                                                                       FILED
                                                                   OCTOBER 17, 2019
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION III
 STATE OF WASHINGTON,                                               No. 36008-3-III

                               Respondent,
                                                             UNPUBLISHED OPINION
        v.

 DANIEL JOSEPH WEST,

                               Appellant.



       MAXA, C.J. – Daniel West appeals his convictions of first degree child rape of his

daughter and two counts of second degree child rape of his girlfriend’s daughter, as well as

certain provisions regarding legal financial obligations (LFOs).

       We hold that (1) the invited error doctrine precludes West’s challenge to the trial court’s

failure to give a unanimity instruction because West’s proposed set of jury instructions did not

include a unanimity instruction; (2) as the State concedes, the word “romantic” should be

removed from the community custody condition requiring prior approval of West’s

“romantic/sexual” relationships because that term is unconstitutionally vague; (3) as the State

concedes, the criminal filing fee imposed as an LFO must be stricken from the judgment and

sentence; (4) the provision imposing interest on nonrestitution LFOs must be stricken from the

judgment and sentence; and (5) West’s claims in a statement of additional grounds (SAG) that

comments by jurors in the jury assembly room should have resulted in a mistrial and that there
No. 36008-3-III


was an appearance of fairness violation when the trial court chastised defense counsel for the

nature of his voir dire questions have no merit.

       Accordingly, we affirm West’s convictions, but we remand for the trial court to strike the

word “romantic” from the challenged community custody condition and to strike the criminal

filing fee and the provision imposing interest on nonrestitution LFOs from the judgment and

sentence.

                                              FACTS

Background

       West and Rachel Smith were in a romantic relationship. Both had children from prior

relationships. West’s daughter RW and Smith’s daughter KM were five months apart in age and

developed a close, sisterly relationship.

       West and Smith moved with their children into an apartment in the Spokane Valley when

RW and KM were around eight or nine years old. In 2008, the couple and their children moved

again to a house in Spokane. West often watched the children because Smith was frequently

away during the evenings, attending school and work.

       In February 2014, RW reported to law enforcement that West was sexually abusing her.

KM also eventually disclosed that West had been abusing her.

       The State charged West with two counts of first degree child rape regarding RW and two

counts of second degree child rape regarding KM. The State alleged in the first degree rape

counts that West had raped RW between May 2006 and May 2009, when she was less than 12

years old. The State alleged in the second degree rape counts that West had raped KM between

October 2011 and October 2012 when she was 12 years old and again between October 2012 and

October 2013 when she was 13 years old.




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Jury Selection

        During voir dire, juror 9 reported to the trial court that in the jury assembly room juror 58

said, “I’m a corrections officer. I can see these guys a mile away. I babysit these guys and I can

tell you, I will be babysitting this guy.” 2 Report of Proceedings (RP) at 354. The trial court

questioned juror 58, who recalled making a statement to juror 9 that because of his work in

corrections he was able to identify sex offenders and likely would end up supervising the

defendant.

        Juror 58 also stated that during a recess he overheard a female juror say that “she would

have a hard time because she’s a mother of children.” 2 RP at 372. He could not identify which

juror had said this.

        The trial court then questioned juror 9, and he repeated what juror 58 had told him. Juror

9 stated that other jurors could have overheard their conversation; specifically, a woman reading

a book nearby. Juror 9 did not know if the woman had overheard them, as she did not react to

their words or join their conversation. He stated that no one else in the room joined in their

conversation or had any visible reaction to juror 58’s comments.

        The court later questioned the entire panel, asking them to raise their hand if they could

answer yes to any of the following questions: (1) “Has anyone expressed an opinion about this

case to any of you?” (2) “Has anyone received any information about this case other than what

you’ve heard here in this courtroom?” (3) “[D]oes anyone feel that they cannot be fair and

impartial should you be chosen to sit on this jury?” and (4) “[D]oes anyone feel they cannot

follow my instructions throughout this trial?” 3 RP at 423. No jurors raised their hands.




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        Finally, the trial court asked, “Has anyone, has any fellow juror, in other words,

somebody else that’s in the jury pool, expressed an opinion to any of you about this case?” 3 RP

at 426. Only juror 9 raised his hand.

        The trial court dismissed juror 58 from the jury panel for cause. The State later used a

preemptory challenge to remove juror 9 from the panel.

        West moved for a mistrial based on the comments made by juror 58 and the unidentified

juror who stated that she would have a hard time because she was a mother of children. West

argued that the entire jury panel should be stricken and the trial started over. The trial court

denied the motion.

        Also during jury selection, the trial court during a sidebar conference chastised defense

counsel for the nature of his voir dire questions. According to defense counsel,

        About halfway through the voir dire for the defense, the court called the parties to
        the bench. The court seemed irritated and admonished counsel that counsel was
        getting dangerously close to violating the court’s early warning concerning voir
        dire. The court accused defense counsel of usurping the court’s rule and
        instructing the jury on the law and accused defense counsel of giving the jurors a
        civic [sic] lesson.

5 RP at 846. Based on these comments, West moved for a mistrial under the appearance of

fairness doctrine. The trial court denied the motion.

Trial

        RW testified that West first raped her when she was about 7 years old. She described in

detail the first time she was raped. RW estimated that West anally raped her at least 10 times

over a long period of time. She stated that West eventually stopped raping her after the family

moved into the house in Spokane.




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No. 36008-3-III


       KM testified West began sexually abusing her when she was 12 years old. She stated

that West anally raped her for a period of two years. KM estimated that during this period the

rapes occurred about three times per week and up to five separate times per day.

       Following the presentation of evidence, both the State and West submitted proposed jury

instructions. West submitted a complete set of instructions plus verdict forms. Neither party

proposed a unanimity instruction. The trial court discussed jury instructions with counsel.

Defense counsel did not orally request a unanimity instruction or express concern about the

absence of a unanimity instruction.

       The trial court decided on a set of instructions that would be given to the jury. The

court’s instructions were nearly identical to the instructions that West proposed. No unanimity

instruction was included in the jury instructions. West did not object to the failure to give a

unanimity instruction.

       The jury convicted West on one first degree child rape count regarding RW but acquitted

him on the other first degree child rape count. The jury convicted West of both second degree

child rape counts regarding KM.

Sentencing

       At sentencing, the trial court imposed a community custody condition requiring that West

“not enter into a romantic/sexual relationship” without the prior approval of his community

corrections officer (CCO) and his therapist. Clerk’s Papers at 202.

       The court imposed mandatory LFOs, including a $200 criminal filing fee. The judgment

and sentence included a provision that the LFOs would bear interest from the date of the

judgment until they were paid in full. The court found West indigent for purposes of appeal.




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        West appeals his convictions and the imposition of the criminal filing fee and interest on

LFOs.

                                             ANALYSIS

A.      UNANIMITY INSTRUCTION

        West argues that his convictions violate his constitutional right to a unanimous jury

verdict because there were multiple acts that could have supported them, but the jury was not

given a unanimity instruction and the State did not elect which act supported which rape charge.

We decline to consider the issue because West invited the error by proposing a set of jury

instructions that did not include a unanimity instruction.

        1.   Legal Principles

        Under article I, section 21 of the Washington Constitution, criminal defendants have a

right to a unanimous jury verdict. State v. Rodriquez, 187 Wn. App. 922, 936, 352 P.3d 200

(2015); see generally State v. Petrich, 101 Wn.2d 566, 569-70, 683 P.2d 173, abrogated by State

v. Kitchen, 110 Wn. 2d 403, 405-06, 756 P.2d 105 (1988). Generally, in cases where there is

evidence of multiple acts that could support the crime charged, either the State must elect which

act the jury should consider in its deliberations or the trial court must instruct the jury to

unanimously agree on a specific criminal act. Rodriquez, 187 Wn. App. at 936. The failure to

do either can be constitutional error if it is possible that some jurors relied on one act and some

on another act, rendering that verdict not unanimous. Id.

        However, election by the State or a unanimity instruction is required “only when the

State presents evidence of several distinct criminal acts.” State v. McNearney, 193 Wn. App.

136, 141, 373 P.3d 265 (2016). Neither election nor a unanimity instruction is needed if the




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No. 36008-3-III


defendant engages in multiple acts that form a single continuing course of criminal conduct.

Rodriquez, 187 Wn. App. at 936.

        2.   Invited Error

        Without conceding that a unanimity instruction was required here, the State argues that

West invited any error regarding the lack of a unanimity instruction because he did not request a

unanimity instruction and did not object to the absence of a unanimity instruction. We agree.

        The invited error doctrine precludes a defendant from setting up an error at trial and then

challenging that error on appeal. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P.3d

810 (2014). This doctrine bars a defendant’s challenge even when the alleged error involves

constitutional rights. State v. Mullen, 186 Wn. App. 321, 326, 345 P.3d 26 (2015). A defendant

invites an error if he or she affirmatively assented to the error, materially contributed to it, or

benefitted from it. State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009).

        The invited error doctrine clearly applies when a defendant proposes an instruction and

then on appeal attempts to challenge the giving of that instruction. Coggin, 182 Wn.2d at 119.

This rule also applies when the challenged error is the failure to give an instruction and the

defendant submits a complete set of proposed jury instructions that do not include that

instruction. In this situation, the defendant has “materially contributed” to the error by not

including the instruction in his or her proposed instructions and not objecting to the absence of a

unanimity instruction.

        Here, West invited the error he now raises because the jury instructions he proposed did

not include a unanimity instruction and he did not object to the absence of a unanimity

instruction. Through these actions, West essentially represented to the trial court that the set of

instructions he proposed was a proper statement of the law. Therefore, we hold that the invited




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No. 36008-3-III


error doctrine prohibits West from challenging on appeal the trial court’s failure to give a

unanimity instruction.

B.     SAG CLAIMS

       In his SAG, West asserts that (1) his right to a fair trial by an impartial jury was violated

because a prospective juror’s comments about sex offenders tainted the jury panel and an

unidentified juror expressed concern about the case because she was a mother, and (2) the trial

court violated the appearance of fairness doctrine by chastising defense counsel during voir dire.

We disagree.

       1.    Prospective Juror’s Comments about Sex Offenders

       West appears to assert that his right to a fair trial by an impartial jury was violated

because juror 58 said in the jury assembly room during jury selection that he had worked with

sex offenders and implied that West looked like a sex offender. We disagree.

       Article I, section 22, of the Washington Constitution and the Sixth Amendment to the

United States Constitution guarantee a right to a fair trial with an impartial jury. State v. Strange,

188 Wn. App. 679, 685, 354 P.3d 917 (2015). Comments of a potential juror during voir dire

can taint an entire jury panel under specific circumstances. See Mach v. Stewart, 137 F.3d 630,

633 (9th Cir. 1997) (discussed in Strange, 188 Wn. App. at 685-87). When determining whether

a potential juror’s statements taint the venire panel and thus violate a defendant’s right to an

impartial jury, courts have considered a number of factors, including the expertise of the

potential juror in relation to the statement, the number of statements or the amount of times a

statement is repeated, the certainty of the statement, and the nature or relation of the statement to

the crimes charged. Mach, 137 F.3d at 633; Strange, 188 Wn. App. at 684-87.




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No. 36008-3-III


       However, here there was no evidence that any juror other than juror 9 (who did not sit on

the jury) heard juror 58’s comments. West argues that an unknown female juror heard the

conversation between juror 58 and juror 9 and could have been on the panel because she was

never identified. But juror 9 stated that this juror gave no indication that she heard juror 58’s

comments. The trial court attempted to find this unknown juror through individual voir dire, but

was unable to determine her identity or whether or not she actually heard juror 58’s statements.

       Further, the trial court performed additional individual voir dire and crafted general

questions for all the potential jurors. When the court asked the jurors whether they had heard

opinions expressed about the case, only Juror 9 raised his hand. When the court asked jurors to

indicate if they would have trouble remaining fair and impartial, no jurors raised their hands.

       West’s allegation that the jury panel was tainted by juror 58’s comments is based only on

speculation. We hold that West’s right to a fair trial by an impartial jury was not violated.

       2.    Prospective Juror’s Comment about Being a Mother

       West references the comment from an unidentified juror that the case would be hard for

her because she was the mother of children. He apparently asserts this juror should have been

identified and removed from the jury. We disagree.

       To uphold a defendant’s constitutional right to a trial by an impartial jury, a trial court

will excuse a juror for cause if the juror’s views would “preclude or substantially hinder the juror

in the performance of his or her duties in accordance with the trial court’s instructions and the

jurors’ oath.” State v. Lawler, 194 Wn. App. 275, 281, 374 P. 3d 278 (2016). A juror can be

challenged for actual bias, which is “the existence of a state of mind on the part of the juror in

reference to the action, or to either party, which satisfies the court that the challenged person

cannot try the issue impartially and without prejudice to the substantial rights of the party




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challenging.” RCW 4.44.170(2). Actual bias must be established by proof. State v. Sassen Van

Elsloo, 191 Wn.2d 798, 808-09, 425 P.3d 807 (2018). The trial court is in the best position to

consider the dismissal of a juror. Id. at 806-07. Therefore, a trial court’s failure to remove a

juror for cause is reviewed for abuse of discretion. Lawler, 194 Wn. App. at 282.

       West has failed to show that the unidentified juror was biased. He claims that the juror

stated that she did not think she could be fair. In fact, the juror stated only that “she would have

a hard time because she’s a mother of children.” 2 RP at 372. This statement is equivocal and

does not demonstrate actual bias. Further, when the trial court later asked all the jurors if they

were able to remain fair and impartial during the trial, they all agreed they could. 1 Based on the

statements of this unidentified juror and the trial court’s confirmation of the impartial jury, there

is insufficient evidence to demonstrate “actual bias.”

       The record does not show that the unidentified jury was biased or should have been

removed from the jury pool. Therefore, we hold that West’s right to a fair trial by an impartial

jury was not violated.

       3.    Appearance of Fairness

       West argues that the judge violated the appearance of fairness doctrine by chastising

defense counsel at a sidebar conversation during voir dire. We disagree.

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee that criminal defendants will be tried by an impartial court.

State v. Solis-Diaz, 187 Wn.2d 535, 539-40, 387 P.3d 703 (2017). “Pursuant to the appearance of

fairness doctrine, a judicial proceeding is valid if a reasonably prudent, disinterested observer



1
 In addition, these comments were made by an unidentified juror in the jury assembly room
during recess of voir dire. There is no evidence that the juror who made this statement actually
served on the jury panel.

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No. 36008-3-III


would conclude that the parties received a fair, impartial, and neutral hearing.” Id. at 540.

Under this doctrine, a presiding judge must actually be impartial and also appear to be impartial.

Id. The question is “whether the judge’s impartiality might reasonably be questioned.” Id. The

party asserting a violation has the burden of showing evidence of a judge’s actual or potential

bias. Id.

       West appears to refer to the judge’s comments at a sidebar conference during voir dire,

admonishing defense counsel for asking potential jurors questions that came close to

indoctrinating the jury on the defense’s theory of the case. The judge apologized if this

admonition was too stern, but concluded that the trial court had done everything possible to give

West a fair trial and declined to declare a mistrial on that basis.

       West does not explain how the judge’s comment during the ruling on the motion for

mistrial violated the appearance of fairness doctrine. There is no indication that the judge’s

comments affected his decision making or reflected any bias or animosity toward West

personally. There could be no reasonable question of the judge’s impartiality on this basis.

Therefore, we hold that the judge’s comments did not violate the appearance of fairness doctrine.

C.     COMMUNITY CUSTODY CONDITION

       West argues, and the State concedes, that the word “romantic” should be stricken from

the community custody condition requiring West to obtain his CCO’s and his therapist’s prior

approval before entering a “romantic/sexual relationship.” We agree.

       Challenges to community custody conditions may be raised for the first time on appeal.

State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). Community custody conditions that

are vague are unconstitutional under the Fourteenth Amendment of the United States

Constitution and article I, section 3 of the Washington Constitution. See State v. Nguyen, 191




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No. 36008-3-III


Wn.2d 671, 678-79, 425 P.3d 847 (2018). The court reviews community custody conditions for

an abuse of discretion. Id. at 678.

       A community custody condition is unconstitutionally vague if it (1) does not sufficiently

define prohibited conduct so an ordinary person can understand, or (2) it does not provide

sufficient standards to protect against arbitrary enforcement. Padilla, 190 Wn.2d at 677. We do

not presume the validity of sentencing conditions. State v. Johnson, 4 Wn. App. 2d 352, 364,

421 P.3d 969, review denied, 192 Wn.2d 1003 (2018).

       The Supreme Court has held that community custody conditions requiring approval from

a defendant’s CCO for a “dating relationship” are not unconstitutionally vague. Nguyen, 191

Wn.2d at 683. However, the court in Nguyen contrasted the phrase “significant romantic

relationship,” citing to a federal appeals court’s determination that the phrase was

unconstitutionally vague. U.S. v. Reeves, 591 F.3d 77, 79 (2d Cir. 2010). The court in Nguyen

noted that the term “romantic” was a “highly subjective qualifier[].” Nguyen, 191 Wn. 2d at 683.

       Nguyen supports the conclusion that the term “romantic relationship” is

unconstitutionally vague. The fact that the term “romantic” is a “highly subjective qualifier[],”

id., demonstrates that the term is vague. And the court in Nguyen quoted with approval the

statement in Reeves that “[w]hat makes a relationship ‘romantic’ . . . can be the subject of

endless debate that varies across generations, regions, and genders.” Id. at 682 (quoting Reeves,

591 F.3d at 81).

       We hold that the term “romantic relationship” is unconstitutionally vague and therefore

that the term “romantic” must be stricken from the challenged community custody condition.




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D.      IMPOSITION OF LFOS

        West argues that we must strike the criminal filing fee and the provision imposing

interest on nonrestitution LFOs from his judgment and sentence. The State concedes that the

criminal filing fee should be stricken, but does not address the interest provision. We agree with

West.

        In 2018, the legislature amended (1) RCW 36.18.020(2)(h), which now prohibits

imposition of the criminal filing fee on an defendant who is indigent as defined in RCW

10.101.010(3)(a)-(c); and (2) RCW 10.82.090(1), which now provides that no interest shall

accrue on nonrestitution legal financial obligations after June 7, 2018 and that all accrued interest

before that date shall be waived. These amendments apply prospectively to cases pending on

direct appeal. State v. Ramirez, 191 Wn.2d 732, 749-50, 426 P.3d 714 (2018).

        At West’s sentencing, the trial court found West indigent for purposes of appeal. The

record is unclear if the trial court found West indigent based on the definitions in RCW

10.101.010(3)(a)-(c), but the State does not oppose striking the criminal filing fee. Therefore,

we order the trial court to strike the criminal filing fee.

        Regarding the interest provision, RCW 10.82.090(1) expressly provides that all accrued

interest on nonrestitution LFOs must be waived and that interest no longer shall accrue on those

LFOs. Here, the court did not order restitution and imposed only nonrestitution LFOs.

Therefore, we order the trial court to strike the provision imposing interest on the LFOs.

                                           CONCLUSION

        We affirm West’s convictions of first degree child rape and two counts of second degree

child rape, but we remand for the trial court to strike the word “romantic” from the community




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custody condition and to strike the $200 criminal filing fee and the provision imposing interest

on LFOs from the judgment and sentence.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




    We concur:




    PENNELL, J.




2The Honorable Bradley Maxa is a judge on the Court of Appeals, Division Two, sitting in
Division Three under CAR 2l(a).


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