                                                              IlLED
                                                       COURT OF APPEALS DIV!
                                                        STATE OF WASH1N6TON

                                                       2018 AUG -6 AM (0: 141



 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                                  No. 79456-0-I
                     Respondent,
                                                  DIVISION ONE
              V.
                                                  UNPUBLISHED OPINION
MATTHEW JOSEPH METCALF,

                     Appellant.                   FILED: August 6, 2018


       TRICKEY, J. — Matthew Metcalf pleaded guilty to four counts of second
degree child molestation. The trial court imposed community custody conditions

that in part prohibited Metcalf from possessing or viewing pornography or sexually

explicit material; entering into any dating, romantic, or;sexual relationships without

the express written approval of his community corrections officer (CCO); and

entering into any dating, romantic, sexual, or friend relationships with adults with

minor children without the express written approval of his CCO. Because the terms

"pornography" and "romantic" are unconstitutionally vague in the context of

Metcalfs community custody conditions, we reverse in part and remand. We

otherwise affirm.

                                       FACTS

       Metcalf pleaded guilty to four counts of second degree child molestation.

The victims were not related to him.
          No. 76456-0-1/ 2
                      ,
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                ‘
                      'MetCalts"judgiiidn't and 'tentence',- the 'trial coUrt imposed several

          community custody conditions. The conditions included:

                    6. Do not possess or view any pornography or sexually explicit
                    material.
                    7. Do not enter into any dating, romantic, or sexual relationships
                    without the express written approval of your[CCO].
                    8. Do not enter into any dating, romantic, sexual, or friend
                    relationships with people who have minor children without the
                    express written approval of your[CCO].[1]

                    Metcalf appeals.

                                               ANALYSIS

                                       Unconstitutional Vagueness

                    Metcalf argues that the trial court abused its discretion when it imposed

          community custody conditions containing unconstitutionally vague terms. We

          examine each of the challenged terms in turn.

                    "[T]he due process vagueness doctrine under the Fourteenth Amendment

          and article I, section 3 of the state constitution requires that citizens have fair

          warning of proscribed conduct." State v. Bahl, 164 Wn.2d 739,752, 193 P.3d 678

         (2008). Thus, laws must both "`(1) provide ordinary people fair warning of

          proscribed conduct and (2) have standards that are definite enough to 'protect

          against arbitrary enforcement." State v. Irwin, 191 Wn. App. 644, 652-53, 364

          P.3d 830 (2015)(internal quotation marks omitted)(quoting Bahl, 164 Wn.2d at

          752-53).

                    When determining whether challenged language is sufficiently definite to

          provide fair warning, the reviewing court must read the language in context and



         'Clerk's Papers(CP) at 41.
No. 76456-0-1 / 3

give it a "sensible, meaningful, and practical interpretation." City of Spokane v.

Douglass, 115 Wn.2d 171, 180, 795 P.2d 693(1990). If a term is undefined, "the

court may consider the plain and ordinary meaning as set forth in a standard

dictionary." Bahl, 164 Wn.2d at 754.

         "[A] community custody condition is not unconstitutionally vague merely

because a person cannot predict with complete certainty the exact point at which

his actions would be classified as prohibited conduct." State v. Sanchez Valencia,

169 Wn.2d 782, 793, 239 P.3d 1059 (2010) (internal quotation marks omitted)

(quoting State v. Sanchez Valencia, 148 Wn. App. 302, 321, 198 P.3d 1065

(2009)). Rather, a community custody condition is sufficiently definite if persons

of ordinary intelligence would understand what behavior is proscribed. Douglass,

115 Wn.2d at 179.

         "This court reviews community custody conditions for abuse of discretion."

Irwin, 191 Wn. App. at 652. "Imposing an unconstitutional condition will always be

'manifestly unreasonable." Irwin, 191 Wn.App. at 652(quoting Sanchez Valencia,

169 Wn.2d at 792).

         Pornography

         Metcalf argues that the trial court abused its discretion when it imposed a

community custody condition prohibiting him from possessing or viewing

"pornography."2      Community custody conditions that restrict "accessing or

possessing pornographic materials" are unconstitutionally vague.         Bahl, 164

Wn.2d at 758. Therefore, we conclude that the trial court abused its discretion,



2   CP at 41.
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No. 76456-0-1/4

and remand for the trial court to strike the term from the community custody

condition.

       Sexually Explicit Material

        Metcalf argues that the trial court abused its discretion when it imposed a

community custody condition prohibiting him from possessing or viewing "sexually

explicit material" because the term "sexually explicit material" is unconstitutionally

vague.3 We disagree.

       Community custody conditions that implicate material protected under the

First Amendment are held to a stricter standard of definiteness to avoid a chilling

effect on the exercise of First Amendment rights. Bahl, 164 Wn.2d at 753.

       The dictionary definition of "explicit" is "characterized by full clear

expression : being without vagueness or ambiguity . . . UNEQUIVOCAL."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 801 (2002).

       In Bahl, the Washington Supreme Court upheld a community custody

condition that prohibited the defendant from frequenting "establishments whose

primary business pertains to sexually explicit or erotic material." 164 Wn.2d at

758. The court relied on the dictionary definition of "explicit" to conclude that the

term "sexually explicit" was not unconstitutionally vague in the context of the

community custody condition. Bahl, 164 Wn.2d at 758-60. The court also looked

to the statutory definition of "sexually explicit material" under RCW 9.68.130(2)4 to


3 CP at 41.
4 ROW 9.68.130(2) defines "sexually explicit material" as
       any pictorial material displaying direct physical stimulation of unclothed
       genitals, masturbation, sodomy (i.e. bestiality or oral or anal intercourse),
       flagellation or torture in the context of a sexual relationship, or emphasizing
       the depiction of adult human genitals: PROVIDED HOWEVER,That works
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No. 76456-0-1 /5

support its conclusion, although it noted that the defendant was not convicted

under the statute. Bahl, 164 Wn.2d at 759-60.

       Here, the community custody condition imposed on Metcalf prohibited him

from possessing or viewing sexually explicit material. Under the reasoning in Bahl,

the dictionary definition of "explicit" renders the term "sexually explicit material" not

unconstitutionally vague, as it applies only to material that is unequivocally sexual

in nature. Thus, it sufficiently warns Metcalf of what material is within the scope of

the community custody condition, and prevents arbitrary enforcement of the

condition by his CCO. But on remand, the trial court may consider adding

additional language or statutory references to provide further clarification of what

material is prohibited.

       Romantic Relationships

       Metcalf argues that the trial court abused its discretion when it imposed

community custody conditions prohibiting him from entering into "romantic"

relationships without the consent of his CCO because the term is unconstitutionally

vague.5 We agree.6

       The dictionary definition of "romantic" is, in relevant part, "consisting of or

similar in form or content to a romance . . .: having an inclination or desire for



       of art or of anthropological significance shall not be deemed to be within
       the foregoing definition.
5 CP at 41.
6 Metcalf also argues that the term "dating" is unconstitutionally vague in the heading of
the relevant section of his opening brief. Appellant's Opening Br. at 12. But he does not
provide substantive argument in support of this contention. See Appellant's Opening Br.
at 12; see also Appellant's Reply Br. at 9-10 (reference to "dating" without substantive
argument that it is unconstitutionally vague). Because Metcalf has not provided
substantive argument in support of his claim, we decline to address this issue. RAP
10.3(a)(6).
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No. 76456-0-1/6

romance...: characterized by a strong personal sentiment, highly individualized

feelings of affection, or the idealization of the beloved or the love relationship."

WEBSTER'S, supra, at 1970.

       The dictionary definition of the related term "romance" is, in relevant part,

"the quality or state of being romantic. . . : a love, love affair, or marriage of a

romantic nature...:LOVEMAKING...:an attraction or aspiration of an emotional

or romantic character. ..: to seek the favor or influence of by personal attention,

flattery, or gifts." WEBSTER'S, supra, at 1969-70 (internal footnotes omitted).

       Here, based on the dictionary definitions of "romantic" and the related term

"romance," a romantic relationship includes heightened feelings of affection toward

an individual, rising to the level of love. Such feelings are inherently unique to an

individual, making the existence of a romantic relationship highly subjective. Given

this subjectivity, the dictionary definitions of "romantic" and the related term

"romance" fail to provide ordinary people with fair warning of the conduct

proscribed by the community custody conditions. Further, relying on the outside

perspective of Metcalf's CCO to determine whether Metcalf is exhibiting such

subjective emotions does not protect him from arbitrary enforcement of the

conditions.

       Therefore, we conclude that the trial court abused its discretion when it

imposed the community custody conditions because the term "romantic" is

unconstitutionally vague.    On remand, the trial court should strike the term

"romantic" from the conditions in which it appears.




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No. 76456-0-1/7

       Friend Relationships

       Metcalf argues that the trial court abused its discretion when it imposed a

community custody condition prohibiting him from entering into "friend"

relationships with people who have minor children without the consent of his CCO.

Because the dictionary definition of "friend" provides sufficient guidance about

what types of relationships are within the scope of the condition, we disagree.

       The dictionary definition of "friend" is, in relevant part,

       one that seeks the society or welfare of another whom he holds in
       affection, respect, or esteem or whose companionship and
       personality are pleasurable : an intimate associate esp. when other
       than a lover or relative. . .: one not hostile or not an enemy.. . : a
       favored date : a boyfriend or girlfriend.. . .

              . . . FRIEND applies to a person one has regarded with liking
       and a degree of respect and has known for a time in a pleasurable
       relationship neither notably intimate nor dependent wholly on
       business or professional ties.

WEBSTER'S, supra, at 911.

       Here, the dictionary definition of "friend" applies to relationships Metcalf

seeks because he enjoys the company of another, or because he holds an

individual in some "affection, respect, or esteem." WEBSTER'S, supra, at 911. It

specifically excludes relationships that are notably intimate or are developed

through business or professional ties. The broad scope of the dictionary definition

of "friend," along with its specific exclusions, is sufficient to notify Metcalf of when

he must seek his CCO's approval prior to entering certain relationships and

prevents arbitrary enforcement of the condition by his CCO. Therefore, we

conclude that the term "friend" is not unconstitutionally vague in the context of the



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No. 76456-0-1/ 8

community custody condition requiring Metcalf to obtain the permission of his COO

prior to entering into "friend" relationships with adults who have minor children.

       In sum, we agree with Metcalf that the trial court abused its discretion when

it imposed community custody conditions containing unconstitutionally vague

terms. Therefore, on remand,the trial court should strike the terms "pornography"

and "romantic" where relevant. We also conclude that although the term "sexually

explicit material" is not unconstitutionally vague, the trial court may add additional

language or statutory citations to clarify the scope of the term on remand. We

affirm the trial court's imposition of the community custody condition requiring

Metcalf to obtain the permission of his CCO prior to entering into "friend"

relationships with adults who have minor children.

                       Infringement of Constitutional Rights

       Metcalf argues that the trial court interfered with his constitutional rights to

parent and to many when it did not exempt his wife and children from the

community custody condition prohibiting him from entering into various

relationships with people who have minor children without the consent of his COO.

Because Metcalf failed to object to the community custody condition on this ground

below and has not shown on appeal that any error was manifest, we decline to

reach the merits of this issue.

      "The rights to marriage and to the care, custody, and companionship of

one's children are fundamental constitutional rights." State v. Warren, 165 Wn.2d

17, 34; 195 P.3d 940(2008).




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No. 76456-0-1/ 9

       An appellant may raise a claim of "manifest error affecting a constitutional

right" for the first time on appeal. RAP 2.5(a)(3). "[T]he appellant must 'identify a

constitutional error and show how the alleged error actually affected the

[appellant]'s rights at trial." State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756

(2009)(second alteration in original) (quoting State v. Kirkman, 159 Wn.2d 918,

926-27, 155 P.3d 125 (2007)). "To demonstrate actual prejudice, there must be a

'plausible showing by the [appellant] that the asserted error had practical and

identifiable consequences in the trial of the case." O'Hara, 167 Wn.2d at 99

(alteration in original)(quoting Kirkman, 159 Wn.2d at 935).

       Here, Metcalf did not object to the imposition of the community custody

condition prohibiting him from entering various relationships with people who have

minor children on the ground that it interfered with his constitutional rights.

Therefore, on appeal, he bears the burden of both identifying a constitutional right

that was infringed and establishing that the error was manifest.

       Metcalf has identified his constitutional rights to parent and to marry, and

thus has likely satisfied the first prong of his burden. But he has not argued on

appeal that the error was manifest. Rather, his arguments focus exclusively on

the existence of the constitutional rights he asserts. Because Metcalf has not

carried his burden of establishing that the claimed constitutional error was

manifest, we decline to review his argument on appeal under RAP 2.5.




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No. 76456-0-1/10

     Affirmed in part, reversed in part, and remanded.




WE CONCUR:




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