       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )      DIVISION ONE

                         Respondent,         )      No. 80101-5-I

                   v.                        )      UNPUBLISHED OPINION

CHRISTOPHER KYLE SIKES,                      )
                        Appellant.           )      FILED: September 23, 2019


       SMITH, J.   —    In 2015, Christopher Kyle Sikes pleaded guilty to two counts

of rape of a child in the first degree. Pursuant to the Sentencing Reform Act of
19811 (SRA) and the special sex offender sentencing alternative (SSOSA), the

superior court suspended all but 12 months of Sikes’s sentence pursuant to 38

conditions. In 2018, the superior court revoked Sikes’s suspended sentence due

to his failure to comply with certain conditions of his SSOSA.

       On appeal, Sikes argues that because various conditions of his sentence

were invalid, the trial court erred by revoking his SSOSA. The State concedes

that two of the six conditions on which the trial court relied are unconstitutionally

vague or must be amended. Notwithstanding the two invalid conditions, the

State maintains that the trial court had sufficient evidence to revoke Sikes’s

SSOSA. Because Sikes admits to violation of the condition prohibiting private


       I   Ch. 9.94A RCW.
No. 80101-5-1/2


contact with a victim-aged minor and because the superior court determined he

had not adequately progressed in his treatment, we agree with the State. We,

therefore, affirm the revocation. But, in light of the State’s concessions, we

remand to the trial court for amendment of the two conditions. First, the court

must amend Appendix H (b) 20 to: “Inform your CCC of any dating relationships

in order to verify there are no victim age children involved”; and second, the court

must amend Appendix H (b)14 to state: “Do not possess or consume alcohol.”

                                      FACTS

       On September 25, 2015, Christopher Sikes pleaded guilty to two counts of

rape of a child in the first degree, a violation of RCW 9A.44.073. Sikes admitted

to engaging in sexual intercourse with A.S. and J.S.—his adopted sisters, both

under the age of 12—on multiple occasions. The trial court sentenced Sikes to

131.9 months to life of confinement, with a lifetime term of community custody.

Sikes had no prior criminal history, and the court granted Sikes’s request for a

SSOSA sentence. Specifically, the court suspended all but 12 months of Sikes’s

sentence subject to the following requirements: (1) reasonable progress and

completion of outpatient sex offender treatment; (2) compliance with treatment

provider and community correction officer (CCC) requirements; and (3)

compliance with community custody conditions.

      The lifetime community custody conditions prohibit Sikes from, among

other things: (1) purchasing, possessing, or consuming alcohol; (2) leaving the

geographic boundary determined by the CCC; (3) “enter[ing] into any location

where alcohol is the primary product”; (4) having “contact with the victims (AS



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and JS), or with any minors that may be biological children, without prior approval

of the Court”; (5) “initiat[ing], or hav[ingl in any way, physical contact with children

under the age of 18 for any reason, to include in employment, social, and

recreational situations”; (6) having “contact with ~y minors or children under the

age of 18 without prior approval”; and (7) frequenting any place where children

congregate. Additionally, Sikes must participate in and complete a state-

approved sexual deviancy treatment program, inform his CCO “of any romantic

relationships to verify there is [sic] no victim-age children involved[,]” and register

as a sex offender.

       On October 10, 2016, upon completion of his 12-month jail sentence,

Sikes began sex offender treatment with Daniel DeWaelsche. On May 31, 2017,

DeWaelsche stated that Sikes “continue[d] to regularly attend all scheduled

therapy sessions and actively participate in his therapy group discussions.” At

that time, DeWaelsche recommended that Sikes continue treatment. The

superior court agreed, finding that Sikes had “yet to fully comply with and

successfully complete all of the requirements and conditions of the treatment

program ordered.”

       In June 2017, DeWaelsche contacted CCO Gail DeLaney after finding out

that Sikes gave more than $4,000 to a woman, “Chev,” for drinking, gambling,

and rent.2 DeWaelsche told Sikes on many occasions to cease contact with her.

After the discussion with DeWaelsche, CCC DeLaney met with Sikes. Sikes


      2 Chev is referred to by multiple names throughout the record, including
Chrep Vat, Chrissy, and Chev. The court will refer to her as Chev because it is
the most common.

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admitted to giving Chev money to buy alcoholic drinks at a casino and

accompanying her therein. CCO DeLaney told Sikes his SSOSA conditions

prohibited him from entering the casino. CCC DeLaney requested to meet with

Chev if Sikes had a relationship with her, but Sikes denied any romantic or

physical relationship.

       On September 13, 2017, Sikes admitted to CCC DeLaney that Chev had

two daughters, ages eighteen and two, who lived with her. Sikes admitted to

having contact with Chev’s younger daughter in his car and at Chev’s home on

multiple occasions. In particular, Sikes admitted that he drove Chev and her

daughter to Wild Waves and recreational parks. Sikes disclosed he had been in

the presence of Chev’s daughter both with and without her present, “having

verbal or physical contact with the children ‘40+ times.” Eventually, Sikes also

admitted that he had paid Chev to touch her breasts.

      CCC DeLaney spoke with Chev, who stated that she knew that Sikes was

a sex offender and that she didn’t “call him a boyfriend.” Chev confirmed that

Sikes had been to Wild Waves park and that Sikes had been alone with her

daughter.

      On September 28, 2017, CCC DeLaney filed a notice of violation,

recommending revocation of Sikes’s SSOSA. The State subsequently filed a

“Petition for Hearing to Determine Noncompliance with Condition or Requirement

of Sentence” grounded in six alleged violations. On October 25, 2017,

DeWaelsche terminated Sikes from his treatment program because of Sikes’s

continued relationship with Chev and after learning of the incident where Sikes



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paid to touch Chev’s breasts.

       On April 12, 2018, following two hearings, the trial court revoked Sikes’s

SSOSA. The court concluded that “Sikes, in violating his conditions, has shown

that he is not currently amenable to treatment in the community and his SSOSA

should be revoked in order to protect the community.” The court found that Sikes

       1. Fail[ed] to abide by the conditions of the Court and DCC by
       having contact with minors                  .


       2. Fail[ed] to abide by the conditions of the Court and DCC by
       frequenting areas where minors congregate                        .   .


       3. FaiI[ed] to abide by the conditions of the Court and DCC by
       failing to remain within     Pierce County.
                                       .   .   .                    .


       4. Fail[ed] to abide by the conditions of the Court and DCC by not
       informing [his CCC] of any romantic relationships to verify if there
       are no [sic] victim age children involved            .   .


       5. Fail[ed] to abide by conditions of the Court and DOC by
       purchasing alcohol  .   .; [and]
                                   .


       6. Fail[ed] to make satisfactory progress in treatment.

The court ordered that Sikes serve the remainder of his original sentence in

confinement. Sikes appeals.

                                                   DISCUSSION

       Sikes argues that the revocation of his SSCSA was not supported by

sufficient evidence because two of the community custody conditions on which

the trial court relied are improper. The State concedes that the condition

regarding “romantic relationships” is unconstitutionally vague and that the

condition pertaining to alcohol should be revised to prohibit only the

“consumption of alcohol.” However, the State argues that sufficient evidence

supports the revocation of Sikes’s SSCSA. For the reasons that follow, we

accept the State’s concessions with regard to dating relationships and

purchasing alcohol, and conclude that revocation was proper.


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                          Romantic Relationship Conditions

          Sikes argues that Appendix H (b) 20 ordering him to keep his CCC

apprised of “any romantic relationships” is unconstitutionally vague. The State

concedes and requests that we remand to the trial court to change the

condition’s language from “romantic relationship” to “dating relationship” in line

with recent precedent. “We review community custody conditions for an abuse of

discretion.” State v. Hal Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847

(2018).

          In Hai Minh Nguyen, our Supreme Court noted, in line with 2nd Circuit

precedent, that “romantic” is a highly subjective qualifier, but that community

custody conditions pertaining to “dating” relationships are distinguishable. Hai

Minh Nguyen, 191 Wn.2d at 682-83. A dating relationship, the court held, “is not

an unconstitutionally vague term.” Hai Minh Nguyen, 191 Wn.2d at 683. We

agree with Division III and hold that “romantic relationship” is vague and an

invalid community custody condition. See State v. Peters, No. 31755-2-Ill, slip

op. at 15 (Wash. Ct. App. September 17, 2019),

http://www.courts.wa.gov/opinions/pdf/317552 pub.pdf. Therefore, we accept

the State’s concession. We remand to the trial court to revise Appendix H (b) 20

to state: “Inform your community corrections officer of any dating relationships to

verify there are no victim-age children involved.”

                              Alcohol-Related Condition

       Sikes argues that the part of Appendix H (b) 14 prohibiting him from

purchasing alcohol is invalid because it is not crime-related. Under RCW



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9.94A.703(3)(f), the court may require the offender to “[cjomply with any crime-

related prohibitions.” A crime-related prohibition may prohibit only “conduct that

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

convicted.” ROW 9.94A.030(1 0). “The imposition of crime-related prohibitions is

generally reviewed for abuse of discretion.” State v. Armendariz, 160 Wn.2d

106, 110, 156 P.3d 201 (2007).

       Here, Appendix H (b) 14 prohibits Sikes from “purchas{ing], possess[ing],

or consum[ing] alcohol.” The record does not indicate that alcohol contributed to

Sikes’s crimes in any way. Therefore, Appendix H (b) 14 is not a valid crime-

related prohibition under RCW 9.94A.703(3)(f). For this reason, we accept the

State’s concession that the trial court should strike “purchase” from the condition.

       The State also concedes that the trial court should strike “possession”

from Appendix H (b) 14. However, Sikes does not challenge this part of the

condition, and under ROW 9.94A.703(3)(e), the court had discretion to impose a

community custody condition, whether crime-related or not, ordering Sikes to

“[rjefrain from possessing or consuming alcohol.” In other words, only Appendix

H (b) 14’s prohibition on the purchase of alcohol is invalid under the SRA.

Therefore, we do not accept the State’s concession that “possession” also should

be stricken.

                               SSOSA Revocation

       Sikes contends that—absent consideration of his violation of the two

invalid conditions discussed above—there is insufficient evidence to support




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revocation of his SSOSA. We disagree.

       RCW 9.94A.670 allows a ‘court [to] suspend the sentence of a first-time

sexual offender if the offender is shown to be amenable to treatment.” State v.

Miller, 159Wn. App. 911, 917, 247 P.3d 457 (2011). “Loss ofa SSOSA isa

significant consequence to defendants.” State v. Sims, 171 Wn.2d 436, 443, 256

P.3d 285 (2011). Even so, the trial court may revoke a SSOSA sentence “at any

time if there is sufficient proof to reasonably satisfy the court that the offender

has violated a condition of the suspended sentence orfailed to make satisfactory

progress in treatment.” State v. McCormick, 166 Wn.2d 689, 705, 213 P.3d 32

(2009) (emphasis added); RCW 9.94A.670(11). The court reviews revocation of

a suspended sentence for an abuse of discretion. McCormick, 166 Wn.2d at

705-06. “An abuse of discretion occurs only when the decision of the court is

‘manifestly unreasonable, or exercised on untenable grounds, or for untenable

reasons.” McCormick, 166 Wn.2d at 706 (quoting State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

       State v. McCormick is instructive here. McCormick was “convicted of first

degree rape of a child under the age of 12” and was granted a SSOSA.

McCormick, 166 Wn.2d at 693. McCormick regularly visited a food bank located

at a church with a grade school, thereby violating a SSOSA condition prohibiting

him from frequenting areas where minors congregate. McCormick, 166 Wn.2d at

693-94. McCormick appealed from the trial court’s revocation of his SSOSA, and

our Supreme Court ultimately held that the trial court did not abuse its discretion.

McCormick, 166 Wn.2d at 696-97. Specifically, the court held that sufficient



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evidence existed to justify revocation of McCormick’s SSOSA, observing that the

trial court could reasonably conclude that McCormick’s current and past

violations “presented a risk to the safety or welfare of society.” McCormick, 166

Wn.2d at 706.

       State v. Miller also is particularly instructive here. Miller was convicted of

rape of a child in the first degree. Miller, 159 Wn. App. at 915. Miller violated a

condition of his suspended sentence by being in a romantic relationship with a

woman whose minor son was blind and autistic. Miller, 159 Wn. App. at 915-16.

Miller appealed the revocation of his SSOSA. Miller, 159 Wn. App. at 915. We

concluded that the tria[ court had sufficient grounds for revocation because of

Miller’s relationship with the woman, the highly vulnerable child of the victim’s

age, and Miller’s failure to disclose the information to his CCO. Miller, 159 Wn.

App. at 919.

       Here, Sikes does not challenge the trial court’s findings that he: (1) left the

geographic area of Pierce County; (2) had contact with minors; (3) frequented

areas where minors congregate; and (4) failed to make satisfactory progress in

treatment. Therefore, these findings are verities on appeal. See State v. O’Neill,

148 Wn.2d 564, 571, 62 P.3d 489 (2003) (holding that “where [a trial court’s]

findings are unchallenged, they are verities on appeal”).

       Like the defendant in McCormick, Sikes frequented areas where victim

aged children were present. And, like the defendant in Miller, Sikes “flagrantly

disregarded some of the most serious conditions, other than committing a new

offense” by being alone with Chev’s victim-aged daughter, having contact with



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No. 80101-5-1110


Chev’s daughter, and visiting places that children frequent. Miller, 159 Wn. App.

at 919-20. Furthermore, like the defendant in Miller, Sikes continued the

relationship with Chev and her daughter despite warnings not to do so by both

CCO DeLaney and DeWaelsche. See Miller, 159 Wn. App. at 920.

       For these reasons, the trial court did not abuse its discretion in revoking

Sikes’s SSOSA or in concluding that any one of Sikes’s violations alone was

sufficient for revocation. Specifically and most importantly, Sikes had contact

with a minor child of his victims’ ages on many occasions and without others

present. Moreover, Sikes—who believed his previous offense was not harmful to

the victims because he gave the victims material goods—admitted to purchasing

items for Chev’s daughters. As a separate and sufficient reason for revocation,

the court found that Sikes failed to make satisfactory progress on treatment

because DeWaelsche discharged Sikes from his treatment program. Revocation

was proper.

       Sikes disagrees and points to the fact that therapist Paula van Pul stated

that Sikes was not a risk to the community and would benefit from her therapy

specifically for individuals with special needs, such as Sikes. But Sikes lied to

van Pul about the extent of his contact with Chev’s daughter, claiming it was only

“incidental,” and he failed to disclose the sexual contact between Chev and

himself. Therefore, Sikes’s reliance on van Pul’s statements is misplaced.

                          Aprlicability of House Bill 1783

      As a final matter, Sikes argues that the sentencing court’s imposition of a

$200 criminal filing fee and interest accrual was improper following the passage



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of House Bill 1783. We disagree.

       House Bill 1783 made the criminal filing fee inapRlicable to indigent

defendants and eliminated interest accrual on all nonrestitution legal financial

obligations. RCW 36.1 8.020(2)(h); RCW 3.62.040(5)(b) (‘penalties, fines, bail

forfeitures, fees, and costs imposed against a defendant in a criminal proceeding

shall not accrue interest”); see State v. Ramirez, 191 Wn.2d 732, 739, 426 P.3d

714 (2018). In Ramirez, our Supreme Court held that these amendments apply

prospectively to cases pending on appeal from judgment when House Bill 1783

was enacted. 191 Wn.2d at 747. Here, Sikes appeals from a revocation of a

suspended sentence, rather than from a final judgment. Therefore, Ramirez

does not control, and the original $200 fee and interest were not improper.

       We affirm the trial court’s revocation of Sikes’s SSOSA and its imposition

of the $200 criminal filing fee and interest. We remand to the trial court to

amend: (1) Appendix H (b) 20 to state: “Inform your CCO of any dating

relationships in order to verify there are no victim age children involved”; and (2)

Appendix H (b) 14 to state: “Do not possess or consume alcohol.”




WE CONCUR:




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