      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                            No. 75427-1-1
                Respondent,
                                            DIVISION ONE
 V.

JUWAYNE PINCKNEY,                           UNPUBLISHED OPINION

                Appellant.                  FILED: April 23, 2018

       SPEARMAN, J. — Juwayne Pinckney appeals a sentencing condition

barring contact between him and a witness whom he had repeatedly beaten in

the past. Pinckney further challenges his conviction for second degree assault,

arguing that the term "torture" is unconstitutionally vague as applied to the facts

of his case. We disagree with both contentions. Issues raised by Pinckney in

his statement of additional grounds for review are also without merit. Finding no

error, we affirm.

                                     FACTS

        Juwayne Pinckney and Melissa Eckhouse met in 2009. They lived

together for some time in 2010, and had an on and off dating relationship from

2010 to 2013. In 2013, Eckhouse sought a protection order from Pinckney

based on his history of physical violence towards her.

        Eckhouse and Pinckney reconnected in mid-2014. In August 2014,

Eckhouse was housesitting for friends who were away on vacation. Pinckney
No. 75427-1-1/2

came to stay at the house with Eckhouse. On the morning of September 8,

2014, Eckhouse woke up and saw Pinckney standing over her, looking at her

"peculiarly." Verbatim Report of Proceedings(VRP)(3/31/16) at 424. When she

tried to stand up, he smashed her head into the floor with his hand. He told her

that "he was going to, like, beat me all day, because I deserved it." VRP

(3/31/16) at 426. He told her to sit on the couch and "admit what I did was

wrong." VRP 3/31/16 at 427. Eckhouse did not understand what she had done

to make him angry. He wrapped a belt around his hand, and whipped her

exposed body. The belt was made of heavy leather, with an arch metal stud

design and colored stones inserted throughout. When she curled into a fetal

position in an attempt to shield herself from the blows, he whipped her back,

legs, and thighs. After beating Eckhouse for approximately two hours, Pinckney

paused and left the room. Eckhouse fled the house and ran into the street.

        Two Highline School District employees in a school bus saw Eckhouse

in the street. Her naked body was covered with bruises so severe that one

thought she was burned and the other thought she was wearing a brightly

colored negligee. Eckhouse laid down on the floor of the empty school bus, and

they covered her while the bus driver called the police.

        Pinckney fled to Las Vegas with his friend Jackie Collins. During the

trip, Pinckney told Collins about the September 8 assault on Eckhouse.

Pinckney was arrested in Las Vegas and extradited back to Washington.

        Pinckney was charged with one count of second degree assault —

domestic violence, based upon knowingly inflicting bodily harm "which by


                                        2
No. 75427-1-1/3

design did cause such pain and agony as to be the equivalent of that produced

by torture." Clerk's Papers(CP)at 1; RCW 9A.36.021(1)(f). This count also

alleged that the crime involved the aggravating factor of being "part of an

ongoing pattern of psychological, physical or sexual abuse of the same victim

or multiple victims manifested by multiple incidents over a prolonged period of

time.. . ." CP at 2; RCW 9.94A.535(3)(h)(i). This aggravating factor was based

on Pinckney's physical violence towards Eckhouse as well as another woman,

Lindsay Prewitt, with whom Pinckney had a relationship in mid-2014. Pinckney

was also charged with felony harassment — domestic violence.

        Pinckney waived his right to a jury trial, and the matter proceeded to a

bench trial. Jackie Collins was one of the State's witnesses. The trial court

found Pinckney guilty of second degree assault — domestic violence based on

the torture prong. The court also found Pinckney guilty of the aggravating factor

on the assault count. The court found Pinckney not guilty of felony harassment,

but guilty of the lesser included offense of misdemeanor harassment —

domestic violence. As a condition of sentencing, the court ordered that

Pinckney have no contact with Eckhouse, Prewitt, or Collins for ten years.

Pinckney appealed.

                                  DISCUSSION

                              Sentencing Condition

       Pinckney challenges the trial court's sentencing condition barring contact

between he and Jackie Collins. Pinckney did not raise this challenge below.

Generally, we do not consider arguments raised for the first time on appeal.


                                        3
No. 75427-1-1/4

RAP 2.5(a). A defendant may nevertheless raise an issue for the first time on

appeal if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). The

defendant must identify a constitutional error and show that it had practical and

identifiable consequences in the proceeding. State v. Grimes, 165 Wn. App.

172, 180, 267 P.3d 454 (2011). Pinckney's briefing lacked argument regarding

whether this standard was met, and we agree with the State that it was not.

Pinckney did not preserve the issue for appellate review under RAP 2.5(a), and

we decline to consider it.

         But even if we were to grant review, Pinckney's claim would fail. Trial

courts may impose crime-related prohibitions designed to prohibit "conduct that

directly relates to the circumstances of the crime for which the offender has

been convicted." RCW 9.94A.030(10). The imposition of crime-related

prohibitions is reviewed for abuse of discretion. State v. Armendariz, 160 Wn.2d

106, 110, 156 P.3d 201 (2007). "A trial court abuses its discretion when its

decision is manifestly unreasonable or is based on untenable grounds or made

for untenable reasons." State v. Adamv, 151 Wn. App. 583, 587, 213 P.3d 627

(2009). Sentencing conditions "are usually upheld if reasonably crime related."

State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940(2008).

         Pinckney asserts that this was not a crime-related prohibition because

he and Collins were long time friends and there was no evidence that Collins

was a victim in this case. But Collins testified on behalf of the State in

Pinckney's trial. Pinckney's criminal history includes seven convictions for

assault, and he also beat Collins in the past. Collins belongs to the class of


                                          4
No. 75427-1-1/5

individuals to whom Pinckney poses a threat. Accordingly, preventing contact is

"reasonably necessary to accomplish the essential needs of the State and

public order." In re Pers. Restraint of Rainey, 168 Wn.2d 367, 377, 229 P.3d

686(2010)(quoting Warren, 165 Wn.2d at 32).

                          Void for Vagueness Challenge

         Second degree assault by torture requires that a person knowingly

inflict "bodily harm which by design causes such pain or agony as to be the

equivalent of that produced by torture...." RCW 9A.36.021(1)(f). The statute

does not further define the term "torture." Pinckney argues that this term is

unconstitutionally vague as applied to his actions. We disagree.

         The constitutionality of a statute is reviewed de novo. State V. Enquist,

163 Wn. App. 41, 45, 256 P.3d 1277 (2011). A statute is unconstitutionally void

for vagueness if it "does not define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is proscribed,"

or it "does not provide ascertainable standards of guilt to protect against

arbitrary enforcement." State v. Harrington, 181 Wn. App. 805, 823, 33 P.3d

410(2014)(quoting State v. Watson, 160 Wn.2d 1, 6, 154 P.3d 909 (2007)).

We approach a vagueness challenge with a "strong presumption in favor of the

statute's validity." State v. Lee, 82 Wn. App. 298, 309, 917 P.2d 159(1996)

(citing State v. Smith, 111 wn.2d 1, 5,759 P.2d 372(1988)). "The party

asserting a vagueness challenge bears the heavy burden of establishing that

the legislative enactment is unconstitutionally vague beyond a reasonable




                                         5
No. 75427-1-1/6

doubt." State v. Bradford, 175 Wn. App. 912, 926, 308 P.3d 736(2013)(citing

State v. Maciolek, 101 Wn.2d 259, 263-64, 676 P.2d 996 (1984)).

         Where, as here, the challenge does not implicate the First

Amendment, the statute is evaluated as applied to the facts of the case. City of

Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d 693(1990). The

constitutionality of the statute is determined "by inspecting the actual conduct of

the party who challenges the ordinance and not by examining hypothetical

situations at the periphery of the ordinance's scope." jcj. at 182-83.

         Pinckney contends that the term "torture" as used in the second

degree assault statute is open to many different questions about its

interpretation, and therefore provides no guidance for law enforcement or the

trier of fact to prevent arbitrary and discriminatory application. However, "[t]he

term 'torture' also may be commonly understood and 'provides notice, with a

reasonable degree of certainty, of what conduct is forbidden." State v. Russell,

69 Wn. App. 237, 247, 848 P.2d 743(1993)(quoting State v. Brown, 60 Wn.

App. 60, 65-66, 802 P.2d 803(1990)).

       Pinckney waived his right to a jury trial, so there are no jury instructions

in the record regarding the trial court's definition of "torture." However, the

record amply indicates that the definition of "torture" is not unconstitutional in

light of Pinckney's conduct. The court found that Pinckney "grabbed the victim's

head and smashed it into the ground," "threatened to beat the victim all day

long and said she deserved the whipping," "whipp[ed] Eckhouse across her

exposed body" with the belt, "including her shoulder, stomach, legs, hips, and


                                          6
No. 75427-1-1/7

breasts" and "whipped her back, as well as her legs and thighs." CP at 194-95.

The court found that the belt was "shredded from the continual beating." CP at

195. Eckhouse testified that the beating lasted for approximately two hours.

The individuals who found Eckhouse initially believed that she had been burned

or was wearing a negligee due to the severity and extent of her bruises. The

trauma nurse who examined Eckhouse said she was "the most purple patient I

have ever examined, ever, and I see a lot of trauma patients. She was literally

purple head to toe." VRP (3/31/16) at 279. Pinckney's actions clearly meet the

common understanding of what constitutes torture. The statute is not

unconstitutionally vague as applied to Pinckney.

                        Statement of Additional Grounds

        Pinckney raises several additional issues in his pro se statement of

additional grounds for review (SAG). None have merit.

       Pinckney claims that on thirteen different occasions the trial court

abused its discretion and violated his constitutional due process and equal

protection rights by granting a continuance and failing to state its reasons. A

trial court's decision to grant or deny a motion for a continuance is reviewed for

abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169

(2004). Pinckney provided numerous dates on which he claims these abuses of

discretion occurred, but few of these appear in the record before this court, and

none appear to contain evidence in support of Pinckney's allegations. To the

extent that Pinckney's claims may rely on facts or evidence not in the record




                                        7
No. 75427-1-1/8

before us, his concerns should be raised in a personal restraint petition. State

v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496(2013).

         Pinckney argues that the government committed misconduct in a

variety of ways, including unwarranted delay in adding an additional witness,

amending the information, and withholding exculpatory evidence. Government

misconduct may be grounds for dismissal where the misconduct was prejudicial

and materially affected the defendant's right to a fair trial. CrR 8.3(b). Here, the

trial court permitted the State to call a witness over defense counsel's objection

that the addition was untimely and prejudicial. The trial court ruled that witness

could testify for the limited purpose of testifying to the physical condition of the

victim prior the time of the incident. The record does not support Pinckney's

assertion that that the government committed misconduct, or even if it did, that

the misconduct met these standards.

         Pinckney, citing Franks v Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57

L. Ed. 2d 667(1978), challenges the validity of the probable cause warrant. He

claims that the detective lied to obtain the warrant and that it should not have

been issued until exculpatory evidence in the form of a rape kit was recovered.

There is no evidence in the record to support Pinckney's claim that the

detective lied to obtain a warrant. And given that Pinckney was not charged

with a sexual crime, it is very unlikely that the rape kit would have provided

exculpatory evidence.

         Pinckney argues that the evidence in medical records was insufficient

to convict him of the crime of assault in the second degree, and that the trial


                                          8
No. 75427-1-1/9

court's findings of fact do not support its conclusions of law. Evidence is

sufficient to support the conviction if, after viewing it in the light most favorable

to the State, a rational trier of fact could find each element of the crime beyond

a reasonable doubt. State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888

(2014). The evidence in this case amply meets this standard, including the

medical records and the testimony of witnesses.

         Pinckney argues that the trial court erred in refusing to admit

exculpatory fingerprint evidence, in violation of his Sixth Amendment right to

present evidence connecting another person with the crime charged. A trial

court's decision to admit or exclude evidence is reviewed for abuse of

discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090(2014).

The record shows that Detective James Belford testified at a CrR 3.5 hearing

that the fingerprints of two individuals were found on a cell phone receipt and

price tag belonging to Eckhouse, and that neither individual appeared to be

personally connected in any way to Eckhouse, Pinckney, or anyone else in this

case. Although the State did not move to exclude the fingerprints, the court

ruled that the evidence would not be allowed for the purpose of arguing that the

fingerprints point to another suspect."The general rule is that a defendant •

cannot introduce evidence that a third party committed the crime for which the

defendant is on trial unless there is a sufficient nexus between the third party

and the crime." State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993).

This was not an abuse of discretion.




                                          9
No. 75427-1-1/10

         Lastly, Pinckney assigns two additional errors entitled "defense motion

to withdraw" and "unconstitutional sentence." Pinckney provides no argument

or facts to support these alleged errors. Although a defendant's SAG is not

required to include citations to the record or authorities, it still must "inform the

court of the nature and occurrence of[the] alleged errors, and this court is not

required to search the record to find support for the defendant's claims." State

v. Meneses, 149 Wn. App. 707, 715-16, 205 P.3d 916(2009)(quoting RAP

10.10(c)).

         Affirmed.




WE CONCUR:




                                                                                               cfs
                                                                                    ers
                                                                                    co ..31-4724
                                                                                    -0 rn0
                                                                                                   -orn
                                                                                                 cf)rn
                                                                                        7:10       .1>k

                                                                                          e.
                                                                                                     C::":a




                                          10
