Appeal from Pierce County Superior Court. Docket No: 11-1-01871-9. Date filed: 03/09/2012. Judge signing: Honorable Ronald E Culpepper.
Rebecca W. Bouchey, for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Melody M. Crick, Deputy, for respondent.
AUTHOR: Thomas R Bjorgen, J. We concur: Joel Penoyar, J., Jill M Johanson, A.C.J.
[178 Wn.App. 221] ¶ 1 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 [178 Wn.App. 222] that the statute applies to a corrections officer, we conclude that the statute is not unconstitutionally vague and affirm the conviction.
¶ 2 In 2008, while working as a corrections officer at the Washington Corrections Center for 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 incident. Clapper agreed not to report the incident if LR and RL returned the items they had taken from the cart.
¶ 3 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.
¶ 4 Before trial, Clapper moved to dismiss his charge, asserting that the custodial sexual misconduct statute was unconstitutionally vague. 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.
¶ 5 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 [178 Wn.App. 223] 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.
¶ 6 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] ...