fails to
accept a stipulation to a prior conviction upon defense counsel's request"
(emphasis omitted)).
       12 State v. Streepv, 199 Wn. App. 487, 502-04, 400 P.3d 339, review
denied, 189 Wn.2d 1025(2017).
       13 RCW 10.99.040(4); RCW 26.50.110(5).
                                           -5-
No. 75627-3-1/6


with Sykes. Defense counsel claimed that part of the 2015 J&S document was

relevant to the State's burden to show that Brown knowingly violated a provision

of a court order. The issuing court had crossed out part of the judgment that

stated that Brown should have no contact with Sykes for five years and, in a

corresponding appendix, stated, "Defendant shall have no contact with: Melody

Sykes" without specifying a time limit for the prohibition. Trial counsel indicated

that this was relevant to Brown's knowledge of the scope of the prohibition.

Counsel argued that the confusing nature of the most recent no-contact order

created reasonable doubt as to what Brown understood of the conditions of the

2014 no-contact orders.     Trial counsel could not have made this argument

without introducing the 2015 J&S. Thus, introducing this document was a part of

a defense strategy.

       Brown contends that the State's argument fails because the defense

strategy does not apply to the plea agreements and 2011 J&S, which the court

also admitted. But Brown's counsel treated the admission of the J&S documents

thoughtfully. She objected to admission of the plea statements and successfully

asked the court to redact portions of the documents to omit prejudicial

information. Further, Brown provides no authority to show that counsel may

stipulate to some but not all J&S documents offered by the State. Here, the court

allowed plea statements in so the State could use them to rebut Brown's


                                        -6-
No. 75627-3-1/ 7


defense. The decision not to stipulate to one of two necessary qualifying

convictions does not constitute deficient performance in light of counsel's

strategy and the court's inclination to give a comprehensive view of the

circumstances involved in Brown's defense.

         Brown also contends that the strategy was not a legitimate tactic because

jury instructions limited the purpose for which the jury could consider the prior

convictions. The State counters that this argument critiques the execution of the

strategy, not its legitimacy.     Indeed, despite the limiting instruction, counsel

presented the defense to the jury. We will not decide counsel's tactics were not

part of a legitimate strategy simply because the strategy failed.14

         Because counsel had a legitimate strategic reason for not stipulating to

the prior convictions, counsel did not provide deficient representation. Because

Brown does not show deficient performance, his ineffective assistance claim

fails.

                                Sufficiency of Evidence

         Next, Brown contends that insufficient evidence supports count 2, violation

of the no-contact order involving E.S. "The test for determining the sufficiency of

the evidence is whether, after viewing the evidence in the light most favorable to

the State, any rational trier of fact could have found guilt beyond a reasonable


        Streepv, 199 Wn. App. at 504 (noting that the fact that a tactic did not
         14
succeed does not make it any less tactical).
                                       -7-
No. 75627-3-1 /8


doubt."15 The reviewing court must draw all reasonable inferences in favor of the

State.16 A jury may make inferences based on circumstantial evidence.17 But

those inferences must be reasonable and cannot be based on speculation.15

      The no-contact order provision for E.S. prohibited Brown from knowingly

entering, remaining, or coming within 500 feet of E.S.'s residence, school,

workplace, or person. No evidence shows that Brown came within 500 feet of

E.S.'s person. Thus, the State's case depends on Sykes's home being E.S.'s

residence.

      Brown contends that the State did not prove beyond a reasonable doubt

that E.S. lived at her mother's residence. Multiple witnesses testified that they

did not see E.S. at Sykes's house that day. And Brown points out that no

witness had personal knowledge that E.S. lived there. Still, while the jury heard

no direct evidence about E.S.'s residence, it heard sufficient circumstantial

evidence to support its conclusion.        Laurel Kelly, an investigator with

Muckleshoot Child and Family Services for the Muckleshoot Tribe, testified that

she saw E.S. at Sykes' home six times in 2015 before the police arrested Brown.

Kelly also testified that in May 2014, a tribal support program ordered beds for

Sykes's children when Sykes moved into the house. Kelly testified that she had


      15 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
      16 Salinas, 119 Wn.2d  at 201.
      17 State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318(2013):
      18 Vasquez, 178 Wn.2d at 16.
                                      -8-
No. 75627-3-1/ 9


no reason to believe that E.S. lived somewhere other than Sykes's residence.

She believed that Sykes's home was also E.S.'s home.              The jury could

reasonably infer from the evidence that E.S. had been seen at Sykes's house,

Sykes was E.S.'s mother, E.S. was only six years old, and the house was also

E.S.'s residence. Sufficient evidence supports the jury's verdict on count 2.

      Brown contends that the open Child Protective Services (CPS) case

shows that Sykes's children might have been removed from her care. Kelly

testified that a CPS investigator went to Sykes's home on the day of Brown's

arrest. But Brown identifies nothing else in the record to corroborate his claim

about an open CPS case for Sykes and her children. Nothing in the record

shows that E.S. had been removed from the home. The mention of a CPS

representative does not conclusively rebut the evidence that shows E.S. lived

with her mother.

                              Prosecutor Misconduct

      Brown contends that the prosecutor committed misconduct during closing

argument. A defendant claiming prosecutorial misconduct has the burden of

proving that the prosecutor's conduct was both improper and prejudicia1.19 We

evaluate the challenged statements in "the context of the prosecutors entire

argument, the issues in the case, the evidence discussed in the argument, and



      19 State   v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43(2011).
                                        -9-
No. 75627-3-1 /10


the jury instructions."20 If the defendant does not object at trial, he must show

that the alleged misconduct was "so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice."21 "Under this heightened standard,

the defendant must show that (1)`no curative instruction would have obviated

any prejudicial effect on the jury' and (2)the misconduct resulted in prejudice that

tad a substantial likelihood of affecting the jury verdict."22

       Brown contends that the prosecutor misrepresented Kelly's testimony

about Sykes's custody of E.S. The prosecutor stated, "Laurel Kelly told you that

was [E.S.'s] residence.      There's no question."      Brown asserts that Kelly's

testimony was not so clear about E.S.'s residence. Brown also claims that the

prosecutor stated facts not in evidence.        In closing, the prosecutor stated,

"[W]hen I asked her was there anyone besides Melody Sykes that had custody or

guardianship of the child, she said no." Brown asserts that the prosecutor never

asked about custody or guardianship of E.S.

       Brown is correct that these statements contain some errors. Kelly did not

testify with certainty that E.S. lived with Sykes, only that she believed that was

the case. And the State admits that the prosecutor's statement about Sykes's

custody of E.S. was a mistake. Thus, the prosecutor's statements departed from

testimony slightly. But Brown does not show that these errors were so egregious

       20 State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432(2003).
       21 State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653(2012).
       22 Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).
                                       -10-
No. 75627-3-1/ 11


that a jury instruction could not have cured them. Further Brown does not show

that this conduct "resulted in prejudice that 'had a substantial likelihood of

affecting the jury verdict."23    While the prosecutor may have misstated the

evidence, substantial evidence supports the finding that Sykes's residence was

also E.S.'s residence, as explained in the preceding section. Because Brown

does not show that "no curative instruction would have obviated any prejudicial

effect on the jury" or that the statements had a substantial likelihood of affecting

the verdict, Brown waived this challenge by failing to object at tria1.24

                                  Law of the Case

       Next, Brown contends that the domestic violence designation should be

stricken as to count 2 because insufficient evidence supports the jury's finding

that Brown and E.S. were members of the same family or household.

       Brown relies on the law of the case doctrine. This doctrine provides that

"jury instructions not objected to become the law of the case."25 And we evaluate

a challenge to the sufficiency of the evidence by looking at the jury instructions.26

Our Supreme Court explained in State v. Hickman27 that "a defendant may



       23Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).
      24 Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).
      25 State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900(1998).
      26 Hickman, 135 Wn.2d at 102-03.
      27 135 Wn.2d 97, 102, 954 P.2d 900(1998)(citing State v. Ng, 110 Wn.2d
32, 39, 750 P.2d 632 (1988); State v. Barringer, 32 Wn. App. 882, 887-88, 650
P.2d 1129 (1982), overruled in part on other grounds by State v. Monson, 113
Wn.2d 833, 849-50, 784 P.2d 485 (1989)).
                                     -11-
No. 75627-3-1 /12


assign error to elements added under the law of the case doctrine" and "[s]uch

assignment of error may include a challenge to the sufficiency of evidence of the

added element."     In addition, the law of the case doctrine is not limited to

circumstances where an element is added to a to-convict instruction.28 "It is a

broad doctrine that has been applied to to-convict instructions and definitional

instructions."29

       The law of the case doctrine applies here. RCW 10.99.020(3)'s definition

of "family or household members" includes "persons who have a biological or

legal parent-child relationship."3° The jury instructions, however, omitted the

parent-child relationship from its definition. The jury instructions stated only that

"[for purposes of this case, 'family or household members' means spouses or

former spouses or persons who have a child in common, regardless of whether


       28 State
              v. Calvin, 176 Wn. App. 1, 21, 316 P.3d 496(2013).
     29 Calvin, 176 Wn. App. at 21.
     39 The full definition is as follows:
        "Family or household members" means spouses, former
        spouses, persons who have a child in common regardless of
        whether they have been married or have lived together at any
        time, adult persons related by blood or marriage, adult persons
        who are presently residing together or who have resided together
        in the past, persons sixteen years of age or older who are
        presently residing together or who have resided together in the
        past and who have or have had a dating relationship, persons
        sixteen years of age or older with whom a person sixteen years
        of age or older has or has had a dating relationship, and persons
        who have a biological or legal parent-child relationship, including
        stepparents and stepchildren and grandparents and
        grandchildren.
RCW 10.99.020(3).
                                         -12-
No. 75627-3-1/13


they have been married or have lived together at any time." The State is bound

by this error.31 The erroneous jury instruction is the law of the case.32

       The State contends, however, that this error is harmless. The State

emphasizes that the error involves an omission and likens this case to our

Supreme Court's decision in State v. Brown33 that holds when an erroneous jury

instruction omits an element of the offense, it is subject to harmless error

analysis. The court held that the omission or misstatement of an element of a

charged crime is harmless if the court can conclude beyond a reasonable doubt

that the jury would have reached the same verdict absent the error.34 The State

contends that this harmless error analysis should apply to the instruction here

and because sufficient evidence supports a finding that E.S. is part of Brown's

family or household based on the statutory language, the omission of the parent-

child prong of the definition is harmless.

       But the concerns underlying Brown's decision are not present here. In

Brown, the court was concerned about the defendant's constitutional rights and

       31 Hickman, 135 Wn.2d at 105 (noting that "the law of the case doctrine
benefits the system by encouraging trial counsel to review all jury instructions to
ensure their propriety before the instructions are given to the jury").
       32 The State claims that the United States Supreme Court overruled
Hickman in Musacchio v. United States,         U.S. , 136 S. Ct. 709, 193 L. Ed.
2d 639(2016). But the Washington Supreme Court recently affirmed that the law
of the case doctrine is still good law in Washington. State v. Johnson, 188
Wn.2d 742, 756-62, 399 P.3d 507(2017).
       33 147 Wn.2d 330, 340, 58 P.3d 889 (2002) (quoting Neder v. United
States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).
       34 Brown, 147 Wn.2d at 341.
                                        -13-
No. 75627-3-1/14


the State's burden to prove every element of a crime beyond a reasonable

doubt.35 The due process guaranteed by the Fourteenth Amendment to the

United States Constitution requires "evidence necessary to convince a trier of

fact beyond a reasonable doubt of the existence of every element of the

offense."36 The erroneous instructions in Brown lowered the State's burden and

permitted the jury to convict a defendant when the State had not proved every

element of the crime charged.37 For this reason, application of the law of the

case doctrine would be inappropriate in cases like Brown. Here, by contrast, the

error effectively elevated the State's burden. Thus, we need not be concerned

that the misstatement deprived Brown of a fair trial. There was no risk of the jury

convicting Brown without the State establishing every element of this offense

beyond a reasonable doubt. Due process prevents application of the law of the

case doctrine in Brown, but it does not prevent its application here.

       On the other hand, this case is similar to Hickman. A circumstance where

the jury instructions state additional nonessential elements of a charged crime is

functionally the same as when the instructions omit an alternative basis for a




       35 Brown, 147 Wn.2d at 339 ("It is a fundamental precept of criminal law
that the prosecution must prove every element of the crime charged beyond a
reasonable doubt.").
       36 Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979).
       37 See Brown, 147 Wn.2d at 339.
                                       -14-
No. 75627-3-1 / 15


jury's finding. In each scenario, the State is held to a higher burden than the law

requires.

       In sum, the law of the case doctrine applies here, but the harmless error

standard does not.      The State does not dispute that based on the jury

instructions, insufficient evidence supports a finding that E.S. was a member of

Brown's family or household. Thus, insufficient evidence supports the domestic

violence designation.

                                 No-Contact Orders

       Finally, Brown contends that the court erred when it entered orders

preventing Brown from contacting Sykes and E.S. for 10 years. In general,

appellate courts review sentencing conditions for abuse of discretion.38 A trial

court abuses its discretion when "the decision is manifestly unreasonable or

exercised on untenable grounds or for untenable reasons."39           But we "more

carefully review conditions that interfere with a fundamental constitutional right."40

And we review whether the duration of the crime-related prohibition exceeds the

sentencing court's statutory authority de novo.41




       38 Statev. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
       39 Statev. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001).
      40 In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686
(2010).
      41 State v. Weller, 197 Wn. App. 731, 734, 391 P.3d 527, review denied,
188 Wn.2d 1017(2017).
                                      -15-
No. 75627-3-1 /16


       Brown contends, and the State concedes, that the orders violated due

process and statutory limits. We agree that the orders violated due process but

disagree that the court exceeded its statutory authority.

       First, Brown contends that the no-contact orders exceed the statutory

maximum. Courts may impose a crime-related prohibition like a no-contact order

as a condition of a sentence.42 In general, that prohibition may not exceed the

statutory maximum sentence for the crime for which the defendant is convicted.43

However, in State v. Weller," Division Two held that when the court imposes an

exceptional consecutive sentence, the court may stack the statutory maximums

consecutively to determine the maximum prohibition it may impose. In Weller,

the trial court imposed an exceptional sentence when it ran the standard range

sentences for each individual conviction consecutively.45 Division Two decided

that the trial court could impose a no-contact order for a period equal to the sum

of the maximum sentences on each count.46          Here, the court also imposed

consecutive sentences. Thus, consistent with Weller, to calculate the statutory

maximum, the trial court properly stacked the individual maximum sentences for

each count. A felony violation of a court order is a class C felony.47 The

      42 Statev. Armendariz, 160 Wn.2d 106, 120, 156 P.3d 201 (2007).
      43 Armendariz, 160 Wn.2d at 120.
     44 197 Wn. App. 731, 734-35, 397 P.3d 527, review denied, 188 Wn.2d
1017(2017).
     45 Weller, 197 Wn. App. at 735.
     46 Weller, 197 Wn. App. at 734-35.
     47 RCW 26.50.110(5).
                                     -16-
No. 75627-3-1 / 17


maximum sentence for a class C felony is 5 years.° Because the court imposed

consecutive sentences, the maximum period for the no-contact order is 10 years.

       In explaining its concession, the State distinguishes Weller.       But the

distinctions the State observes are not material. First, the State claims that this

case is different because it involves single counts against multiple victims while

Weller involved multiple counts against individual victims. Indeed, in Weller, the

two defendants were charged and convicted with several counts of assaulting

two children.° But contrary to the State's contention, while the defendants in

Weller were convicted of multiple counts with respect to each victim, the trial

court still properly stacked counts for the separate victims. Thus, the stacking in

Weller is functionally the same as the stacking here. Second, the State observes

that here the domestic violence aggravator applies to only one victim, while in

Weller the aggravator applied to all counts. But this distinction does not matter.

Brown does not challenge the trial court's authority to impose the exceptional

sentence. So long as the court had the authority to impose the exceptional

sentence, it had the authority to stack the statutory maximums. Despite the

State's assertions, Weller is not readily distinguishable. Consistent with Weller,

the trial court properly stacked the statutory maximum sentences for each count

to determine the maximum duration of the crime-related prohibition.

      48 RCW 9A.20.021(1)(c).
      49 State v. Weller, 185 Wn. App. 913, 917, 344 P.3d 695 (2015) ("The
convictions arose from their abuse of their 16-year-old twins.").
                                       -17-
No. 75627-3-1 / 18


       We agree, however, with Brown's contention that the court failed to

adequately consider the need for the conditions. The rights to marry and parent

natural children are fundamental rights.50         "Conditions that interfere with

fundamental rights must be reasonably necessary to accomplish the essential

needs of the State and public order."51        The court must narrowly draw any

condition affecting a fundamental right after deciding that no reasonable

alternative exists to achieve the State's interest.52

       Here, nothing in the record shows that when the court imposed the no-

contact orders, it considered Brown's fundamental rights as a spouse and parent.

We further note that the court's reasons for preventing contact with E.S. are

questionable. The court stated,

       . . . I don't believe you should have contact with [E.S.] either, not
       until you've engaged in some treatment to assist you in
       understanding the effect of domestic violence on children, and I am
       concerned that with any potential contact you have with Ms. Sykes,
       that chaos continues. At some point your children are going to
       intervene. That's what happens when they get older—they step in
       and then they get hurt.

       This court disapproved of similar reasoning in State v. Ancira.53 In Ancira,

the court ordered that the defendant have no contact with his wife and two minor


       50 Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982) (right to parent natural children is a fundamental right); Loving v.
Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967)(marriage is a
fundamental right).
       51 Warren, 165 Wn.2d at 32.
       52 Warren, 165 Wn.2d at 34-35.
       53 107 Wn. App. 650, 27 P.3d 1246 (2001).
                                       -18-
No. 75627-3-1/ 19


children for a period of five years.54 The trial court explained that it included the

children in the no-contact order because "[t]he history of violence between you

and your wife has been conducted before your children. 1 don't want any further

harm to them. Even if they just witnessed it and aren't direct victims of physical

violence themselves, it is extremely harmful to children."55 On appeal, this court

determined that both the nature and the scope of the sentencing condition were

not shown to be reasonably necessary.58 As the State notes in its concession,

the facts in Ancira are similar to those here. Here, the trial court provided some

explanation for its decision to impose no-contact orders but seemed to rely on

the harm caused when children witness domestic violence between spouses.

The trial court should have conducted more thorough and individualized analyses

about the prohibitions.

       The trial court abused its discretion in issuing the prohibition without

making an adequate effort to "to tailor the scope of the no contact order or

consider less restrictive alternatives."57   We remand so the trial court can

consider the constitutional limitations on sentencing conditions. Consistent with

our decision in Ancira,58 the trial court should also consider whether the family or

juvenile courts provide a better forum to address Brown's future contact with his

      54 Ancira, 107 Wn. App. at 652-53.
         Ancira, 107 Wn. App. at 653.
      56 Ancira, 107 Wn. App. at 654-55.

      57 Warren, 165 Wn.2d at 49(Sanders, J., dissenting).
         Ancira, 107 Wn. App. at 655.
                                      -19-
           No. 75627-3-1 /20


           child. And any sentencing condition limiting Brown's contact with his child should

           clearly describe how that condition may be modified in the future in appropriate

           circumstances.

                                             CONCLUSION

                  Brown does not show that his trial counsel's performance was deficient.

           Sufficient evidence supports the jury's verdict on count 2. Brown's prosecutorial

           misconduct claim fails. We affirm Brown's conviction.

                  We remand for resentencing, however, because insufficient evidence

           supports the domestic violence designation on count 2. Further, the trial court

           imposed no-contact orders without considering the defendant's constitutional

           rights. We affirm Brown's conviction but reverse his sentence and remand for

           further proceedings consistent with this opinion.




           WE CONCUR:




           cr
            .
            )




 ,    .,
1.1
           CN-1




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