                                                                        FILED
                                                                COURT OF APPEALS DIV I
                                                                 STATE OF V/ASHI!!r_ii

                                                                2017 JUL 17 1N 9:07



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE

STATE OF WASHINGTON,                     )      No. 74358-9-1
                                         )
                    Respondent,          )
                                         )
          v.                             )
                                         )
HAI MINH NGUYEN,                         )      UNPUBLISHED OPINION
                                         )
                    Appellant.           )      FILED: July 17, 2017
                                         )

      VERELLEN, C.J. — Hai Minh Nguyen was charged with one count of first degree

rape of a child and one count of second degree rape of a child based on acts of oral-

genital contact and other acts of sexual intercourse. Nguyen was also charged with one

count of first degree child molestation and one count of second degree child molestation

based on other incidents not involving oral-genital contact. The jury was not instructed

that it must find Nguyen committed each count as a separate and distinct act from the

other counts charged. But because it was manifestly apparent to the jury that the State

was not seeking multiple punishments against Nguyen for the same act, there was no

double jeopardy violation.

      The trial court imposed a community custody condition prohibiting Nguyen from

possessing, using, accessing, or viewing any sexually explicit material, erotic material,

or any material depicting any person engaged in sexually explicit conduct. Because the
No. 74358-9-1-2

condition adequately warns Nguyen of the prohibited conduct and it is reasonably

related to the circumstances of his crimes, his challenge fails.

      The trial court imposed a community custody condition that imposed a curfew on

Nguyen. We accept the State's concession that this condition was not crime-related

and should be stricken.

       The trial court also imposed a community custody condition that Nguyen cannot

enter areas where minors are known to congregate as defined by the community

corrections officer. We agree with the parties that this portion of the condition is not

sufficiently definite to apprise Nguyen of the prohibited conduct and allows for arbitrary

enforcement by his community corrections officer.

       Therefore, we affirm and remand with instructions to strike special condition 7

and the unconstitutionally vague portion of crime-related prohibition 18.

                                          FACTS

       T.P. lived with her parents and little sister in a house in South Seattle.1 T.P.'s

mother worked long hours, and her father picked T.P. and her sister up from school

each day. Nguyen rented a bedroom in their house. Nguyen was employed, but he

would usually get home shortly after T.P. and her sister returned from school.

       Nguyen sexually abused T.P. for the first time when she was approximately six

years old. While T.P. was sitting on Nguyen's lap at the table, he massaged her breasts

underneath her shirt. When T.P. was six or seven years old, Nguyen put his mouth on




         I Because the victim in this case was a minor, she will be referred to by her
initials.


                                             2
No. 74358-9-1-3

her breasts.

       Beginning when T.P. was eight or nine years old, Nguyen began sexually

assaulting her on a regular basis. He performed oral sex on T.P. He penetrated her

vagina with his fingers.

       When T.P. was eleven years old, Nguyen followed T.P. into a spare bedroom

and penetrated her with his finger and penis.

       The final time Nguyen sexually assaulted T.P., she was thirteen years old. T.P.

testified Nguyen digitally penetrated her and put his mouth on her genitals.

       The State charged Nguyen with one count of first degree rape of a child, one

count of first degree child molestation, one count of second degree rape of a child, and

one count of second degree child molestation.

       The jury was provided separate to-convict instructions for each of the four

counts. Following each to-convict instruction, the jury was instructed it must

"unanimously agree as to which act has been proved."2 But none of the instructions

required the jury to find "an act separate and distinct" from the other counts. The jury

returned guilty verdicts on all counts.

       Nguyen appeals.

                                          ANALYSIS

                                     Double Jeopardy

       Nguyen contends the jury instructions violated his right against being placed in

double jeopardy because they allowed multiple punishments for the same act.




       2 Clerk's   Papers(CP)at 39, 42, 45, 48.


                                             3
No. 74358-9-1-4

       "The constitutional guaranty against double jeopardy protects a defendant

against multiple punishments for the same offense."3 This court reviews a double

jeopardy claim de novo, and it may be raised for the first time on appea1.4 We "may

consider insufficient jury instructions 'in light of the full record' to determine if the

instructions 'actually effected a double jeopardy error.'"5

       In State v. Land, this court recognized when an act of sexual intercourse involves

oral-genital contact only, if done for sexual gratification, that conduct is both molestation

and rape.6 Because they are the same in fact and in law, they are not separately

punishable.7 When both are charged, the jury instructions must require that the rape of

a child and child molestation counts be based on separate and distinct acts.° The

absence of such language presents the potential for double jeopardy.9 But there is no

violation of the defendant's guarantee against double jeopardy if, considering the

evidence, arguments, and jury instructions in their entirety, it is "manifestly apparent to

the jury that the State [was] not seeking to impose multiple punishments for the same

offense."1°



            v. Land, 172 Wn. App. 593, 598, 295 P.3d 782(2013)(citing U.S. CONST.
       3 State
amend. V; WASH. CONST. art.!, § 9).
       4   Id.
       5 Statev. Pena Fuentes, 179 Wn.2d 808, 824, 318 P.3d 257(2014)(quoting
State v. Mutch, 171 Wn.2d 646,664, 254 P.3d 803(2011)).
       6 172 Wn. App. 593, 600, 295 P.3d       782(2013).
       7 Id.

       8   Id. at 600-01.
       9 Id.

        Mutch, 179 Wn.2d at 664 (quoting State v. Berg, 147 Wn. App. 923, 931, 198
       19
P.3d 529 (2009)).


                                                4
No. 74358-9-1-5

      The State argues the rape of a child and child molestation crimes are not

identical offenses, and multiple punishments are authorized. The State asks us to

disagree with this court's "same in fact and in law" analysis in Land. But we need not

reach the State's argument disputing Land because we resolve this case under the

"manifestly apparent" theory.

       Nguyen contends it was not manifestly apparent to the jury that each conviction

was based on a separate and distinct act. We disagree.

       In State v. Perla Fuentes, the defendant was convicted of one count of first

degree rape of a child and two counts of first degree child molestation." The jury

instruction for the one count of rape of a child did not require that the conduct must have

occurred on an occasion separate and distinct from the child molestation charges.12

Our Supreme Court held "it was manifestly apparent that the convictions were based on

separate acts because the prosecution made a point to clearly distinguish between the

acts that would constitute rape of a child and those that would constitute child

molestation."13

       The Pena Fuentes court focused upon the clear election by the State in closing

argument:

               In the prosecutor's closing argument, he addressed count I (child
       rape) and identified the two specific acts that occurred at the condo that
       supported a child rape conviction. The prosecutor then addressed counts
       III and IV, which involved child molestation that occurred during the same
       time period as count I. The prosecutor clearly used "rape"and "child
       molestation" to describe separate and distinct acts. He divided Pena
       Fuentes's behaviors into two categories—the acts involving penetration,

      "179 Wn.2d 808, 823, 318 P.3d 257(2014).
       12   Id.
       13   Id. at 825.


                                             5
No. 74358-9-1-6

       which constituted rape, and the other inappropriate acts, which constituted
       molestation. And again, the defendant did not challenge the number of
       acts or whether the acts overlapped; he challenged only J.B.'s
       believability. The jury ultimately believed J.B.'s testimony regarding the
       various acts that occurred at the condo.[14]

In addition to the clear election in closing argument, the "manifestly apparent" cases

recognize other factors such as clear and distinct references to rape of a child and

molestation, separate to-convict instructions, the clarity of the evidence presented at

trial, and whether the defense challenged the credibility of the victim rather than the

number of acts or whether the acts overlapped.15

       Consistent with Pena Fuentes, the evidence,jury instructions, and closing

argument made it manifestly apparent to the jury that the State was not seeking to

punish Nguyen multiple times for a single act. T.P.'s testimony was clear about

separate instances of rape during the charging period before she was twelve and the

charging period after she was twelve. She testified that Nguyen digitally penetrated her

multiple times, the first time when she was eight or nine years old, and the last time

when she was thirteen. T.P. testified to one incident of penile penetration that occurred

when she was eleven years old. She also testified that Nguyen put his mouth on her

genitals on several occasions between the ages of nine and thirteen.

       In closing argument, the State clearly elected the acts it relied on for each count

and distinguished between the different charging periods:




       14Id. at 825-26 (emphasis added)(citations omitted).
      15 See id. at 825; Land, 172 Wn. App. at 602-03; State v Borsheim, 140 Wn. App.
357, 368, 165 P.3d 417(2007); State v. Wallmuller, 164 Wn. App. 890, 898-99, 265
P.3d 940 (2011); State v. Daniels, 183 Wn. App. 109, 118-21, 332 P.3d 1142(2014).


                                             6
No. 74358-9-1-7

              So what we're talking about in Count 1 is the times that the
       Defendant penetrated [T.P.], penetrated her vagina with his finger, prior to
       her turning twelve years old, and any of the many times the Defendant
       performed oral sex on [T.P.] prior to her turning twelve years old.[161

      The State also clearly elected the acts it relied on to support the first degree child

molestation count: "So for Count II, what we're talking about here are the many times

that the Defendant rubbed, massaged [T.P.]'s breasts prior to her twelfth birthday."17

       As to the second degree rape of a child count involving the second charging

period, the State noted, "Again, we talked about what sexual intercourse means. For

this particular charging period, again, we're talking about the many times the Defendant

penetrated [T.P.]'s vagina with his finger after she turns twelve and before he moves out

of the house in March 2013."18

       Finally, the State addressed the child molestation count based on the second

charging period:

       What we're talking about in Count[IV] are the times the Defendant
       touched, massaged, rubbed [T.P.]'s breasts after her twelfth birthday and
       before he left the house. That the Defendant himself admitted to in his
       statement when he said he rubbed her breasts[when]she was thirteen.[19]

       Similar to the prosecutor's closing remarks in Pena Fuentes, the State drew a

clear distinction between the alleged acts of rape of a child and child molestation. The

jury received separate to-convict instructions for each count, and the evidence

presented at trial did not blur or confuse the acts of sexual intercourse by oral-genital




       16   Report of Proceedings(RP)(Oct. 27, 2015) at 482.
       17 Id. at 483.

       18   Id. at 484.
       19   Id.


                                             7
No. 74358-9-1-8

contact with acts of other sexual contact. And, except for his admission of a single act

of touching T.P.'s chest through her clothes, Nguyen attacked T.P.'s credibility instead

of challenging the number of acts or whether the acts overlapped.

       Nguyen's attempts to distinguish Perla Fuentes are not persuasive. Nguyen

suggests the Pena Fuentes court relied on the prosecutor's division of the acts into two

categories: "acts involving penetration, which constituted rape, and the other

inappropriate acts, which constituted molestation.'"2° But Pena Fuentes is not so

narrow. The court emphasized the clarity of the State's closing remarks, not the specific

categories described by the prosecutor.21

       Relying on State v. Kier,22 Nguyen argues an election in closing cannot cure a

double jeopardy violation. But the Kier court merely noted that it could not "consider the

closing statement in isolation."23 Here, we do not rely on the State's closing argument in

isolation. As discussed, other factors recognized in the "manifestly apparent" cases are

also present.

       Alternatively, Nguyen contends the State's use of a unanimity instruction does

not cure a double jeopardy violation. Nguyen relies on State v. Borsheim.24 In that

case, this court held a unanimity instruction did not cure a double jeopardy violation

where the jury was given one single to-convict instruction for four separate identical



       20 Appellant's
                    Reply Br. at 7-8 (quoting Pena Fuentes, 179 Wn.2d at 825).
       21 Pena Fuentes, 179 Wn.2d at 826 ("Because of the clarity of the prosecutor's
closing argument, we believe. . . .")(emphasis added).
       22 164 Wn.2d     798, 194 P.3d 212(2008).
       23 Id. at 813(emphasis added).

       24   140 Wn. App. 357, 165 P.3d 417(2007).


                                            8
No. 74358-9-1-9

counts.25 But here, we do not rely on a unanimity instruction to resolve a separate and

distinct act requirement for identical counts, as was the case in Borsheim.

       Nguyen was not charged with identical counts, the jury received separate to-

convict instructions for each count, and the jury reached individual verdicts for each

count. Importantly, the State elected the acts on which it relied for each count. This

narrowed the jury's consideration to specific instances during two charging periods.

None of the acts the State elected for child molestation included oral-genital contact.26

       In conclusion, the State's closing argument was clear. There was no suggestion,

direct or indirect, that acts of sexual intercourse including oral-genital contact were the

basis for any of the counts of child molestation. The State clearly referred to the rape

charges and child molestation charges as distinct counts. And the defense focused on

the credibility of the victim rather than the number of acts or whether the acts

overlapped. It was manifestly apparent to the jury that the State was not seeking to

impose multiple punishments for the same act. Nguyen was not denied his right to be

free from double jeopardy.




       25   Id. at 370.
       26Nguyen's assignment of error and arguments address the lack of instruction
and need for the rape charges to be supported by acts separate and distinct from the
molestation charges. Nguyen does not assert a need for separate and distinct acts to
support multiple identical counts as addressed in Borsheim. See Borsheim, 140 Wn.
App. at 367; see Appellant's Br. at 1.


                                             9
No. 74358-9-1-10

                             Community Custody Conditions

       We review community custody conditions for abuse of discretion and "will reverse

them only if they are 'manifestly unreasonable.'"27 "Imposing an unconstitutional

condition will always be 'manifestly unreasonable.'"28

       (A) Special Condition 11: Sexually Explicit Material

       Nguyen argues the community custody provision prohibiting him from

possessing, using, accessing, or viewing sexually explicit and erotic materials is

unconstitutionally vague and is not crime related.

       The guarantee of due process in the Fourteenth Amendment to the United States

Constitution and article 1, section 3 of the Washington Constitution requires that laws not

be vague.29 "The laws must(1) provide ordinary people fair warning of proscribed

conduct, and (2) have standards that are definite enough to `protect against arbitrary

enforcement.'"3° A community custody condition is unconstitutionally vague if it fails to

do either.31 "However, `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."32

       Special condition 11 provides:




              v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830(2015)(quoting State v.
       27 State
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059(2010))
     28 Id. (quoting Sanchez Valencia, 169 Wn.2d at 791-92).

       28 State  v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008).
       38 Irwin, 191 Wn. App. at 652-53 (quoting id.).

       31 Id. at 653 (citing Bahl, 164 Wn.2d at 753).
       32 Id. (quoting Sanchez Valencia, 169 Wn.2d at 793).



                                            10
No. 74358-9-1-11

       Do not possess, use, access or view any sexually explicit material as
       defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050
       or any material depicting any person engaged in sexually explicit conduct
       as defined by RCW 9.68A.011(4) unless given prior approval by your
       sexual deviancy provider.[331

       Nguyen contends the prohibition in the condition is broad and gives no context

that would enable an ordinary person to understand what is disallowed. But the special

condition expressly references the statutory definitions for "sexually explicit materials,"

"erotic materials," and "material depicting any person engaged in sexually explicit

conduct."

       Unlike State v. Bahl, where our Supreme Court held that a community custody

condition allowing the supervising community corrections officer to define "sexual

stimulus material" was unconstitutionally vague,34 the condition in this case does not

require further definition. Here, the condition allows a sexual deviancy provider to give

Nguyen prior approval to possess such material, but does not give the provider or

community corrections officer the authority to determine the definition of the prohibited

material. Consistent with the statutory definitions, the terms are not beyond the

understanding of an ordinary person.35

       Alternatively, Nguyen argues the condition is not crime-related.

       We review the factual basis for crime-related conditions under a "substantial

evidence" standard.36 Reviewing courts will strike community custody conditions when


       33 CP   at 65.
       34   164 Wn.2d 739, 761, 193 P.3d 678 (2008).
       35 Nguyen contends the statutory definitions of "sexually explicit material,"
"sexually explicit conduct," and "erotic material" could lead to uncertainty, but cites no
authority for his hypothetical scenarios. See Appellant's Br. at 23-26.
       36   Irwin, 191 Wn. App. at 656.


                                             11
No. 74358-9-1-12

there is no evidence in the record that the circumstances of the crime related to the

community custody condition.37 Courts will uphold crime-related community custody

decisions when there is some basis for the connection.38 There is no requirement that

the prohibited activity be factually identical to the crime.39 Conditions regarding "access

to X-rated movies, adult book stores, and sexually explicit materials" are crime-related

and properly imposed for sex offenses.4°

       Here, Nguyen was convicted of rape of a child and child molestation based on

numerous acts over several years. Viewed in a light most favorable to the State, these

constituted acts of sexual deviancy involving the inability to control sexual conduct.

Whether viewed under the sufficiency of the evidence or abuse of discretion standard,

Nguyen's criminal conduct is reasonably related to restricting access to sexually explicit

or erotic material because of the inherent sexual nature of the materials.

       We conclude that the condition prohibiting Nguyen from possessing, using,

accessing, or viewing any sexually explicit material, or erotic material, or any material

depicting any person engaged in sexually explicit conduct as defined by statute is not

unconstitutionally vague and is reasonably related to the circumstances of Nguyen's

crimes.

      (B)Special Condition 7 and Crime-Related Prohibition 18

       The State concedes that special condition 7 requiring Nguyen to abide by a

curfew is not sufficiently crime-related and should be stricken. We agree.


       37   Id. at 656-57.
       38   Id. at 657.
       39   Id. at 656-57.
       40 State v. Maqana, 197 Wn. App. 189, 201, 389 P.3d 654 (2016).


                                            12
No. 74358-9-1-13

       Nguyen argues crime-related prohibition 18 is unconstitutionally vague because it

insufficiently apprises him of prohibited conduct and allows for arbitrary enforcement.

The condition provides,"Do not enter any parks/playgrounds/schools and or any places

where minors congregate."'"

       A condition that orders a defendant not to frequent areas where minor children

are known to congregate without specifying the exact off-limits locations is

unconstitutionally vague.42

       The State concedes that the "or any place where minors congregate" portion of

the prohibition should be stricken, but argues the first clause,"Do not enter any

parks/playgrounds/schools" is sufficiently definite and need not be stricken. We agree.

"Parks," "playgrounds," and "schools where children congregate" are commonly

understood terms.

       We conclude the portion of prohibition 18 reading, "any places where minors

congregate" shall be stricken on remand,43 but the trial court may preclude Nguyen from

entering parks, playgrounds, or schools where children congregate."

                                      Appellate Costs

       Appellate costs are generally awarded to the substantially prevailing party.45

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



       41   CP at 65.
       42   Irwin, 191 Wn. App. at 655.
       43 State  v. Johnson, 180 Wn. App. 318, 329, 327 P.3d 704(2014)(Division Two
of this court remanded and ordered the trial court to either clarify a term in the condition,
or strike the portion of the condition using that term.).
       44 See   Irwin, 191 Wn. App. at 654-55.
       45   RAP 14.2.


                                             13
No. 74358-9-1-14

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."46

       Here, Nguyen was found indigent on appeal by the trial court. If the State has

evidence indicating Nguyen's financial circumstances have significantly improved since

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

the State is not entitled to appellate costs.

                       Statement of Additional Grounds for Review

       In his statement of additional grounds for review, Nguyen denies that the events

occurred, asserts he has not threatened or harmed anyone, and believes the jury

already believed he was guilty. But these general statements do not support any relief

on appeal.

       We affirm and remand with instruction to strike special condition 7 and the
  ,
unconstitutionally vague portion of crime-related prohibition 18 from appendix H of the

judgment and sentence.




WE CONCUR:



  cr"
       46   Id.


                                                14
