State Of Washington, V. Robert W. Park ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
August 3, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54328-1-II
Respondent,
v.
ROBERT WILLIAM PARK, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Park appeals four conditions of community custody the trial court imposed
following his guilty plea for three counts of child molestation in the second degree. Park argues
that the trial court erred by ordering (1) that his polygraph examination tests show no deception;
(2) condition 20 of Appendix H—that Park is not to access the internet, email, and any and all
social media without permission; (3) condition 22 of Appendix H—that Park is not to purchase,
possess, or use any illegal substance or drug paraphernalia without the written prescription of a
licensed physician; and (4) condition 19 of Appendix H—that Park is not to possess or pursue1
any sexually explicit material. In his statement of additional grounds (SAG), Park makes
additional arguments. The State does not object to the three references to no deception on
polygraph examinations being stricken from the judgment and sentence. The State concedes that
condition 20 should be stricken and condition 22 must be amended. The State argues that the court
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The State acknowledges that the word “pursue” may be a scrivener’s error. Br. of Resp’t at 4.
No. 54328-1-II
did not err by ordering condition 19 as that condition is constitutional, but concedes that the
condition may contain a scrivener’s error.
We accept the State’s concessions, including that the condition regarding sexually explicit
material likely contains a scrivener’s error, and we remand for the trial court to strike or amend
the challenged conditions consistent with this opinion.
FACTS
Park pleaded guilty to three counts of child molestation in the second degree for sexual
contacts he had with a minor. The trial court imposed 75 months of confinement, and 36 months
of community custody. The court imposed numerous conditions for Park on community custody:
first, the court ordered three separate times in the judgment and sentence that Park must submit to
polygraph examinations upon request and that the results of the tests “must not show deception.”
Clerk’s Papers (CP) at 238, 242, 250. The court also ordered the following conditions at issue in
Appendix H of Park’s judgment and sentence:
(19) Do not possess or pursue any sexually explicit material.
(20) Do not access the internet, email, or any and all social media sites without
permission from CCO and treatment provider.
....
(22) Do not purchase, possess, or use any illegal controlled substance, or drug
paraphernalia without the written prescription of a licensed physician.
CP at 250.
Park appeals.
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No. 54328-1-II
ANALYSIS
I. CONDITIONS OF COMMUNITY CUSTODY
A. STANDARD OF REVIEW
A trial court can only impose community custody conditions authorized by statute. State
v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). We review de novo whether the trial
court had statutory authority to impose a sentencing condition. State v. Armendariz, 160 Wn.2d
106, 110, 156 P.3d 201 (2007). If the trial court had statutory authority, we review the court’s
decision to impose the condition for an abuse of discretion. Armendariz, 160 Wn.2d at 110. An
abuse of discretion occurs when a trial court’s imposition of a condition is manifestly
unreasonable. State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018). The imposition of an
unconstitutional condition is manifestly unreasonable. Nguyen, 191 Wn.2d at 678.
B. LEGAL PRINCIPLES
Due process precludes the enforcement of vague laws, including sentencing conditions.
State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008); State v. Irwin, 191 Wn. App. 644,
652, 364 P.3d 830 (2015). A community custody condition is unconstitutionally vague if the
condition does not define the prohibited conduct with “‘sufficient definiteness that ordinary people
can understand what conduct is proscribed,’” or if the condition “‘does not provide ascertainable
standards of guilt to protect against arbitrary enforcement.’” Bahl, 164 Wn.2d at 752-53 (quoting
City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). If the condition fails
either prong of the vagueness analysis, the condition is void for vagueness. Bahl, 164 Wn.2d at
753. A condition is not vague, however, “‘merely because a person cannot predict with complete
certainty the exact point at which his or her actions would be classified as prohibited conduct.’”
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No. 54328-1-II
State v. Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010) (internal quotation marks omitted)
(quoting State v. Valencia, 148 Wn. App. 302, 198 P.3d 1065 (2009), reversed on other grounds
in Valencia, 169 Wn.2d 782). “[A]ll that is required is that the proscribed conduct is sufficiently
definite in the eyes of an ordinary person.” Nguyen, 191 Wn.2d at 681.
RCW 9.94A.703(3) authorizes a trial court to impose discretionary conditions. The trial
court may order an offender to “[c]omply with any crime-related prohibitions.” RCW
9.94A.703(3)(f). RCW 9.94A.703(2)(c) authorizes waivable conditions, including requiring the
defendant to “[r]efrain from possessing or consuming controlled substances except pursuant to
lawfully issued prescriptions.”
A crime-related prohibition is one that is related to the circumstances of the crime for which
the offender is being sentenced. RCW 9.94A.030(10). Crime-related prohibitions must be directly
or reasonably related to the circumstances of the offense. Nguyen, 191 Wn.2d at 683-84. “The
prohibited conduct need not be identical to the crime of conviction, but there must be ‘some basis
for the connection.’” Nguyen, 191 Wn.2d at 684 (quoting Irwin, 191 Wn. App. at 657). If we
determine that a trial court imposed an unauthorized condition on community custody, we remedy
the error by remanding to the trial court with instruction to strike the unauthorized condition. State
v. Padilla, 190 Wn.2d 672, 683, 416 P.3d 712 (2018).
C. POLYGRAPH TESTING
Park argues that the trial court erred by ordering him to not be deceptive during polygraph
examinations. The State does not object to this language being stricken from the judgment and
sentence. We order that the trial court strike the language from the judgment and sentence that
requires Park’s polygraph results to not show deception during polygraph examinations.
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No. 54328-1-II
Our Supreme Court has expressly held that polygraph testing is a valid community custody
monitoring condition. See State v. Riles, 135 Wn.2d 326, 342, 957 P.2d 655 (1998), abrogated by
Valencia, 169 Wn.2d 782. However, the court noted that “the results of polygraph tests are
generally not admissible in a trial.” Riles, 135 Wn.2d at 342. This is because polygraph tests are
not widely accepted as reliable by the scientific community. See State v. Woo, 84 Wn.2d 472, 474,
527 P.2d 271 (1974); State v. Pleasant, 21 Wn. App. 177, 185, 583 P.2d 680 (1978); State v.
Ahlfinger, 50 Wn. App. 466, 470, 749 P.2d 190 (1988); State v. Justesen, 121 Wn. App. 83, 86,
86 P.3d 1259 (2004).
In Washington, a polygraph test may be used to “enhance the assessment, treatment and
monitoring processes by encouraging disclosure of information relevant and necessary to
understanding the extent of present risk and compliance with treatment and court requirements.”
WAC 246-930-310(7)(b). But “[s]ex offender treatment providers shall not base decisions solely
on the results of the polygraph examination.” WAC 246-930-310(7)(b) (emphasis added).
Here, the trial court ordered in three separate places in the judgment and sentence that
Park’s polygraph results must not show deception. Park argues that by requiring that his polygraph
examinations show no deception, he may be found not compliant with his community custody
conditions on the basis of a false deception result. The State argues that while this may be so, a
defendant likely would not receive additional punishment on this basis alone, as that is directly in
conflict with WAC 246-930-310(7)(b). However, the State does not object to us striking this
language from Park’s judgment and sentence.
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No. 54328-1-II
Although, as the State says, Park likely would never receive additional punishments solely
from a deceptive result on a polygraph examination, we remand for the trial court to strike the
language from the judgment and sentence that states that the polygraph examinations must not
show deception.
D. INTERNET, EMAIL, AND ANY AND ALL SOCIAL MEDIA SITES; ILLEGAL SUBSTANCES OR DRUG
PARAPHERNALIA
Park next argues that the trial court erred by ordering him not to access the internet, email,
and any and all social media sites without permission from the CCO and treatment provider, and
by ordering him to not purchase, possess, or use any illegal substance or drug paraphernalia
without the written prescription of a licensed physician. The State concedes that these provisions
are not crime-related. We accept the State’s concession and remand for the trial court to strike or
amend these provisions consistent with this opinion.
Internet use is crime-related if there is evidence that internet use “contributed in any way
to the crime.” State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008). Here, there was
no evidence that internet use, including emails or any social media sites, contributed in any way
to Park’s offenses. Therefore, this condition is not crime-related and the State was correct to
concede it should be stricken.
“Unless waived by the court, as part of any term of community custody, the court shall
order an offender to . . . [r]efrain from possessing or consuming controlled substances except
pursuant to lawfully issued prescriptions.” RCW 9.94A.703(2)(c). The trial court had the
authority to impose the condition regarding not purchasing, possessing, or using any illegal
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No. 54328-1-II
substance without a valid prescription under RCW 9.94A.703(2)(c), regardless of whether the
condition was crime-related.
However, we agree with Park and the State that this condition should be clarified and
remand for the trial court to amend these conditions because valid prescriptions may be written by
medical professionals who are not licensed physicians. The trial court should delete “of a licensed
physician” on remand. In addition, the statutory provision authorizing this condition does not
extend to drug paraphernalia. Finally, on remand, the State may abandon its request for this
condition if it chooses to no longer seek it.
E. SEXUALLY EXPLICIT MATERIAL
Park next argues that the trial court erred by ordering him to not possess or pursue any
sexually explicit material because “pursue” is vague and violates due process. Appellant’s Br. at
10. The State argues that “pursue” is not unconstitutionally vague, and that the court intended to
write “peruse” rather than “pursue” in the judgment and sentence. Br. of Resp’t at 4. Because the
State concedes this may have been a scrivener’s error, the trial court must reconsider this condition
on remand, reevaluate whether it is appropriately written, and clarify if necessary.
II. SAG
In his SAG, Park claims that he is not guilty and has been mistreated during his
confinement, and that he did not receive a fair trial. SAG. However, Park offers no cognizable
argument supporting this assertion or explaining how this allegation requires reversal of his
convictions. Park does not “inform the court of the nature and occurrence of alleged errors,” so
we decline to review these issues. RAP 10.10(c).
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No. 54328-1-II
CONCLUSION
We accept the State’s concessions and we remand to the trial court to strike or amend these
conditions consistent with this opinion.
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.
SUTTON, J.
We concur:
GLASGOW, A.C.J.
VELJACIC, J.
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