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                                                                           2013AU3-J H,i 6=36




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                    No. 68239-3-1


                           Respondent,                  DIVISION ONE


                  v.

                                                        UNPUBLISHED OPINION
STEVEN RAY LITTLEBEAR,

                          Appellant.                    FILED: August 5, 2013
       Schindler, J. — Steven Ray Littlebear pleaded guilty to child molestation in the

first degree. Littlebear challenges the condition in the judgment and sentence

prohibiting him from having unsupervised contact with minors, including his own

children. We affirm.


                                               FACTS


       On August 15, 2003, the State charged Steven Ray Littlebear with child

molestation in the first degree of eight-year-old W.D. The State alleged that while W.D.

was watching television with "uncle" Steve, "he put his hand up her shirt and touched

her bare breast." W.D. told him to stop. Instead, Littlebear "stuck his hand down her

pants and touched her vagina."1



       1On June 16, 2004, the State filed a first amended information alleging Littlebear committed child
molestation of W.D. between May 2003 and July 2003.
No. 68239-3-1/2


       Littlebear admitted that he had "sexual contact with WD" and agreed to plead

guilty to child molestation in the first degree. Littlebear obtained a sexual deviancy

evaluation. Dr. William Coleman recommended sexual deviancy treatment subject to a

number of conditions, including no unsupervised contact with minors. The State agreed

to recommend a "Special Sexual Offender Sentencing Alternative" (SSOSA) under

RCW 9.94A.670.2

      The court found that Littlebear knowingly, intelligently, and voluntarily entered

into the plea agreement, and accepted the plea. The court exercised its discretion to

impose a SSOSA. The court found Littlebear "is a sex offender who is eligible for the

special sentencing alternative."

       The court sentenced Littlebear to 51 months of confinement suspended on

condition he serve six months, successfully complete sex offender treatment with Dr.

Coleman for the 36-month period of community supervision, and comply with the

conditions in "Appendix H Community Placement / Custody." Appendix H prohibits

contact with W.D. for the statutory maximum of the crime. Appendix H also prohibits

contact "with minors (to include your own children). . . unless otherwise authorized by


       2The plea agreement states, in pertinent part:
       The judge may suspended [sic] execution of the standard range term of confinement or
       the minimum term of confinement under the special sex offender sentencing alternative
       (SSOSA) if I qualify under RCW 9.94A.670. Ifthe judge suspends execution of the
       standard range term of confinement for a sex offense that is not listed in paragraph 6(f)(i),
       I will be placed on community custody for the length of the suspended sentence or three
       years, whichever is greater. Ifthe judge suspends execution of minimum term of
       confinement for a sex offense listed in paragraph 6(f)(i), I will be placed on community
       custody for the length of the statutory maximum sentence of the offense. In addition to
       the term of community custody, I will be ordered to serve up to 180 days of total
       confinement; I will be ordered to participate in sex offense treatment; I will have restriction
       and requirements placed upon me and I will be subject to all of the conditions described
       in paragraph 6(e). Additionally, the judge could require me to devote time to a specific
       occupation and to pursue a prescribed course of study or occupational training. Ifa
       violation of the sentence occurs during community custody, the judge may revoke the
       suspended sentence.
No. 68239-3-1/3


the Department of Corrections and treatment provider with an adult sponsor approved

by the provider and Department of Corrections."

        In November 2009, the Washington State Department of Corrections (DOC) filed

a notice of violation. DOC asserted Littlebear failed to participate in sex offender

treatment and used methamphetamines. In March 2010, the court granted Littlebear's

request for an extension of DOC supervision to complete his sex offender treatment.

        In September 2011, DOC recommended the court revoke the SSOSA based on

Littlebear's noncompliance with sex offender treatment. The court entered an order

revoking the SSOSA. The court imposed the suspended term of confinement, and

ordered Littlebear to serve 36 months on community custody and comply with the

conditions of community custody in Appendix H.

        On January 31, 2012, Littlebear filed an appeal of the order revoking the SSOSA.

For the first time, Littlebear argued the community custody condition prohibiting contact

with minor children, including his own children, violated his constitutional rights. While

the appeal was pending, the State and Littlebear agreed to a hearing to address the

community custody condition.

        Before the hearing, the State submitted the "Pre-Sentence Investigation" report

dated February 8, 2006; the sexual deviancy evaluation; and the affidavit of Richard

DeBay, the DOC community corrections officer who supervised Littlebear beginning in

2003.


        There was no dispute that Littlebear had little or no contact with his children.

DeBay states that Littlebear has two sons by two different women, and that Littlebear
No. 68239-3-1/4



"did not even know the existence of one of his sons for about three years." DeBay said

that Littlebear also mentioned a six-year-old girl but denied parentage.

       DeBay strongly recommended that Littlebear have no contact with minor

children, including his own children. DeBay states, in pertinent part:

              Over the course of the five years I supervised Mr. Littlebear he has
       shown that he is not willing to comply with his conditions of supervision,
       conditions of sex offender treatment and be honest with people he has to
       deal with. I would not recommend that Mr. Littlebear have contact with
       minors, including his own children, as he is an untreated sex offender who
       victimized a minor child who called him "Uncle" and has not demonstrated
       through actions his willingness to follow directions of the rules set forth to
       him.


       The court concluded the community custody condition prohibiting Littlebear from

having contact with minor children, including his own children, was reasonably

necessary. The court entered findings of fact and conclusions of law. The court found

that because Littlebear did not complete sex offender treatment and the victim was

approximately the same age as his children, the condition was reasonably necessary.

                                         ANALYSIS


       Littlebear contends the condition prohibiting him from having contact with his

children violates his fundamental rights as a parent.

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, authorizes the trial

court to impose "crime-related prohibitions" as a condition of a sentence. RCW

9.94A.505(8). A "crime-related prohibition" prohibits "conduct that directly relates to the

circumstances of the crime for which the offender has been convicted." RCW

9.94A.030(10). We review the imposition of crime-related prohibitions for abuse of

discretion. In re Pers. Restraint of Rainev. 168 Wn.2d 367, 374, 229 P.3d 686 (2010).
No. 68239-3-1/5


A court abuses its discretion if it applies the wrong legal standard. Rainev, 168 Wn.2d

at 375.


          Parents have a fundamental right to raise their children without State

interference. In re Custody of Smith, 137Wn.2d 1, 15, 969 P.2d 21 (1998): Santoskvv.

Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Nonetheless, the

sentencing court can place limits on the fundamental right to parent subject to

reasonable regulations when reasonably necessary to further the State's compelling

interest to protect the child. City of Sumner v. Walsh, 148 Wn.2d 490, 526, 61 P.3d

1111 (2003): State v.Warren, 165Wn.2d 17,32, 195 P.3d 940 (2008). The State has a

recognized interest in protecting children from harm. State v. Letourneau, 100 Wn. App.

424, 439, 997 P.2d 436 (2000). But a sentencing condition that affects the fundamental

right to parent must be "sensitively imposed" so that it is "reasonably necessary to

accomplish the essential needs of the State and public order." Warren, 164 Wn.2d at

32.

          Here, the unchallenged findings establish Littlebear is an untreated sex offender

who sexually molested eight-year-old W.D. The DOC Pre-Sentence Investigation report

states, in pertinent part:

          [W.D.'s mother] said that Littlebear was WD's favorite person and like an
          uncle. The victim's mother said she was best friends with Littlebear's
          girlfriend and never would have fathomed he could hurt her daughter.

          Littlebear's willingness to exploit his close relationship with W.D.'s mother and

W.D. to molest W.D. raises serious concerns about the safety of his minor children.

The court did not abuse its discretion in concluding, "It is a compelling state interest to

protect children. . . . Limiting Mr. Littlebear's parental rights are reasonably necessary to
No. 68239-3-1/6


accomplish this essential need of the state." Further, as the State points out, the

condition only applies until his children reach the age of majority.

       Letourneau is inapposite. In Letourneau, we struck a community custody

condition barring the defendant from having unsupervised contact with her minor

children because there was no evidence that the defendant posed any danger to the

children. Letourneau, 100 Wn. App. at 441-42.

       We affirm.




                                               \cQjU\j<QQfi* K
WE CONCUR:




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