IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 85910-2-I
Respondent,
v. UNPUBLISHED OPINION
CHRISTOPHER ERVIN MASTIN,
Respondent.
BOWMAN, J. — Christopher Ervin Mastin appeals his conviction for second
degree child molestation. Mastin argues the trial judge commented on the
evidence by using the victim’s initials in its to-convict instructions to the jury.
Mastin also challenges the trial court’s orders prohibiting all contact with his
minor children, requiring permission to engage in sexual conduct, and imposing
several legal financial obligations (LFOs). We affirm Mastin’s conviction but
remand for reconsideration of the scope of the order prohibiting contact with his
children, to clarify whether the sexual conduct prohibition applies to his marriage,
and to strike the victim penalty assessment (VPA), DNA collection fee, and
community supervision fees.
FACTS
Mastin and Octavia Dowdell began dating in Spokane as teenagers. In
high school, Dowdell gave birth to their son, J.M. In 2010, Mastin, Dowdell, and
J.M. moved to Tacoma with Dowdell’s younger sister, J.T., and their mother,
Teresa Green. J.T. was around six years old. No. 85910-2-I/2
The family lived in Tacoma for several years.1 Mastin and Dowdell were
no longer in a romantic relationship, but they continued to live together with J.T.
and J.M. Dowdell worked two jobs and relied on Mastin for childcare. In 2014,
J.T. moved back in with Green. Then, in 2020, J.T. disclosed to Dowdell and
Green that Mastin had sexually assaulted her several times between 2013 and
2017 when she was 10 to 13 years old. The family contacted law enforcement.
In September 2020, the State charged Mastin with two counts of first
degree child molestation and one count of second degree rape of a child. At trial,
the State amended the information, removing one count of second degree rape
of a child and adding one count of second degree child molestation. J.T. testified
at trial and the parties referred to her by her full name. But the State proposed
to-convict jury instructions for each count that referred to J.T. by only her initials.
The trial court gave the proposed instructions without objection.
The jury convicted Mastin of second degree child molestation and
acquitted him on the other two counts. The trial court imposed a high-end
standard-range sentence of 20 months. It also ordered that Mastin’s treatment
provider approve of any sexual contact in a relationship and that he have no
contact with minor children, including his biological children.2 Finally, the court
imposed a $500 VPA, a $100 DNA collection fee, and community supervision
fees.
1 In 2011, Green moved into her own apartment. J.T. continued to live with Mastin, Dowdell, and J.M. 2 Mastin married in 2017. At the time of sentencing, they had a one-year-old, and his wife was pregnant with their second child.
2 No. 85910-2-I/3
Mastin appeals.
ANALYSIS
Mastin argues that the trial judge commented on the evidence by using
J.T.’s initials in its to-convict instructions to the jury. Mastin also challenges the
trial court’s orders prohibiting all contact with his children, requiring permission to
engage in sexual conduct, and imposing several LFOs. We address each
argument in turn.
I. Judicial Comment on the Evidence
For the first time on appeal, Mastin argues that the judge commented on
the evidence by using J.T.’s initials in the to-convict instructions.3 We disagree.
We review whether a jury instruction amounts to a judicial comment on the
evidence de novo and in the context of the instructions as a whole. State v.
Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Article IV, section 16 of our
state’s constitution provides, “Judges shall not charge juries with respect to
matters of fact, nor comment thereon, but shall declare the law.” The purpose of
this prohibition on judicial comments on the evidence “is to prevent the jury from
being influenced by knowledge conveyed to it by the court as to the court’s
opinion of the evidence submitted.” State v. Elmore, 139 Wn.2d 250, 275, 985
P.2d 289 (1999).
A trial court makes an impermissible comment on the evidence when its
3 The State argues Mastin waived this assignment of error because he did not object to the instructions below. But our Supreme Court has held that judicial comments on the evidence constitute manifest constitutional errors that the defendant may raise for the first time on appeal. State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). So, we review his claimed error.
3 No. 85910-2-I/4
statement “reveal[s] the court’s ‘attitudes toward the merits of the case’ or
reflect[s] the court’s personal opinion of any disputed issue before it.” State v.
Bass, 18 Wn. App. 2d 760, 804, 491 P.3d 988 (2021) (quoting Levy, 156 Wn.2d
at 721). Article IV, section 16’s prohibition on such comments “forbids only those
words or actions which have the effect of conveying to the jury a personal opinion
of the trial judge regarding the credibility, weight or sufficiency of some evidence
introduced at the trial.” State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1
(1970). To determine whether a trial court’s statement amounts to a comment on
the evidence, we “look to the facts and circumstances of the case.” Id. The
fundamental question underlying our analysis is whether the mention of a fact in
a jury instruction “conveys the idea that the fact has been accepted by the court
as true.” Levy, 156 Wn.2d at 726. We presume a comment on the evidence is
prejudicial, and the State bears the burden of showing no prejudice occurred. Id.
at 723.
Mastin contends that the use of J.T.’s initials in the to-convict jury
instructions was a comment on the evidence because it “conveyed to the jury the
court believed [J.T.] was a crime victim who needed protection.” We rejected the
same argument in State v. Mansour, 14 Wn. App. 2d 323, 470 P.3d 543 (2020).
In that case, we explained that the name of the alleged victim of child molestation
is not a factual issue requiring resolution. Id. at 329. So, using initials in a to-
convict instruction does not impermissibly instruct a jury that the State has
established a fact as a matter of law. Id. at 329-30. Nor is it likely a jury will
presume that a party is a victim or that the court considers them to be one just
4 No. 85910-2-I/5
because the court chooses to use their initials in the jury instructions. Id. at 330.
Mastin argues we wrongly decided Mansour. In support of his argument,
Mastin cites several of the same federal cases we considered in Mansour that
address using pseudonyms throughout the entire civil proceedings. See Jane
Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014) (civil action permitting the
plaintiff to use a pseudonym throughout the pretrial process but not at trial);
James v.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 85910-2-I
Respondent,
v. UNPUBLISHED OPINION
CHRISTOPHER ERVIN MASTIN,
Respondent.
BOWMAN, J. — Christopher Ervin Mastin appeals his conviction for second
degree child molestation. Mastin argues the trial judge commented on the
evidence by using the victim’s initials in its to-convict instructions to the jury.
Mastin also challenges the trial court’s orders prohibiting all contact with his
minor children, requiring permission to engage in sexual conduct, and imposing
several legal financial obligations (LFOs). We affirm Mastin’s conviction but
remand for reconsideration of the scope of the order prohibiting contact with his
children, to clarify whether the sexual conduct prohibition applies to his marriage,
and to strike the victim penalty assessment (VPA), DNA collection fee, and
community supervision fees.
FACTS
Mastin and Octavia Dowdell began dating in Spokane as teenagers. In
high school, Dowdell gave birth to their son, J.M. In 2010, Mastin, Dowdell, and
J.M. moved to Tacoma with Dowdell’s younger sister, J.T., and their mother,
Teresa Green. J.T. was around six years old. No. 85910-2-I/2
The family lived in Tacoma for several years.1 Mastin and Dowdell were
no longer in a romantic relationship, but they continued to live together with J.T.
and J.M. Dowdell worked two jobs and relied on Mastin for childcare. In 2014,
J.T. moved back in with Green. Then, in 2020, J.T. disclosed to Dowdell and
Green that Mastin had sexually assaulted her several times between 2013 and
2017 when she was 10 to 13 years old. The family contacted law enforcement.
In September 2020, the State charged Mastin with two counts of first
degree child molestation and one count of second degree rape of a child. At trial,
the State amended the information, removing one count of second degree rape
of a child and adding one count of second degree child molestation. J.T. testified
at trial and the parties referred to her by her full name. But the State proposed
to-convict jury instructions for each count that referred to J.T. by only her initials.
The trial court gave the proposed instructions without objection.
The jury convicted Mastin of second degree child molestation and
acquitted him on the other two counts. The trial court imposed a high-end
standard-range sentence of 20 months. It also ordered that Mastin’s treatment
provider approve of any sexual contact in a relationship and that he have no
contact with minor children, including his biological children.2 Finally, the court
imposed a $500 VPA, a $100 DNA collection fee, and community supervision
fees.
1 In 2011, Green moved into her own apartment. J.T. continued to live with Mastin, Dowdell, and J.M. 2 Mastin married in 2017. At the time of sentencing, they had a one-year-old, and his wife was pregnant with their second child.
2 No. 85910-2-I/3
Mastin appeals.
ANALYSIS
Mastin argues that the trial judge commented on the evidence by using
J.T.’s initials in its to-convict instructions to the jury. Mastin also challenges the
trial court’s orders prohibiting all contact with his children, requiring permission to
engage in sexual conduct, and imposing several LFOs. We address each
argument in turn.
I. Judicial Comment on the Evidence
For the first time on appeal, Mastin argues that the judge commented on
the evidence by using J.T.’s initials in the to-convict instructions.3 We disagree.
We review whether a jury instruction amounts to a judicial comment on the
evidence de novo and in the context of the instructions as a whole. State v.
Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Article IV, section 16 of our
state’s constitution provides, “Judges shall not charge juries with respect to
matters of fact, nor comment thereon, but shall declare the law.” The purpose of
this prohibition on judicial comments on the evidence “is to prevent the jury from
being influenced by knowledge conveyed to it by the court as to the court’s
opinion of the evidence submitted.” State v. Elmore, 139 Wn.2d 250, 275, 985
P.2d 289 (1999).
A trial court makes an impermissible comment on the evidence when its
3 The State argues Mastin waived this assignment of error because he did not object to the instructions below. But our Supreme Court has held that judicial comments on the evidence constitute manifest constitutional errors that the defendant may raise for the first time on appeal. State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). So, we review his claimed error.
3 No. 85910-2-I/4
statement “reveal[s] the court’s ‘attitudes toward the merits of the case’ or
reflect[s] the court’s personal opinion of any disputed issue before it.” State v.
Bass, 18 Wn. App. 2d 760, 804, 491 P.3d 988 (2021) (quoting Levy, 156 Wn.2d
at 721). Article IV, section 16’s prohibition on such comments “forbids only those
words or actions which have the effect of conveying to the jury a personal opinion
of the trial judge regarding the credibility, weight or sufficiency of some evidence
introduced at the trial.” State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1
(1970). To determine whether a trial court’s statement amounts to a comment on
the evidence, we “look to the facts and circumstances of the case.” Id. The
fundamental question underlying our analysis is whether the mention of a fact in
a jury instruction “conveys the idea that the fact has been accepted by the court
as true.” Levy, 156 Wn.2d at 726. We presume a comment on the evidence is
prejudicial, and the State bears the burden of showing no prejudice occurred. Id.
at 723.
Mastin contends that the use of J.T.’s initials in the to-convict jury
instructions was a comment on the evidence because it “conveyed to the jury the
court believed [J.T.] was a crime victim who needed protection.” We rejected the
same argument in State v. Mansour, 14 Wn. App. 2d 323, 470 P.3d 543 (2020).
In that case, we explained that the name of the alleged victim of child molestation
is not a factual issue requiring resolution. Id. at 329. So, using initials in a to-
convict instruction does not impermissibly instruct a jury that the State has
established a fact as a matter of law. Id. at 329-30. Nor is it likely a jury will
presume that a party is a victim or that the court considers them to be one just
4 No. 85910-2-I/5
because the court chooses to use their initials in the jury instructions. Id. at 330.
Mastin argues we wrongly decided Mansour. In support of his argument,
Mastin cites several of the same federal cases we considered in Mansour that
address using pseudonyms throughout the entire civil proceedings. See Jane
Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014) (civil action permitting the
plaintiff to use a pseudonym throughout the pretrial process but not at trial);
James v. Jacobson, 6 F.3d 233, 238-41 (4th Cir. 1993) (considering the use of
pseudonyms for parents throughout civil trial to protect identity of their minor
children); Does I-XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-69 (9th
Cir. 2000) (allowing pseudonym use throughout class action pretrial proceedings
where plaintiffs demonstrated reasonable fear of extraordinarily severe retaliation
for filing suit); Jane Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 WL
9150620, at *1 (C.D. Cal. Sept. 22, 2016) (pretrial court order allowing plaintiff to
continue to use a pseudonym “until the jury panel is called” at the civil trial). In
Mansour, we did not find such cases persuasive because, unlike Cabrera and
Rose, the trial court referred to the victim by her full name throughout trial and did
not conceal her identity. Mansour, 14 Wn. App. 2d at 330.
As in Mansour, we do not find Mastin’s proffered cases persuasive. J.T.
testified at trial, and the parties referred to her by her full name throughout the
entire proceedings.
Mastin also tries to analogize the circumstances here to those in State v.
Jackman, 156 Wn.2d 736, 132 P.3d 136 (2006). But Mastin’s reliance on
Jackman is misplaced. In that case, the State charged the defendant with
5 No. 85910-2-I/6
several crimes against minors where the age of the victim was an element of the
crime. Id. at 740, 742-43. So, the victims’ ages were factual issues for the jury
to resolve. Id. at 744. But the trial court included the victims’ birth dates in the
to-convict instructions, conveying to the jury that those dates had been
established as a matter of law. Id. Here, J.T.’s name was not an element of a
charged crime or an issue of fact in dispute.
Using J.T.’s initials in the to-convict instructions did not convey to the jury
that the court believed J.T. to be a “victim who needed protection” and was not a
judicial comment on the evidence.
II. No-Contact Order
Mastin argues the trial court erred by prohibiting all contact with his
biological children. According to Mastin, the court should have considered less
restrictive alternatives. We agree.
At sentencing, a trial court may impose crime-related prohibitions on
conduct directly related to “the circumstances of the crime for which the offender
has been convicted.” RCW 9.94A.030(10), .505(9); State v. Torres, 198 Wn.
App. 685, 689, 393 P.3d 894 (2017). In general, we review crime-related
prohibitions for an abuse of discretion. In re Pers. Restraint of Rainey, 168
Wn.2d 367, 374, 229 P.3d 686 (2010). “But we more carefully review conditions
that interfere with a fundamental constitutional right.” Id.
Parents have a fundamental liberty interest in the care, custody, and
control of their children. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246
(2001). But the State also has a compelling interest in protecting children from
6 No. 85910-2-I/7
physical or mental harm. Id. at 653-54. So, a sentencing court can restrict the
fundamental right to parent, but only if it is reasonably necessary to prevent harm
to a child. Id. at 654. Before imposing a no-contact order (NCO) that impacts a
person’s right to parent, the court must first address whether the condition is
reasonably necessary to further the State’s interest in keeping the child from
harm. Torres, 198 Wn. App. at 690. If the court determines the condition is
necessary, it must then narrowly tailor the order in both scope and duration. Id.
This includes considering less restrictive alternatives, such as supervised
visitation. Id. And the trial court must conduct this inquiry on the record. State v.
DeLeon, 11 Wn. App. 2d 837, 840-41, 456 P.3d 405 (2020).
At Mastin’s sentencing, the trial court ruled it would order no contact with
all minor children pending “the results of [a] psychosexual [evaluation], and then
we can modify that condition.” But the court did not explain on the record why
the blanket NCO was reasonably necessary to further the State’s interest in
protecting Mastin’s children from harm. Specifically, the court did not consider
less restrictive alternatives or explain why it could not impose those alternatives.
Because the trial court did not engage in the appropriate analysis required
by case law, we remand for reconsideration of the order prohibiting contact with
Mastin’s children.4 See Torres, 198 Wn. App. at 690 (remanding for
4 Mastin also challenges community custody condition 5, which prohibits him from engaging in “[s]exual contact in a relationship” unless his “treatment provider approves of such.” According to Mastin, the condition impermissibly interferes with his constitutional right to marriage. The State argues the condition does not apply to Mastin’s wife and applies to only “dating relationships.” Because we remand on other grounds, we do not reach this issue, and the parties can seek clarification from the sentencing court on remand.
7 No. 85910-2-I/8
reconsideration of an NCO between a parent and his child where the trial court’s
decision to impose the order “was not guided by the analysis required by our
case law”).
III. LFOs
Mastin argues we should remand for the trial court to strike the VPA, DNA
collection fee, and community supervision fees from his judgment and sentence
because he is indigent. The State concedes each issue. We accept the State’s
concessions.
Courts may not impose discretionary LFOs on indigent defendants. State
v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018). That prohibition applies
prospectively when the legislature amends an LFO statute pending appeal. Id. at
749. Here, when the court sentenced Mastin in August 2022, the $500 VPA was
mandatory under former RCW 7.68.035(1)(a) (2018). And the $100 DNA
collection fee was mandatory under former RCW 43.43.7541 (2018). But while
Mastin’s appeal was pending, the legislature amended both statutes, eliminating
these LFOs for indigent defendants. LAWS OF 2023, ch. 449, § 1 (adding
language to RCW 7.68.035(4) that the court “shall not impose the [VPA] under
this section if the court finds that the defendant, at the time of sentencing, is
indigent”), § 4 (eliminating mandatory DNA collection fee from RCW 43.43.7541).
The parties do not dispute that Mastin is indigent. We remand for the trial court
to strike the $500 VPA and $100 DNA collection fee from Mastin’s judgment and
sentence.
Finally, Mastin argues we should remand to strike the community
8 No. 85910-2-I/9
supervision fees because “trial courts no longer have any authority to order this
condition.” Former RCW 9.94A.703(2)(d) (2018) authorized supervision fees as
a waivable condition of community custody. But in 2022, the legislature removed
the language in former RCW 9.94A.703(2)(d) that gave the court authority to
impose community supervision fees. LAWS OF 2022, ch. 29, §§ 7-8. This
statutory amendment went into effect on July 1, 2022. Because the trial court
sentenced Mastin on August 19, 2022, that amendment applies here, and we
remand to strike the community supervision fees.
We affirm Mastin’s conviction but remand for reconsideration of the trial
court’s order prohibiting contact with his biological children and to clarify whether
community custody condition 5 applies to his wife. And we remand for the court
to strike the VPA, DNA collection fee, and community supervision fees.
WE CONCUR: