      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                  No. 73902-6-1
                     Respondent,
                                                  DIVISION ONE
       V.

JAMEEL L. PADILLA,                                UNPUBLISHED OPINION

                     Appellant.                   FILED: April 24, 2017

       SPEARMAN, J. — Jameel Padilla was convicted of communication with a

minor for immoral purposes (CMIP). On appeal, he argues that the State's

charging document was constitutionally deficient because it lacked an essential

element. Additionally, Padilla asserts that the trial court abused its discretion by

not taking action when defense counsel alleged that a juror was sleeping during

trial. He also challenges two of the community custody conditions imposed by the

trial court as void for vagueness and thus unconstitutional. We accept the State's

concession that the condition prohibiting Padilla from frequenting places where

minors congregate is unconstitutionally vague, but Padilla's remaining arguments

are without merit. We remand to strike the unlawful condition, but otherwise

affirm the judgment and sentence.
No. 73902-6-1/2

                                      FACTS

       In March and April 2012, K.M., a nine-year-old girl, received sexually

explicit messages on Facebook from an individual using the profile name "Jim

Wilcox." K.M. did not understand what some of the messages meant, so she told

her father about the conversation. A relevant portion of the message K.M.

received was as follows:

       Wilcox: are you alone?
       K.M.: ya.y?
       Wilcox: cause I'm jerking off to you. what are you wearing?
       Wilcox: you are so pretty, my cock is still hard for you.
       K.M.: shut up I am 91111111111
       Wilcox: suck it
       K.M.: no u r gross I am 9 so back off

Exhibit 11.

       K.M.'s father reported the messages to the police. While the detectives

were investigating the complaint, they discovered that the Internet Protocol

Address for the computer used to access the Facebook account was associated

with Jameel Padilla of Everett, Washington.

       In September 2012, Everett Police executed a search warrant at Padilla's

home. A search of Padilla's computer revealed that Padilla had used various

aliases including that of "Jim Wilcox" on Facebook.

       Padilla was charged with CMIP and the case proceeded to a jury trial.

After the conclusion of the evidence, but before instructing the jury, defense

counsel moved the court to designate juror 8 as the alternate juror. Defense

counsel stated as his reason that Ipleople who have been watching with me




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No. 73902-6-1/3

during the trial have noticed that juror 8 spends a lot of time appearing to be

sleeping. Nodding off. We saw a lot of inattention there." Id.

       The trial court asked the prosecutor about his observations of the juror.

The prosecutor responded that neither he nor the detective who sat at counsel

table during the trial saw juror 8 sleeping and that he objected to the motion. The

court asked defense counsel if he had "anything further[.]" Id. at 12. He indicated

that he did not. The court stated that it also had not seen any jurors sleeping. It

denied the motion and juror 8 deliberated on the verdict. The jury returned a

verdict of guilty as charged. At sentencing, the court imposed several conditions

of community custody. Padilla appeals.

                                   DISCUSSION

       Padilla contends that the State's charging document was constitutionally

deficient. He correctly points out that under State v. Hosier, 157 Wn.2d 1, 15, 133

P.3d 936 (2006), an essential implied element of the crime of CMIP is that he

intended for the communication to reach a minor. Padilla argues that the

charging document did not specifically allege this element, and thus, it failed to

provide him with proper notice of the charges brought against him.

       Challenges to the sufficiency of a charging document are reviewed de

novo. State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30(2007)(citing State v.

Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995)). A challenge to a

charging document's constitutional sufficiency can be raised for the first time on

direct appeal. State v. Kiorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). If a




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No. 73902-6-1/4

charging document is challenged after a verdict has been returned, the document

will be more liberally construed in favor of validity. Id. at 106

       The standard for reviewing the sufficiency of a charging document is two

pronged:(1) whether the charging document has the necessary facts, or those

facts can be found by fair construction; and if so,(2) whether the defendant can

show that he was actually prejudiced by any vague language. Id. Under the first

prong, if the necessary facts cannot be found in the charging document,

prejudice is presumed and the conviction will be reversed. State v. Zillyette, 178

Wn.2d 153, 162, 307 P.3d 712(2013)(citing State v. McCarty, 140 Wn.2d 420,

425, 998 P.2d 296 (2000)). Under the second prong, the defendant must

establish actual prejudice.1 Korsvik, 117 Wn.2d at 111.

       The CMIP statute prohibits "communicat[ion] with a minor or with

someone the person believes to be a minor for immoral purposes . . . through the

sending of an electronic communication." RCW 9.68A.090(2). The statute does

not explicitly state a requirement that the person must intend for the

communication to reach a minor, but our supreme court has held that such a

requirement is implied and must be proved in order for the State to obtain a

conviction for CMIP. State v. Hosier, 157 Wn.2d at 15. Padilla argues that the

charging document in this case was deficient because it was missing this implied

element.




        1 Padilla argues only under the first prong of this standard and does not contend that he
suffered actual prejudice. Accordingly, we do not reach the issue under the second prong of
whether Padilla was prejudiced by any vague language in the charging document.


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No. 73902-6-1/5

       When deciding whether a charging document has the necessary facts, we

look at the document as a whole with a common sense approach. Korsvik, 117

Wn.2d at 109. A charging document is constitutionally sufficient when, read as a

whole and in a common sense manner, an implied essential element can be

inferred through a liberal construction in favor of its validity. Id. at 110-11. Our

first inquiry is whether the nonstatutory element of "intent to reach a minor" can

be fairly implied from the language in the charging document. Id. at 108.

       In the present case, the charging document tracked the language of the

CMIP statute. It read:

       COUNT I: COMMUNICATION WITH A MINOR FOR IMMORAL
       PURPOSES VIA ELECTRONIC COMMUNICATION, committed as
       follows: That the defendant, on or about the 5th day of March 2012,
       through the 14th day of April 2012, did communicate with a person
       under the age of 18 years for immoral purposes through the sending
       of an electronic communication . . . .

Clerk's Papers(CP) at 63-64. This language apprised Padilla that he was

accused of committing the crime of CMIP and of the following factual allegations:

(1) that he communicated by means of an electronic communication;(2) that the

communication was for an immoral purpose; and (3) that the communication was

with a person under 18 years of age. We fail to see, nor does Padilla explain,

how he could have sent an electronic communication to a child and yet not have

intended for the communication to reach the child. Liberally construed, the

language in the charging document fairly implies the allegation that Padilla

intended that the communication reach a minor.




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No. 73902-6-1/6

       Korsvik, 117 Wn.2d 93 is instructive. In that case, a defendant challenged

his robbery conviction because the State's charging document was missing the

implied essential element of "intent to steal." Id. at 95-96. The court upheld the

defendant's conviction and reasoned that it would be "hard to perceive how the

defendant" could have forcefully taken money from the shopkeeper while

brandishing a weapon but did not intend to steal the money. Id. at 110. Similarly

here, because the charging document describes Padilla sending electronic

communication to a minor, a fair reading is that through this volitional act, he

intended to reach a minor. We conclude that the language of the charging

document is sufficient because it contains all the necessary facts to reasonably

inform Padilla of the elements of the crime charged.

       Next, Padilla argues the trial court abused its discretion when it refused to

investigate whether juror 8 was sleeping during trial and denied his motion to

have juror 8 named as the alternate juror. We disagree on both counts.

       A trial court's determination of whether a juror was inattentive during trial

is reviewed for abuse of discretion. State v. Hughes, 106 Wn.2d 176, 204, 721

P.2d 902 (1986). A trial court's decision will only be disturbed if it was manifestly

unreasonable or based on untenable grounds. State v. Downing, 151 Wn.2d 265,

272, 87 P.3d 1169(2004)(citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,

482 P.2d 775 (1971)).

       Relying on United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983), Padilla

argues that the trial court failed to investigate whether juror 8 had been sleeping.

But the case is distinguishable. In Barrett, a juror asked to be excused because


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No. 73902-6-1/7

he was sleeping during the trial. Id. at 1082. The trial court declined to remove

him. Id. After a guilty verdict, the defendant sought permission from the court to

interview the juror. Id. The court denied the request because "there was no juror

asleep during the trial." Id. at 1082-83. On appeal, the court held that the judge

abused his discretion. Id. at 1083.

        The Barrett court recognized that it is not always necessary for a judge to

make further inquiry in response to a defendant's allegation that a juror had been

sleeping, because a judge may properly take judicial notice of the fact that the

juror had not been sleeping. Id. But in that case, in light of the juror's admission

that he had been sleeping during the trial, there was no basis for the trial court's

"bare assertion" that he was not. Id. Thus, the trial judge's decision to take

judicial notice was an abuse of discretion because it was based on untenable

grounds. The case was remanded for a hearing on whether the juror was

sleeping, and if so, whether that fact prejudiced the defendant's right to a fair

trial. Id.

        This case is unlike Barrett. Here, after defense counsel alleged that Juror

8 appeared to be sleeping during the trial, the trial court investigated the matter

by questioning the prosecutor and allowing defense counsel the opportunity to

provide "anything further." Verbatim Report of Proceedings(VRP)(06/25/15) at

12.The trial court then took judicial notice that it had not seen any jurors sleeping

during the trial. On these facts, the trial court properly investigated the allegation

and did not err when it took judicial notice of its own observations. The trial court




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No. 73902-6-1/8

did not abuse its discretion when it refused to designate juror 8 as the alternate.

There was no error.

       Next, Padilla challenges two community custody conditions that were

imposed during sentencing. Padilla challenges the prohibition from frequenting

areas where minor children are known to congregate because it is

unconstitutionally vague. He also contends that the community custody condition

restricting him from possessing or accessing pornographic material is

unconstitutionally vague.

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

provide people with fair warning of prohibited conduct and (2) does not have

standards to avoid arbitrary enforcement. State v. Irwin, 191 Wn. App. 644, 652-

53, 364 P.3d 830 (2015).

       The State concedes, and we agree, that the community custody condition

prohibiting Padilla from frequenting areas where minor children are known to

congregate is void for vagueness and should be stricken. In Irwin, we found that

an identical prohibition was an unconstitutionally vague community custody

condition. Irwin, 191 Wn. App. at 652-53. We therefore remand to the sentencing

court with instructions to strike the vague condition.

       However, the condition prohibiting Padilla from possessing or accessing

pornographic materials clearly defines what is restricted. State v. Bahl, 164

Wn.2d 739, 758, 193 P.3d 678 (2008). In Bahl, the sentencing court imposed a

community custody condition prohibiting "'Bahl from possessing or accessing

pornographic materials, as directed by the supervising Community Corrections


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No. 73902-6-1/9

Officer." Id. at 754. The court held that the condition was void for vagueness

because the word "pornographic" was not clearly defined. Id. at 757-58.

Additionally, because Bahl's community corrections officer could direct what was

within the condition, the condition could be arbitrarily enforced. Id. at 758. Here,

unlike in Bahl, pornographic materials is clearly defined as "images of sexual

intercourse, simulated or real, masturbation, or the display of intimate body

parts." CP at 37. The condition does have standards to avoid being arbitrarily

enforced because the restricted material is clearly defined. We reject Padilla's

argument.

       Padilla asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2.

However, when a trial court makes a finding of indigency, that finding remains

throughout review "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency." RAP 14.2. Here,

Padilla was found indigent by the trial court. If the State has evidence indicating

that Padilla's financial circumstances have significantly improved since the trial

court's finding, it may file a motion for costs with the commissioner.

Statement of Additional Grounds

       Padilla makes two arguments in a statement of additional grounds. In his

first additional ground for review, Padilla argues that the trial court erred in

allowing Facebook records to be presented during trial when the officer

presenting the records did not know what the technical data on the records


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No. 73902-6-1/10

meant. He contends that a Facebook employee was required to present the

records. He is incorrect.

       Under RCW 10.96.030(2) business records may be admissible without

testimony from the custodian of the records if the records are accompanied by an

affidavit that meets certain requirements. In this case, there was a pretrial

hearing regarding the admissibility of Facebook records without the necessity of

calling the custodian as a witness. The trial court ruled that the Facebook records

were admissible because they were accompanied by the affidavit required by the

statute. Padilla cites to nothing in the record to dispute this finding.

       In his second additional ground for review, Padilla argues that the trial

court erred in not penalizing Detective Defolo for perjury when he misquoted

Padilla. On direct examination, Defolo testified about "parents" being angry about

Padilla's communications. On cross, defense counsel impeached Defolo with his

report in which he apparently wrote that "people" not "parents" were angry. VRP

(06/23/15) at 174-75. Because Padilla sought no further relief from the trial court,

the claim is waived. RAP 2.5(a).

       Remanded to strike the unlawful condition but otherwise affirmed.

                                                                           ----C

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WE CONCUR:




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