State Of Washington, V Teri Michael Talbot ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
November 21, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49381-1-II
Respondent,
v.
TERI MICHAEL TALBOT, UNPUBLISHED OPINION
Appellant.
LEE, J. — Teri Michael Talbot appeals his conviction for attempted second degree child
molestation and sentence imposing community custody conditions. Talbot argues that (1) there
was insufficient evidence to show that he (a) intended to have sexual contact, and (b) took a
substantial step towards committing the crime; and (2) the sentencing court improperly imposed
community custody conditions that prohibited him from possessing any devices with internet
access and from accessing the internet without permission. We affirm.
FACTS
A. THE UNDERCOVER OPERATION
On September 18, 2015, the Vancouver Police Department initiated an undercover
operation to “to identify subjects that had a sexual interest in children” and “who would take steps
towards fulfilling or acting on those desires.” 2 Verbatim Report of Proceedings (VRP) at 113-
14. Detective Robert Givens posted an online ad stating, “Single Mom looking for discreet friend
No. 49381-1-II
for daughter. no role playing. hopeful for someone kind and gentle she can learn from.” Clerk’s
Papers (CP) at 18. Detective Givens initially acted as the mom, Ellie O’Reilly.1
B. THE COMMUNICATIONS
On September 18, Talbot responded to the online ad. Talbot was 59 years old when he
responded to the online ad. He stated, “Hi I saw your post is this for real if so I would love to
teach her anything she wants.” CP at 109. Ellie responded by saying that she was looking for
“someone gentle and patient” and that her daughter was “very young and inexperienced, but a very
pretty little girl.” CP at 109. Ellie then asked if Talbot was still interested and he said that he was
“very gentle and not in a hurry . . . I am older and can take my time with her and can maybe help
her in other ways. $.” CP at 110.
On September 21, Ellie messaged Talbot and said, “She is very young. is that something
you are comfortable with?” CP at 110. Talbot said, “Yes I am interested.” CP at 110. Talbot
later asked to meet Ellie “ and talk then [they could] go from there.” CP at 111. Ellie said she
would like to meet in person, but wanted to get to know Talbot better first.
Ellie then asked Talbot what he would do so she would know he is gentle. Ellie said, “My
girl will be 13 in December, so it will take a very patient man.” CP at 111. Talbot responded by
saying, “Well I would have to know what it is you are looking for. I would rather talk in person
not here on the net. Give me an idea of what you want.” CP at 111. And he said that he understood
Ellie wanted to get to know him better before agreeing to meet, that he “could get in trouble for
this,” and that he had to protect himself too. CP at 112.
1
Ellie O’Reilly is a fictitious person, but for the purposes of clarity, this opinion will refer to any
law enforcement officer posing as Ellie O’Reilly as Ellie.
2
No. 49381-1-II
Ellie then asked Talbot if he had done this before. Talbot said no, and said, “May I ask
why start at this age?” CP at 112. Ellie stated that her daughter had asked her about sex, had been
watching pornography, and had been engaging in sex chats with boys. Talbot then said that he
would still like to meet Ellie, “sit down and talk and if it is OK then we can go from there.” CP at
113.
On September 22, Ellie messaged Talbot and asked him what his plan was to give her
daughter “a good and gentle experience.” CP at 118. Talbot responded that he “really [didn’t]
want to say anything on hear [sic] I would rather speak in private. If someone else saw the [sic]
we both would be in big trouble so I want to meet and talk” in public. CP at 119. Ellie proposed
using cell phones. She also said, “i just want to be very clear. u do understand this is about my
daughter and not me right?” CP at 119. Talbot responded by saying they should meet for coffee,
should be comfortable with each other first, and that he understood it was about the daughter, but
“what if I am interested in [you too].” CP at 119. Ellie said that “this is only about her rite now.
this is for my girl, not me. i hope u understand.” CP at 120. Talbot said he understood it was only
about the daughter and that “if we can get together I would be able to give her a wonderful
experience gentle and pleasurable.” CP at 120.
Ellie then asked about Talbot’s plan regarding protection. Talbot stated that he “was fixed
years ago I can’t make baby’s [sic] anymore.” CP at 120. Talbot then became suspicious and
asked Ellie if she worked for “2020 [sic].” CP at 120. Ellie assured Talbot that she did not work
for 20/20 and asked Talbot if he was a cop. Talbot said no and asked, “So how would you like to
go forward?” CP at 120.
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No. 49381-1-II
Ellie proposed taking her daughter out of school, meeting with Talbot first, and then if
everything was okay, go back to her home and meet her daughter. Talbot said, “I will do this but
I want to meet you first.” CP at 120. Ellie agreed and said, “[W]e can meet somewhere first and
if either of us dont feel 100% ok, we can just walk away.” CP at 120. Talbot agreed and said Ellie
could come to his place or they could meet somewhere else.
On September 24, Ellie messaged Talbot and he asked her what she had planned. Ellie
asked Talbot if he was still interested in helping them out and Talbot said, “Yes but we do have to
meet and talk.” CP at 121. Ellie then asked if Talbot was willing to go right back to her apartment
after they met and talked. Talbot said, “Yes if everything is fine let’s talk first.” CP at 121. Ellie
asked Talbot, “i think we established that she is staying home from soccer to start lessons with u
rite?” CP at 121. She then asked Talbot if he could pick up some lubrication. Talbot responded,
“Can you pick it up . . . Or we can do it on the way back to your place.” CP at 121. Ellie also
asked, “[A]re you going to be ok to starting tonite?” CP at 121. Talbot responded, “If everything
is OK yes . . . Let her go [to soccer and] we can do this when she gets home.” CP at 121.
Later that day, Ellie called Talbot and asked to meet at a coffee shop.2 Ellie and Talbot
agreed to meet at a coffee shop at 4:00 PM.
During this conversation, Talbot said he had “never been with a child” and,
I thought when I read the ad it was a mother and daughter of age and they were
wantin’, you know, and then when you came up with that I’m going well okay wait
a minute. How - what - huh? What? Okay? Yeah well that’s every guy’s ultimate
fantasy, you know, and you know, I’m just going - I - I - I just have to be sure.
2
Investigator Maggi Holbrook acted as Ellie over the phone.
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No. 49381-1-II
CP at 127-28. When Ellie mentioned that she did not want her daughter to be afraid of sex or
afraid of men, Talbot responded:
And I would and I would also if you remember your first time for two or three days
after, you walked bow legged and sore and swollen. I would not want that for her.
It would be very slow and easy and it wouldn’t be the very first time that everything
happened. It would be gradual so that the active penetration doesn’t wear her raw
and make her sore. She would be used to it, um, this isn’t just a one-time shot –
bam deal.
CP at 129. He also stated that the “first time it would be sitting and talking and feeling and touching
and exploring” and “a little, you know, little licking and sucking.” CP at 137.
Talbot also asked Ellie if there was a possibility for him and her “further down the line.”
CP at 134. Ellie reminded Talbot that it was about her daughter and that it would be too weird to
be with someone who had been with her daughter. Ellie then raised the issue of condoms. Talbot
said he was not willing to use a condom. Ellie again asked Talbot to bring some lubricant with
him because even touching and exploring can get her daughter “raw.” CP at 137.
Just after 4:00 PM, Talbot entered the coffee shop, looked around, and walked outside.
Talbot was then arrested. He did not have any physical evidence on him.
On September 28, Talbot was charged with attempted second degree child rape. On June
8, 2016, the information was amended to include attempted second degree child molestation.
C. TRIAL
On June 8, a bench trial was held.3 The online ad, the messages, and phone call between
Talbot and Ellie were admitted into evidence.
3
Talbot waived his right to a jury trial.
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No. 49381-1-II
1. Testimony of Detective Givens
At trial, Detective Givens testified to his posting of the online ad, his interactions as Ellie
with Talbot during the messaging part of the undercover operation, and Talbot’s eventual arrest.
Talbot never asked to meet the daughter prior to a meeting with Ellie. The agreement between
Talbot and Ellie was to meet first, and be sure or walk away. The tone and wording of the messages
made it clear that the objective of the meeting between Talbot and Ellie was for Talbot to have sex
with the daughter. And when planning the operation, “it was decided that showing up at the meet
location was the substantial step.” 3 VRP at 171-72.
2. Testimony of Sergeant Graaff
Sergeant Joseph Graaff testified that he supervised the cyber-crimes unit of the Vancouver
Police Department. He assisted in the investigation and arrest of Talbot. Graaff believed that if
Talbot showed up to meet Ellie to plan on going to her apartment, it would be a substantial step.
Graaff also testified that the State proposing a meeting first, and if the person was not 100% sure,
they could walk away, could give the impression of an “out.” 3 VRP at 206. Graaff later testified
that considering the context of the entire chat, such language was not confusing at all and was a
very small piece of the overall picture of meeting to have sex with a child once they went back to
her home.
3. Testimony of Investigator Holbrook
Investigator Holbrook testified that she assisted Detective Givens by being Ellie on the
phone conversation with Talbot. The topic of the conversation was about sexual contact with a
minor, but the agreement between Talbot and Ellie was to first meet and talk. Holbrook got the
sense that Talbot was anxious to meet Ellie for the purpose of having contact with Ellie’s daughter.
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No. 49381-1-II
D. VERDICT AND SENTENCING
The trial court concluded that Talbot was not guilty of attempted second degree child rape
but guilty of attempted second degree child molestation.4 The trial court incorporated Talbot’s
communications with Ellie into its findings of fact. The trial court determined:
The Defendant took a substantial step toward the commission of the crime of Child
Molestation in the Second Degree at approximately 4:00 p.m. on September 24, 2015, by
driving to and entering into the Starbucks pursuant to an agreement to meet Ellie O’Reilly
at that time and location.
CP at 142 (Conclusion of Law 2.2).
The trial court did not enter a conclusion of law regarding Talbot’s intent to commit
attempted second degree child molestation. However, in its oral ruling, the trial court concluded
that Talbot saying that he was going to go easy and slow to not harm the child, and that the sexual
contact would involve touching, licking, and sucking, was evidence that sexual contact was to be
had with the 12 to 13 year-old child. The trial court also concluded that Talbot’s references to him
not wanting the child to be raw and sore was evidence that he intended to have sexual intercourse
with the child.
The trial court sentenced Talbot to 11.25 months of total confinement, 12 months of
community custody with a list of community custody conditions, $600 in mandatory legal financial
obligations, and HIV testing. As part of his community custody conditions, the trial court required
Talbot to obtain a sexual deviancy evaluation, comply with any recommended treatment, and
prohibited him from “possess[ing] any electronic device capable of accessing the internet without
4
The trial court concluded that Talbot did not take a substantial step towards raping the child, and
thus, he was not guilty of attempted second degree child rape.
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No. 49381-1-II
prior approval of DOC and [his] sexual deviancy treatment provider” and from “access[ing] the
internet without prior approval of [the] DOC and [his] sexual deviancy treatment provider.” CP
at 97.
Talbot appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
1. Legal Principles
To sustain a conviction, the State must prove all the elements of an offense beyond a
reasonable doubt. In re Matter of Winship, 397 U.S. 358, 363–64, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970). To determine if there is sufficient evidence to support a conviction, this court views
the evidence in the light most favorable to the prosecution and determines whether any rational
fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Homan,
181 Wash. 2d 102, 105, 330 P.3d 182 (2014). A sufficiency challenge admits the truth of the State’s
evidence and all reasonable inferences drawn from it. Id. at 106. All such inferences “‘must be
drawn in favor of the State and interpreted most strongly against the defendant.’” Id. (quoting
State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992)). Circumstantial evidence and direct
evidence are equally reliable. State v. Farnsworth, 185 Wash. 2d 768, 775, 374 P.3d 1152 (2016).
We review challenges to a trial court’s conclusions of law de novo. Homan, 181 Wash. 2d at
106. We defer to the fact finder on issues of conflicting testimony, witness credibility, and the
persuasiveness of evidence. State v. Ague–Masters, 138 Wash. App. 86, 102, 156 P.3d 265 (2007).
If there is insufficient evidence to prove an element of a crime, reversal is required. State v. Smith,
155 Wash. 2d 496, 505, 120 P.3d 559 (2005).
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No. 49381-1-II
Under RCW 9A.44.086(1), a person is guilty of second degree child molestation “when
the person has, or knowingly causes another person under the age of eighteen to have, sexual
contact with another who is at least twelve years old but less than fourteen years old and not
married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.”
A person is guilty of attempt of a crime if “with intent to commit a specific crime, he or she does
any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020(1).
2. Criminal Intent
Talbot argues that he was only contemplating having sexual contact with a 12-year-old girl
and the evidence was insufficient to show that he had formed the intent to do so. We disagree.
The intent required for an attempt crime is the intent to accomplish the criminal result of
the base crime. State v. Johnson, 173 Wash. 2d 895, 899, 270 P.3d 591 (2012). “We look to the
definition of the base crime for the requisite criminal result.” Id. For attempted second degree
child molestation, the person must intend to have “sexual contact with another who is at least
twelve years old but less than fourteen years old and not married to the perpetrator and the
perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.086(1).
Here, the evidence shows that Talbot knew Ellie’s daughter was 12 years old, and that Ellie
was asking Talbot to have sexual contact with her daughter. Talbot confirmed with Ellie that “I
will do this but I want to meet you first,” in reference to having sex with Ellie’s daughter. CP at
120. Talbot told Ellie, “Let her go [to soccer and] we can do this when she gets home.” CP at
121. Talbot also told Ellie that he would not use a condom, but that he would be gradual with her
daughter “so that active penetration doesn’t wear her raw and make her sore,” and that the first
time would just be “sit and touch, talk and touch and ask questions and feel and explain things.”
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No. 49381-1-II
CP at 129-30. Talbot further stated that the “first time it would be sitting and talking and feeling
and touching and exploring” and “a little, you know, little licking and sucking.” CP at 137.
Viewing the evidence in the light most favorable to the State, and drawing all reasonable
inferences in favor of the State, a rational fact finder could find beyond a reasonable doubt that
Talbot intended to have sexual contact with Ellie’s 12-year-old daughter. Therefore, we hold that
sufficient evidence was presented to prove intent.
3. Substantial Step
Talbot argues that there was insufficient evidence to show he took a substantial step
towards committing the crime. We disagree.
“A substantial step is an act that is ‘strongly corroborative’ of the actor’s criminal purpose.”
Id. (quoting State v. Luther, 157 Wash. 2d 63, 78, 134 P.3d 205 (2006)). Any slight act done in
furtherance of a crime constitutes an attempt if it clearly shows the design of the actor to commit
the crime.5 State v. Sivins, 138 Wash. App. 52, 64, 155 P.3d 982 (2007). “Mere preparation to
commit a crime is not a substantial step.” State v. Townsend, 147 Wash. 2d 666, 679, 57 P.3d 255
(2002). Whether an act constitutes a substantial step is a question of fact. State v. Wilson, 158
Wash. App. 305, 317, 242 P.3d 19 (2010).
Talbot argues that the evidence merely shows that he took a preparatory step towards
committing the crime of attempted second degree child molestation that was still in the negotiation
stage. In support, Talbot cites State v. Grundy, 76 Wash. App. 335, 886 P.2d 208 (1994).
5
“Slight” is defined as “small of its kind or in amount” and “to a small degree.” WEBSTER’S THIRD
NEW INT’L DICTIONARY 2142 (1969).
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No. 49381-1-II
In Grundy, an officer posed as a drug runner, approached the defendant, and asked him
what he wanted. 76 Wash. App. at 336. In response, the defendant said he wanted cocaine. Id. The
officer asked to see the money, but the defendant asked to see the drugs first. Id. The defendant
was then arrested and charged with attempted possession of cocaine. Id. The court held that
although the defendant’s “words evidenced an intent to acquire possession of cocaine, they are
insufficient, without more, to constitute the requisite overt act.” Id. at 337. The court held that
the “parties were still in the negotiation stage.” Id. at 338.
In contrast here, Talbot’s conduct involved more than mere words negotiating whether
Talbot would have sexual contact with Ellie’s daughter. Talbot confirmed he was willing to have
sexual contact with Ellie’s daughter, and he discussed with Ellie what acts he would do to Ellie’s
12-year-old daughter. Talbot told Ellie that he would be “very slow and easy” with “a little, you
know, licking and sucking” “so that active penetration doesn’t wear her raw and make her sore.”
CP at 129, 137. Talbot and Ellie agreed to meet at the coffee shop, which was the first step in
putting their plan for Talbot and Ellie’s daughter to have sexual contact into action. Talbot then
went to meet Ellie at the coffee shop. This conduct was more than just words.
Viewing the evidence in the light most favorable to the State, a rational finder of fact could
find that Talbot went beyond the negotiation stage and took a step towards fulfilling his plan to
have sexual contact with Ellie’s 12-year-old daughter. Thus, we hold that sufficient evidence was
presented to prove Talbot took a substantial step towards committing the crime of attempted
second degree child molestation.
Talbot further argues that he did not engage in sexual conversations with a person he
thought was a child, did not arrange to meet with a child, and did not bring anything showing his
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No. 49381-1-II
intent to have sexual contact with a child. Talbot cites to Townsend,6 Sivins,7 and Wilson8 to show
that his conduct did not constitute a substantial step in committing the crime of attempted second
degree child molestation.
In Townsend, a police detective posed online as a 13-year-old girl. 147 Wash. 2d at 670-71.
The defendant began e-mailing with the girl, exchanged sexual messages, and arranged to meet at
a motel room to have sex. Id. at 671. The defendant went to the motel room at the agreed upon
time, knocked on the door, and asked to see the girl. Id. The defendant was then arrested and
convicted of attempted second degree rape of a child. Id. Our Supreme Court affirmed the
conviction, concluding that the evidence was sufficient to show the defendant took a substantial
step toward committing attempted second degree child rape. Id. at 680.
In Sivins, a police intern posed as a 13-year-old girl and had sexual discussions with the
defendant on an online chat room. 138 Wash. App. at 56-57. The defendant said he wanted to meet
the girl and would have sex with her, if she wanted. Id. at 64. After promising pizza and vodka,
the defendant drove several hours and rented a motel room in the town where she lived. Id. The
defendant was arrested in the room and convicted of attempted second degree child rape. Id. at
58. On appeal, the defendant argued that the evidence was insufficient to establish he took a
substantial step toward committing the crime. Id. at 63-64. The court concluded that the
6
147 Wash. 2d at 666.
7
138 Wash. App. at 52.
8
158 Wash. App. at 305.
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No. 49381-1-II
defendant’s internet communications were evidence of his intent and that his subsequent travel
and motel rental were substantial steps that corroborated his intent. Id. at 64.
In Wilson, a police detective posed online as a 38-year-old mother with a 13-year-old
daughter that would “fulfill your fantasies but it won’t be cheap.” 158 Wash. App. at 308. The
defendant e-mailed the mother saying he was interested and arranged with her to meet the daughter
and then go back to their home to have sex for $300. Id. at 309. The defendant went to the meeting
location with $330. Id. at 311. The defendant was then arrested and convicted of attempted second
degree child rape. Id. at 311-12. On appeal, the court held that negotiations had concluded and
that the defendant’s exchanging of photographs with the mother, obtaining her address, and driving
to the agreed location with the money he agreed to pay for sex constituted a substantial step. Id.
at 318. Thus, the court affirmed the conviction. Id. at 320.
Talbot argues that his case differs from Townsend, Sivins, and Wilson because he still had
to meet with Ellie before having sexual contact with her daughter. But the meeting was only to
get comfortable with each other. The plan for what Talbot was going to do with Ellie’s daughter
was already set–Talbot was to have sexual contact with Ellie’s daughter. Meeting at the coffee
shop was the first step towards fulfilling that plan.
Any slight act done in furtherance of the crime constitutes an attempt if it clearly shows
the design of the actor to commit the crime. Sivins, 138 Wash. App. at 64. Here, the design of
committing second degree child molestation was to meet with Ellie and then go back to her home
so that Talbot could have sexual contact with Ellie’s 12-year-old daughter. Talbot appearing at
the coffee shop was the slight act done in furtherance of his design to have sexual contact with
Ellie’s 12-year-old daughter.
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No. 49381-1-II
Talbot had the intent to commit second degree child molestation and took a substantial step
towards doing so. Therefore, we hold that sufficient evidence was presented to prove Talbot
committed attempted second degree child molestation.
B. COMMUNITY CUSTODY CONDITIONS
Talbot argues that the sentencing court’s conditions prohibiting him from (1) possessing
any electronic device capable of accessing the internet without prior approval of the Department
of Corrections (DOC) and his sexual deviancy treatment provider and (2) accessing the internet
without prior approval of the DOC and his sexual deviancy treatment provider were not authorized
by law and in violation of his constitutional rights. We disagree.
1. Conditions Authorized by Law
A sentencing court lacks authority to impose a community custody condition unless the
legislature has authorized it. State v. Kolesnik, 146 Wash. App. 790, 806, 192 P.3d 937 (2008),
review denied, 165 Wash. 2d 1050 (2009). Any condition imposed in excess of a court’s statutory
authority is void. State v. Johnson, 180 Wash. App. 318, 325, 327 P.3d 704 (2014). We review de
novo whether the sentencing court had statutory authorization to impose a community custody
condition. Id. If the sentencing court had statutory authorization, we review its decision to do so
for an abuse of discretion. Id. at 326.
Under RCW 9.94A.701(3)(a), the sentencing court must sentence an offender to
community custody for one year when convicted of a crime against persons. When an offender is
sentenced to community custody, the court may order the offender to comply with any crime-
related prohibitions. RCW 9.94A.703(3)(f). And when a person is convicted of a felony, the
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No. 49381-1-II
sentencing court may also impose and enforce crime-related prohibitions and affirmative
conditions. RCW 9.94A.505(9).
A crime-related prohibition is “an order of a court prohibiting conduct that directly relates
to the circumstances of the crime for which the offender has been convicted.” RCW
9.94A.030(10). “‘Directly related’ includes conditions that are ‘reasonably related’ to the crime.”
State v. Irwin, 191 Wash. App. 644, 656, 364 P.3d 830 (2015) (quoting State v. Kinzle, 181 Wn.
App. 774, 785, 326 P.3d 870, review denied, 181 Wash. 2d 1019 (2014)).
Attempted second degree child molestation is a crime against persons and a class C felony.
RCW 9.94A.411(2)(a); RCW 9A.28.020(3)(c); RCW 9A.44.086(2).
Talbot argues that a “total ban on Internet use and devices used to access the Internet are
not crime related because the ban includes lawful use of the Internet” to express opinions, make
purchases, and communicate with family and friends. Br. of Appellant at 30. However, Talbot
fails to provide any legal authority or support for this claim.
Talbot was convicted of attempted second degree child molestation, which is a crime
against persons and a class C felony. As a result, he was placed on community custody and the
sentencing court had authority to impose crime-related prohibitions.
Here, Talbot used the internet to access Ellie’s online ad. Talbot also used the internet to
respond to Ellie’s online ad and to communicate with Ellie. The online ad and subsequent
communications primarily focused on arranging for Talbot to have sexual contact with Ellie’s 12-
year-old daughter. Thus, the sentencing court’s challenged community custody conditions were
reasonably, if not directly, related to the circumstances of the crime because Talbot used the
internet in the commission of the crime.
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No. 49381-1-II
The trial court did not abuse its discretion in imposing the challenged community custody
conditions. See State v. Magana, 197 Wash. App. 189, 201, 389 P.3d 654 (2016) (holding that
because the defendant used social media to contact the victim of a third degree rape, conditions
restricting internet access and social media sites were permissible). Therefore, we hold that the
conditions were authorized crime-related prohibitions.
2. Conditions Constitutional
Talbot further argues that the sentencing court’s prohibition against accessing the internet
without approval from the DOC and his sexual deviancy treatment provider violates his First
Amendment rights and is overbroad. We disagree.
Generally, imposing community custody conditions is within the discretion of the
sentencing court and will be reversed if manifestly unreasonable. State v. Valencia, 169 Wash. 2d
782, 791-92, 239 P.3d 1059 (2010). The imposition of an unconstitutional condition is manifestly
unreasonable. Id. at 792.
a. First Amendment
A defendant’s constitutional rights while on community custody are subject to the
infringements authorized by the Sentencing Reform Act of 1981 (SRA), codified in chapter 9.94A
RCW. State v. Riles, 135 Wash. 2d 326, 347, 957 P.2d 655 (1998). Under the SRA, a sentencing
court may require a defendant to comply with crime-related prohibitions. RCW 9.94A.505(9),
.703(3)(f). And a sentencing condition may prohibit a defendant’s access to a means or medium
through which he committed a crime. In re Pers. Restraint of Rainey, 168 Wash. 2d 367, 380, 229
P.3d 686 (2010). But a condition restricting a defendant’s First Amendment rights must be
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No. 49381-1-II
reasonably necessary to accomplish the essential needs of the state and public order, and be
sensitively imposed. State v. Bahl, 164 Wash. 2d 739, 757, 193 P.3d 678 (2008).
Here, the condition prohibiting access to the internet without approval by the DOC or
Talbot’s sexual deviancy treatment provider was reasonably necessary to accomplish the essential
needs of the State and public order, and was sensitively imposed. Talbot’s crime was committed
through use of the internet where he found an ad for and later arranged to have sexual contact with
a 12-year-old girl. Prohibiting him from access to the internet—where such ads exist and more
arrangements could be made—is therefore reasonably necessary to prevent repeated offenses.
Thus, protecting the needs of the state and public order. Moreover, the condition did not impose
a blanket prohibition; Talbot could access the internet with permission from the DOC and his
treatment provider, two parties who are charged with assisting Talbot in becoming a lawful citizen.
Hence, the condition was sensitively imposed. Therefore, we hold that the sentencing court’s
condition did not improperly infringe on Talbot’s First Amendment rights.
3. Constitutionally Overbroad
When considering whether a community custody condition is overbroad, courts focus on
whether the condition is crime-related. See State v. McKee, 141 Wash. App. 22, 37, 167 P.3d 575
(2007) (“[A]n offender’s constitutional rights during community placement are subject to SRA-
authorized infringements, including crime-related prohibitions.”), review denied, 163 Wash. 2d 1049
(2008); see also Magana, 197 Wash. App. at 201. Here, as discussed above, the condition
prohibiting internet access is crime-related. See Section B.1. Therefore, we hold that Talbot’s
claim fails.
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No. 49381-1-II
APPELLATE COSTS
Talbot argues that we should decline to impose appellate costs against him due to his
indigency. The State confirms that it does not intend to seek a cost bill in this case. Therefore, we
waive appellate costs.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Worswick, P.J.
Sutton, J.
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