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State v. Johnson

Court of Appeals of Washington, Division 3

July 17, 2018

STATE OF WASHINGTON, Respondent,
v.
BRANDON JERALD JOHNSON, Appellant.

          PENNELL, A.C.J.

         When sentencing an individual to a term of community custody, trial courts are tasked with crafting supervision conditions that are sufficient to promote public safety, but also respectful of a convicted person's statutory and constitutional rights. Striking the right balance is no easy task, especially in the context of an appellate legal landscape that is in flux and does not always set clear standards.

         Brandon Johnson's case is one where the trial court's efforts to impose appropriate community custody conditions unfortunately fail to meet the rigors of appellate scrutiny. Mr. Johnson has challenged five of his community custody conditions, imposed pursuant to his child molestation conviction. Four of the challenged conditions prohibit Mr. Johnson's access to images or media containing some form of sexual content. The fifth condition prohibits Mr. Johnson from being present at locations where children congregate. Mr. Johnson's challenges to the prohibitions on media access must be sustained as either overbroad or not crime related. The condition restricting Mr. Johnson's access to certain locations is affirmed, but warrants slight modification so as to define the word "children" to mean individuals under 16 years of age. We therefore remand for resentencing as to Mr. Johnson's community custody conditions.

         FACTS

         Mr. Johnson's criminal charges arose from conduct with his female adolescent cousin. Mr. Johnson had been living with his aunt and uncle (the cousin's parents) when his uncle discovered Mr. Johnson rummaging through his cousin's clothes. Later, Mr. Johnson asked his uncle for lotion to use for masturbation. Mr. Johnson's uncle subsequently found women's underwear in Mr. Johnson's room.

         Around the same time as the discoveries by Mr. Johnson's uncle, the cousin reported to her mother that Mr. Johnson had twice snuck into her room after dark. Mr. Johnson's aunt subsequently caught Mr. Johnson sneaking into his cousin's room.

         Mr. Johnson's cousin subsequently informed her mother that Mr. Johnson had touched her breasts twice, her bottom once, and had attempted to kiss her. The cousin reported that Mr. Johnson frequently sought to talk to her about masturbation and about her breasts.

         Mr. Johnson's aunt and uncle immediately reported Mr. Johnson's behavior to the police.

         PROCEDURAL BACKGROUND

         The State of Washington charged Brandon Johnson with second degree child molestation. During a bench trial, Mr. Johnson testified and denied any sexual contact with his cousin. The trial court convicted Mr. Johnson of second degree child molestation based on one of the two episodes described by his cousin.

         The trial court sentenced Mr. Johnson to 18 months' confinement with an additional 36 months' community custody. The community custody conditions include:

(14) Avoid places where children congregate to include, but not limited to: parks, libraries, playgrounds, schools, school yards, daycare centers, skating rinks, and video arcades.
. . . .
(17) Do not possess or view material that includes images of nude women, men, and/or children.
(18) Do not possess or view material that includes images of children wearing only undergarments and/or swimsuits.
(19) Do not possess or view material that shows women, men, and/or children engaging in sexual acts with each other, themselves, with an object, or animal.
(20) Do not attend X-rated movies, peep shows, or adult book stores.

         Clerk's Papers (CP) at 41. Mr. Johnson did not object to any of the conditions during sentencing. The trial court entered no findings of fact that relate the community custody ...


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