Filed Washington State Court of Appeals Division Two
March 17, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 59524-9-II
Respondent,
v.
DEREK PAUL RILEY, JR., UNPUBLISHED OPINION
Appellant.
MAXA, P.J. – Derek Riley, Jr. appeals his convictions of first degree child rape, second
degree child rape, first degree child molestation, and second degree child molestation and his
sentence. The convictions arose from Riley’s sexual abuse of his stepdaughter over a period of
several years.
We hold that (1) as the State concedes, the prosecutor improperly asked Riley whether
witnesses were lying, but Riley cannot show prejudice; (2) the prosecutor did not comment on
Riley’s right to remain silent; (3) the prosecutor did not improperly minimize the burden of proof
during closing argument; (4) the prosecutor did not improperly vouch for the credibility of the
victim and her mother during closing argument; (5) as the State concedes, the prosecutor
improperly vouched for the credibility of the State’s case during closing argument, but Riley
waived his challenge by failing to object; (6) Riley’s claim that he received ineffective assistance No. 59524-9-II
of counsel because his defense counsel did not move for a mistrial when three witnesses gave
opinions that Riley was guilty fails; (7) cumulative error does not require a new trial; and (8)
four challenged community custody conditions must be addressed on remand consistent with this
opinion.
Accordingly, we affirm Riley’s convictions, but we remand for the trial court to address
the challenged community custody conditions consistent with this opinion.
FACTS
Background
Riley and Faith Riley married in 2006. Faith1 had a daughter, RB (born September
2002), from a previous relationship. Riley had two children from a previous relationship. One
of Riley’s children was Erik Watson, who was about four years older than RB. When Riley and
Faith married, Riley, Faith, RB, and Watson were living in one household in Vancouver.
In April 2010, when RB was seven, Child Protective Services (CPS) was called after RB
suggested to a friend that Riley had touched her genitals. The police arrived to take RB into
protective custody. Riley told Faith, “Don’t say anything. Don’t tell them anything.” Rep. of
Proc. (RP) at 682-83. When RB was interviewed, she denied that anything had happened. RB
was returned home three days later.
In August 2020, RB disclosed to Faith that Riley had been sexually abusing her. RB
described multiple incidents of molestation and sexual intercourse by Riley while they lived
together. Following the investigation, the State charged Riley with first degree child rape,
second degree child rape, first degree child molestation, and second degree child molestation.
1 Because Riley and Faith have the same last name, we refer to Faith by her first name. No disrespect is intended.
2 No. 59524-9-II
Trial
At trial, RB testified that Riley first molested her when she was seven years old, when
Riley pulled her pants down and licked her vagina. RB testified that she later told her friend JM,
that Riley had done stuff to her.
RB recalled that not long after, police came to her house in April 2010 to take her away.
Before she left, Riley took her into another room and instructed her not to tell anyone what had
happened to her. He said he did not want to get in trouble and she “didn’t want to know what
would happen if things had gotten brought out.” RP at 484. RB stated that when she was
interviewed, she said that nothing had happened because Riley told her not to tell anyone.
RB testified that after that, there were multiple occasions when Riley would touch and
lick her vagina. RB further testified that Riley inserted his finger in her vagina when she was
around nine years old. And when Riley found out that RB had sex with a boy when she was 13,
RB testified that Riley began inserting his penis into her vagina. This occurred repeatedly until
2020.
Vancouver Police officer Rotha Yong testified about coming to Riley’s house in April
2010 to take custody of RB. She testified that Riley told Faith, “Don’t say anything. Don’t tell
them anything.” RP at 682-683. Riley objected based on a standing objection that this testimony
involved Riley’s exercise of his right to remain silent.2 The trial court noted the objection.
Faith testified that RB disclosed in August 2020 that Riley had abused her. Later, Faith
testified that she divorced Riley “[b]ecause he raped [RB].” RP at 776. Riley objected and the
2 Before trial, Riley filed a motion in limine to exclude this testimony because it was a comment on his right to remain silent. The trial court reserved ruling on the issue.
3 No. 59524-9-II
trial court sustained the objection, instructing the jury that Faith was not allowed to state a legal
conclusion about rape.
JM testified that sometime in 2010, RB disclosed that Riley was touching her. JM told
her mother and then talked with CPS people. When JM was in high school, she reached out to
RB because she thought RB might still be in danger. JM said that the first time RB said nothing
happened, but the second time “she was a little more honest.” RP at 670. At that point, Riley
objected, and the trial court instructed the jury to disregard the last portion because witnesses are
not allowed to comment on another witnesses’ honesty.
Watson testified that we he was around 12 years old, he heard Riley call RB “sexy.” RP
at 696. Watson later testified that he no longer had a relationship with Riley. He stated, “[W]hat
had happened to [RB] was kind of the thing that is kind of unforgivable, you know. So it was
something that I didn’t ever really want to talk to him again.” RP at 700. Riley objected, and the
trial court instructed the jury to disregard the statement.
Riley testified and denied ever touching RB inappropriately or forcing her to have sexual
intercourse with him.
During cross-examination, the prosecutor asked Riley whether his son, Watson, testified
falsely when he stated he heard Riley call RB “sexy.” RP at 767. Defense counsel objected,
arguing that Riley was not permitted to comment on another witness’s veracity. The trial court
overruled the objection, stating that there was a factual discrepancy and that broadened cross-
examination was permitted. Riley testified that Watson obviously was mistaken in what he
heard.
The prosecutor then asked Riley whether it was Riley’s testimony that RB was “making
everything up.” RP at 767. Defense counsel did not object. Riley responded that he believed
4 No. 59524-9-II
RB had assistance in making up what she said. The prosecutor continued by asking whether RB
was an actress. Riley testified that RB was “a very good actor.” RP at 768.
The prosecutor then asked if Faith was an actress. Defense counsel objected that the
question was not relevant. The trial court overruled the objection. Riley testified that Faith “puts
on a relatively good show” for people at church and that “she is a very good actor without any
formal education in acting.” RP at 768.
Jury Instruction
The trial court provided the following instruction to the jury:
You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. . . . The lawyers’ remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers’ statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions.
Clerk’s Papers (CP) at 17.
Closing Argument
During closing argument, the prosecutor discussed Faith’s lack of a motive to lie. The
prosecutor stated that nothing in Faith’s testimony reflected that she had a motive to fabricate
anything. The prosecutor then stated, “She wasn’t hiding anything. She gave honest,
straightforward answers to all those questions.” RP at 853. The prosecutor then discussed RB’s
lack of motive to lie: “Nothing in the record reflects that she had the motive to fabricate
anything.” RP at 853. The prosecutor stated, “[RB’s] not an actress. Faith’s not an actress.
These are just people who came in and testified. These people who live here in Vancouver. They
weren’t coached. They weren’t trained on how to testify. They came in to just simply take an
oath and tell you the truth.” RP at 853-54. Riley did not object to these statements.
5 No. 59524-9-II
The prosecutor also referenced Officer Yong’s testimony that Riley told Faith and RB to
not tell investigators anything. Riley’s defense counsel objected to the argument. Riley argued
that the prosecutor improperly commented on Riley’s right to remain silent. The trial court
overruled Riley’s objection.
During rebuttal argument, the prosecutor argued,
One thing I want to say is that sometimes in defense’s arguments, there’s this sort of dangling of this shiny object over here so you don’t pay attention to, you know, real core aspects of the testimony in this case. And that shiny object that they dangle over there is what defense counsel would qualify as reasonable doubt.
RP at 877. Riley did not object to these statements.
The State also stated during rebuttal that the detective and forensic child interview
specialists do not charge cases. He stated, “I am the prosecutor in this case. They do not
investigate false allegations. They investigate. That’s all they do. I make the charging
decision.” RP at 883. Riley did not object to these statements.
Verdict and Sentencing
The jury convicted Riley on all counts. For all of the convictions, the jury also found
aggravating factors that Riley abused his position of trust and the offenses were part of an
ongoing pattern of abuse. At sentencing, the trial court imposed various community custody
conditions.
Riley appeals his convictions and the imposition of certain community custody
ANALYSIS
A. PROSECUTORIAL MISCONDUCT
Riley argues that the prosecutor committed prosecutorial misconduct by (1) asking Riley
during cross-examination whether RB and Watson were lying, (2) commenting on Riley’s
6 No. 59524-9-II
assertion of the right to remain silent, (3) minimizing the burden of proof during closing
argument by characterizing Riley’s evidence and arguments as a “shiny object,” (4) vouching for
the credibility of the victim and her mother during closing argument, and (5) vouching for the
credibility of the State’s case during closing argument. We conclude that all of Riley’s
arguments fail.
1. Legal Principles
To prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecutor’s conduct was both improper and prejudicial in the context of all the circumstances of
the trial. State v. Zamora, 199 Wn.2d 698, 708, 512 P.3d 512 (2022). Our analysis considers
“the context of the case, the arguments as a whole, the evidence presented, and the jury
instructions.” State v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021). To show prejudice, the
defendant is required to show a substantial likelihood that the misconduct affected the jury’s
verdict. Id.
When the defendant fails to object to the challenged portions of the prosecutor’s
argument, they must show that the prosecutor’s misconduct was so flagrant and ill-intentioned
that an instruction would not have cured the resulting prejudice. Zamora, 199 Wn.2d at 709. “In
other words, the defendant who did not object must show the improper conduct resulted in
incurable prejudice.” Id. If a defendant fails to make this showing, the prosecutorial misconduct
claim is waived. Slater, 197 Wn.2d at 681.
2. Asking Riley to Comment on Witnesses’ Credibility
Riley argues, and the State concedes, that the prosecutor committed misconduct when he
asked Riley to comment on RB’s and Watson’s credibility. We agree that the questions were
improper, but we conclude that Riley cannot show prejudice.
7 No. 59524-9-II
It is improper for a prosecutor to ask a witness whether another witness is lying. State v.
Cook, 17 Wn. App. 2d 96, 106, 484 P.3d 13 (2021). Here, the prosecutor asked Riley whether
RB was “making everything up” or was an “actress” and whether Watson testified falsely. RP at
767-768. Riley objected to portions of these questions, but the trial court overruled the
objections.
The State concedes that the comments on the credibility of witnesses were improper but
argues that Riley cannot show prejudice. We accept the State’s concession that the questioning
was improper. The issue is whether there is a substantial likelihood that the misconduct affected
the jury’s verdict. Slater, 197 Wn.2d at 681.
Riley argues that the prosecutor’s questioning placed him in a bad light in front of the
jury. However, the prosecutor did not directly ask Riley whether RB and Watson were liars, and
in fact Riley did not directly say that they were lying. Instead, the questions allowed Riley to
explain his contention that RB had assistance in formulating her statements and that Watson was
mistaken. This testimony did not place Riley in a bad light.
The questioning here did not force the jury to choose between competing accusations of
perjury. Because the misconduct was isolated and did not result in Riley calling RB and Watson
liars, we conclude that there is not a substantial likelihood that the prosecutor’s questions
affected the verdict. Accordingly, we hold that Riley’s prosecutorial misconduct claim on this
basis fails.
3. Comment on Riley’s Right to Remain Silent
Riley argues that the prosecutor impermissibly commented on Riley’s exercise of the
right to remain silent by referencing that he told Faith, “Don’t say anything. Don’t tell them
anything” when the police arrived at his home. RP at 682-83. We disagree.
8 No. 59524-9-II
Both the Fifth Amendment to the United States Constitution and article I, section 9 of the
Washington Constitution guarantee a defendant the right to be free from compelled self-
incrimination, including a right to remain silent. State v. Pinson, 183 Wn. App. 411, 416-17, 333
P.3d 528 (2014). A comment on the right to remain silent occurs when the State uses evidence of
the defendant’s silence to its advantage, either as substantive evidence of the defendant’s guilt or
to suggest that the silence admitted guilt. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235
(1996).
Here, Riley did not remain silent when the police arrived. Instead, he directed Faith to
remain silent. Therefore, the prosecutor was commenting on what Riley said, not on his silence.
There is no constitutional right implicated here.
Riley argues that this case is similar to State v. Burke, in which the defendant’s father
advised him to remain silent when police began questioning him about having sex with an
underage girl. 163 Wn.2d 204, 207, 181 P.3d 1 (2008). At trial, the State argued that the
defendant really believed that the girl was 16, he would have said something during the police
interview. Id. at 208-09. The court held that the State violated the defendant’s right to remain
silent. Id. at 222.
This case bears no resemblance to Burke. In that case, the defendant was the person who
was instructed to remain silent. But Faith is not the defendant here. The State used Riley’s
statement to Faith as evidence that he had something to hide. This is not a comment on Riley’s
right to remain silent, but eliciting testimony about a verbal statement he made.
Accordingly, we hold that Riley’s prosecutorial misconduct claim on this basis fails.
9 No. 59524-9-II
4. Minimizing the Burden of Proof
Riley argues that the State improperly minimized the State’s burden of proof during
rebuttal closing argument by characterizing reasonable doubt as a “shiny object” used to distract
the jury. We disagree.
In a criminal case, the State bears the burden of proving every element of the crime
beyond a reasonable doubt. State v. Restvedt, 26 Wn. App. 2d 102, 127, 527 P.3d 171 (2023). It
is improper for a prosecutor to minimize or trivialize the State’s burden of proof. State v.
Lindsay, 180 Wn.2d 423, 436, 326 P.3d 125 (2014). The prosecutor cannot minimize “the
importance of the [beyond a] reasonable doubt standard and of the jury’s role in determining
whether the State ha[d] met its burden.” State v. Anderson, 153 Wn. App. 417, 431, 220 P.3d
1273 (2009). However, the prosecutor may respond to a defendant’s arguments. State v. Russell,
125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Here, during rebuttal argument, the prosecutor stated,
One thing I want to say is that sometimes in defense’s arguments, there’s this sort of dangling of this shiny object over here so you don’t pay attention to, you know, real core aspects of the testimony in this case. And that shiny object that they dangle over there is what defense counsel would qualify as reasonable doubt.
RP at 877.
However, Riley did not object to these comments. We do not view these statements as
flagrant and ill-intentioned. And if Riley had objected, the trial court could have cured any
prejudice by reminding the jury about the instructions regarding burden of proof and reasonable
doubt.
In any event, when read in context, the prosecutor’s comment was not improper. The
prosecutor was responding to Riley’s arguments and characterized them as a distraction. The
prosecutor urged the jury not to be distracted and to focus on the evidence. The prosecutor did
10 No. 59524-9-II
not minimize or trivialize the State’s burden of proof or undermine the reasonable doubt
standard. In addition, the trial court properly instructed the jury on the State’s burden of proof.
Accordingly, we hold that Riley’s prosecutorial misconduct claim on this basis fails.
5. Vouching for Credibility of Witnesses
Riley argues that the State committed prosecutorial misconduct by vouching for the
credibility of RB and Faith during closing argument. We disagree.
Improper vouching occurs if the prosecutor places the prestige of the government behind
the witness. State v. Robinson, 189 Wn. App. 877, 892–93, 359 P.3d 874 (2015). However, there
is a difference between the prosecutor’s personal opinion, as an independent fact, and an opinion
based upon or deduced from the evidence. State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221
(2006). Misconduct occurs only when it is clear and unmistakable that the prosecutor is not
arguing an inference from the evidence but instead is expressing a personal opinion. Id. at 54.
However, we recognize that the prosecutor has “wide latitude to argue reasonable inferences
from the evidence, including evidence respecting the credibility of witnesses.” State v.
Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011).
Here, the prosector stated that Faith “g[a]ve honest, straightforward answers to all those
questions.” RP at 853. And regarding both RB and Faith, the prosecutor stated, “They weren’t
coached. They weren’t trained on how to testify. They came in to just simply take an oath and
tell you the truth.” RP at 854.
However, Riley did not object to these statements. We do not view these statements as
flagrant and ill-intentioned. And if Riley had objected, the trial court could have cured any
prejudice by reminding the jury of the instruction that the jury is the sole judge of witness
credibility and that attorney statements are not evidence.
11 No. 59524-9-II
In any event, the prosecutor’s comments about RB’s and Faith credibility were not
improper because they reflected a reasonable inference from the evidence. The prosecutor
argued from the evidence that neither RB nor Faith had a motive to lie, stating that nothing in
record reflected that Faith or RB had a motive to fabricate anything. Only then did he make
statements regarding their credibility.
Accordingly, we hold that Riley’s prosecutorial misconduct claim on this basis fails.
6. Vouching for Credibility of the State’s Case
Riley argues, and the State concedes, that the prosecutor committed misconduct by
vouching for the credibility of the State’s charging decision during closing argument. We
conclude that Riley waived this argument.
Here, the prosecutor emphasized that he was the one who made the charging decision in
Riley’s case. We agree that this statement was improper because it implied that the prosecutor’s
personal opinion was that Riley was guilty.
However, Riley did not object to these statements. We do not view these statements as
flagrant and ill-intentioned. And if Riley had objected, the trial court could have cured any
prejudice by ordering the jury to disregard the comments and reminding the jury of the
instruction stating that attorney statements are not evidence.
Accordingly, we hold that Riley waived his prosecutorial misconduct claim on this basis.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Riley argues that he received ineffective assistance of counsel because his defense
counsel failed to move for a mistrial after three witnesses gave opinions that Riley was guilty.
We disagree.
12 No. 59524-9-II
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of
counsel. State v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024). To prevail on an
ineffective assistance of counsel claim, a defendant must show both that defense counsel's
performance was deficient and that the deficient performance was prejudicial. Id.
Defense counsel’s representation is deficient if, after considering all the circumstances, it
falls below an objective standard of reasonableness. State v. Vazquez, 198 Wn.2d 239, 247-48,
494 P.3d 424 (2021). There is a strong presumption that defense counsel’s performance was
reasonable. Bertrand, 3 Wn.3d at 128. To rebut that presumption, a defendant bears the burden
of establishing the absence of any legitimate strategic or tactical reason explaining counsel’s
conduct. Vazquez, 198 Wn.2d at 248.
Whether to object typically is a strategic or tactical decision. Id. And a legitimate trial
strategy is to forgo an objection when defense counsel wishes to avoid highlighting certain
evidence. Id. In addition, to establish deficient performance based on a failure to object, a
defendant must show that the trial court would have sustained the objection. Id.
In addition, in order to prevail on a claim that defense counsel’s failure to request
a mistrial constituted ineffective assistance of counsel, a defendant must establish that the request
for a mistrial would have been granted. See State v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653
(2012) (articulating that standard for a motion to sever).
2. Analysis
Here, Riley fails to show both that (1) defense counsel’s representation was deficient, and
(2) the trial court would have granted a motion for a mistrial.
13 No. 59524-9-II
Riley’s defense counsel objected each time a witness offered an opinion on guilt. When
RB’s friend JM testified that RB was “a little more honest” when they conversed, RP at 670-71,
defense counsel moved to strike, and the trial court instructed the jury to disregard that portion.
When Riley’s son Watson testified that “what had happened to [RB] was kind of the thing that is
kind of unforgivable,” RP at 700-01, defense counsel moved to strike and the court again
instructed the jury to disregard. Finally, defense counsel objected when Faith mentioned that she
filed divorce because Riley raped RB, and the court instructed the jury that Faith could not give a
legal conclusion. Defense counsel clearly was not deficient in objecting to these statements.
Riley argues that defense counsel was deficient because she also did not move for a
mistrial. But there may be legitimate tactical reasons to not request a mistrial. State v.
Dickerson, 69 Wn. App. 744, 748, 850 P.2d 1366 (1993). Defense counsel here may not have
wanted a mistrial for various strategic reasons. For example, defense counsel may have been
happy with how the trial was going and may have believed that an acquittal was possible.
Riley also must establish that a mistrial would have been granted. “ ‘A mistrial should be
granted only when the defendant has been so prejudiced that nothing short of a new trial can
insure that defendant will be tried fairly.’ ” State v. Gaines, 194 Wn. App. 892, 897, 380 P.3d
540 (2016) (quoting State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979)). The fact that the
jury heard these witnesses’ opinions on guilt was mitigated by the fact that the trial court
immediately sustained Riley’s objections and the court provided appropriate instructions to the
jury. Therefore, Riley cannot show that the trial court would have granted a mistrial motion even
if defense counsel had made one.
Accordingly, we hold that Riley’s ineffective assistance of counsel claim fails.
14 No. 59524-9-II
C. CUMULATIVE ERROR
Riley argues that the cumulative effect of multiple errors denied him a fair trial. We
disagree.
Under the cumulative error doctrine, we may reverse if the defendant shows that the
combined effect of multiple errors requires a new trial. State v. Clark, 187 Wn.2d 641, 649, 389
P.3d 462 (2017). The cumulative effect of repeated prosecutorial misconduct may be so flagrant
that no instruction can erase the combined prejudicial effect. In re Pers. Restraint of Glasmann,
175 Wn.2d 696, 707, 286 P.3d 673 (2012).
Here, two of the prosecutor’s comments were improper. But based on our discussion
above, we conclude that the cumulative effect of these two improper statements does not warrant
a new trial.
D. COMMUNITY CUSTODY CONDITIONS
Riley challenges four of the community conditions the trial court imposed in his
judgment and sentence: (1) condition 4, prohibiting contact with minors including his minor son;
(2) condition 11, requiring the sex offender therapist to submit quarterly reports to the
Department of Corrections (DOC); (3) condition 12, requiring him to pay for polygraph testing;
and (4) condition 18, prohibiting the possession of internet capable devices.
1. Failure to Challenge Conditions in the Trial Court
The State argues that Riley waived his challenge by failing to object at sentencing.
Although a defendant generally must raise an issue in the trial court to preserve it for appeal, we
exercise our discretion to review Riley’s challenges. RAP 2.5(a).
15 No. 59524-9-II
2. Standard of Review
We review the imposition of court-ordered community custody conditions for an abuse of
discretion. State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). “A trial court abuses its
discretion if it imposes an unconstitutional condition.” Id. We do not presume that community
custody conditions are valid. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015).
3. Condition 4 – No Contact with Minors
Condition 4 in Appendix A states that Riley “shall not have any contact with minors
without prior approval of DOC and [his] sexual deviancy treatment provider.” CP at 147. Riley
argues that this condition should be stricken or modified because it violates his constitutional
right to parent his minor son.
A parent’s care, custody, and companionship of their children is a fundamental
constitutional right. State v. DeLeon, 11 Wn. App. 2d 837, 841, 456 P.3d 405 (2020). “More
careful review of sentencing conditions is required where those conditions interfere with a
fundamental constitutional right.” State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
Sentencing conditions that interfere with parenting rights must be “ ‘reasonably necessary to
accomplish the essential needs of the State and public order.’ ” DeLeon, 11 Wn. App. 2d at 840-
41 (quoting Warren, 165 Wn.2d at 32). In addition, “[s]uch conditions ‘must be narrowly
drawn,’ and ‘[t]here must be no reasonable alternative way to achieve the State's interest.’ ”
DeLeon, 11 Wn. App. 2d at 841 (quoting Warren, 165 Wn.2d at 34-35).
A trial court can impose a condition restricting a defendant’s access to his or her own
children only if the condition is “reasonably necessary to further the State's compelling interest
in preventing harm and protecting children.” State v. Corbett, 158 Wn. App. 576, 598, 242 P.3d
52 (2010).
16 No. 59524-9-II
“[T]he interplay of sentencing conditions and fundamental rights is delicate and fact-
specific, not lending itself to broad statements and bright line rules.” In re Pers. Restraint of
Rainey, 168 Wn.2d 367, 377, 229 P.3d 686 (2010). The trial court must conduct this inquiry on
the record. DeLeon, 11 Wn. App. 2d at 841. The trial court must expressly “(a) consider the
constitutional right to parent, (b) explain why the no-contact provision is necessary, and (c)
explore whether any viable less restrictive alternatives exist.” State v. Reedy, 26 Wn. App. 2d
379, 392, 527 P.3d 156 (2023). Remand is required if the trial court does not address the
defendant’s constitutional right to parent before prohibiting all contact with their children.
DeLeon, 11 Wn. App. 2d at 841-42.
Here, the trial court did not address Riley’s constitutional right to parent on the record,
likely because Riley did not object to the condition. Therefore, on remand the trial court must
conduct the necessary constitutional analysis and determine if there are less restrictive
alternatives.
4. Condition 11 – Treatment Provider Reporting to DOC
Condition 11 in Appendix A states, “[t]he sex offender therapist shall submit quarterly
reports on [Riley’s] progress in treatment to DOC.” CP at 148. Riley argues that this condition
is overbroad because it allows the trial court to sanction him if his therapist fails to submit the
required report. The State argues that this provision merely describes administrative reporting
and does not impose an affirmative obligation on Riley.
Here, the reporting condition does not clearly distinguish between obligations imposed on
the treatment provider and obligations imposed on Riley. As written, the condition can be read to
make Riley responsible for ensuring the treatment provider’s compliance. Riley cannot control
whether a third-party treatment provider timely submits reports to DOC or what those reports
17 No. 59524-9-II
contain. Without clarification, the condition creates an unacceptable risk of arbitrary
enforcement because DOC could consider a treatment provider’s noncompliance as a violation
by Riley.
Accordingly, we remand for the trial court to amend this condition to make clear that
Riley’s obligations are limited to participating in treatment and signing necessary releases.
5. Condition 12 – Polygraph at Defendant’s Expense
Riley argues, and the State concedes, that condition 12 in Appendix A requiring
polygraph testing at his own cost should be stricken because the trial court found Riley to be
indigent. We accept the State’s concession and remand to the trial court to strike Condition 12.
6. Condition 18 – Internet-Capable Devices
Condition 18 in Appendix A provides that Riley shall not
possess any electronic device capable of viewing images on the internet, downloading images from the internet, browsing internet websites, or accessing social media websites without prior approval of DOC and [his] sexual deviancy treatment provider. [And he] shall not access any internet website without prior approval of DOC and [his] sexual deviancy treatment provider.
CP at 148. Riley argues that this condition must be stricken because it is not crime-related and is
unconstitutionally overbroad.
The State argues that the conditions should be amended rather than stricken. The State
relies on State v. Geyer, where the court held that requiring preapproval for every action on a
computer or the internet is unnecessarily broad, and that use of a filter tailored to the defendant’s
risk can accomplish the State’s goals in a narrower manner. 19 Wn. App. 2d 321, 330, 496 P.3d
322 (2021). We agree that the condition as written is overly broad.
Internet restrictions requiring offenders to access the internet only through filters
approved by an offender’s CCO have been found not to be overbroad. State v. Johnson, 197
18 No. 59524-9-II
Wn.2d 740, 742, 487 P.3d 893 (2021). In Johnson, the Supreme Court upheld a community
custody condition prohibiting the defendant from using or accessing the internet “unless
specifically authorized by [his CCO] through approved filters.” Id. at 744-47.
Unlike in Johnson, the condition imposed on Riley does not clarify when approval is
required or whether approval may be granted generally, and the condition risks restricting
constitutionally permissible use of electronic devices and internet access.
Accordingly, we remand for the trial court to amend the condition so it does not exclude
constitutionally permissible use.
CONCLUSION
We affirm Riley’s convictions, but we remand for trial court to address the challenged
community custody conditions consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
LEE, J.
GLASGOW, J.