has the statutory authority to impose crime-related
prohibitions as a condition of community custody. Dominique
Debra Norris pleaded guilty to three counts of child
molestation in the second degree. Norris challenges several
of the community custody conditions. We hold the condition
that requires Norris to inform the community corrections
officer of a "dating relationship" and imposition
of a condition that prohibits Norris from entering "any
parks/playgrounds/schools where minors congregate" are
not void for vagueness. The condition that prohibits her from
possessing, using, accessing, or viewing sexually explicit
material is crime-related. But the condition that imposes a
curfew and the condition that prohibits Norris from entering
sex-related businesses are not crime-related. We also
conclude the court had the statutory authority to prohibit
"consumption" but not "use" of alcohol.
We affirm in part, reverse in part, and remand.
August 2010, the State charged 25-year-old Dominique Debra
Norris with two counts of rape in the second degree of a
13-year-old boy. Norris pleaded guilty to three counts of
second degree child molestation. The State agreed to
recommend imposition of a special sex offender sentencing
statement of defendant on plea of guilty, Norris admits:
Between Dec. 1, 2009 and Feb 28, 2010 in King Co. WA I had
sexual contact for the purpose of sexual gratification with
D.T. who was 13 years old at the time and not married to me
or in a state registered domestic partnership at the time of
the contact. I was at least 36 mo. older than D.T. This
happened on three occasions.
of the plea agreement, Norris stipulated the court could
consider the certification for determination of probable
cause as real facts.
certification of probable cause states that on August 12,
2010, D.T.'s mother contacted the police after his
basketball coach told her that D.T. "had been having sex
with an adult female for a period of a few months."
D.T.'s mother told the police, "Dominique has known
the family since DT was a small boy and was aware of how old
he was. [Norris] is also the mother of DT's brother's
children." D.T. gave a statement to police.
certification states Norris repeatedly had sexual intercourse
with 13-year-old D.T. beginning in December 2009 and had sex
"several times at Dominique's residence" and
the boy's home. Norris and D.T. communicated by cell
phone and had a "code" for sex. "During the
relationship as well as afterwards, Dominique sent DT
messages about her love for him and also sent a photo of
herself in pants and a bra. The cell phone involved ... was
being used solely by DT." The certification also states
that on August 12, 2010, Norris disclosed to a member of her
church "that she had been having sex with DT."
sentencing on March 30, 2012, the court imposed a concurrent
SSOSA sentence of 72 months on each count suspended on
condition that Norris engage in and successfully complete sex
offender treatment. The judgment and sentence states that
revocation of the suspended sentence will result in 36 months
of community custody and compliance with "the conditions
of Community Custody set forth in Appendix H herein or any
other conditions imposed by the Court." Appendix H
includes standard conditions, sex offense conditions, and
additional prohibitions related to crimes involving minors.
years later, the court entered an order on May 17, 2016
revoking the SSOSA and the suspended 72-month sentence. The
order states Norris shall comply with the terms of the 2012
judgment and sentence and the community custody conditions
"as set forth in Appendix H of the original Judgment and
of Community Custody Conditions
challenges several of the community custody conditions.
Norris contends the conditions are either (1) void for
vagueness or (2) not crime- related. A defendant may assert a
preenforcement challenge to community custody conditions for
the first time on appeal if the challenge is primarily legal,
does not require further factual development, and the
challenged action is final. State v. Bahl, 164 Wn.2d
739, 751, 193 P.3d 678 (2008).
general rule, the imposition of community custody conditions
is within the discretion of the court and will be reversed
only if manifestly unreasonable. Bahl, 164 Wn.2d at
753. The imposition of an unconstitutional condition is
manifestly unreasonable. State v. Sanchez Valencia,
169 Wn.2d 782, 792, 239 P.3d 1059 (2010). There is no
presumption that a community custody condition is
constitutional. Sanchez Valencia, 169 Wn.2d at 793.
A sentencing condition that interferes with a constitutional
right must be "sensitively imposed" and
"reasonably necessary to accomplish the essential needs
of the State and public order." State v.
Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
Fourteenth Amendment to the United States Constitution and
article I, section 3 of the Washington Constitution require
fair warning of proscribed conduct. Bahl, 164 Wn.2d
at 752. A condition is void for vagueness if the condition
either (1) does not define the prohibition with sufficient
definitiveness that ordinary people can understand what
conduct is proscribed or (2) does not provide ascertainable
standards that" 'protect against arbitrary
enforcement.'" Bahl, 164 Wn.2d at 752-53
(quoting City of Spokane v. Douglass, 115Wn.2d 171,
178, 795 P.2d 693 (1990)). If either requirement is not met,
the condition is unconstitutional. Bahl, 164 Wn.2d
at 753. However, a community custody condition is not
unconstitutionally vague " 'merely because a person
cannot predict with complete certainty the exact point at
which [her] actions would be classified as prohibited
conduct.'" Sanchez Valencia, 169 Wn.2d at
(quoting State v. Sanchez Valencia, 148 Wn.App. 302,
321, 198 P.3d 1065 (2009)).
claims the condition that requires her to inform the
community corrections officer (CCO) of "any dating
relationship" is unconstitutionally vague. Crime-related
"Special Sex Offense Condition" 5 states:
Inform the supervising CCO and sexual deviancy treatment
provider of any dating relationship. Disclose sex
offender status prior to any sexual contact. Sexual contact
in a relationship is prohibited until the treatment provider
approves of such.
condition will withstand a vagueness challenge if
"persons of ordinary intelligence can understand what
the [law] proscribes, notwithstanding some possible areas of
disagreement." Douglass, 115 Wn.2d at 179.
"Terms must be considered in the context in which used,
" and " '[i]mpossible standards of
specificity' are not required since language always
involves some degree of vagueness." Bahl, 164
Wn.2d at 759 (quoting State v. Halstien, 122
Wn.2d 109, 118, 857 P.2d 270 (1993)).
United States of America v. Reeves,591 F.3d 77 (2d
Cir. 2010), Norris argues because the term "dating
relationship" does not provide notice of an adequate
ascertainable standard, the condition does not prevent