                                                                                                 FILED
                                                                                      COURT ^OF APPEALS
                                                                                      C 0UR B~
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                                                                                           D Visio' I

                                                                                     2Glil JUN - 3       A M 8: 34
    IN THE COURT OF APPEALS OF THE                                                                                   ON
                                                                           STATSF4QO '          cW



                                                                                                        W
                                                  DIVISION II                         BY
                                                                                                        iTY

STATE OF WASHINGTON,                                                                  No. 43166 -1 - II


                                      Respondent,


         v.



CHRISTOPHER MICHAEL CLAUSEN,                                                   UNPUBLISHED OPINION


                                      Appellant.


         HUNT, P. J. —        Christopher Michael Clausen appeals his jury trial conviction for third

degree   child rape.    He   argues   that ( 1) his trial   counsel provided         ineffective     assistance, ( 2)   the trial


court    erroneously denied his         motion    for   a     new    trial, ( 3)   he is entitled to relief under the


cumulative error doctrine, and (4) the trial court abused its discretion by imposing impermissible

community custody         conditions.      We affirm Clausen' s conviction but remand to the sentencing

court to strike the non -
                        crime related community custody conditions.

                                                         FACTS


                                                     I. CHILD RAPE


          Nineteen -
                   year      -
                             old   Christopher Michael Clausen                 met    14- year   -old   REM'     at the local


library. On March 1, 2010, after " hanging out" at the library, REM, Clausen, and three other

people walked around Gig Harbor, visited an abandoned movie theatre and a Safeway, and then

dispersed. Report       of   Proceedings ( RP)    at   118.    Clausen walked REM home, taking a " back way"

that led past   a   baseball field,   where   they   stopped    to   sit and   talk. RP    at   122. Clausen asked REM




1 To provide some confidentiality, we use initials be used in the body of the opinion to identify
some parties and       juveniles involved.
No. 43166 -1 - II



her   age;    she    replied    that   she   was    14    years   old.    Clausen tickled REM, massaged her back,


progressed into kissing, performed oral sex on her, and engaged in penile /vaginal intercourse.

Clausen asked REM not to tell anyone about what had happened.

          REM         arrived   at     her   grandmother' s       house    around        9: 20 PM.     REM' s grandmother,


Margaret McConnell,             was upset      that REM had        been    out   late.    REM went to bed without telling

anyone about          the incident.      The next day, REM called her father and told him about her sexual

experience.          According       to REM, her father         seemed "   slightly      concerned"    and apparently shared


his concern with McConnell, who confronted REM later that day, and drove her to St. Anthony' s

Hospital for         an examination.         RP    at   142.   REM spoke with hospital staff, who called police to


investigate.


          Gig Harbor Police Officer Gary Dahm interviewed REM, who reported the various

activities of the night before and identified Clausen as the man with whom she had had sexual

intercourse.         Dahm and Gig Harbor Police Officer Dan Welch arrested Clausen, advised him of

his Miranda'          rights,   and    began questioning him in Dahm'              s patrol car      after Clausen waived his

rights.      Clausen initially told Dahm that he had been at a video game store the night before; but

when faced with the details of REM' s account, he eventually admitted having had consensual

sex with a girl he claimed was 16 years old. The officers booked Clausen into the Pierce County

j ail.




 2
     Miranda    v.   Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
No. 43166 -1 - II



                                                       II. PROCEDURE


           The State     charged       Clausen     with     one   count        of   third degree    child    rape.        Before trial,


defense counsel endorsed the following statutory defense:

           In any prosecution under this chapter in which the offense or degree of the offense
           depends on the victim' s age, it is no defense that the perpetrator did not know the
           victim' s age, or that the perpetrator believed the victim to be older, as the case
           may be:     PROVIDED, That it is a defense which the defendant must prove by a
           preponderance of the evidence that at the time of the offense the defendant
                                                                                                                                3]
           reasonably believed the           alleged victim       to be the      age   identified in     subsection ( 3)[

           of this section based upon declarations as to age by the alleged victim.

RCW 9A.44. 030( 2).           The court held a CrR 3. 5 hearing and ruled that Clausen' s statements to the

officers were admissible.           REM, McConnell, Officers Dahm and Welch, and Kelly Morris ( the

forensic    nurse who examined           REM) testified           at       trial; Clausen did     not   testify   at   trial.    The jury

found Clausen guilty of third degree child rape.

           The trial court sentenced Clausen to 60 months confinement and a term of community

custody up to 36         months,       not   to    exceed   the statutory           maximum.        The trial court imposed a


number of mandatory and non -mandatory community custody provisions contained in appendix
                                               4
H to the judgment            and   sentence,       including the following non -
                                                                               mandatory community custody

conditions, which he challenges in this appeal:


           15.   Hold no position of authority or trust involving children under the age of 18.


3 RCW 9A.44. 030( 3)( c) provides:
     For a defendant charged with rape of a child in the third degree, that the victim
     was at least sixteen, or was less than forty - eight months younger than the
           defendant.

4
    It   appears   that the trial      court   used   an    outdated          appendix    H form.         It included "         up to life
community custody"              under    former RCW 9. 94A. 712 ( 2008), which was recodified as RCW
9. 94A. 507 in 2009, a          year   before Clausen        committed           his   offense.    Clerk' s Papers         at   231.   See
LAWS      OF   2008,   ch.   231, § 56, effective August 2, 2009.



                                                                       3
No. 43166 -1 - II



          16.    Do not initiate, or have in anyway, physical contact with children under the
         age of    18 for any reason. Do not have any contact with physically or mentally
         vulnerable individuals.


          18.      Inform your community custody corrections officer of any romantic
         relationships to verify there is no victim -
                                                    age children involved.
         19. Submit to polygraph testing upon direction of your community corrections
         officer      and /
                          or    therapist      at    yourYou must successfully pass all
                                                            expense.

         polygraph tests, and indicate no deception at any time on the test.

         21.     Do   not go    to   or   frequent     places where children congregate, (              I.E. Fast -
                                                                                                                  food
          outlets,    libraries, theaters, shopping          malls,    play   grounds          and parks, etc.)   unless


          otherwise approved by the Court[.]

          25. You shall not have access to the Internet at any location nor shall you have
          access  to computers unless otherwise approved by the Court.       You also are
          prohibited  from joining or perusing any public social websites ( Facebook,
          MySpace, etc.)[.]


          27. Do not possess or peruse any sexually explicit materials in any medium.
          Your sexual deviancy treatment provider will define sexually explicit material.
          Do not patronize prostitutes or establishments that promote the commercialization
          of sex.



Clerk' s Papers ( CP) at 232 -33.


          Clausen     moved      for   a new        trial under CrR 7. 5(     a)(   3)   and   CrR 7. 8( b)( 2), . and moved to


strike   the    contents of    his   presentence       interview. The trial         court   denied these   motions.    Clausen


appeals his conviction and several community custody provisions of his judgment and sentence.

                                                            ANALYSIS


                                          I. EFFECTIVE ASSISTANCE OF COUNSEL


          Clausen first       argues      that trial   counsel was     ineffective in ( 1)         failing to indentify and to

adhere to a cohesive defense strategy, despite her endorsement of the statutory defense under

RCW 9. A.44. 030( 2); (         2) being routinely unprepared to present legal matters to the trial court;




                                                                 4
No. 43166 -1 - II



and (   3)    failing to investigate, which resulted in ineffective cross -examination of REM or

presentation of evidence to the jury to support his defense. This argument fails.

                                                       A. Standard of Review


             To demonstrate ineffective assistance of counsel, a defendant must show both that ( 1)

 defense          counsel' s    representation     was     deficient, i. e.,    it fell below an objective standard of


reasonableness          based     on   consideration       of all    the   circumstances "; and (     2) " defense counsel' s


deficient         representation      prejudiced       the defendant, i. e.,    there is a reasonable probability that,

except for counsel' s unprofessional errors, the result of the proceeding would have been

different." State         v.   McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).                       We begin with


the strong         presumption        that defense      counsel' s    representation    was     effective.    McFarland, 127


Wn.2d        at   335; State    v.   Brett, 126 Wn.2d 136, 198, 892 P. 2d 29 ( 1995).                    Failure to show either


prong    of       the test defeats     an   ineffective    assistance of counsel claim.          McFarland, 127 Wn.2d at


334 -35.          Here, because Clausen fails to demonstrate prejudice, we do not address the deficient


performance prong of the ineffective assistance of counsel test.

                                                           B. No Prejudice


             To demonstrate prejudice, Clausen must show that there is a reasonable probability,

absent counsel' s unprofessional errors, that the result of the trial would have been different.


McFarland, 127 Wn.2d                   at   334 -35.     Much of Clausen' s argument focuses on trial counsel' s


failure to        develop      a coherent    defense because         of counsel' s nonexistent      investigation.     Clausen,


however, fails to         establish prejudice:           Even assuming the truth and admissibility of the evidence

Clausen has proffered since trial, including defense counsel' s alleged failure to investigate, to

succeed under           this statutory defense          theory, Clausen        needed   to   establish   that based   on   REM' s
No. 43166 -1 - II




own statements, he reasonably believed that she was 16 or older at the time they had sexual

intercourse.      See RCW 9A. 44. 030( 2).             REM would still have testified that she specifically told

Clausen she was 14 on the night of the statutory rape; and none of Clausen' s purported newly

discovered                       would have controverted her testimony, despite his attempt to impeach her

collaterally.         Thus, Clausen cannot show a reasonable probability that the jury would have

acquitted       him   on   his   unsupported       theory   that he reasonably believed REM                   was   older.    Thus,


Clausen cannot establish that he suffered prejudice from the arguably deficient investigation

performed by trial counsel. Consequently, his ineffective assistance of counsel challenge fails.

                                                   C. Presentence Interview


            Clausen argues that ( 1) trial counsel waived his right to representation at the presentence


interview       without     his    consent,      discussion,    or   notification;      and (     2) because the presentence


interview is      a " critical stage"       of   the proceedings, this "      complete       denial"   of counsel during this

stage   is presumptively          prejudicial and per se        ineffective    assistance of counsel.          Br. of Appellant


at    32.    Clausen asks us to strike the entire presentence report and to order a new second


presentence report or,            alternatively, to    strike   the "    risk/ needs   assessment,"      which could be used


for   sex    offender registration         classification at     a   later date.       Br.   of   Appellant   at   36.   Clausen' s


argument        fails because he         cannot    demonstrate that the         presentence         interview      was   a " critical




stage" of the proceeding for which he had a constitutional right to counsel.

            A   critical   stage    is   one "   in which a defendant' s rights may be lost, defenses waived,

privileges claimed or waived, or in which the outcome of the case is otherwise substantially


  Clausen argues that there were witnesses who would have testified that REM stated she was 16
years old or older in Clausen' s presence.




                                                                     6
No. 43166 -1 - II



affected."       State    v.   Agtuca, 12 Wn.       App.   402, 404, 529 P. 2d 1159 ( 1974).           Clausen relies on State


v.   Everybodytalksabout, 161 Wn.2d 702, 166 P. 3d                           693 ( 2007),     to argue that a presentence


interview is      a critical stage       of the    proceeding, but this      case    is distinguishable: That case focused


heavily    on (    1)    the presentence interviewer' s questioning Everybodytalksabout concerning the

facts underlying his conviction in the absence of defense counsel and without first informing

defense counsel; and ( 2) the State' s use of the resulting presentence interview, which contained

Everybodytalksabout' s incriminating statements, as critical evidence against him at his third

trial.    Everybodytalksabout, 161 Wn.2d                    at   710 -12.   Our Supreme Court held that because the


presentence             interview     was         not   confined      to    aiding    the    trial    court   in    determining

Everybodytalksabout' s sentence, but was instead used for the State' s adversarial purpose of


convicting him at a later trial, the presentence interview was a " critical stage" of the proceeding

to which the right to counsel attached. Everybodytalksabout, 161 Wn.2d at 712 -14.

           Here,        in     contrast, (   1)     Clausen' s counsel specifically instructed the presentence

interviewer not to ask questions about Clausen' s current charges during the interview, which

took     place   in   counsel' s absence; (        2) the presentence interviewer abided by counsel' s request and

collected        information        about    only Clausen'       s   background       and   prior    convictions;   and (   3)   the



resulting presentence report does not contain incriminating information from Clausen that the

State    could use        to   convict   him in     a subsequent     proceeding. Thus, Everybodytalksabout does not


apply.


           Clausen further argues that the information contained in the presentence report is of

special significance in cases involving a sex offense because the State may use it to determine his

 sex offender classification level in the future. But he cites no authority to support his contention



                                                                     7
No. 43166 -1 - II




that,   for this          reason, a presentence        interview in        a sex offense   case   is   a " critical stage"   of the



proceeding entitling him to the                   assistance of counsel.       On the contrary, our Supreme Court noted

in Everybodytalksabout that many federal courts have concluded that standard presentence

interviews are not adversarial in nature and are not a " critical stage" of the proceeding for Sixth
Amendment6

                          right   to   counsel purposes.      See Everybodytalksabout, 161 Wn.2d at 709 -10 ( citing

United States v. Jackson, 886 F.2d 838 ( 7th Cir. 1989)).


          We hold that, because the presentence report interviewer did not ask Clausen questions


about his current offense and the proceeding was not adversarial in nature so as to trigger a right

to   counsel,       his    claim of      lack   of counsel assistance at      the   presentence   interview fails.     Therefore,


we deny his request to strike the presentence report.

                                                     II. MOTION FOR NEW TRIAL


          Clausen next argues that the trial court erred in denying his motion for a new trial and/ or

relief from judgment based on newly discovered evidence under CrR 7. 5( a)( 3) 7 and CrR
                8
7. 8( b)( 2),       respectively. We disagree.

                                                       A. Standard of Review


          A trial court will grant a new trial on the basis of newly discovered evidence only if the

moving party demonstrates


6
     U.S. CoNST. Amend VI.

7
     CrR 7. 5(      a)(   3)   permits   the trial   court   to   grant a new   trial on the basis      of "[   n] ewly discovered
 evidence material for the defendant, which the defendant could not have discovered with
reasonable diligence and produced at the trial."


 8 CrR 7. 8( b)( 2) permits a court to relieve a party from a final " judgment, order, or proceeding"
 on the basis of "[ n] ewly discovered evidence which by due diligence could not have been

 discovered in time to move for a new trial under Rule 7. 5."


                                                                       8
No. 43166 -1 - II



                that the      evidence (            1)        will    probably     change        the   result   of   the trial; ( 2)   was

                discovered        since        the trial; ( 3)        could not have been discovered before trial by the
                exercise     of   due diligence; ( 4) is                 material; and ( 5) is not merely cumulative or


                impeaching.'

In   re   Brown, 143 Wn.2d 431, 453, 21 P. 3d 687 ( 2001) (                                      quoting State v. Williams, 96 Wn.2d 215,

222 -23, 634 P. 2d 868 ( 1981)).                               The absence of even one of these five factors is grounds for


denying          a new      trial.        In   re   Brown, 143 Wn.2d                 at   453.    A new trial is necessary only when the

defendant "`           has been so prejudiced that nothing short of a new trial can insure that the defendant

will      be treated       fairly. '           State     v.   Bourgeois, 133 Wn.2d 389, 406, 945 P. 2d 1120 ( 1997) (                        quoting

State v. Russell, 125 Wn.2d 24, 85, 882 P. 2d 747 ( 1994)).


                Absent a clear abuse of discretion by the trial court, we will not reverse an order denying

a motion             for   new    trial ( CrR 7. 5)              or   for   relief   from    the   judgment ( CrR 7. 8).         Bourgeois, 133


Wn.2d           at   406; State      v.   Pierce, 155 Wn.               App.   701, 710, 230 P. 3d 237 ( 2010). A trial court abuses


its discretion when it bases its decisions on untenable or unreasonable grounds. Pierce, 155 Wn.

App.       at   710. Such is the not case here.


                                                              B. Newly Discovered Evidence

                The trial     court        denied Clausen' s CrR 7. 5                     motion as    untimely.      On appeal, Clausen does


not appear            to   contest        this ruling.          Instead, he seems to appeal only the trial court' s denial of his

CrR 7. 8( b)( 2)            motion and its ruling that the newly discovered evidence could have been

discovered             earlier    through due diligence.                     Thus, we address only Clausen' s contention that the

trial court should have granted a new trial based on newly discovered evidence.

                The State notes that although Clausen' s memorandum in support of his motion contains

summaries of               the proffered            testimony          of   four   new witnesses, no affidavits            from these    witnesses
No. 43166 -1 - II



are   included in the          record      before      us on appeal.      Moreover, despite Clausen' s repeated reference


to    appendices          A - ( presumably
                            D                            these     witnesses'       affidavits),       these    appendices     were   not


designated as Clerk' s Papers on appeal, and there is no clear evidence in the record before us


suggesting that Clausen even presented these appendices to the trial court.

            Although referenced in the original motion below and in appellant' s brief, the record


before us on appeal includes no affidavits from the newly discovered witnesses, as CrR 7. 8( c)( 1)

requires.        See State      v.   Bandura, 85 Wn.             App.    87, 94, 931 P. 2d 174 ( 1997); State v. Hobbs, 13


Wn.     App.      866, 869, 538 P. 2d 838 ( 1975).                     Clausen' s failure to include such affidavits in the


record before us on appeal precludes our consideration of them when reviewing the trial court' s

denial      of   his    motion   for      a new    trial.     See RAP 9. 6( b); Bulzomi           v.   Dep' t   of Labor & Indus., 72


Wn.     App.       522, 525, 864 P. 2d 996 ( 1994) (                    insufficient record on appeal generally precludes

review of alleged              errors).      Because Clausen fails to present for our review newly discovered

evidence         that   would "`     probably      change       the   result of   the trial, '   we affirm the trial court' s denial


of    his   motion       for   a new      trial   on   this    ground alone.       In   re   Brown, 143 Wn.2d          at   453 ( quoting


Williams, 96 Wn.2d                   at   222 -23).          Therefore, we hold that the trial court did not abuse its


discretion in denying Clausen' s motion for a new trial or from relief from judgment.

                                                       III. No CUMULATIVE ERROR


            Clausen further argues that he is entitled to relief under the cumulative error doctrine

because the            combined       effect of        his    claimed errors      denied him       a   fair trial.   In addition to the


arguments we have already addressed, Clausen argues that he is entitled to reversal of his

conviction and a new                 trial because (          1) trial counsel was grossly inexperienced to the point of

complete         incompetence; (          2) newly discovered evidence casts serious doubt on the credibility of



                                                                          10
No. 43166 -1 - II



REM and her grandmother, McConnell; and ( 3) McConnell' s multiple conflicting versions of the

events of March 1 and 2 demonstrate that her testimony was not truthful.

          Cumulative error may justify reversal, even when each individual error would otherwise

be considered harmless; but the doctrine does not apply where there are few errors or the errors

have little or no effect on the outcome of the trial. State v. Weber, 159 Wn.2d 252, 279, 149 P. 3d.


646 ( 2006).       Clausen has failed to establish any single reversible error, let alone a combination of

errors that denied him a fair trial. Thus, his claim of cumulative error fails.

                                IV. IMPROPER COMMUNITY CUSTODY CONDITIONS


          Lastly, Clausen challenges the validity of several non -
                                                                 mandatory community custody

conditions        that the trial     court   imposed   under   RCW 9. 94A. 703.              Clausen appears to challenge


conditions 15, 16, 18, 19, 21, 25, 26, and 279 on grounds that they are not fact specific to his

offense, do not relate to the circumstances surrounding the offense or his risk of reoffense, or are

overbroad.         We agree with Clausen' s challenges to a portion of condition 16 and his challenges


to   conditions      19, 25,   and   27.     To the extent that he challenges other conditions, these challenges


fail.




9 In his assignments of error, Clausen fails to identify the specific conditions he challenges,
stating only in general, the "[ t]rial court erred when it imposed certain conditions in the
Judgment and Sentence." Br. of Appellant at 1 ( emphasis added). In his argument, however,
Clausen provides substantive analysis for his challenge to conditions 15, 16, 18, 19, 21, 25, and
27, which conditions we address here.
          In contrast, he does not provide substantive analysis for a challenge to condition 26,
which     the State    describes      as " unchallenged."      Br.   of   Resp' t   at   30. We further note that Clausen' s
brief   contains     the   following    unclear    list: " Numbers 11, 12, 17, 19, 23, 26, 27."            Br. of Appellant
at   52. Because Clausen relates this list to a crime not at issue in this appeal, we assume that this
list    was   a   typographical       error.    Thus, we do not address conditions included in this list that
Clausen does not support with argument and analysis in his brief, such as condition 26.




                                                                11
No. 43166 -1 - II



         RCW 9. 94A.505( 8) permits a court to impose " crime—related" prohibitions as part of a

              10
sentence,          and   RCW 9. 94A. 703( 3)( f)        permits   a     court    to   order   compliance   with      those


prohibitions as a condition of          community custody. A "crime- related" prohibition is " an order of


a court prohibiting conduct that directly relates to the circumstances of the crime for which the
                                                                      11.
offender      has been    convicted."      RCW 9. 94A.030( 10)               Thus, discretionary, or non -mandatory,

conditions imposed by the trial court must be either crime -related prohibitions under RCW
                                                                        12
9. 94A. 505( 8)     or authorized under        RCW 9. 94A. 703( 3).


                                                 A. Standard of Review


             A defendant may challenge an illegal or erroneous sentence for the first time on appeal.

State   v.   Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008);                State v. Jones, 118 Wn. App. 199, 204,

76 P. 3d 258 ( 2003).       We review de novo whether the trial court had statutory authority to impose

community custody conditions. State v. Armendariz, 160 Wn.2d 106, 110, 156 P. 3d 201 ( 2007).

10
     RCW 9. 94A.505( 8)          provides: "    As a part of any sentence, the court may impose and enforce
crime -
      related prohibitions and affirmative conditions as provided in this chapter."

11
     The legislature       amended      RCW 9. 94A.030 in 2012.                LAWS    of 2012,   ch.   143 §   1.    The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.


12 RCW 9. 94A.703( 3) provides:
             Discretionary       conditions.     As part of any term of community custody, the court
             may order an offender to:
              a) Remain within, or outside of, a specified geographical boundary;
              b) Refrain from direct or indirect contact with the victim of the crime or a
             specified class of individuals;
              c) Participate in crime -related treatment or counseling services;
              d)   Participate    in   rehabilitative   programs or          otherwise perform     affirmative
             conduct reasonably related to the circumstances of the offense, the offender' s risk
             of reoffending, or the safety of the community;
              e) Refrain from consuming alcohol; or
              f)Comply with any crime -   related prohibitions.

                                                             12
No. 43166 -141



If the condition was statutorily authorized, we review crime -related prohibitions for abuse of

discretion.    Armendariz, 160 Wn.2d at 110 ( citing State v. Ancira, 107 Wn. App. 650, 653, 27

P. 3d 1246 ( 2001)).       But conditions that do not reasonably relate to the circumstances of the

crime, the risk of reoffense, or public safety are unlawful, unless explicitly permitted by statute.

See Jones, 118 Wn. App. at 207 -08.

                                       B. Contact with Children Under 18


          Clausen challenges conditions 15, 16, 18, and 21 as being overbroad or unrelated to his

statutory rape conviction. Condition 15 prohibits Clausen from holding a position of authority or

trust   involving     children under   18.   Although Clausen' s crime did not involve a position of trust


or   authority, it did involve         a   child   under     18;   thus,    condition 15 is authorized by RCW

9. 94A. 505( 8) [ "   crime- related prohibitions "] and       RCW 9. 94A.703( b) [ refrain from contact with


 specified class of      individuals "]    and ( f)   [ crime- related
                                                        "                  prohibitions "]   because it directly relates

to the   circumstances of    Clausen'      s offense —   statutory rape of a 14- year -old.

          Similarly, condition 16, which prohibits Clausen from engaging in physical contact with

children under 18 is a valid -
                             crime related prohibition, again, because Clausen' s offense involved

direct   physical contact with a child under           18.   The portion of condition 16 that prohibits Clausen


from engaging in physical contact with vulnerable adults, however, is not directly related to the

circumstances of Clausen' s offense; therefore, this portion of condition 16 does not comply

RCW 9. 94A. 505( 8) or RCW 9. 94A.703( f) and must be stricken.

          Condition 18, which requires Clausen to disclose to his community corrections officer

 CCO) any romantic relationships, reasonably relates to the circumstances of his offense and his

risk for reoffense because the purpose of the condition is to prevent his continuing to engage in



                                                              13
No. 43166 -1 - II



sexual relationships with under -aged children; as in the instant case, he claimed to have believed

REM       was of   legal   age, not   merely 14.     Thus, it is " affirmative conduct reasonably related to the

circumstances of the offense, the offender' s risk of reoffending, or the safety of the community,"

authorized under RCW 9. 94A.703( 3)( d).


           Condition 21 prohibits Clausen from frequenting places were children congregate, such

as malls,    libraries,    and        food
                                 fast -      restaurants.      This condition directly relates to the circumstances

of Clausen' s offense because Clausen, as one of a group of older teens, met REM at a library.

Thus, condition 21 is a valid crime -
                                    related prohibition under RCW 9. 94A.505( 8) and also related

to reduce his risk of reoffending, authorized under RCW 9. 94A.703( 3)( d).

                                                   C. Polygraph Testing

           Clausen argues that condition 19, requiring him to submit to polygraph testing at the

discretion of his CCO, is overly broad because it gives the CCO unfettered discretion to include

any subject in the polygraph. This condition requires Clausen to

            s] ubmit to polygraph testing upon direction of your community corrections
           officer               therapist    at   your    You must successfully pass all
                                                          expense. _.

           polygraph tests, and indicate no deception at any time on the test.

CP   at   233.     Our Supreme Court has expressly held that polygraph testing is a valid community

custody monitoring           condition.      See State    v.   Riles, 135 Wn.2d 326, 342, 957 P. 2d 655 ( 1998),


overruled in part on other grounds by State v. Valencia, 169 Wn.2d 782, 239 P. 3d 1059 ( 2010).

Thus, the polygraph condition is valid to test Clausen' s compliance with the conditions of his

community custody.

           Here, however, the State appears to concede that the condition may be overly broad as

written (because it was likely part of a psychosexual treatment plan that was not yet in place at


                                                                 14
No. 43166 -1 - II



the time the court ordered the condition) and that, on remand, the trial court should specify a

more narrow application. We agree.


                                       D. Access to Computers and Internet


         Clausen argues that condition 25 ( which prohibits him from having access to the Internet

or a computer unless approved by the court) is completely unrelated to his conviction. Although

the State never alleged or introduced evidence suggesting that the Internet or computers played

any role in Clausen' s offense, the State argues that condition 25 is a necessary component of

Clausen' s psychosexual treatment plan ordered in condition 11 and, therefore, is statutorily

authorized under       RCW 9. 94A. 703         and .   704.   The State concedes, however, that a psychosexual


treatment     plan was not     in   place at   the time the trial       court ordered   these conditions13; but it cites



no authority suggesting that a sentencing court may preemptively impose a community custody

condition, unrelated to the offense, because it is a potentially " necessary" component of a future,

yet   to be   announced,      treatment   plan.   Br.    of   Resp' t   at 30.   Furthermore, although the State also


cites RCW 9. 94A.704 as authorizing condition 25, this statute applies only to conditions imposed

by    the Department     of   Corrections ( DOC),       not by the sentencing court.

          Condition 25, prohibiting access to the Internet or computers, is unrelated to Clausen' s

crime and      is   not authorized    by RCW 9. 94A.505( 8)             or   RCW 9. 94A.703.    Nothing in the record

connects this community custody condition to the instant offense, to the risk of reoffense, or to




 13 See, e. g., condition 26, which requires Clausen to obtain a psychosexual evaluation, arguably a
necessary precursor to a treatment plan.



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any community safety issues expressly brought to the trial court' s attention, as required under
                                                                                                     14
RCW 9. 94A.703( 3)( d). Thus, the trial            court erred     in   imposing this   condition.




                                         E. Sexually Explicit Materials

          Clausen argues that condition 27, which prohibits his possessing or perusing sexually

explicit material and patronizing establishments that promote the commercialization of sex, also

fails              related prohibition.
        as a crime -                              We agree with Clausen there is no evidence in the record


suggesting that he possessed or perused sexually explicit material in connection with his crime.

The State counters that this condition, like conditions 19 and 25, is likely part of psychosexual

treatment    plan.     Again, as with condition 25, the State provides no authority that the trial court

may preemptively impose such a condition. Thus, condition 27 does not qualify as a crime -

related prohibition under RCW 9. 94A.030( 1) or RCW 9. 94A.703( 3)( f).

          Nor    was   condition   27   authorized     by    RCW 9. 94A.703( 3)( d) at the time of Clausen' s


sentencing.      If, after a psychosexual evaluation, the DOC concludes that this condition is a


necessary       component     of   Clausen'   s   treatment,       the DOC may then impose it under RCW

9. 94A.704. At this point, however, it must be stricken.

          We affirm Clausen' s conviction, but we remand to the trial court ( 1) to strike the portion


of condition     16 prohibiting Clausen from engaging in                 physical contact with vulnerable adults; (   2)


to tailor   more   narrowly the    polygraph       testing   parameters of condition        19; ( 3) to strike condition


25' s prohibition of access to the Internet and to computers; and ( 4) to strike condition 27' s




 14 Our holding that the trial court lacked statutory authority to impose this prohibition as a
condition of community custody does not preclude the DOC, Clausen' s CCO, or Clausen' s
treatment provider from imposing such restrictions as part of his treatment plan, rehabilitation, or
release conditions, none of which are before us here.



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prohibition of possessing sexually explicit materials or patronizing establishments that promote

the commercialization of sex. We affirm the other challenged community custody conditions.

        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:




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