       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                                       No. 81044-8-1


                         Respondent,                        DIVISION ONE

                 v.                                         UNPUBLISHED OPINION


 WILLIAM HOWARD THOMPSON,

                         Appellant.


       Hazelrigg, J. — William H. Thompson challenges his convictions for one

count of rape of a child in the second degree and three counts of incest in the first

degree via a direct appeal and two pro se post-judgment motions. The motions

were transferred to this court as personal restraint petitions (PRPs) and

subsequently consolidated with the appeal. In his direct appeal, Thompson claims

instructional error caused double jeopardy violations and that his community

custody conditions are unconstitutional. In his PRPs, Thompson argues the trial

court sentenced him on an incorrectly calculated offender score, improperly relied

on aggravating factors to enhance his sentence and erroneously admitted

evidence of a recorded conversation. We accept the State's concession that the

community custody condition prohibiting contact with the victim's family improperly

restricted Thompson's contact with his wife and stepchildren, but find no merit to

the remaining claims. Accordingly, we affirm the convictions and remand for the




  Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 81044-8-1/2




trial court to modify the community custody condition regarding contact with certain

family members.


                                           FACTS


        M.T. was born in February 1998 and is the daughter of William Thompson.

M.T. began living with Thompson when she was five or six years old. At that time,

Thompson and M.T.'s mother were divorced and Thompson had married

Elizabeth1 Thompson, who has three children from previous relationships. M.T.

lived with Thompson and Elizabeth's family until shortly after she turned 18, when

she moved out to live with her mother.


       A few months after M.T. moved out, her grandmother died and she sought

support from a school counselor she trusted. She told the counselor that she was

struggling to focus, that she was really upset about her grandma's death and that

it brought back the nightmares. When the counselor asked, "What nightmares?"

she said "the nightmares of when my father used to rape me." The counselor then

told her he was required by law to report this to the principal. The school called

the police.

        Two detectives interviewed M.T. and she described what happened to her.

To corroborate her story, the detectives sought a wire intercept order to record

conversations between M.T. and Thompson. M.T. then arranged to speak with

Thompson while their conversation was recorded.2


        1 To avoid confusion we refer to Elizabeth Thompson by her first name. No disrespect is
intended.
       2 The substance of that conversation is not part of the record on appeal. Neither party
designated the exhibits containing the recording and transcript of the conversation.
No. 81044-8-1/3




      The State charged Thompson with one count of second degree rape of a

child and four counts of first degree incest. All of the charges included special

allegations of domestic violence and aggravating circumstances of ongoing pattern

of sexual abuse and the defendant holding a position of trust relative to the victim.

Before trial, Thompson moved to suppress evidence of the recorded conversation

with M.T. The trial court denied the motion.


      At trial, M.T testified that before her 13th birthday Thompson raped her for

the first time. No one was home at the time. M.T. was upstairs watching television

when Thompson called her down to his room and said he was going to "do some

things to [her]" and that she could not tell anyone. He then proceeded to fondle

her breasts, digitally penetrate her and vaginally rape her. Afterward he gave her

a towel to clean up and told her to go to the bathroom.

       M.T. testified to another incident where Thompson raped her in the shower.

She also testified in detail to two other separate incidents where Thompson made

her have oral sex with him.    M.T. further testified that these were not the only

incidents. She said sometimes it would happen once a week, sometimes nothing

would happen for a couple months and then it would start again, and sometimes it

would happen a couple times a week.

       The jury was instructed that, on count 1, second degree rape of a child, the

State must prove beyond a reasonable doubt "[t]hat on or between February 1,

2011 and February 6, 2012, the defendant had sexual intercourse with [M.T.]."

The jury was further instructed:

       In alleging that the defendant committed Rape of a Child in the
No. 81044-8-1/4


       Second Degree as charged in Count I, the State relies upon evidence
       regarding a single act constituting the alleged crime. To convict the
       defendant, you must unanimously agree that this specific act was
       proved.

On count 2, first degree incest, the jury was instructed the State must prove beyond

a reasonable doubt "[t]hat on or between February 1, 2011 and February 7, 2012,

the defendant engaged in sexual intercourse with [M.T.]" For each of the three

remaining counts of first degree incest, the "to convict" instructions were identical,

instructing the jury that the State must prove beyond a reasonable doubt "[t]hat on

or between February 1, 2011 and February 7, 2016, the defendant engaged in

sexual intercourse with [M.T.]." The jury was further instructed that for each of the

four counts of first degree incest, "the State relies upon evidence regarding a single

act constituting the allege crime. To convict the defendant, you must unanimously

agree that this specific act was proved."

       The jury found Thompson guilty as charged. The trial court sentenced him

to 280 months confinement, the high end of the standard range. The trial court

also imposed community custody conditions prohibiting him from contacting M.T.

or her family and prohibiting him from possessing or accessing "sexually explicit

material" and "sexually exploitive materials." Thompson appeals.

       Thompson also filed a pro se CrR 7.8 motion in the trial court that was

transferred to this court as a personal restraint petition. He later filed a pro se

habeas corpus petition in the Washington Supreme Court that was transferred to

this court as a personal restraint petition. Both personal restraint petitions have

been consolidated with this appeal.
No. 81044-8-1/5


                                    ANALYSIS


I.     Direct Appeal

       On direct appeal, Thompson claims (1) the jury instructions violated his right

to be free from double jeopardy, (2) the community custody condition prohibiting

contact with his wife and adult children infringes on his fundamental rights to

marriage and companionship with his children, and (3) the community custody

conditions prohibiting his access to and possessive of sexually exploitive and

sexually explicit materials are unconstitutionally vague.


      A.      Double Jeopardy

      Thompson claims that the jury instructions did not adequately protect him

from exposure to double jeopardy on the counts of first degree incest because they

did not inform the jury that each count of incest must be supported by separate

and distinct acts. Thus, he contends, three counts must be vacated.

      The constitutional guaranty against double jeopardy protects a defendant

against multiple punishments for the same offense. State v. Mutch. 171 Wn.2d

646, 661, 254 P.3d 803 (2011).       A double jeopardy claim is of constitutional

proportions and may be raised for the first time on appeal. ]d We review double

jeopardy claims de novo. ]d.

       In cases where, as here, multiple identical counts are charged during the

same time period, instructions that do not inform the jury that each crime requires

proof of a separate and distinct act create the potential for double jeopardy. Id. at

663. To determine whether such flawed instructions result in a double jeopardy

violation, we may look to the entire trial record, including the evidence, arguments
No. 81044-8-1/6


and instructions, id. at 664. "[I]f it is not clear that it was 'manifestly apparent to

the jury that the State [was] not seeking to impose multiple punishments for the

same offense' and that each count was based on a separate act, there is a double

jeopardy violation." ]d. (quoting State v. Berg, 147 Wn. App. 923, 931, 198 P.3d

529 (2008) (emphasis in original).

       Here, the jury was not instructed that each count required proof of a

separate and distinct act.   The instructions simply indicated that the State was

relying on evidence of a single act constituting the alleged crime, not a separate

and distinct act for each count. Accordingly, we review the trial record to determine

whether it was manifestly apparent to the jury that each count was based on a

separate act.     Where the testimony, arguments, and jury instructions make

manifestly apparent that the State was not seeking to impose multiple punishments

for the same offense, there is no double jeopardy violation. State v. Land. 172 Wn.

App. 593, 602-3, 295 P.3d 782 (2013).

       The evidence at trial established four separate acts of first degree incest.

M.T. testified to two acts of intercourse during the first time it happened, before her

13th birthday. As the jury was instructed, only one of these acts supported the

second degree rape of a child charge. Therefore, the other act was a separate act

to support the one incest count alleged to have occurred between February 1, 2011

and February 7, 2012.      M.T. also testified to three additional separate acts of

intercourse: vaginal intercourse in the shower and two separate incidents of oral

sex. In closing argument, the prosecutor clarified that the State was relying on

each of these acts to prove the charged offenses:
No. 81044-8-1/7


               We've charged the defendant with a large time—basically a
       large time gap. Five years. The time frame that [M.T.] says she was
       raped. But during those time frames, we've charged him with five
       specific counts. And I'll go over them right now, so that when you're
       deliberating you don't forget which ones are which.
               The first count, Rape of a Child in the Second Degree, and
       the second count, Incest in the First Degree, those two counts go
       together. Those counts are for the first time that [M.T.] was raped
       when she was 12.
              The third count, Incest in the First Degree. That count is for
       the time that he raped her in the shower.
              The fourth count of Incest in the First Degree is for the time
       that she was down on all fours forced to give [Thomas] oral sex.
              And the next count of Incest in the First Degree is for the time
       that she was forced to give him oral sex for the first time. When he
       described to her what 69 was for the first time. And she ended up
       throwing up after he shoved his penis in her mouth.
              So to recap: Count I and Count II are the taking the virginity
       instance; Count III is for the shower; Count IV is for when she was
       down on all fours in her bedroom; And Count V is for the first time
       that he made her have oral sex.


The evidence, argument and instructions create clear distinctions between the

three identically charged counts of first degree incest. Further, it is clear that it was

manifestly apparent to the jury that each count was based on a separate act and

the State was not seeking multiple punishments for the same offense. Accordingly,

the lack of an instruction informing the jury that each count had to be based on a

separate and distinct act did not violate Thompson's right to be free of double

jeopardy. Mutch. 171 Wn.2d at 663-65; Land. 172 Wn. App. at 602.


       B.     Community Custody Conditions

       Generally, we review sentencing conditions for abuse of discretion. In re

Pers. Restraint of Rainev. 168 Wn.2d 367, 374, 229 P.3d 686 (2010). We will

reverse a community custody condition if it is "manifestly unreasonable." State v.

Valencia.   169 Wn.2d 782, 791, 239 P.3d               1059 (2010).       Imposing an
No. 81044-8-1/8


unconstitutional condition is manifestly unreasonable, ]g\ at 791.

       "The rights to marriage and to the care, custody, and companionship of

one's children are fundamental constitutional rights, and state interference with

those rights is subject to strict scrutiny." State v. Warren, 165 Wn.2d 17, 34, 195

P.3d 940 (2008). "'[Sentencing] [conditions that interfere with fundamental rights'

must be 'sensitively imposed' so that they are 'reasonably necessary to accomplish

the essential needs of the State and public order.'" Rainev, 168 Wn.2d at 377

(quoting Warren, 165 Wn.2d at 32).             Crime-related prohibitions affecting

fundamental rights must also be narrowly drawn. Warren. 165 Wn.2d at 34-35. An

order prohibiting a defendant's contact with a spouse or children survives strict

scrutiny only if it is reasonably necessary to achieve a compelling state interest.

\± at 34; Rainev. 168 Wn.2d at 377.

       Thompson challenges the community custody provision prohibiting "contact

with victim(s) or his or her family," as impermissibly interfering with his fundamental

rights to marriage and the companionship of his children. He contends the State

has not shown that it has a compelling interest in prohibiting him from contacting

his wife and stepchildren, who are also a part of M.T.'s family. The State responds

that the sentencing conditions are not reviewable because Thompson failed to

object at sentencing. But the State concedes that there is no compelling interest

in prohibiting Thompson's contact with his wife and stepchildren and that "the

offending provision must be stricken."

       We accept the State's concession but disagree with the State that the

sentencing conditions are not reviewable. As the Washington Supreme Court has
No. 81044-8-1/9


recognized, "'established case law holds that illegal or erroneous sentences may

be challenged for the first time on appeal.'" State v. Bahl. 164 Wn.2d 739, 744, 193

P.3d 678 (2008) (quoting State v. Ford. 137 Wn.2d 472,477, 973 P.2d 452 (1999)).

Accordingly, we remand for the trial court to modify the no contact provision to

exclude Thompson's wife and his stepchildren.

      Thompson also challenges the community custody conditions prohibiting

him from possessing or accessing "sexually explicit material" and "sexually

exploitive materials" as unconstitutionally vague. Specifically, he challenges the

following "sex-crime related" community custody conditions:

      The Defendant Shall-

      Possess/access no sexually exploitive materials (as defined by
      Defendant's treating therapist or CCO).

       Possess/access no sexually explicit materials and/or information
       pertaining to minors via computer (i.e. internet).

      The federal and state constitutions require that citizens be afforded fair

warning of proscribed conduct. State v. Nguven, 191 Wn.2d 671, 678, 425 P.3d

847 (2018) (citing U.S. Const., amend. XIV; Wash. Const, art. I, § 3).           "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.'" Nguven. 191 Wn.2d at 679 (quoting

City of Seattle v. Eze. 111 Wn.2d 22, 27, 759 P.2d 366 (1988)). But a community

custody condition is unconstitutionally vague if it (1) does not define the criminal

offense with sufficient definiteness that ordinary people can understand what

conduct is proscribe and (2) does not provide ascertainable standards of guilt to
No. 81044-8-1/10


protect against arbitrary enforcement. Nguven, 191 Wn.2d at 678-79.               The

requirement of sufficient definiteness "does not demand 'impossible standards of

specificity or absolute agreement,'" and permits some amount of imprecision.

State v. Coria. 120 Wn.2d 156, 163, 839 P.2d 890 (1992) (citing City of Spokane

v. Douglas. 115 Wn.2d 171, 179, 795 P.2d 693 (1990)). "[A] stricter standard of

definiteness applies if material protected by the First Amendment falls within the

prohibition." BahJ, 164 Wn.2d at 753.

       In State v. Nguven. the court held that a community custody condition

prohibiting a defendant from possessing or viewing "sexually explicit material" was

not unconstitutionally vague, recognizing that "sexually explicit material" is defined

in RCW 9.68.130(2). 191 Wn.2d at 680. That statute provides:

      "Sexually explicit material" . . . means any pictorial material
      displaying direct physical stimulation of unclothed genitals,
      masturbation, sodomy (i.e. bestiality or oral or anal intercourse),
      flagellation or torture in the context of a sexual relationship, or
      emphasizing the depiction of adult human genitals: PROVIDED
      HOWEVER, That works of art or of anthropological significance shall
      not be deemed to be within the foregoing definition.

RCW 9.68.130(2). As the court explained,

      Despite Nguyen's concerns that "[c]ountless works of art, literature,
      film, and music explicitly describe, depict, and relate sex and
      sexuality," persons of ordinary intelligence can discern "sexually
      explicit material" from works of art and anthropological significance.

191 Wn.2d at 680-81.

       We likewise reject similar arguments made by Thompson. While Thompson

points out that unlike here, the community custody condition in Nguven referred to

statutory definitions, the court did not require their inclusion in the condition to

withstand a vagueness challenge. Rather, the court noted its recognition in State


                                             10
No. 81044-8-1/11


v. Bahl that the statutory definition in RCW 9.68.130(2) "bolsters the conclusion

that 'sexually explicit material' is not an unconstitutionally vague term." Id. at 680;

see Bahl, 164 Wn.2d at 760.       The condition at issue in Bahl did not contain a

statutory reference. 164 Wn.2d at 743, 758.

       Thompson's reliance on State v. Padilla. 190 Wn.2d 672, 416 P.3d 712

(2018), is misplaced. While he contends that its "reasoning controls here," Padilla

held that a condition prohibiting "pornographic material" was unconstitutionally

vague despite the inclusion of a definition, which the court found was itself vague

and overbroad, jd. 674-75. Such a condition is not at issue here.

       Thompson further contends the prohibition involving "sexually exploitative

materials" presents problems similar to those in Padilla because it is not statutorily

defined and allowing the CCO or therapist to define the prohibited materials

compounds the problem as in Bahl. The State argues that the statutory definitions

of sexual exploitation of minor and sexually explicit conduct, when read together,

do not require a person of ordinary intelligence to guess at its meaning, citing an

unpublished decision, State v. Perkins.3 which addresses a similar vagueness

challenge to an identical community custody condition.

       As our courts have recognized, because of the inherent vagueness of

language, one may need to resort to other statutes to clarify the meaning of a term.

See Bahl, 164 Wn.2d at 756.         "Such sources are considered 'presumptively

available to all citizens.'" Ig\ at 756 (quoting State v. Watson. 160 Wn.2d 1, 8, 154

P.3d 909 (2007)). RCW 9.68A.040 provides that a person commits the crime of


        3 No. 42793-1-11, slip op. (Wash Ct. App. Dec 20, 2013) (unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2042793-1-ll%20%20Unpublished%200pinion.pdf.


                                              11
No. 81044-8-1/12



sexual exploitation of a minor if the person:

               (a) Compels a minor by threat or force to engage in sexually
       explicit conduct, knowing that such conduct will be photographed or
       part of a live performance;
               (b) Aids, invites, employs, authorizes, or causes a minor to
       engage in sexually explicit conduct, knowing that such conduct will
       be photographed or part of a live performance; or
               (c) Being a parent, legal guardian, or person having custody
       or control of a minor, permits the minor to engage in sexually
       explicit conduct, knowing that the conduct will be photographed or
       part of a live performance.

RCW 9.68A.011(4) defines "sexually explicit conduct" as actual or simulated:

              (a) Sexual intercourse, including genital-genital, oral-genital,
       anal-genital, or oral-anal, whether between persons of the same or
       opposite sex or between humans and animals;
              (b) Penetration of the vagina or rectum by any object;
              (c) Masturbation;
              (d) Sadomasochistic abuse;
              (e) Defecation or urination for the purpose of sexual
      stimulation of the viewer;
             (f) Depiction of the genitals or unclothed pubic or rectal
      areas of any minor, or the unclothed breast of a female minor, for
      the purpose of sexual stimulation of the viewer. For the purposes of
      this subsection (4)(f), it is not necessary that the minor know that he
      or she is participating in the described conduct, or any aspect of it;
      and
             (g) Touching of a person's clothed or unclothed genitals,
      pubic area, buttocks, or breast area for the purpose of sexual
      stimulation of the viewer.


       In Perkins, the court considered these statutes in response to a vagueness

challenge to the same community custody condition at issue here and concluded:

             When viewed together, these statutes do not require persons
      of ordinary intelligence to guess at what is meant by the condition
      prohibiting access to or possession of "sexually exploitative
      materials." It would be impossible to list every type of prohibited
      conduct; "[sentencing courts must inevitably use categorical terms
      to frame the contours of supervised release conditions." While there
      may be areas of disagreement concerning the materials that fall
      within this condition, and while Perkins's therapist and CCO have
      some control over its scope, we hold that the reference to "sexually



                                                12
No. 81044-8-1/13


       exploitative materials" is not so subjective as to be constitutionally
       suspect.

Slip op. at 9 (internal citations omitted).         We adopt that reasoning here.

Thompson's reliance on Bahl is misplaced. There, the court noted that the CCO's

discretion made the vagueness problem "more apparent" in the condition

prohibiting access to or possession of pornography, which did not provide

adequate notice of the meaning of "pornography." 164 Wn.2d at 758.                  That

condition is not at issue here.



II.    Personal Restraint Petition

       Thompson      raises   additional   issues   in personal     restraint petitions

consolidated with this appeal. Thompson first filed a CrR 7.8 motion that was

transferred to this court as a PRP. He then filed a "habeas corpus" petition in the

Washington Supreme Court that was also transferred to this court as a PRP. Both

petitions were consolidated with this appeal and, as the State concedes, both are

timely. Br. of Respondent at 6 (response to second PRP); Br. of Respondent at 24

(response to direct appeal, first PRP). Accordingly, we treat the second petition

as an amendment to the first petition. See State v. Fort. 190 Wn. App. 202, 242-

43, 360 P.3d 820 (2015).

       A petitioner may request relief through a PRP when the petitioner is under

an unlawful restraint. RAP 16.4(a)-(c).      A petitioner who collaterally attacks a

conviction must satisfy a higher burden than an appellant on direct review. In re

Pers. Restraint of Stockwell. 179 Wn.2d 588, 596-97, 316 P.3d 1007 (2014). "A

personal restraint petitioner must prove either a[ ](1) constitutional error that results




                                              13
No. 81044-8-1/14


in actual and substantial prejudice or (2) nonconstitutional error that 'constitutes a

fundamental defect which inherently results in a complete miscarriage of justice.'"

In re Pers. Restraint of Monschke. 160 Wn. App. 479, 488, 251 P.3d 884 (2010).

       Thompson challenges his sentence, claiming the trial court miscalculated

his offender score, made improper findings of aggravating factors and special

allegations, and subjected him to double jeopardy by sentencing him on four

counts that were based on "single conduct." Thompson also challenges the trial

court's admission of evidence of his recorded conversation with M.T.

       Thompson demonstrates neither error nor prejudice, much less a

fundamental defect resulting in a complete miscarriage of justice. The offender

score was properly calculated and included the current offenses for which

Thompson does not account. See RCW 9.94A.589(1)(a). Thompson's challenges

to the aggravating circumstances found by special verdict are without basis. He

claims the court improperly relied on these aggravating circumstances to enhance

his sentence, citing the standards for imposing an exceptional sentence outside

the standard range, but the court imposed a sentence within the standard range.

       Thompson's double jeopardy claim is the same claim raised by counsel in

the direct appeal and as discussed above, is without merit. A petitioner may not

renew issues that were considered and rejected on direct appeal unless the

interests of justice require relitigation of those issues. In re Pers. Restraint of Lord,

123 Wn.2d 296, 303, 868 P.2d 835 (1994); see also In re Pers. Restraint of Pirtle.

136 Wn.2d 467, 491, 965 P.2d 593 (1998) ("A personal restraint petition is not

meant to be a forum for relitigation of issues already considered on direct appeal.").




                                               14
No. 81044-8-1/15



       Finally, Thompson fails to show that the trial court erred by admitting

evidence of the recorded conversation.      As Thompson correctly states, RCW

9.73.030 prohibits the State from intercepting or recording a private conversation

without prior consent of all parties to the conversation and any information obtained

in violation of the statute is inadmissible in a civil or criminal proceeding. RCW

9.73.050.     But RCW 9.73.090(2) provides an exception to RCW 9.73.030 and

permits a law enforcement officer to intercept, record or disclose a conversation

where one of the parties has given consent prior to the interception, recording or

disclosure, provided the officer obtains prior written authorization from a judge or

magistrate.    The judicial officer "shall approve the interception, recording, or

disclosure of communications with a nonconsenting party for a reasonable and

specified period of time ifthere is probable cause to believe that the nonconsenting

party has committed, is engaged in, or is about to commit a felony." RCW

9.73.090(2).    To obtain judicial authorization, the law enforcement officer must

submit an application to the judge or magistrate, the contents of which are

specified in RCW 9.73.130. Communications or conversations authorized to be

intercepted, recorded or disclosed under RCW 9.73.090(2) "shall not be

inadmissible under RCW 9.73.050." RCW 9.73.090(3).

      Thompson claims the trial court erred by admitting evidence of the recorded

conversation because he did not consent to the recording and he did not admit to

committing a crime during the recorded conversation. As discussed above, under

RCW 9.73.090(2), a law enforcement officer may lawfully record a conversation so

long as one of the parties to the conversation gives prior consent and the officer




                                            15
No. 81044-8-1/16


obtains prior written judicial authorization. Here, M.T. gave consent. And as the

trial court found, the detective's application for authorization to intercept and record

the conversation complied with the requirements of RCW 9.73.130 and "clearly

contained a statement of facts justifying the intercept and recording, including a

statement of probable cause, detailed information concerning the offense and the

need to intercept and record."      Thompson does not challenge these findings.

Moreover, Thompson provides no authority requiring that a defendant admit to

committing a crime in the recorded conversation in order for it to be admissible.

Rather, the application for authorization to intercept or record the conversation

must include "[t]he details as to the particular offense that has been, is being, or is

about to be committed." RCW 9.73.130(3)(b). Thompson's argument appears to

go to the weight, not the admissibility, of the evidence, which is a determination for

the trier of fact.


        We affirm the convictions, remand for the trial court to modify the community

custody condition prohibiting contact with the victim's family, and deny the personal

restraint petition.




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                                              16
