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