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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                        F-
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STATE OF WASHINGTON,                    )                                           T.'
                                        )      No. 75834-9-1                                  7
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                    Respondent,                                                      oo  otil
                                        )
                                        )      DIVISION ONE                          cfi ¶2
                                                                                     ••••••


             v.                         )
                                        )
JAMES BRADLEY ANDERSON,                 )      UNPUBLISHED OPINION
                                        )
                    Appellant.          )      FILED: July 30, 2018
                                        )

      BECKER, J. —Appellant, tried and convicted on five counts of child rape

and molestation, was exposed to double jeopardy by jury instructions that did not

prevent the jury from basing two convictions on the same act of oral-genital

intercourse. He claims that defense counsel was ineffective for proposing the

deficient instructions. We reject this argument because appellant has not shown

a reasonable likelihood that the trial outcome would have been different had

counsel's error not occurred.

                                     FACTS
      The State charged appellant James Anderson with one count of second

degree child molestation, two counts of first degree child molestation, one count

of second degree child rape, and one count of first degree child rape. The

alleged victim, KJ, was 20 years old when the trial occurred in 2016. She
No. 75834-9-1/2

testified about a sexual relationship with Anderson that he initiated when she was

9 and he was around 18. At the time, NJ was living in Everett with her

grandmother and her grandmother's partner, who was Anderson's father.

Anderson often stayed there, and he later resided with them when they lived in

Mukilteo. Anderson was often left in charge of NJ and other young children in the

house. NJ testified that Anderson secretly had sex with her on a regular basis,

including oral sex and vaginal intercourse. NJ described certain instances in

detail.

          When NJ was 13, she moved back in with her mother and her mothers

partner. She told them about her history with Anderson. She was initially

unwilling to share details with police. Four years later, after undergoing therapy,

NJ decided to talk to a detective.

          The defense presented testimony from NJ's grandmother, Anderson's

father, and other family members. They denied ever witnessing suspicious

interactions between NJ and Anderson. Anderson did not testify. The defense

strategy was to cast doubt on NJ's version of events.

          In closing, with the aid of a PowerPoint presentation, the prosecutor

matched particular incidents described by NJ to each of the five counts. Count 1,

second degree child molestation, had a charging period of May 12, 2008, to May

11, 2010. The State elected the couch" incident to support this count. KJ

testified about a time when she was 11 and she and Anderson had penile-vaginal

Intercourse on the living room couch in the middle of the day when no one else




                                           2
No. 75834-9-1/3

was home. She did not have any clothes on. She testified, "I was on top, and

we were sitting." She recalled that it felt good.

       Counts 2, 3, and 4—the first degree rape count and the two counts of first

degree molestation—shared the same charging period of May 12, 2005, to May

11, 2008. For count 2, first degree rape, the State elected "the trampoline"

incident. KJ testified about a time that she performed oral sex on Anderson in

the kitchen of their house while her friends were in the backyard jumping on a

trampoline. She was 11.

       Count 3, first degree child molestation, was "the teddy bear incident. KJ

testified that one night when she was 10, Anderson appeared by her bedside,

naked. He told KJ to call him "teddy bear," and he put her hand on his penis.

       Count 4, the second count of first degree molestation, was "the pink

nightgown" incident. KJ testified that the first time she and Anderson had penile-

vaginal sex, when she was 11, she was wearing a pink nightgown and the sex

was painful.

       Count 5, second degree child rape, had a charging period of May 12,

2008, to May 11,2010. The State elected "the garage" incident. KJ testified

about a time, when she was 12, that she performed oral sex on Anderson while

they were in the garage playing video games.

       The jury convicted Anderson as charged. The court imposed a minimum

sentence of 280 months' imprisonment. Anderson appeals the judgment and

sentence.




                                          3
No. 75834-9-1/4

                   TO-CONVICT INSTRUCTION—COUNT 1
      The to-convict instruction for count 1, second degree child molestation,

required the State to prove that KJ was "at least twelve years old" when the

molestation occurred. Neither party objected to this instruction. To support

count 1,the State invoked KJ's testimony about having vaginal sex with

Anderson on a couch. But KJ testified that she was 11 when that incident

occurred.

      On appeal, Anderson contends that his conviction for second degree child

molestation must be reversed given the discrepancy between KJ's testimony and

the age requirement in the to-convict instruction. The State concedes that the

conviction on count 1 should be reversed. We accept the State's concession.

       The lower age limit of 12 years old, though included in the statute for

second degree child molestation, is not an essential element of the crime. State

v. Goss, 186 Wn.2d 372, 378-82, 378 P.3d 154(2016). But elements in a to-

convict instruction that are not objected to become the law of the case"; the

State must prove those elements beyond a reasonable doubt to prevail. State v.

Hickman, 135 Wn.2d 97, 99,954 P.2d 900(1998). In this case, therefore, the

State was required to prove that KJ was at least 12 at the time of the molestation.

       KJ testified about other sexual encounters with Anderson that occurred

when she was 12 or older. But it is not apparent that the jury unanimously

agreed to base the conviction for second degree molestation on one of these

other events. Questions sent by the jury during deliberations suggest confusion

about whether they were bound by the prosecutor's election of the couch incident

to support count 1. In response to these inquiries, the court referred the jury to
                                         4
No. 75834-9-1/5

their instructions. The instructions did not advise jurors that they had to agree

unanimously on a particular act to support count 1, a requirement in the absence

of a valid election by the State. State v. Petrich, 101 Wn.2d 566, 572,683 P.2d

173(1984).

       On this record, we conclude that the State did not meet its obligation,

imposed by the to-convict instruction, to prove the lower age limit. We cannot be

sure that the jury rejected the State's election of the couch incident, which did not

provide sufficient evidence on the age element of the crime, as defined by the to-

convict instruction, and we cannot be sure that the jury unanimously agreed on

some other act to support count 1. Ambiguities in a jury verdict must be resolved

in the defendant's favor. State v. Kier, 164 Wn.2d 798, 811, 194 P.3d 212

(2008). The appropriate remedy is to reverse the conviction for second degree

molestation and dismiss the charge with prejudice. Hickman 135 Wn.2d at 99.

              INEFFECTIVE ASSISTANCE—DOUBLE JEOPARDY
       Anderson claims that his right to effective counsel was violated by

counsel's proposal of jury instructions that did not protect him from double

jeopardy. He must establish both deficient performance and prejudice. State v

Jones, 183 Wn.2d 327, 330, 352 P.3d 776(2015). The first prong requires a

showing that counsel's representation fell below an objective standard of

reasonableness, considering all circumstances. Strickland v. Washington, 466

U.S.668,688, 104 S. Ct. 2052,80 L. Ed. 2d 674(1984). Our review is highly

deferential; we indulge a strong presumption of reasonableness. State v.

Thomas, 109 Wn.2d 222, 226, 743 P.2d 816(1987). The prejudice prong

requires Anderson to show a reasonable probability that, but for counsel's errors,

                                          5
No. 75834-9-1/6

the result of the proceeding would have been different. Thomas, 109 Wn.2d at

226. We review ineffective assistance claims de novo. State v. Fedoruk, 184

Wn. App. 866,879, 339 P.3d 233(2014).

       Anderson contends that the jury instructions proposed by his counsel

allowed the jury to use the same act to convict him on more than one count; that

is, he faced multiple punishments for the same offense, a double jeopardy

problem. State v. Borsheim, 140 Wn.App. 357, 366, 165 P.3d 417(2007).

Defense counsel proposed instructions that were markedly similar to those

submitted by the State.1 The court adopted a set identical to the prosecutor's,

with one added instruction not relevant here. Defense counsel made no

objections to the court's instructions.

       Anderson does not challenge the instructions directly. It is doubtful that he

could because he proposed them. "Under the invited error doctrine, a

defendant may not request that instructions be given to the jury and then

complain upon appeal that the instructions are constitutionally infirm." State v.

Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512(1999); State v. Hood, 196 Wn. App.

127, 131-32, 382 P.3d 710(2016), review denied, 187 Wn.2d 1023(2017).2 But

review "is not precluded where Invited error is the result of ineffectiveness of




       1 See Clerk's Papers at 86-101 (defense Instructions), 235-60(State's
Instructions); see also Report of Proceedings at 232, 350(court observes "1 don't
know if there are many differences in your packages"; "1 don't think there were
any material differences in the two packets of instructions").
       2 Proposing a deficient instruction invites error, while merely failing to
object to the State's deficient instruction does not. Hood, 196 Wn.App. at 133-
34. Here, the record demonstrates unequivocally that counsel proposed the
challenged instructions.
                                          6
No. 75834-9-1f7

counsel." Aho 137 Wn.2d at 745. By asserting ineffective assistance instead of

challenging the instructions directly, Anderson has avoided application of the

Invited error doctrine. Review is not precluded, but the result is that we must

review his double jeopardy claim according to the standard of review for

Ineffective assistance rather than the standard of review for instructions that

violate a constitutional right. Relief is warranted only if counsel's proposal of

deficient Instructions was both deficient performance and prejudicial.

       We turn to the specifics. Anderson first contends the State invoked the

same event to convict him on count 1, second degree child molestation, and

count 4, one of the two counts of first degree child molestation, and nothing in the

Instructions proposed by defense counsel prevented this result. Count 1 was

based on the aforementioned incident when KJ and Anderson had sex on a

couch during the day; she was "on top" and had no clothes on; and the sex "felt

good."3 To prove count 4, the State relied in closing argument on a purportedly

different incident of penile-vaginal intercourse during which KJ recalled that they

were on a foldout couch, she was wearing a pink nightgown, and the sex was

painful.4 Anderson contends "A close examination of K.J.'s testimony reveals

that these were a single incident: the first instance of vaginal intercourse between

K.J. and Anderson."

       The record does not support Anderson's contention that the State relied

on the same act to prove count 1 and count 4. But even assuming it did, and




       3 Report of Proceedings at 278, 331, 434.
       4   Report of Proceedings at 436-37.
                                          7
No. 75834-9-1/8

defense counsel was ineffective for contributing to the double jeopardy violation,

the remedy would be dismissal of the lesser punished crime. State v. Villanueva-

Gonzalez, 175 Wn. App. 1, 8, 304 P.3d 906(2013), affd 180 Wn.2d 975, 329

P.3d 78(2014). The lesser of the two crimes was second degree child

molestation, charged in count 1. We have already determined that Anderson's

conviction on count 1 will be reversed and dismissed with prejudice. Thus, it is

unnecessary to consider whether there was a double jeopardy violation with

respect to counts 1 and 4. For the same reason, we do not address whether the

instructions allowed the jury to convict Anderson of counts 1 and 5 based on the

same act, an argument implied by pages 25-26 of his brief of appellant. Count 1

will be dismissed on a different ground.

       Anderson next contends that the deficient instructions allowed the jury to

convict him of count 2, first degree child rape, and either count 3 or 4, the counts

of first degree molestation, based on the same act of oral-genital intercourse.5 In

the to-convict instructions for counts 3 and 4,jurors were told that count 3

required proof of an occasion "separate and distinct from that alleged" in count 4,

and vice versa. Anderson contends that there should have been similar

language informing jurors that counts 3 and 4 required proof of an act separate

and distinct from that alleged in count 2. Such language was absent from

defense counsel's proposed to-convict instructions and those given by the court.

Anderson contends that counsel's failure to propose "separate and distinct"




       5 Count 5, second  degree child rape, is not at issue because it involved a
different charging period.
                                           8
No. 75834-9-1/9

language was prejudicial and requires reversal of one of the convictions for first

degree child molestation (count 3 or 4), as child molestation is a lesser crime

than the rape conviction under count 2.

       Child rape and child molestation have different elements. First degree

child rape occurs when the defendant has sexual intercourse with a child

younger than 12 years old. RCW 9A.44.073(1). "Sexual intercourse" includes

oral-genital contact as well as penetration of the vagina or anus.

RCW 9A.44.010(1). First degree child molestation occurs when the defendant

engages in sexual contact with a child younger than 12. RCW 9A.44.083(1).

"Sexual contact" means "any touching of the sexual or other intimate parts of a

person done for the purpose of gratifying sexual desire of either party or a third

party. RCW 9A.44.010(2). Thus, child rape requires proof of intercourse, which

is not an element of child molestation, and child molestation requires proof that

the defendant acted for sexual gratification, which is not an element of rape.

State v. Jones, 71 Wn. App. 798, 825, 863 P.2d 85(1993), review denied, 124

Wn.2d 1018(1994).

       Child rape and child molestation can nonetheless be the same in fact, for

double jeopardy purposes, when both are proven by the same instance of oral-

genital contact. State v. Land, 172 Wn. App. 593,600, 295 P.3d 782, review

denied 177 Wn.2d 1016(2013). "Where the only evidence of sexual intercourse

supporting a count of child rape is evidence of penetration, rape is not the same

offense as child molestation." Land, 172 Wn. App. at 600. "But where the only

evidence of sexual intercourse supporting a count of child rape is evidence of


                                          9
No. 75834-9-1/10

sexual contact involving one person's sex organs and the mouth or anus of the

other person, that single act of sexual intercourse, if done for sexual gratification,

is both the offense of molestation and the offense of rape." Land 172 Wn. App.

at 600.

       Thus, in Land, a potential double jeopardy problem arose when the

defendant was charged with child molestation and child rape based on conduct

involving the same victim and same charging period; the victim testified that the

defendant touched her on her breasts and "'lower part,'" inserted his finger inside

her vagina, and "'kissed'" her "'on the lower half"; and the jury was not instructed

that it could not convict the defendant of both rape and molestation based on a

single act. Land 172 Wn. App. at 597-98, 600-01; see also State v. Mutch, 171

Wn.2d 646,661, 254 P.3d 803(2011). In the final analysis, we found no error

because it was manifestly apparent from the record that the rape count was

supported only by the victim's testimony about digital penetration. Land 172 Wn.

App. at 601-03.

       Here, the jury instructions created a potential double jeopardy problem

concerning count 2, the first degree rape count, because the State did not elect

to support that count with evidence of penetration. Like counts 3 and 4, count 2

involved a charging period of May 12, 2005, to May 11,2008. The alleged victim

was the same (KJ) with respect to all three counts. The instructions provided to

jurors did not include penetration as a means of committing rape;"sexual

intercourse" was defined as "any act of sexual contact between persons Involving

the sex organs of one person and the mouth or anus of another." When


                                          10
No. 75834-9-1/11

discussing count 2, the rape count, in closing argument, the prosecutor explained

that "for purposes of[sexual intercourse], we're talking about when she was

giving him oral sex, when she's using her mouth." Under Land, an act of oral sex

is both the offense of molestation and the offense of rape.

      The Jury was not instructed that it could not convict Anderson of first

degree molestation, as charged in counts 3 and 4, based on the same incident of

oral-genital contact used to support count 2, first degree rape. Thus,jurors

theoretically could have had In mind the same act for count 2 as they did for

either count 3 or 4(but not 3 and 4, because the jury was Instructed that those

counts required proof of separate acts). For example, if jurors believed KJ's

testimony about the "trampoline" incident—an incident involving oral sex that

occurred when KJ was 11—they could have relied on this event to convict

Anderson of both first degree rape (count 2) and first degree molestation (count 3

or 4). KJ's testimony provided evidence to satisfy the elements of both crimes.

The jury instructions were deficient insofar as they allowed this possibility.

Borsheim, 140 Wn. App. at 370. The problem was not averted by the jury

instruction that stated,"A separate crime is charged in each count. You must

decide each count separately. Your verdict on one count should not control your

verdict on any other count." This instruction did not inform jurors that each crime

required proof of a separate act. Mutch 171 Wn.2d at 663.

       Flawed instructions that permit a jury to convict a defendant of more than

one count based on a single act do not necessarily mean that the defendant

received multiple punishments for the same offense; "it simply means that the


                                          11
No. 75834-9-1/12

defendant potentially received multiple punishments for the same offense."

Mutch, 171 Wn.2d at 663. Under the standard of review that applies when

instructions are directly challenged as inadequate to prevent double jeopardy, we

review the entire record to determine whether a double jeopardy violation was

actually effectuated. Mutch, 171 Wn.2d at 664. "No double jeopardy violation

results when the information, instructions, testimony, and argument clearly

demonstrate that the State was not seeking to impose multiple punishments for

the same offense." State v. Haves, 81 Wn. App. 425,440,914 P.2d 788 review

denied, 130 Wn.2d 1013(1996). "While the court may look to the entire trial

record when considering a double jeopardy claim, we note that our review is

rigorous and is among the strictest. Considering the evidence, arguments, and

instructions, if 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." Mutch, 171 Wn.2d at 664.

       Here, the State elected specific incidents to support each count But the

State's elections alone did not eliminate the possibility of a double jeopardy

violation. Closing argument cannot be considered in isolation. Kier, 164 Wn.2d

at 813. Nothing else in the record provides adequate assurance that it was

manifestly apparent to jurors that each count was based on a separate act. The

information charged five separate counts, yet KJ testified about more than five

sexual encounters with Anderson. Cf. Mutch 171 Wn.2d at 665. And, as

discussed, nothing in the instructions prevented jurors from rejecting the State's


                                            12
No. 75834-9-1/13

elections and using the same event to convict Anderson of two counts. The jury

was correctly instructed that statements by counsel are not evidence. In other

words, the instructions, along with the information and evidence, allowed the jury

to use the same act of oral-genital intercourse to convict Anderson of both rape

and molestation "notwithstanding the State's closing argument" Kier, 164 Wn.2d

at 814. If Anderson had been able to challenge the adequacy of the jury

Instructions directly, as was done in Mutch we would find a double jeopardy

violation because, unlike in Mutch, the instructions did not avoid the possibility

that Anderson would be punished twice for the same act. Cf. Mutch 171 Wn.2d

at 665,666.

       But this is a claim of ineffective assistance, and our focus must remain on

the conduct of trial counsel. We first conclude Anderson has established

deficient performance. Reasonable conduct for an attorney includes researching

relevant case law. State v. KvIlo, 166 Wn.2d 856,862, 215 P.3d 177(2009).

Proposing detrimental instructions may constitute ineffective assistance. State v.

Woods, 138 Wn. App. 191, 197-98, 156 P.3d 309(2007). In this case, defense

counsel acted unreasonably by proposing instructions that exposed Anderson to

double jeopardy under our decision in Land. The record reveals no strategic

reason defense counsel might have had to propose instructions that exposed

Anderson to double jeopardy. The deficient performance prong of Anderson's

ineffective assistance claim is met under these circumstances.

       Anderson has not met his burden, however, of demonstrating prejudice.

The relief he seeks is the striking of either count 3 or 4. He has shown that the


                                         13
No. 75834-9-1/14

Instructions were not enough to eliminate the possibility that the jury used a

single act to convict him on count 2 and either count 3 or 4. But if counsel had

insisted on proper instructions, is it reasonably probable that the jury would have

convicted him on one count less than it did? Anderson does not answer this

question. He does not evaluate the likelihood that the jury followed the State's

election of specific incidents to match each count. Because Anderson fails to

demonstrate that the result of the proceedings would have been different, his

ineffective assistance claim fails on the prejudice prong of Strickland.

                INEFFECTIVE ASSISTANCE—INVESTIGATION

       Anderson also contends that his lawyer was ineffective for not conducting

adequate pretrial investigation. This claim pertains to KJ's testimony at trial that

she once performed oral sex on Anderson in the kitchen of the Mukilteo house

while her friends played on a trampoline in the backyard. This was the basis for

count 2, first degree child rape.

       After the jury verdict, Anderson moved for a new trial on several grounds.

One of his arguments was that KJ's testimony about the trampoline incident was

contradicted by evidence he claimed was newly discovered. According to

Anderson, KJ's testimony prompted the defense investigator to visit the Mukilteo

house. The investigator determined that the kitchen area was visible from the

backyard through a sliding glass door. Anderson claims that if this observation

had been presented to the jury, it would have undermined KJ's credibility

because it was unlikely the sex act described by KJ could have occurred without

her friends seeing it. The State countered that KJ disclosed the trampoline


                                         14
No. 75834-9-1/15

Incident during pretrial defense interviews. The trial court agreed with the State

that the defense had not identified newly discovered evidence. The court

accordingly denied the motion for a new trial.

       On appeal, Anderson claims that it was unreasonable for his lawyer to not

Investigate the trampoline incident more thoroughly before trial. He contends

that this error deprived the defense of evidence that KJ's story was not credible.

Anderson asserts that defense counsel should have interviewed KJ's friends who

were in the yard that day to determine if they saw anything.

       A showing that counsel failed to conduct appropriate investigations can

support a claim of ineffective assistance. Thomas, 109 Wn.2d at 230; see also

Fedoruk, 184 Wn. App. at 881 (counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary); Jones 183 Wn.2d at 340 (failure to interview a

particular witness can constitute deficient performance).

       Here, the pretrial investigation conducted by defense counsel included

Interviews with KJ and her grandmother. They drew maps of the Mukilteo house.

The drawings do not show where the trampoline was located in the backyard.

       It is not apparent that a more thorough investigation would have led to

information favorable to the defense. Evidence that the kitchen area was visible

from the backyard does not by itself impeach KJ's story. She did not testify that

the kitchen area could not be seen from the backyard. She said that she was

behind a counter while performing oral sex on Anderson. Thus, KJ's friends

could not necessarily see what she was doing even if they could see into the


                                         15
No. 75834-9-1/16

kitchen area. Another consideration is that had defense counsel interviewed KJ's

friends, they might have corroborated, rather than contradicted, KJ's story.

Anderson fails to demonstrate that counsel's pretrial investigation was deficient,

and he also fails to show a reasonable probability that the result of the

proceeding would have been different if counsel had investigated more

thoroughly.

                            COUNSELING RECORDS
       Before trial, the court denied Anderson's request to compel production of

KJ's counseling records. The court made this ruling without reviewing the

records in camera to determine their potential relevance. The court reasoned

that even an in camera review would be an unjustified intrusion on KJ's privacy.

Later, on a defense motion to limit testimony about KJ's counseling experience,

the court ruled that the prosecutor could elicit only that counseling led KJ to

report the abuse to police. The prosecutor was prohibited from eliciting "any

detail about what went on in counseling or what she told the counselor."

       At trial, the prosecutor asked KJ "whose idea" it was "to finally go to the

police?" KJ responded,"It was actually therapy." Anderson then moved for a

mistrial, outside the jury's presence, arguing that there was no way to effectively

cross-examine KJ without access to the counseling records. Anderson did not

renew his request for in camera review. The court denied the mistrial motion.

When the jurors returned, the court instructed them to disregard KJ's last answer.

       Anderson argues on appeal that the trial court erred by failing to review

the records in camera. We review for an abuse of discretion. State v. Greaorv,



                                         16
No. 75834-9-1/17

158 Wn.2d 759, 791, 147 P.3d 1201 (2006), overruled on other grounds, State v.

W R , 181 Wn.2d 757, 768-69, 336 P.3d 1134(2014).

       For due process to justify in camera review of confidential records, as KJ's

counseling records are, the defendant must establish a basis for his claim that

the record contains material evidence favorable to the defense. Pennsylvania v,

Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989,94 L. Ed. 2d 40(1987). Evidence

is material only if there is a reasonable probability that it would impact the

outcome of trial. Ritchie 480 U.S. at 57. Mere speculation that records contain

material evidence is insufficient. Gregory 158 Wn.2d at 792; see also State v.

Kalakoskv, 121 Wn.2d 525, 550,852 P.2d 1064(1993)(defendant must make a

particularized factual showing that information useful to the defense is likely to be

found in the records); State v. Knutson, 121 Wn.2d 766, 773, 854 P.2d 617

(1993)(mere possibility that evidence might have affected the trial outcome is

Insufficient).

       Anderson's relevance arguments below were speculative. During the

pretrial hearing, Anderson asserted that he needed to see "what happened at

counseling, if the disclosures were consistent, if there's matters for impeachment,

or if what she's telling us is true in terms of that this matter was discussed in

counseling at all." He did not articulate, with any particularity, why he needed

information in the counseling records.

       When KJ testified that "therapy" led to her delayed disclosure, Anderson

again argued that he needed access to the records for impeachment purposes.

But KJ's remark did not establish a basis for Anderson to claim that her


                                          17
No. 75834-9-1/18

counseling records might contain information inconsistent with her testimony or

contain evidence favorable to the defense that was not already known. Before

trial, Anderson had the opportunity to have defense counsel interview KJ and ask

about her delayed disclosure to police.

      In Ritchie and in Greoorv in camera review was warranted because the

defendant established a nonspeculative basis to believe the files contained

material evidence. Anderson did not make an equivalent showing. The trial

court acted within its discretion by denying in camera review.

                     COMMUNITY CUSTODY CONDITION
       Anderson's sentence includes a community custody provision stating,"Do

not frequent areas where minor children are known to congregate, as defined by

the supervising Community Corrections Officer." We invalidated an identical

condition for vagueness in State v. Irwin, 191 Wn. App.644,655, 364 P.3d 830

(2015). The State concedes that the condition should be removed from

Anderson's sentence or modified to include specific prohibited locations. We

accept this concession.

       In summary, we remand for dismissal with prejudice of Anderson's

conviction for second degree child molestation in count 1 and for revision of the

community custody condition. Otherwise, we affirm.


                                               egecfrece,
WE CONCUR:



                                               %Ili Ate..2-

                                          18
