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

STATE OF WASHINGTON,          )                    No. 74421-6-1
                              )
                 Respondent,  )
                              )
         v.                   )
                              )
PABLO SANTOS SANTIAGO,        )                   UNPUBLISHED OPINION
a/k/a PABLOS SANTOS SANTIAGO, )
a/k/a PABLO SANTIAGO SANTO,   )                   FILED: November 20, 2017
                              )
                 Appellant.   )
                              )

       VERELLEN, C.J. — Pablo Santos Santiago appeals his conviction for two
counts of first degree child molestation and one count of second degree child

molestation. The State's expert testified about the possible conclusions from a

"normal" physical exam following an alleged sexual assault and the possible

reasons for painful urination. This testimony was relevant to provide context for

the victims' testimony. And the expert did not give a direct or indirect opinion as to

Santos Santiago's guilt or the victims' credibility. The trial court did not abuse its

discretion when it admitted the expert testimony.

       We accept the State's concession that a curfew is not crime related, and

this community custody condition should be stricken.

       The "use" portion of the community custody condition prohibiting Santos

Santiago from using or consuming alcohol is not warranted.
No. 74421-6-1-2


       The clause "and or any places" should be stricken from the community

custody condition prohibiting Santos Santiago from frequenting "any

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

       The trial court imposed community custody conditions which prohibited

Santos Santiago from entering any sex-related businesses or possessing, using,

accessing, or viewing any sexually explicit material or erotic material, or any

material depicting any person engaged in sexually explicit conduct. Because there

is no evidence Santos Santiago's criminal conduct was related to his frequenting

of sex-related businesses or his possession, using, accessing, or viewing of

sexually explicit materials, these conditions should be stricken.

       The community custody condition requiring Santos Santiago to inform his

supervising COO and sexual deviancy treatment provider of any "dating

relationship" is not unconstitutionally void for vagueness.

       Therefore, we affirm the conviction and remand with instructions to strike

portions of community custody conditions as directed in this opinion.

                                       FACTS

       M.G.2 was born in 2002. A.G. was born in 2000. In 2009, Santos Santiago

married A.G. and M.G.'s mother. For the next five years, the family lived together

in various locations around south King County.




        1 Clerk's Papers(CP)at 93.
        2 Because the victims in this case are minors, they will be referred to by
their initials.


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No. 74421-6-1-3


      A few weeks after the marriage, when A.G. was eight or nine years old,

Santos Santiago got into bed with A.G., put his hand down her pants, and touched

her vagina. On a separate occasion, Santos Santiago forced bedcovers over

A.G.'s face, pulled down her pants, and placed his penis against her bottom.

       At various times, Santos Santiago attempted to touch A.G.'s breasts and

kiss A.G. Santos Santiago also repeatedly attempted to put his hand up A.G.'s

shirt and successfully touched her bare breast one time. When A.G. was thirteen,

Santos Santiago forced her to touch his penis.

       When M.G. was nine or ten years old, she was alone with Santos Santiago.

He pushed her on the floor. He put his hand over her mouth and nose, pulled

down her skirt, and put his penis against her vagina. M.G. testified that after the

assault, "every time 1 would go to the bathroom it would hurt."3

       The State charged Santos Santiago with one count of first degree rape of a

child and one count of first degree child molestation for his acts committed against

M.G. The State also charged Santos Santiago with one count of first degree child

molestation and one count of second degree child molestation for his acts

committed against A.G.

       The State offered expert testimony from Joanne Mettler, an advanced nurse

practitioner at Harborview Sexual Assault Center. Mettler did not examine A.G. or

M.G. and did not review any of A.G. or M.G.'s records. No exam was ever

performed on A.G. or M.G. The trial court denied Santos Santiago's motion in



       3 Report of Proceedings(RP)(Oct. 5, 2015) at 28.




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No. 74421-6-1-4


limine to prohibit Mettler from "offer[ing] testimony in the form of speculation."

The court concluded that the proffered testimony was relevant and not unduly

prejudicial.

       At trial, Mettler testified that most exams are "normal" and do not reveal

evidence of injury.5 She also testified about the possible conclusions that can be

drawn from a "normal exam."

       Q:       Could a normal exam mean there was some form of sexual
                assault and that no injury occurred?

       A:       Yes, that is accurate.

       Q:       Could a normal exam mean that no sexual assault occurred?

       A:       Certainly, that is possible.

       Q:       And could a normal exam also mean that they were sexually
                assaulted, an injury occurred, it heals and you don't see any
                evidence of it?

       A:       Yes, that is also possible, yes.[6]

       Mettler explained that a urinary tract infection or some type of injury and

subsequent irritation could explain painful urination following sexual assault and

that when the pain goes away without treatment, she "would probably lean

towards an injury."7




       4 CP    at 13.
       5 RP (Sept. 28, 2015) at 181.
         Id. at 181-82.
       7 Id. at   189.


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No. 74421-6-1-5


       The jury found Santos Santiago guilty of one count of first degree attempted

rape, two counts of first degree child molestation, and one count of second degree
                                                                       -I'




child molestation.8

      The trial court imposed indeterminate, concurrent sentences of 120 months

and lifetime community custody for the two counts of first degree child molestation.

The trial court imposed a determinate, concurrent sentence of 75 months and a

36-month community custody term for the one count of second degree child

molestation.

       Santos Santiago appeals.

                                     ANALYSIS

I. Expert Testimony

       Santos Santiago contends the trial court abused its discretion by admitting

Mettler's expert testimony because her testimony was speculative and irrelevant.

He argues that her testimony was irrelevant because A.G. and M.G. were never

examined.

       We review a trial court's decision to admit expert testimony for abuse of

discretion.8 To be admissible, an expert opinion "'must be helpful to the trier of

fact.'"1° Courts interpret helpfulness broadly and favor admissibility in doubtful




       8 The  one count of first degree attempted rape was vacated because conviction for
first degree attempted rape and first degree child molestation violated double jeopardy
principles.
        9 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125(2007).
        10 State v. Cheatam, 150 Wn.2d 626, 645, 81 P.3d 830(2003)(quoting ER 702).


                                          5
No. 74421-6-1-6


cases.11 Expert testimony is helpful only if it is relevant.12 Relevant evidence is

"evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence."13

       In State v. Kirkman, the expert testified about his examination of the child

victim of sexual assault.14 He testified that it is the "norm" to find "no physical

evidence of sexual conduct."15 Our Supreme Court held the testimony was

"particularly relevant" to help the jury address the apparent discrepancy between

the child's allegations of rape and the lack of medical evidence.16

       Here, Mettler's testimony that it is uncommon to find any evidence of injury

during an examination is not speculative because it was based on her years of

experience and observation. Even though there was no exam of A.G. or M.G.,

Mettler's testimony was relevant to provide a context for A.G. and M.G.'s

testimony and the lack of medical evidence.

       Alternatively, Santos Santiago contends the trial court abused its discretion

by admitting Mettler's expert testimony because she implied A.G. and M.G. were

credible and Santos Santiago was guilty.



    11 State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183(2011)(quoting Moore v.
Hame, 158 Wn. App. 137, 155, 241 P.2d 787(2010)).
    12 State v. Greene, 139 Wn.2d 64, 73, 984 P.2d 1024 (1999).

       13 ER 401.

       14   159 Wn.2d 918, 931, 155 P.3d 125(2007).
       15   Id. at 931-32.
       16   Id. at 933.


                                            6
No. 74421-6-1-7


       Although relevant evidence is admissible, it "may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice."17

Witnesses may not give an opinion as to the guilt of the defendant or the credibility

of a witness.18 "Such testimony has been characterized as unfairly prejudicial

because it linvad[es] the exclusive province of the finder of fact.'"18 But testimony

that does not directly comment on guilt or credibility and is otherwise helpful to the

jury may be considered as proper opinion testimony.2°

       In State v. Maule, the expert testified concerning her theory that a majority

of child abuse cases involve a male parent figure, with biological parents in the

majority.21 The defendant was convicted of sexually assaulting his daughter. On

appeal, this court held:

       Such evidence invites a jury to conclude that because the defendant
       has been identified by an expert with experience in child abuse
       cases as a member of a group having a higher incidence of child
       sexual abuse, it is more likely the defendant committed the crime.E223

       In State v. Black, the expert testified concerning rape trauma syndrome,

stating, "There is a specific profile for rape victims and [the victim] fits in."23 Our

Supreme Court concluded testimony concerning rape trauma syndrome "unfairly



       17 ER 402; ER 403; State     v. Gould, 58 Wn. App. 175, 180, 791 P.2d 569(1990).
       18 City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658(1993)(quoting
State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12(1987)).
       19 Id. at 578 (alteration in original)(quoting Black, 109 Wn.2d at 348).
       20 id.

       21   35 Wn.   App.287,   289,667 P.2d 96(1983).
       22   Id. at 293.
       23 109 Wn.2d       336, 339, 745 P.2d 12(1987).


                                            7
No. 74421-6-1-8


prejudices [the defendant] by creating an aura of special reliability and

trustworthiness.'"24 "It carries with it an implied opinion that the alleged victim is

telling the truth and was, in fact, raped."25

       Here, Mettler identified the possible conclusions following a normal exam,

including sexual assault with no injury, sexual assault with healed injury, and no

sexual assault, but she did not express an opinion concerning A.G. or M.G. And

Mettler testified about the possible causes of painful urination, including a tear

following sexual assault or a urinary tract infection due to poor hygiene. She also

stated she "would probably lean towards an injury" rather than infection if the pain

goes away without medication.26

       Mettler's testimony does not constitute an improper opinion on guilt or

credibility. She testified from her own experience conducting sexual assault

examinations. The State offered her testimony in anticipation of the defense

questioning the absence of injury. Her testimony was offered to assist the jury in

evaluating A.G. and M.G.'s testimony. Mettler's general statement that she "would

probably lean towards an injury" when painful urination resolves without

medication is not an implicit opinion on the cause of M.G.'s painful urination; it is

merely a medical observation based on her experience. Mettler did not express

an opinion as to the guilt of Santos Santiago or the credibility of A.G. and M.G.



      24 Id. at 349 (alteration in original)(quoting State v. Saldana, 324 N.W.2d 227, 330
(Minn. 1982)).
       25   Id.
       26   RP (Sept. 28, 2015) at 189.


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No. 74421-6-1-9


       Santos Santiago also suggests that the State exacerbated the prejudice

during closing argument by recounting Mettler's testimony, but the State's brief

reference was accurate. And Santos Santiago offers no compelling authority to

support this argument.27

       We conclude the trial court did not abuse its discretion when it admitted

Mettler's testimony because it was relevant and not unfairly prejudicial.

II. Community Custody Conditions

       We review the imposition of community custody conditions for abuse of

discretion.28 A sentencing court abuses its discretion if its decision is "manifestly

unreasonable."29 The trial court may require an offender to comply with "crime-

related prohibitions."30 The factual basis for crime-related community custody

conditions is reviewed under a "substantial evidence" standard.31 Crime-related

prohibitions must be "reasonably related" to the corresponding crime.32 Courts will

uphold crime-related community custody decisions when there is some basis for



       27 We reject the State's alternative argument that Santos Santiago failed to preserve
this issue for appeal. Santos Santiago's motion in limine to exclude Mettler's testimony as
speculative, combined with his motion to exclude testimony by any witness expressing an
opinion as to guilt, adequately apprised the trial judge that he objected to Mettler providing
an opinion on guilt or credibility.
       28 State v. Irwin, 191 Wn. App. 644,656, 364 P.3d 830(2015).

       28   Id.
       38   RCW 9.94A.703(3)(f).
       31   Irwin, 191 Wn. App. at 656.
       32 RCW   9.94A.030(10)("crime-related prohibitions" are those "directly relate[d]" to
the crime); Irwin, 191 Wn. App. at 656 ("directly related" includes "reasonably related");
State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940(2008)("[crime-related prohibitions] are
usually upheld if reasonably crime related").


                                          9
No. 74421-6-1-10


the connection.33 Reviewing courts will strike community custody conditions when

there is no evidence in the record that the circumstances of the crime related to

the community custody condition.34

       Imposing an unconstitutional condition will always be "manifestly

unreasonable."35 The guarantee of due process in the Fourteenth Amendment to

the United States Constitution and article 1, section 3 of the Washington

Constitution requires that laws not be vague.36 "The laws must(1) provide

ordinary people fair warning of proscribed conduct and (2) have standards that are

definite enough to 'protect against arbitrary enforcement."37 "A community

custody condition is unconstitutionally vague if it fails to do either."38 "However,'a

community custody condition is not unconstitutionally vague merely because a .

person cannot predict with complete certainty the exact point at which his actions

would be classified as prohibited conduct.'"39

      (A) Special Condition 7— Curfew

       Santos Santiago contends special condition 7 is not crime related and

therefore exceeds the trial court's authority. The State agrees.




       33 Irwin, 191 Wn. App. at 656-57.
       34 Id.
       36 Id. at 652.
       36 State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678(2008).
       37 Irwin, 191 Wn. App. at 652-53(quoting k_:_1.).
       38 Id. at 653(quoting Bahl, 164 Wn.2d at 753).
       39 Id.(quoting State v. Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059(2010)).


                                           10
No. 74421-6-1-11


       Here, there is no evidence that Santos Santiago's criminal conduct

occurred during the curfew hours. We accept the State's concession and

conclude special condition 7 should be stricken on remand because it is not crime

related 40

      (8) Special Condition 12— Use of Alcohol

       Santos Santiago contends special condition 12 exceeds the trial court's

authority. Special condition 12 provides,"Do not use or consume alcohol."41

Santos Santiago argues the trial court lacked the authority to prohibit his "use" of

alcohol. Former RCW 9.94A.703(3)(e)(2009) authorizes the trial court to prohibit

an offender "from consuming alcohol" whether or not alcohol was related to the

charged offense.42 The statute does not mention "use," and "use" is broader than

"consume." The trial court also has the authority pursuant to RCW 9.94A.703(3)(f)

to impose "any crime-related prohibitions." But there is no evidence that Santos

Santiago's criminal conduct was related to the use of alcohol.43




       40 See State v. Johnson, 180 Wn. App. 318, 329, 327 P.3d 704(2014)(Division
Two of this court remanded and ordered the trial court to either clarify a term in the
condition or strike the portion of the condition using that term).
       41   CP at 93.
       42  In 2015, the statute was amended to grant the trial court the authority to prohibit
an offender from "possessing or consuming alcohol." But a trial court's authority to impose
community custody conditions "must be in accordance with the law in effect when the
offense was committed." State v. Coombes, 191 Wn. App. 241, 250, 361 P.3d 270(2015)
(citing RCW 9.94A.345).
        43 State v. Norris, No. 75258-8-1, slip op. at 12(Wash. Oct. 30, 2017),
http://www.courts.wa.gov/opinions/pdf/752588.pdf (this court considered an identical
condition and struck the use limitation as outside the trial court's authority under former
RCW 9.94A.703(3)(e) and not crime related under RCW 9.94A.703(3)(f)).


                                         11
No. 74421-6-1-12


       We conclude the portion of special condition 12 prohibiting "use" of alcohol

(as distinguished from "consumption") should be stricken on remand because it

exceeds the trial court's authority and is not crime related.

      (C) Crime-Related Prohibition 18— Places Where Minors Congregate

       Santos Santiago contends crime-related prohibition 18 is unconstitutionally

vague because it insufficiently apprises Santos Santiago of prohibited conduct and

allows for arbitrary enforcement. Crime-related prohibition 18 provides,"Do not

enter any parks/playgrounds/schools and or any places where minors

congregate."44 The State agrees only as to the portion "and or any places where

minors congregate."

       In Irwin, this court considered a similar community custody condition which

provided,"Do not frequent areas where minor children are known to congregate,

as defined by the supervising [community corrections officer]."45 The court

concluded "without some clarifying language, or an illustrative list of prohibited

locations, the condition does not give ordinary people sufficient notice to

'understand what conduct is proscribed.'"46

       In State v. Norris, this court considered an identical condition, followed

Irwin, and concluded "the imposition of a condition that deletes 'and or any places'

and states, Do no enter parks/playgrounds/schools where minors congregate'




       44   CP at 93.
       45   Irwin, 191 Wn. App. at 649.
       46   Id. at 655.


                                          12
No. 74421-6-1-13


gives notice to ordinary persons of what is prohibited and is not unconstitutionally

vague."47

       We conclude the portion of crime-related prohibition 18 reading,"and or any

places" is not sufficiently definite to apprise Santos Santiago of the prohibited

conduct and must be stricken on remand because it is unconstitutionally vague.

But the condition,"Do not enter any parks/playgrounds/schools where minors

congregate," lists specific prohibited locations and is not void for vagueness.

      (D) Special Conditions 10 and 11 — Sex-Related Businesses
      and Sexually Explicit Material

       Santos Santiago contends special conditions 10 and 11 are not crime

related and therefore exceed the trial court's authority.

       Special condition 10 provides,"Do not enter sex-related businesses,

including X-rated movies, adult bookstores, strip clubs, and any location where the

primary source of business is related to sexually explicit material."48 Special

condition 11 provides:

       Do not possess, use, access or view any sexually explicit material as
       defined by RCW 9.68.130 or erotic materials as defined by
       RCW 9.68.050 or any material depicting any person engaged in
       sexually explicit conduct as defined by RCW 9.68A.011(4) unless
       given prior approval by your sexual deviancy provider.149]

       In State v. Magana, Division Three of this court held "[b]ecause [the

defendant] was convicted of a sex offense, conditions regarding access to X-rated


      47 No. 75258-8-1, slip op. at 6-7(Wash. Oct. 30, 2017),
http://www.courts.wa.gov/opinions/pdf/752588.pdf.
       48 CP   at 92.
       49 CP   at 93.


                                          13
No. 74421-6-1-14


movies, adult book stores, and sexually explicit materials were all crime related

and properly imposed."5°

       In Norris, the defendant pleaded guilty to three counts of second degree

child molestation.51 She challenged identical conditions as not crime related. This

court concluded,"To the extent Maoana stands for either a categorical approach

or the broad proposition that a sex offense conviction alone justifies imposition of a

crime-related prohibition, we disagree."52 The court struck the sex-related

businesses condition because it was not crime related.53 But the court determined

the condition concerning sexually explicit material was crime related because the

defendant and the victim exchanged sex-related text messages and the defendant

sent the victim "a photo of herself in pants and a bra."54

       Here, there is no evidence that Santos Santiago's criminal conduct was

related to his frequenting of sex-related businesses or his possessing, using,

accessing, or viewing of sexually explicit materials. We conclude special

conditions 10 and 11 should be stricken on remand because they are not crime

related.




       50 197 Wn. App. 189, 201, 389 P.3d 654(2016).
       51   Norris, slip op. at 1.
       52   Id. at 9-10.
       53   Id. at 11.
       54   Id.


                                          14
No. 74421-6-1-15


       (E) Special Condition 5— Dating Relationship

       Santos Santiago contends special condition 5 is unconstitutionally vague

because the term "dating relationship" is insufficient to apprise Santos Santiago of

prohibited conduct and allows for arbitrary enforcement.

       Special condition 5 requires Santos Santiago to "[Unform the supervising

CCO and sexual deviancy treatment provider of any dating relationship."55

       Santos Santiago relies on United States v. Reeves, where the Second

Circuit concluded that a condition requiring the offender to notify the probation

department "when he establishes a significant romantic relationship" was

insufficiently clear.56

       In Norris, this court recently examined the constitutionality of the same

condition and the applicability of Reeves. This court concluded "the term 'dating

relationship' is easily distinguishable from the condition in Reeves" because it

"does not contain highly subjective qualifiers like 'significant' and gromantic.'"57

The court held "the condition is neither unconstitutionally vague nor subject to

arbitrary enforcement."55

       We conclude the trial court did not abuse its discretion when it imposed

special condition 5 because the meaning of "dating relationship" is ascertainable to




       55 CP      at 92.
       56 591     F.3d 77, 79(2nd Cir. 2010).
       57   Norris, slip op. at 6.
       55   Id.


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No. 74421-6-1-16


an ordinary person and is sufficiently definite to provide against arbitrary

enforcement.

       Therefore, we affirm and remand with instructions to strike special condition

7 imposing a curfew, strike the limitation on use of alcohol from special condition

12, strike the portion of additional crime-related prohibition 18 that reads "and or

any places," and strike special conditions 10 and 11.




WE CONCUR:




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