State Of Washington v. Christopher Sikes ( 2019 )

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v. ) UNPUBLISHED OPINION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.
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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 Wash. 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 Wash. 2d at 682-83. A dating relationship, the court held, “is not
an unconstitutionally vague term.” Hai Minh Nguyen, 191 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 706 (quoting State ex rel. Carroll v. Junker,
79 Wash. 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 Wash. 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 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. App. at 915-16.
Miller appealed the revocation of his SSOSA. Miller, 159 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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:
ii