Filed Washington State Court of Appeals Division Two
March 31, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 60510-4-II
Respondent,
v. UNPUBLISHED OPINION EDWIN JUAREZ DELRIO,
Appellant.
VELJACIC, A.C.J. — Edwin DelRio1 appeals his convictions for two counts of attempted
rape of a child in the second degree (counts I and II), one count of felony communication with a
minor for immoral purposes (count III), and one count of attempted commercial sexual abuse of a
minor (count IV). The trial court imposed community custody conditions that prohibit DelRio
from consuming alcohol or cannabis (special condition 11) and limit his ability to access the
Internet or possess personal electronic devices (special conditions 24, 25, and 26).
DelRio argues that (1) there was insufficient evidence to support his convictions, (2) his
attempted rape of a child in the second degree convictions constitute the same criminal conduct,
(3) several community custody conditions are unconstitutional, and (4) his sentences for counts III
and IV exceed the statutory maximums. The State concedes that DelRio’s sentence for count III
exceeds the statutory maximum and that special condition 26 is not crime related.
1 When referring to the defendant, we follow the way the defendant spells and formats his name. 60510-4-II
We accept the State’s concessions. We remand for the trial court to modify special
conditions 24 and 25, strike special condition 26, and reduce the term of community custody for
count III. We otherwise affirm.
FACTS
I. OPERATION AND ARREST
Law enforcement officers running a sting operation posted an advertisement on a website
where people sell sexual services. The advertisement marketed sexual services from ‘Kaitlyn”
and “Adi” with photos of two officers that had been digitally modified to make the officers appear
to be teenagers. Ex. 15. The advertisement stated that the fictional girls were 19 years old.
A subject at a phone number beginning with (415) texted the phone number that police
listed in the advertisement. The (415) number requested a “duo,” meaning intercourse with two
people, and the police officer manning the advertised phone number responded that a duo would
cost $350 per half-hour. Ex. 17. The (415) number then asked the price “for a duo BB,” referring
to intercourse without a condom, for which the officer quoted a rate of $450. Ex. 17.
After the (415) number requested an address to meet at, the officer asked, “How old [are
you?]” Ex. 17. The (415) number responded “34.” Ex. 17. The officer then texted, “I might be
too young,” followed by, “If [you’re] cool wit[h] us being 13 . . . let’s go.” Ex. 17. The (415)
number responded, “Send me a pic[ture] of you doing a thumbs up?” before again requesting an
address to meet at and then asking if cash was an acceptable form of payment. Ex. 17. When the
officer directed the (415) number to a hotel, the (415) number requested a picture of “Adi holding
2 thumbs up” and then asked how it was possible to book a hotel room without being 18, to which
the officer responded, “Cash is king.” Ex. 17.
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The hotel that police directed the (415) number to had a front and back parking lot, with a
secured gate in between. When police asked what car the (415) number was driving, it responded,
“A blue Honda.” Ex. 17. Shortly thereafter, a black Toyota pickup truck entered the front parking
lot. The black Toyota then proceeded toward the back parking lot. Within a minute of indicating
that it was driving a blue Honda, the (415) number sent a message reading, “There’s a gate
blocking parking though . . . . Does it automatically open?” Ex. 17. Police responded, “Hit the
buzzer,” and the Toyota then proceeded through the gate to the back parking lot. Ex. 17. DelRio
then got out of the Toyota and entered the hotel.
Police were using two rooms in a short dead-end hallway to conduct the sting operation,
directing targets to knock on one room’s door and then using the other room to stage for arrests.
The two rooms police were using were the only rooms in the hallway.
DelRio knocked on the door of the room police were directing targets to, and officers
arrested him. DelRio told officers that he was at the room to pick up a package.
During a search incident to arrest, officers found $450 in cash on DelRio’s person.
Additionally, officers executed a search warrant on DelRio’s truck and found a cell phone. Police
sent a message reading “TEST” to the (415) number, but police did not observe whether that
message appeared on the phone later found in DelRio’s truck. 5 Rep. of Proc. at 485. And police
were unable to access or extract any data from the phone found in DelRio’s truck or to identify the
associated phone number.
The State charged DelRio with two counts of attempted rape of a child in the second degree,
one count of felony communication with a minor for immoral purposes, and one count of attempted
commercial sexual abuse of a minor. DelRio was 34 years old.
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II. TRIAL, VERDICT, AND SENTENCING
At trial, witnesses testified consistently with the facts described above. DelRio did not
object when the trial court admitted a log of the text messages between the undercover police
officer and the (415) number. The jury convicted DelRio of all charges.
At sentencing, the State requested a sentence at the bottom of the standard sentencing
range, while DelRio requested an exceptional downward sentence. DelRio also requested a ruling
that his convictions all constituted the same criminal conduct, which would have set his offender
score at 0 points.
The trial court acknowledged that DelRio had no prior criminal history and had undergone
several evaluations that reported no inclination toward predatory behavior or sexual attraction to
children. But the trial court ruled that DelRio’s crimes had different intents, so they were not the
same criminal conduct. As a result, each of DelRio’s convictions counted for three points against
his other current offenses, so his offender score was over 9 points. Former RCW 9.94A.525(17)
(2021); RCW 9.94A.589(1)(a).
The trial court imposed a sentence at the bottom of the standard range of 157.5 months to
life for each count of attempted rape of a child in the second degree. The trial court also imposed
a sentence of 51 months for the felony communication with a minor for immoral purposes
conviction, and a sentence of 81 months for the attempted commercial sexual abuse of a minor
conviction. Next, the trial court imposed lifetime community custody for each of the attempted
rape of a child in the second degree convictions, and 36 months of community custody for the
other two convictions.
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The trial court also imposed community custody conditions. Special condition 11
prohibited DelRio from consuming alcohol or cannabis. And the trial court imposed several
conditions related to use of the Internet and electronic devices:
24 . . . No internet access or use, including email, without prior approval of the supervising [community custody officer (CCO)] and Treatment Provider.
25 . . . No use of a computer, phone, or computer-related device with access to the Internet or on-line computer service except as necessary for employment purposes (including job searches). The CCO is permitted to make random searches of any computer, phone or computer-related device to which the defendant has access to monitor compliance with this condition.
26 . . . No possession of any audio or video recording equipment, to include personal electronic devices, such as cell phones, watches, and iPods, with a camera/video recording capability without the prior approval of the supervising CCO and Treatment Provider. The CCO is permitted to make random searches of any computer, phone or computer-related device to which the defendant has access to monitor compliance with this condition.
Clerk’s Papers (CP) at 560.
DelRio appeals his convictions and sentence.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
DelRio argues that there was insufficient evidence to convict him of any of the charges.
Specifically, he asserts that the ER 901 criteria for authenticating electronic messages were not
met in this case, even though he does not assign error to the trial court’s ruling admitting the text
messages. DelRio relies on caselaw from Washington and other jurisdictions requiring
corroborating evidence about who sent text messages before admitting those messages as evidence
under ER 901 and its foreign equivalents.
The State first responds that DelRio did not challenge the admissibility of the text messages
at trial. And it emphasizes that the cases DelRio cites addressed scenarios where there were
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objections to the authenticity of and foundation for text messages—objections which were not
made in the instant case. The State also argues that “ample circumstantial evidence supports the
jury’s verdict.” Br. of Resp’t at 26.
To begin, DelRio neither challenged the admissibility of the text messages below nor
assigned error to the ruling admitting the text messages. See RAP 2.5(a); RAP 10.3(a)(4); Kellar
v. Estate of Kellar, 172 Wn. App. 562, 579, 291 P.3d 906 (2012) (appellate courts will not review
arguments raised for the first time on appeal, or trial court rulings that appellants do not assign
error to). Thus, we review only whether there was sufficient evidence to support DelRio’s
convictions, not whether that evidence was properly admitted.
A defendant challenging the sufficiency of the evidence admits the truth of the State’s
evidence. State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010). Accordingly, we view the
evidence in the light most favorable to the State and draw all reasonable inference in the State’s
favor to “determine whether ‘any rational trier of fact could have found guilt beyond a reasonable
doubt.’” State v. Frahm, 193 Wn.2d 590, 595, 444 P.3d 595 (2019) (quoting State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992)). “Circumstantial and direct evidence are to be considered
equally reliable.” State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017).
DelRio was convicted of two counts of attempted rape of a child in the second degree, one
count of felony communication with a minor for immoral purposes, and one count of attempted
commercial sexual abuse of a minor.
A person is guilty of an attempt to commit a crime if they intend to commit a specific crime
and do “any act which is a substantial step toward the commission of that crime.” RCW
9A.28.020(1). “Mere preparation to commit a crime is not a substantial step” because the conduct
must be “‘strongly corroborative of the actor’s criminal purpose.’” State v. Sivins, 138 Wn. App.
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52, 63, 155 P.3d 982 (2007) (quoting State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995)).
Factual or legal impossibility is not a defense to an attempt crime. RCW 9A.28.020(2).
“A person is guilty of rape of a child in the second degree when the person has sexual
intercourse with another who is at least twelve years old but less than fourteen years old and the
perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1). A person
commits felony communication with a minor for immoral purposes “if the person communicates
with a minor or with someone the person believes to be a minor for immoral purposes, including
the purchase or sale of commercial sex acts . . . , through the sending of an electronic
communication.” RCW 9.68A.090(2). And a person commits commercial sexual abuse of a minor
if they provide “anything of value to a minor or a third person pursuant to an understanding that
in return therefore such minor will engage in sexual conduct with” the defendant, or if they solicit,
offer, or request “to engage in sexual conduct with a minor in return for anything of value.” RCW
9.68A.100(1)(b), (c).
While there is indeed no direct evidence that DelRio sent the text messages from the (415)
number, there is strong circumstantial evidence that he did. For example, police quoted the (415)
number a price of $450 for intercourse with two 13-year-old girls, and that exact amount of cash
that was found on DelRio’s person.2 DelRio was also the same age, 34, as the age stated by the
(415) number. And the (415) number sent texts inquiring about how to get through the gate to the
hotel’s back parking lot as DelRio’s vehicle was at the gate. Moreover, DelRio knocked on the
door of the room that police directed the (415) number to, which was in a dead-end hallway entirely
reserved for the purposes of the sting operation. And this circumstantial evidence is equally
2 Although on appeal DelRio disputes the exact amount of money found on his person, two different officers testified that $450 was the amount recovered, and a sufficiency of the evidence challenge requires admitting the State’s evidence as true. Drum, 168 Wn.2d at 35.
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reliable as direct evidence because we are reviewing a challenge to the sufficiency of the evidence.
Cardenas-Flores, 189 Wn.2d at 266.
In sum, taking the State’s evidence as true, we can draw a reasonable inference that DelRio
was the person sending the text messages from the (415) number. Drum, 168 Wn.2d 35; Frahm,
193 Wn.2d at 595. From there, a rational trier of fact could have found beyond a reasonable doubt
that DelRio arranged the meeting to have intercourse with two 13-year old girls over text and then
arriving at the designated hotel room with the agreed-upon amount of cash. By doing so, DelRio
took a substantial step toward having sexual intercourse with two 13-year old girls, communicated
with a minor for the purpose of purchasing commercial sex acts through electronic
communications, and took a substantial step towards soliciting sexual conduct with a minor in
return for something of value—specifically, $450. Frahm, 193 Wn.2d at 595. Accordingly, we
hold that there was sufficient evidence to support each of DelRio’s convictions.
II. SAME CRIMINAL CONDUCT
Next, DelRio argues that his two convictions for attempted rape of a child in the second
degree constitute the same criminal conduct. He asks this court to distinguish similar cases where
courts have held that multiple counts of attempted rape of a child against fictional sting operation
victims were not the same criminal conduct. Instead, DelRio emphasizes that the Washington
Supreme Court has not ruled on any such case, and he argues that this court’s prior decisions
contradict the purpose of the Sentencing Reform Act, chapter 9.94A RCW, because there were not
multiple real victims.
In general, whenever a person is sentenced for two or more current offenses, all other
current convictions are included in the offender score. RCW 9.94A.589(1)(a). However, “if the
court enters a finding that some or all of the current offenses encompass the same criminal conduct
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then those current offenses shall be counted as one crime.” Id. Offenses are the same criminal
conduct if they are “crimes that require the same criminal intent, are committed at the same time
and place, and involve the same victim.” Id. “The defendant bears the burden to establish that his
convictions amount to the same criminal conduct, and if any element is missing, the sentencing
court must count the offenses separately.” State v. Canter, 17 Wn. App. 2d 728, 741, 487 P.3d
916 (2021). We construe RCW 9.94A.589(1)(a) “‘narrowly to disallow most claims that multiple
offenses constitute the same criminal act.’” State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219
(2013) (quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)). “We review
determinations of same criminal conduct for abuse of discretion or misapplication of law.” State
v. Stott, 29 Wn. App. 2d 55, 72, 542 P.3d 1018 (2023).
The Supreme Court has explained that attempt convictions are the result of a defendant’s
intent “to commit the crime and the fact that had things been as the defendant believed them to be,
[they] would have completed the offense.” State v. Luther, 157 Wn.2d 63, 73, 134 P.3d 205
(2006). Following this reasoning, Division One has held that two counts of attempted child
molestation, where the victims were two fictional children, was not just “a crime against the public
at large.” Canter, 17 Wn. App. 2d at 742. “Had the situation been as [the defendant] believed it
to be, he would have had sexual contact with an 8-year-old girl and an 11-year-old girl,” harming
two separate victims. Id. In other words, because the defendant “intended to inflict specific injury
on two different victims, his crimes do not encompass the same criminal conduct.” Id.
Here, had the situation been as DelRio believed, he would have victimized two different
13-year-old girls. And crimes against different victims cannot constitute the same criminal
conduct. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992). Because DelRio intended
to inflict specific injury by raping two different victims, we hold that the trial court did not abuse
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its discretion by ruling that DelRio’s two convictions for attempted rape of a child in the second
degree did not constitute the same criminal conduct. Stott, 29 Wn. App. 2d at 72.
III. COMMUNITY CUSTODY CONDITIONS
DelRio challenges several community custody conditions as unconstitutional or not crime
related.
“We review community custody conditions for abuse of discretion.” State v. Johnson, 197
Wn.2d 740, 744, 487 P.3d 893 (2021). A trial court abuses its discretion if it exercises its discretion
on untenable grounds, such as by imposing an unconstitutional community custody condition. Id.
Trial courts have statutory authority to impose community custody conditions that are crime-
related, meaning that the conditions “prohibit[] conduct that directly relates to the circumstances
of the crime for which the offender has been convicted.” RCW 9.94A.030(10); State v. Irwin, 191
Wn. App. 644, 656, 364 P.3d 830 (2015).
A. Conditions Regarding Alcohol and Cannabis
DelRio argues that special condition 11, which prohibits him from using alcohol or
cannabis, is not crime related.
RCW 9.94A.703(2)(c) provides that, “Unless waived by the court, as part of any term of
community custody, the court shall order an offender to . . . [r]efrain from possessing or consuming
controlled substances except pursuant to lawfully issued prescriptions.” Cannabis is a controlled
substance, and an authorization to use medical cannabis is not a prescription. RCW
69.50.204(c)(17); RCW 69.51A.010(1)(b). Further, “[a]s part of any term of community custody,
the court may order an offender to . . . [r]efrain from possessing or consuming alcohol.” RCW
9.94A.703(3)(e).
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Thus, a trial court must prohibit any offender from possessing or consuming cannabis and
other controlled substances without a prescription and may prohibit the offender from possessing
or consuming alcohol. The fact that this condition is not crime related is irrelevant because it is
authorized by statute. See State v. Nelson, 4 Wn.3d 482, 503, 565 P.3d 906 (2025). This claim
fails.
B. Conditions Regarding Internet Use and Recording Equipment
DelRio argues that special conditions 24, 25, and 26 infringe on his First Amendment rights
to the United States Constitution and are not crime-related. Special condition 24 prohibits DelRio
from using the Internet, including e-mail, without prior approval from his CCO and treatment
provider. Special condition 25 prohibits DelRio from using any “computer-related device with
access to the Internet or on-line computer service except as necessary for employment purposes
(including job searches).” CP at 560. The condition also authorizes DelRio’s CCO to randomly
search any computer or related device DelRio possesses to monitor compliance. And special
condition 26 prohibits DelRio from possessing any audio or video recording equipment without
approval from his CCO.
DelRio contends that special condition 24 has been held unconstitutional in other cases
because it is susceptible to arbitrary enforcement. He also argues that restrictions on Internet use
such as in special condition 25 must be narrowly tailored, with benchmarks to prevent arbitrary
enforcement. And he argues that special condition 26 is overbroad and not crime related.
As an initial matter, the State concedes that special condition 26, regarding audio and video
recording equipment, is not crime related. There is no evidence that audio or video recording
equipment played any role in DelRio’s offenses. See Irwin, 191 Wn. App. at 656-57. Accordingly,
we accept the State’s concession and remand for the trial court to strike special condition 26.
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We next turn to the conditions affecting Internet access. “Restrictions on Internet access
have both due process and First Amendment implications.” Johnson, 197 Wn.2d at 744. “Judges
may restrict a convicted defendant’s access to the Internet, but those restrictions must be narrowly
tailored to the dangers posed by the specific defendant.” Id. at 745.
The Washington Supreme Court has explained that conditions restricting Internet access to
use through filters approved by a CCO are not unconstitutionally overbroad. Id. at 746-47. But
in another Internet sting operation case, Division Three held that conditions prohibiting any
computer use or the possession of any Internet-capable device without permission from a CCO
and treatment provider were “unnecessarily broad” in violation of the First Amendment. State v.
Geyer, 19 Wn. App. 2d 321, 330, 496 P.3d 322 (2021). Division Three remanded with instructions
to modify the conditions, and suggested that “use of a filter, tailored to [the defendant’s] risk to
the community, would be a sufficiently narrow way to fulfill the State’s goals.” Id. (internal
footnote omitted).
Special conditions 24 and 25 broadly prohibit DelRio from accessing the Internet without
CCO permission, with a limited exception for “employment purposes.” CP at 560. Although
slightly narrower than the conditions at issue in Geyer, these conditions still require preapproval
for almost every possible action on a computer or the Internet. While DelRio did use the Internet
to commit his offenses, these conditions are unnecessarily broad. See Geyer, 19 Wn. Ap. 2d at
330. Accordingly, we remand for the trial court to modify special conditions 24 and 25 in a manner
narrowly tailored to DelRio’s risk to the community, such as allowing Internet use through a CCO-
approved filter. See Geyer, 19 Wn. App. 2d at 330. And, as discussed above, the trial court should
strike condition 26 on remand.
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IV. MAXIMUM SENTENCES
Finally, DelRio argues that his sentences for counts III and IV exceed the statutory
maximum. The State concedes that the sentence for count III (communication with a minor for
immoral purposes) exceeds the statutory maximum, so we should remand for the trial court to
reduce the community custody term for that count to nine months. The State also explains that the
trial court has already corrected the sentence for count IV (attempted commercial sexual abuse of
a minor).
Communication with a minor for immoral purposes and attempted commercial sexual
abuse of a minor are both class C felonies. RCW 9.68A.090(2); RCW 9.68A.100(2); RCW
9A.28.020(3)(c). Thus, the maximum sentence for those offenses is 60 months. RCW
9A.20.021(1)(c). Next, RCW 9.94A.701(1) requires courts to impose 36 months of community
custody for sex offenses. The statute also provides: “The term of community custody specified by
this section shall be reduced by the court whenever an offender’s standard range term of
confinement in combination with the term of community custody exceeds the statutory maximum
for the crime as provided in RCW 9A.20.021.” RCW 9.94A.701(10).
Here, the trial court imposed a sentence of 51 months of confinement for count III,
communication with a minor for immoral purposes, and 81 months for count IV, attempted
commercial sexual abuse of a minor. The trial court also imposed 36 months of community
custody for each count. Thus, the total sentence for count III was 87 months and the total sentence
for count IV was 117 months, both in excess of the statutory maximum. Several months later, the
trial court entered an order correcting the sentence on count IV to 60 months of confinement and
striking the community custody for that count. This order did not affect the sentence for count III.
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The total sentence for count III clearly exceeds the statutory maximum. We accept the
State’s concession and remand for the trial court to reduce the term of community custody for
count III to nine months. RCW 9.94A.701(10). We need not address the sentence for count IV
because the trial court has already reduced the sentence for that count to the statutory maximum.
CONCLUSION
We remand for the trial court to modify special community custody conditions 24 and 25,
strike special condition 26, and reduce the term of community custody for count III to nine months.
We otherwise affirm.
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.
Veljacic, A.C.J.
We concur:
Maxa, J.
Price, J.