                                                                                                  FILED
                                                                                           CO?. i OF APPEALS
                                                                                                  P{



                                                                                                DIVIS 111 ii

                                                                                          2013 DEC - 3    AM 9: 2Q

                                                                                          STATIE OF WASHINGTON

                                                                                           BY .                   T




                                                                                                         UTY



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

STATE OF WASHINGTON,                                                                 No. 43746 -5 -II


                                   Respondent,                                 PUBLISHED OPINION


         V.



JONATHAN RYAN CLAPPER,




         BJORGEN, J. —       A jury found corrections officer Jonathan Ryan Clapper guilty of first

degree custodial sexual misconduct. Clapper appeals his conviction, asserting that the custodial

misconduct statute, RCW 9A.44. 160, is unconstitutionally vague because an ordinary person

cannot determine whether the statute applies to a corrections officer who had sexual intercourse


with a prison inmate. Holding that an ordinary person would clearly understand that the statute

applies to a corrections officer, we conclude that the statute is not unconstitutionally vague and

affirm the conviction.


                                                           FACTS


         In 2008, while working as a corrections officer at the Washington Corrections Center for
                                                              1
Women, Clapper       saw     two inmates, LR      and   RL,       trying to take items from a locked canteen cart

in the prison laundry room. When LR and RL saw Clapper, they asked him not to report the




1
    Pursuant   to RAP 3. 4   we refer   to the   victims   by their initials   to   maintain   confidentiality.
No. 43746 -5 - II



incident. Clapper agreed not to report the incident if LR and RL returned the items they had

taken from the cart.


         Several days later, Clapper told RL, " You and [ LR] are two beautiful women; you' re


lucky   I don' t bribe   you."   Report of Proceedings ( RP) at 234. That same day, Clapper

approached LR from behind while she was working alone in the prison laundry room and

sexually assaulted her. Afterwards, Clapper told her not to tell anyone about it, including RL.

The State charged Clapper with first degree custodial sexual misconduct.


         Before trial, Clapper moved to dismiss his charge, asserting that the custodial sexual

misconduct statute was unconstitutionally vague.2 The trial court denied his motion to dismiss.

At the close of the State' s case and at sentencing, Clapper again moved to dismiss his charge on

the same basis, which motions the trial court denied.


         At trial, the parties stipulated that Clapper had sexual intercourse with LR while Clapper


was a corrections officer and LR was an inmate. Jennifer Piukkula, a Department of Corrections

 Department) investigator and former corrections officer, testified about Clapper' s job duties as a


corrections officer. Piukkula testified that corrections officers monitor offenders on a daily

basis, supervise offenders' movement in the prison, conduct cell searches, and conduct pat-


downs of offenders to assure that they are not transporting contraband. Piukkula stated that

although corrections officers conduct cell searches, they must be first authorized by a unit

sergeant. Piukkula further testified that corrections officers are trained in restraint techniques


and,   if the   need arises, " are ...   expected   to   use   force to   restrain an   inmate."   RP at 206.




2
    Clapper. also moved before trial to dismiss his charge on the basis that the statute violated his
privacy right under article I, section 7, of the state constitution, which motion the trial court
denied. He does not reassert this argument on appeal and we do not address it.
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No. 43746 -5 -II



            Piukkula also testified that anyone working at the correctional facility, including

corrections officers, can "     infract"   an   inmate. RP   at   195.   She stated that an infraction is


 basically     an on -site adjustment   toward [ an offender' s]     behavior." RP at 196. Depending on the


severity of an offender' s behavior, a corrections officer may choose to give the offender only a

verbal warning. For conduct considered a major infraction, however, the corrections officer

must write a major infraction report. Following a unit sergeant' s review of the infraction report

and a formal due process hearing, an infraction may result in discipline, including the loss of

privileges, time in segregation, or the loss of good time credit.


            LR testified that she believed corrections officers monitored the activities of inmates and


that Clapper had monitored her activities while she worked in the prison laundry room. LR also

believed that she could be placed in segregation if a corrections officer caught her breaking a

rule. LR stated that she did not immediately report Clapper' s conduct because she " didn' t want

to   get   in trouble."   RP at 157. RL testified that she had begged Clapper to not report her for


stealing items from the canteen cart because she feared being placed in segregation and losing

her privileges:


            The jury returned a verdict finding Clapper guilty of first degree custodial sexual

misconduct. Clapper timely appeals.

                                                      ANALYSIS


            Clapper was convicted of violating RCW 9A.44. 160, which provides in

relevant part:




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No. 43746 -5 -II



           1) A person is guilty of custodial sexual misconduct in the first degree when the
          person has sexual intercourse with another person:
           a) When:
           i) The victim is a resident of a state, county, or city adult or juvenile correctional
          facility ... and
           ii) The perpetrator is an employee or contract personnel of a correctional agency
          and the, perpetrator has, or the victim reasonably believes the perpetrator has, the
          ability to influence the terms, conditions, length, or fact of incarceration or
          correctional supervision.




           2) Consent of the victim is not a defense to a prosecution under this section.

Clapper. asserts that this statute is unconstitutionally vague because an ordinary person could not

determine whether the phrase " the ability to influence the terms, conditions, length, or fact of

incarceration or correctional supervision" applies to a person working as a corrections officer in

a state correctional facility. Br. of Appellant at 7. We disagree.

          The due process vagueness doctrine under the Fourteenth Amendment to the United


States Constitution 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). " A


statute   is unconstitutionally     vague   if it `(1) ...   does not define the criminal offense with


sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) ...

does not provide ascertainable standards of guilt to protect against arbitrary enforcement."'

Bahl, 164 Wn.2d at 752 -53 ( quoting City ofSpokane v. Douglass, 115 Wn.2d 171, 178, 795 P. 2d

693 ( 1990)).        If either requirement is not satisfied, the statute is unconstitutionally vague. Bahl,

164 Wn.2d       at   753.   Clapper' s challenge rests only on the first of these requirements. He makes

no argument that the statute lacks ascertainable standards to protect against arbitrary

enforcement.




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No. 43746 -5 -II



        We presume that a statute is constitutional and the party challenging a statute for

vagueness carries the burden of proving its unconstitutionality. State v. Halstien, 122 Wn.2d

109, 118, 857 P. 2d 270 ( 1993).        A statute " 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."        City ofSeattle v. Eze, 111 Wn.2d 22, 27, 759 P. 2d 366 ( 1988).

Additionally, a statute is not unconstitutionally vague merely because some terms in the statute

are undefined.     State   v.   Lee, 135 Wn.2d 369, 393, 957 P. 2d 741 ( 1998). When the legislature


does not define a statutory term, we may rely on the dictionary definition to ascertain its

meaning. State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 ( 2001).

        Where, as here, a vagueness challenge to a statute does not involve First Amendment


rights, we evaluate the challenge under the particular facts of the case. Lee, 135 Wn.2d at 393.


We review the constitutionality of a statute de novo. State v. Abrams, 163 Wn.2d 277, 282, 178

P. 3d 1021 ( 2008).


        As noted, Clapper asserts that RCW 9A.44. 160 is unconstitutionally vague because an

ordinary   person could not        determine   whether   the term "[   t]he ability to influence the terms, -

conditions, length, or fact of incarceration or correctional supervision" would bring corrections

officers within its scope. Br. of Appellant at 7. He argues that, because a corrections officer in


his position lacks authority to directly alter an inmate' s " terms, conditions, length, or fact of

incarceration" and, instead, may only initiate the disciplinary process by writing an infraction,

this statutory language does not give fair warning that he could be subject to a criminal penalty

for engaging in sexual intercourse with an inmate. Br. of Appellant at 7.




                                                           5
No. 43746 -5 - II



        Clapper' s argument suffers from a number of flaws. First, as a corrections officer,


Clapper had the authority to detain inmates, search their cells, and supervise their activities and

the minutiae of their daily lives within the prison. These are all actions that directly affect the

conditions of an inmate' s incarceration. Further, if we accept Clapper' s argument that a


corrections officer does not have direct authority to alter an inmate' s terms and conditions of

confinement, the statute' s use of the term " influence" nonetheless defeats his claim. The


dictionary definition of "influence" is " to affect or alter the conduct, thought, or character of by

indirect   or   intangible   means,"   or " to have an effect on the condition or development of."

WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY 1160 ( 2002) ( emphasis                     added).   Issuance


of an infraction may result in a disciplinary hearing from which the inmate could be subject to a

loss of privileges, time in segregation, or loss of good time credits. Thus, a corrections officer' s


ability to issue an infraction can clearly, even if only indirectly, affect or alter an inmate' s terms,

conditions, and length of incarceration. The ability to directly influence the conditions of

custody through correctional supervision and to indirectly influence them through issuance of an

infraction unmistakably fall within the scope of RCW 9A.44.160. Therefore, an ordinary person

could determine from the statute' s plain terms that it forbids a corrections officer such as Clapper


from engaging in sexual intercourse with a prison inmate.

           Moreover, Clapper ignores the portion of RCW 9A.44. 160( 1)( a)( ii) that criminalizes


sexual intercourse with an inmate where the inmate " reasonably believes the perpetrator has ...

the ability to influence the terms, conditions, length, or      fact   of   incarceration." ( Emphasis added.)


As just shown, an ordinary person would clearly understand that a corrections officer supervising

inmates within a prison has the ability to influence the terms of incarceration. Thus, LR' s belief


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No. 43746 -5 -II



that Clapper had that ability was reasonable. For this reason also, the statute transparently

prohibited Clapper' s conduct.


        The statute at issue defines the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is proscribed. Therefore, under Bahl, 164 Wn.2d at 752 -53,


Clapper' s argument that RCW 9A.44. 160 is unconstitutionally vague must be rejected.

Accordingly, we affirm the conviction.


                                                              d0,,




                                                      B       GEN,
                                                          J




JOHANSON, A.U. J.

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