                                                             fILE0
                                                     COURT OF APPEALS DIV I
                                                      STATE OF WASHINGTON           -

                                                      2018 FEB   12 Ati 10: 50



      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                No. 75408-4-1
                      Respondent,
                                                DIVISION ONE
       V.

ERIC CHARLES MASON,                             PUBLISHED IN PART

                      Appellant.                FILED: February 12, 2018


       SPEARMAN, J. — Eric Mason hid a video camera in the bathroom he

shared with his stepsister and her husband. Over the course of a few months he

filmed his stepsister on one occasion and her husband on three occasions. Once

the filming did not capture anyone. A jury convicted Mason of four counts of

voyeurism and one count of attempted voyeurism. On appeal, he claims that his

multiple convictions for the same victim violated his double jeopardy rights, and

that there was insufficient evidence that he filmed for the purpose of sexual

gratification. He also argues that the prosecutor engaged in misconduct, that his

counsel was ineffective, and that several of his conditions of community custody

are unlawful. We agree with Mason's challenges to the conditions of community

custody, but conclude that his other claims lack merit. We affirm his conviction,

but remand for the trial court to strike, and/or amend the unlawful community

custody conditions.
No. 75408-4-1/2

                                     FACTS

      In the early morning hours of November 28, 2015, Jack Keend used the

bathroom that he shared with his wife, Hannah, and her stepbrother, Eric Mason.

He noticed a camera inside a wicker decoration on top of the toilet. Jack

removed the camera and brought it to his father in law, Doug Peterson. They

confronted Mason, who denied responsibility. Jack and Doug turned the camera

on and watched video of Mason setting it up. Doug called the police. An officer

came to the house and arrested Mason. In reference to the camera, Mason said

to the officer, "[t]here's nothing on there." Verbatim Report of Proceedings(VRP)

at 132.

      A detective analyzed the contents of the camera, which contained five

separate videos, four of which recorded Hannah or Jack in the bathroom. In the

beginning of the first video, recorded on October 4, 2015 at 10:32 p.m., Mason is

seen setting up the camera. The camera points toward the shower, and Hannah

is seen from the shoulders up entering and exiting the shower.

      Three other videos show Jack using the bathroom. Each begins with

Mason setting up and angling the camera toward the door, so the whole

bathroom can be seen. At a certain point, Jack enters the bathroom, urinates,

and exits. These videos were recorded on October 6 at 9:50 p.m., October 7 at

10:41 p.m., and November 27 at 11:53 p.m. One video, recorded November 22

at 9:42 p.m., shows only Mason setting up the camera, with no other person

entering the bathroom.

       Mason was charged with four counts of voyeurism, one count of attempted

voyeurism, and possession of methamphetamine. At trial, Mason admitted
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No. 75408-4-1/3

filming, but said the videos were "not sexual at all." VRP at 227. He explained

that his purpose was to make Jack feel violated because Jack had previously

walked into Mason's room while his girlfriend was partially dressed. Mason also

said that he was collecting video evidence that Jack cooked the family dinner

after urinating and not washing his hands. Mason intended to make a

presentation to the family "so they can digest their own dysfunction." VRP at 226.

       Hannah testified that she always showered between 10:30pm and

midnight. In closing, the State urged that the jury infer that the timing of Mason's

recordings, all initiated between 9:42 p.m. and 11:53 p.m., showed his intent to

capture Hannah undressed in the bathroom. The State also argued that the jury

could infer Mason's purpose from his careful readjustment of the camera after his

first attempt failed to capture Hannah's full body.

       The jury convicted Mason as charged. His sentence included community

custody conditions. The court also ordered that he pay a $500 victim assessment

and $200 criminal filing fee. Mason appeals.

                                   DISCUSSION

Double Jeopardy

       Mason argues that the unit of prosecution for voyeurism is per victim, so

his three voyeurism convictions for Jack violate double jeopardy. The State

argues that the unit of prosecution here is per viewing, so the three recordings

support three convictions. Because both parties are correct, Mason's claim fails.

       Mason's double jeopardy claim raises an issue of statutory interpretation,

which we review de novo. State v. Thomas, 150 Wn.2d 666, 670, 80 P.3d 168

(2003). The constitutional guaranty against double jeopardy protects a defendant
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No. 75408-4-1/4

against multiple punishments for the same offense. U.S. Const. amend. V; Wash.

Const. art. I, § 9. Double jeopardy is implicated when the court exceeds its

authority and imposes multiple punishments where the legislature has not

authorized them. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155(1995).

"When the Legislature defines the scope of a criminal act(the unit of

prosecution), double jeopardy protects a defendant from being convicted twice

under the same statute for committing just one unit of the crime." State v. Adel,

136 Wn.2d 629, 634, 965 P.2d 1072(1998). The unit of prosecution may be an

act or a course of conduct. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728

(2005). To determine the unit of prosecution, we first examine the statute's plain

language. Id.

       The voyeurism statute reads:

             (2) A person commits the crime of voyeurism if, for the
       purpose of arousing or gratifying the sexual desire of any person, he
       or she knowingly views, photographs, or films:
             (a) Another person without that person's knowledge and
       consent while the person being viewed, photographed, or filmed is in
       a place where he or she would have a reasonable expectation of
       privacy; or
              (b) The intimate areas of another person without that person's
       knowledge and consent and under circumstances where the person
       has a reasonable expectation of privacy, whether in a public or
       private place.

Former RCW 9A.44.115(2)(2003). "Photographs" or "films" is defined as "the

making of a photograph, motion picture film, videotape, digital image, or any

other recording or transmission of the image of a person." RCW 9A.44.115(1)(b).

       The plain language of the statute criminalizes "the making of a ... film." Id.

This shows legislative intent that the unit of prosecution be an instance of filming.


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No. 75408-4-1/5

This reasoning was approved in State v. Ose, 156 Wn.2d 140, 146, 124 P.3d 635

(2005), which examined the second degree possession of stolen property statute

and concluded that "the legislature unambiguously defined the unit of prosecution

... as one count per access device by using the indefinite article 'a' in the clause

'a stolen access device." Similarly here, the legislature defined the unit of

prosecution in the voyeurism statute as one count per filming by defining "films"

as the making of a film. It unambiguously makes each instance of filming a

separate violation of the statute.

       Mason disputes that the statute permits a unit of prosecution that is per

instance of filming. He contends that the correct unit of prosecution is per victim.

In his view, the three counts involving Jack should have been charged as one

count. In support of this contention, he relies on State v. Diaz-Flores, 148 Wn.

App. 911, 201 P.3d 1073(2009). In that case, Diaz-Flores was convicted of two

counts of voyeurism after watching two people have sex with each other from

outside the couple's apartment on a single occasion. Diaz-Flores, 148 Wn. App.

at 913. We held that "[t]he plain language of the voyeurism statute establishes

that the legislature intended the unit of prosecution to be each victim whose right

to privacy is violated." Id. at 917. Mason's reliance on the case is misplaced,

however, because there, unlike in this case, neither victim was viewed more than

once. Thus we did not have occasion to consider whether double jeopardy

precluded multiple punishments for the same victim viewed multiple times. As

discussed above, now having considered that question in light of the statute, we

conclude it does not. In addition to establishing the unit of prosecution to be each



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No. 75408-4-1/6

victim, as we held in Diaz-Flores, the statute also clearly makes each instance of

filming a separate criminal act.

       Here, Mason made each recording separated by at least 24 hours, which

are clearly distinct instances of filming that support multiple convictions. We hold

that the convictions do not violate the prohibition against double jeopardy.

       The remainder of this opinion has no precedential value. Therefore, it will

be filed for public record in accordance with the rules governing unpublished

opinions. See RCW 2.06.040.

Sufficiency of the Evidence of Sexual Gratification

       Next, Mason argues that there was not sufficient evidence to prove that he

filmed for the purpose of sexual gratification. The State argues that there was

sufficient circumstantial evidence of sexual gratification based on evidence that

the filming began around the time that Hannah was known to take a shower.

       On a sufficiency of the evidence challenge, we determine whether any

rational fact finder could have found the essential elements of the crime beyond a

reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). A

claim of insufficiency "admits the truth of the State's evidence and all inferences

that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068(1992).

       The State must show that Mason filmed the bathroom "for the purpose of

arousing or gratifying the sexual desire of any person. . ." Former RCW

9A.44.115."[A] defendant's purpose of arousing or gratifying sexual desire can

be readily inferred from circumstantial evidence." State v. Hatch, 165 Wn. App.

212, 221, 267 P.3d 473(2011). In a sufficiency analysis, circumstantial evidence
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No. 75408-4-1/7

is not considered any less reliable than direct evidence. State v. Delmarter, 94

Wn.2d 634, 638,618 P.2d 99(1980)(citing State v. Gosby, 85 Wn.2d 758, 539

P.2d 680 (1975)).

       Over a two month period, Mason surreptitiously filmed the bathroom five

times. Hannah showered between 10:30 p.m. and midnight, and the filming

always began between 9:42 p.m. and 11:53 p.m. A rational juror could

reasonably infer from this timing that Mason intended to film Hannah during her

shower, and that his purpose was sexual gratification. In addition, Mason first

pointed the camera straight toward the shower, and captured only brief, blurry

images of Hannah from the shoulders up. Mason then adjusted the camera for a

clear view of the entire bathroom.

       Mason cites his own testimony to argue that he filmed for a nonsexual

purpose. But Mason's explanations are immaterial to the sufficiency challenge.

We consider the evidence in the light most favorable to the State, which provides

sufficient circumstantial evidence to support a rational juror concluding beyond a

reasonable doubt that Mason filmed for the purpose of sexual gratification.

Prosecutorial Misconduct

       Mason argues that the prosecutor engaged in misconduct during closing

statements by improperly shifting the burden to Mason to prove that he did not

act for the purpose of sexual gratification.

       To prove prosecutorial misconduct, the defendant must show that the

prosecuting attorney's conduct was both improper and prejudicial. State v.

Weber, 159 Wn.2d 252, 270, 149 P.3d 646(2006). If the defendant does not

object to the alleged misconduct at trial, the issue is usually waived unless the
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No. 75408-4-1/8

misconduct was "'so flagrant and ill-intentioned that it evinces an enduring and

resulting prejudice that could not have been neutralized by an admonition to the

jury." Id. (Quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).

A prosecuting attorney's alleged improper remarks must be reviewed in the

context of the total argument, the issues in the case, the evidence addressed in

the argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d

529, 561, 940 P.2d 546 (1997). In closing argument, the prosecutor has wide

latitude to argue reasonable inferences from the evidence, including evidence on

the credibility of witnesses. State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d

43(2011).

       During closing arguments in Mason's trial, the prosecutor discussed the

instruction that members of the jury are the sole judges of the credibility of each

witness. The prosecutor talked about Mason's credibility as a witness, providing

the example of his initial denial when confronted by his family about the camera.

The prosecutor then said,

              Does that sound like somebody who has a reasonable
      explanation for what they were doing?
              Sounds to me like somebody who is trying to distance
      themselves from the facts and circumstances of this case as
      much as they possibly can.
              And now he's saying that he was doing it for one of a
      number of reasons. To get back at Jack for walking into his
      bedroom. To prove that Jack wasn't washing his hands. To, you
      know, dysfunction. Prove dysfunction. Show the family that -
      that he was being wronged.
              Well, he's had about four months to think about it. It's an
      awfully convenient story at this point. Fills in the gaps quite
      nicely.

VRP at 301-02. The prosecutor went on to argue that this initial denial

demonstrated that Mason's testimony about a nonsexual motive was not
                                         8
No. 75408-4-1/9

credible. Mason argues that the quoted portion of the closing statement

constitutes prosecutorial misconduct. In isolation, that section does ask the

defendant to explain a lack of culpability. But viewed in the context of the

argument as a whole that the State was discussing the defendant's credibility,

which Mason placed at issue through his testimony. The State was entitled to

rebut the defense theory in closing by discussing the defendant's credibility.

There was no error.1

Conditions of Community Custody

        Mason argues that the trial court abused its discretion when imposing

certain community custody conditions. He contends that these conditions are not

crime-related, are unconstitutionally vague, or violate his first amendment rights.

Mason challenges the following conditions:

       4. Do not possess or access pornographic material, as defined by the
          supervising CCO.
       5. Do not enter any establishments whose primary business pertains to
          sexually explicit or erotic material.
       6. Do not possess or control sexual stimulus material for your particular
          deviancy as defined by the supervising CCO and/or therapist except as
          provided for therapeutic purposes.
       7. Do not possess cameras and video equipment, or any devices used to
          access the Internet on any computer or device unless such access is
          approved in advance by the supervising CCO and/or therapist. Any
          computer device is subject to search.


      10. Participate in polygraph and plethysmograph examinations as directed
           by the supervising CCO.



        1 Mason also argues that his counsel's failure to object to this portion of the closing
statement constitutes ineffective assistance of counsel. But because we conclude the comments
were not improper, Mason cannot show that the failure to object was deficient representation.
Accordingly, we reject his ineffective assistance claim.

                                               9
No. 75408-4-1/10

Clerk's Papers(CP)at 48-49.(Emphasis added). The State concedes that

conditions four and six must be stricken, as well as the portion of condition seven

relating to the internet.(The State's concessions are underlined above.) We

accept those concessions. We address the remaining contested conditions.

       We review community custody conditions for abuse of discretion, and will

reverse them only if they are manifestly unreasonable. State v. Irwin, 191 Wn.

App. 644, 652, 364 P.3d 830(2015). An unconstitutional condition is manifestly

unreasonable. Id. Sentencing courts may impose crime-related conditions of

community custody. RCW 9.94A.505(9). This includes conditions that are

reasonably related to the crime. Irwin, 191 Wn. App. at 656 (citing State v. Kinzle,

181 Wn. App. 774, 785, 326 P.3d 870 (2014)). In addition to being related to the

crime, conditions of community custody may not be unconstitutionally vague, with

standards definite enough to protect against arbitrary enforcement. Id. at 652.

       Mason argues that condition five, prohibiting entry into sex-related

businesses, is not crime-related, is unconstitutionally vague, and violates his first

amendment rights. In State v. Norris, 1 Wn. App. 2d. 87, 98, 404 P.3d 83(2017),

this court struck a similar condition for a defendant convicted of two counts of

second degree rape of a 13 year old boy. This court reasoned that "there is no

evidence in the record showing that frequenting sex-related businesses is

reasonably related to the circumstances of the crime. . . ." Id. Similarly here,

there is no evidence that Mason frequented sex-related businesses, intended to

distribute his recordings, or had consumed voyeuristic material made by others.

The trial court must strike condition five.



                                          10
No. 75408-4-1/11

       Mason argues that condition seven's contested portion, the prohibition

against possessing recording devices, violates his first amendment rights. This

community custody condition is reasonably necessary to accomplish the need of

the State to protect its citizens from intrusion, and sufficiently specific and

necessary to justify a potential restriction of Mason's freedom of speech. It does

not violate the first amendment.

       Mason argues that condition ten must be struck because plethysmograph

testing may only be used for crime-related treatment. State v. Johnson, 184 Wn.

App. 777, 340 P.3d 230(2014) affirmed a condition identical to condition ten, but

clarified that under State v. Riles, 135 Wn.2d 326, 345, 957 P.2d 655(1998),

plethysmograph testing may only be ordered for the purpose of sexual deviancy

treatment. We decline the State's request that we uphold the condition with the

clarification that plethysmograph testing may not be used for monitoring. As

written, the condition is unlawful and unenforceable. But on remand the trial court

may reimpose the requirement of plethysmograph testing so long as the testing

is permitted for treatment purposes only.

Legal Financial Obligations

       We review a decision to impose legal financial obligations(LF0s)for

abuse of discretion. State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309(2015),

rev. granted, 187 Wn.2d 1009, 388 P.3d 487 (2017)).

       Mason challenges the trial court's imposition of mandatory LF0s, arguing

that the imposition conflicts with State v. Blazina, 182 Wn.2d 827, 344 P.3d 680

(2015). He maintains that the trial court erred in assessing the mandatory $500

victim assessment and $200 court costs without a determination of whether he
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No. 75408-4-1/12

had the future ability to pay. Mason relies on Blazina, which requires an

individualized inquiry for discretionary LF0s. The trial court here did not impose

discretionary LF0s. We have previously held that Blazina does not apply to

mandatory LF0s, and that a challenge to whether a LFO violates due process is

not ripe for review until the State attempts to collect the obligation. State v.

Shelton, 194 Wn. App. 660, 673-74, 378 P.3d 230(2016), rev. denied, 187

Wn.2d 1002, 386 P.3d 1088 (2017)). The trial court did not err in assessing

mandatory LF0s.

Statement of Additional Grounds

       Mason advances several additional arguments in his statement of

additional grounds. His arguments on sufficiency of the evidence and double

jeopardy were adequately addressed by his counsel in the opening brief, so they

are not proper for a statement of additional grounds under RAP 10.10. His

remaining arguments lack merit.

       Mason first argues that the prosecutor's objection to defense counsel's

closing argument relieved the State of its burden and eroded the presumption of

innocence. Mason objects to the following exchange:

              [Defense counsel:] The issue of arousal, gratification is a
       completely different issue. And the State has not introduced any
       evidence to show that my client would try to be aroused by his
       stepsister, by seeing his stepsister.
             Mr. Anderson: Objection, Your Honor. 1 think that's a
       misstatement of the law.
              The Court: Sustained.

VRP at 294. Mason contends that the trial court's ruling augmented the potential

prejudice, because it gave judicial imprimatur to the prosecution's objection. We


                                          12
No. 75408-4-1/13

fail to see how either the objection or the court's ruling thereon, shifted the

burden of proof or eroded the presumption of innocence. We reject Mason's

argument.

        Mason next argues that the information was insufficient because it did not

identify a specific victim for attempted voyeurism in count four. In addition to

adequately identifying the crime charged, the charging document must allege

facts supporting every element of the offense. State v. Nonog, 145 Wn. App. 802,

806, 187 P.3d 335(2008)(citing State v. Leach, 113 Wn.2d 679, 689, 782 P.2d

552(1989)). The charge must be defined sufficiently to apprise an accused with

reasonable certainty of the nature of the accusation, such that the accused may

prepare a defense and plead the judgment as a bar to any subsequent

prosecution for the same offense. Id.

        The charging document here alleged that Mason "did knowingly view,

photograph, or film (a) another person, to wit:[INITIALS], 09/29/1968, without

that person's knowledge and consent. . . ."2 CP at 140. Where a crime involves a

victim, but not a specific person, the identity of the victim is not an essential

element of the crime. City of Seattle v. Termain, 124 Wn. App. 798, 805, 103

P.3d 209(2004)(crime of violation of no-contact order involves a specific person,

so the identity of the victim must be alleged in the information). So even without

identifying the victim by name,the information adequately apprised Mason of the

essential elements of the crime and the nature of the accusation.


        2 This date of birth does not correspond to Hannah or Jack, but Mason does not argue
that he was misled or prejudiced by this misidentification of the victim. Regardless, if the crime
involving a private injury describes and identifies the act with sufficient certainty, an erroneous
allegation as to the person injured is not material. ROW 10.37.090; State v. Plano, 67 Wn. App.
674, 680 n.2, 838 P.2d 1145(1992).
                                                 13
No. 75408-4-1/14

       Last, Mason argues his conviction should be reversed due to the

cumulative effect of errors at trial. Under the cumulative error doctrine, a

defendant may be entitled to a new trial when cumulative errors results in a trial

that is fundamentally unfair. State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653

(2012). Because Mason's challenges fail, he is not entitled to a new trial under

the cumulative error doctrine.

       We affirm in part, reverse in part, and remand for proceedings consistent

with this opinion.



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                                                    CiP 1IV\.4.-               N____
WE CONCUR:                                                           )




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