FILED COURT OF APPEALS DIV I STATE OF V/ASHI!!r_ii
2017 JUL 17 1N 9:07
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 74358-9-1 ) Respondent, ) ) v. ) ) HAI MINH NGUYEN, ) UNPUBLISHED OPINION ) Appellant. ) FILED: July 17, 2017 )
VERELLEN, C.J. — Hai Minh Nguyen was charged with one count of first degree
rape of a child and one count of second degree rape of a child based on acts of oral-
genital contact and other acts of sexual intercourse. Nguyen was also charged with one
count of first degree child molestation and one count of second degree child molestation
based on other incidents not involving oral-genital contact. The jury was not instructed
that it must find Nguyen committed each count as a separate and distinct act from the
other counts charged. But because it was manifestly apparent to the jury that the State
was not seeking multiple punishments against Nguyen for the same act, there was no
double jeopardy violation.
The trial court imposed a community custody condition prohibiting Nguyen from
possessing, using, accessing, or viewing any sexually explicit material, erotic material,
or any material depicting any person engaged in sexually explicit conduct. Because the No. 74358-9-1-2
condition adequately warns Nguyen of the prohibited conduct and it is reasonably
related to the circumstances of his crimes, his challenge fails.
The trial court imposed a community custody condition that imposed a curfew on
Nguyen. We accept the State's concession that this condition was not crime-related
and should be stricken.
The trial court also imposed a community custody condition that Nguyen cannot
enter areas where minors are known to congregate as defined by the community
corrections officer. We agree with the parties that this portion of the condition is not
sufficiently definite to apprise Nguyen of the prohibited conduct and allows for arbitrary
enforcement by his community corrections officer.
Therefore, we affirm and remand with instructions to strike special condition 7
and the unconstitutionally vague portion of crime-related prohibition 18.
FACTS
T.P. lived with her parents and little sister in a house in South Seattle.1 T.P.'s
mother worked long hours, and her father picked T.P. and her sister up from school
each day. Nguyen rented a bedroom in their house. Nguyen was employed, but he
would usually get home shortly after T.P. and her sister returned from school.
Nguyen sexually abused T.P. for the first time when she was approximately six
years old. While T.P. was sitting on Nguyen's lap at the table, he massaged her breasts
underneath her shirt. When T.P. was six or seven years old, Nguyen put his mouth on
I Because the victim in this case was a minor, she will be referred to by her initials.
2 No. 74358-9-1-3
her breasts.
Beginning when T.P. was eight or nine years old, Nguyen began sexually
assaulting her on a regular basis. He performed oral sex on T.P. He penetrated her
vagina with his fingers.
When T.P. was eleven years old, Nguyen followed T.P. into a spare bedroom
and penetrated her with his finger and penis.
The final time Nguyen sexually assaulted T.P., she was thirteen years old. T.P.
testified Nguyen digitally penetrated her and put his mouth on her genitals.
The State charged Nguyen with one count of first degree rape of a child, one
count of first degree child molestation, one count of second degree rape of a child, and
one count of second degree child molestation.
The jury was provided separate to-convict instructions for each of the four
counts. Following each to-convict instruction, the jury was instructed it must
"unanimously agree as to which act has been proved."2 But none of the instructions
required the jury to find "an act separate and distinct" from the other counts. The jury
returned guilty verdicts on all counts.
Nguyen appeals.
ANALYSIS
Double Jeopardy
Nguyen contends the jury instructions violated his right against being placed in
double jeopardy because they allowed multiple punishments for the same act.
2 Clerk's Papers(CP)at 39, 42, 45, 48.
3 No. 74358-9-1-4
"The constitutional guaranty against double jeopardy protects a defendant
against multiple punishments for the same offense."3 This court reviews a double
jeopardy claim de novo, and it may be raised for the first time on appea1.4 We "may
consider insufficient jury instructions 'in light of the full record' to determine if the
instructions 'actually effected a double jeopardy error.'"5
In State v. Land, this court recognized when an act of sexual intercourse involves
oral-genital contact only, if done for sexual gratification, that conduct is both molestation
and rape.6 Because they are the same in fact and in law, they are not separately
punishable.7 When both are charged, the jury instructions must require that the rape of
a child and child molestation counts be based on separate and distinct acts.° The
absence of such language presents the potential for double jeopardy.9 But there is no
violation of the defendant's guarantee against double jeopardy if, considering the
evidence, arguments, and jury instructions in their entirety, it is "manifestly apparent to
the jury that the State [was] not seeking to impose multiple punishments for the same
offense."1°
v. Land, 172 Wn. App. 593, 598, 295 P.3d 782(2013)(citing U.S. CONST. 3 State amend. V; WASH. CONST. art.!, § 9). 4 Id. 5 Statev. Pena Fuentes, 179 Wn.2d 808, 824, 318 P.3d 257(2014)(quoting State v. Mutch, 171 Wn.2d 646,664, 254 P.3d 803(2011)). 6 172 Wn. App. 593, 600, 295 P.3d 782(2013). 7 Id.
8 Id. at 600-01. 9 Id.
Mutch, 179 Wn.2d at 664 (quoting State v. Berg, 147 Wn. App. 923, 931, 198 19 P.3d 529 (2009)).
4 No. 74358-9-1-5
The State argues the rape of a child and child molestation crimes are not
identical offenses, and multiple punishments are authorized. The State asks us to
disagree with this court's "same in fact and in law" analysis in Land. But we need not
reach the State's argument disputing Land because we resolve this case under the
"manifestly apparent" theory.
Nguyen contends it was not manifestly apparent to the jury that each conviction
was based on a separate and distinct act. We disagree.
In State v. Perla Fuentes, the defendant was convicted of one count of first
degree rape of a child and two counts of first degree child molestation." The jury
instruction for the one count of rape of a child did not require that the conduct must have
occurred on an occasion separate and distinct from the child molestation charges.12
Our Supreme Court held "it was manifestly apparent that the convictions were based on
separate acts because the prosecution made a point to clearly distinguish between the
acts that would constitute rape of a child and those that would constitute child
molestation."13
The Pena Fuentes court focused upon the clear election by the State in closing
argument:
In the prosecutor's closing argument, he addressed count I (child rape) and identified the two specific acts that occurred at the condo that supported a child rape conviction. The prosecutor then addressed counts III and IV, which involved child molestation that occurred during the same time period as count I. The prosecutor clearly used "rape"and "child molestation" to describe separate and distinct acts. He divided Pena Fuentes's behaviors into two categories—the acts involving penetration,
"179 Wn.2d 808, 823, 318 P.3d 257(2014). 12 Id. 13 Id. at 825.
5 No. 74358-9-1-6
which constituted rape, and the other inappropriate acts, which constituted molestation. And again, the defendant did not challenge the number of acts or whether the acts overlapped; he challenged only J.B.'s believability. The jury ultimately believed J.B.'s testimony regarding the various acts that occurred at the condo.[14]
In addition to the clear election in closing argument, the "manifestly apparent" cases
recognize other factors such as clear and distinct references to rape of a child and
molestation, separate to-convict instructions, the clarity of the evidence presented at
trial, and whether the defense challenged the credibility of the victim rather than the
number of acts or whether the acts overlapped.15
Consistent with Pena Fuentes, the evidence,jury instructions, and closing
argument made it manifestly apparent to the jury that the State was not seeking to
punish Nguyen multiple times for a single act. T.P.'s testimony was clear about
separate instances of rape during the charging period before she was twelve and the
charging period after she was twelve. She testified that Nguyen digitally penetrated her
multiple times, the first time when she was eight or nine years old, and the last time
when she was thirteen. T.P. testified to one incident of penile penetration that occurred
when she was eleven years old. She also testified that Nguyen put his mouth on her
genitals on several occasions between the ages of nine and thirteen.
In closing argument, the State clearly elected the acts it relied on for each count
and distinguished between the different charging periods:
14Id. at 825-26 (emphasis added)(citations omitted). 15 See id. at 825; Land, 172 Wn. App. at 602-03; State v Borsheim, 140 Wn. App. 357, 368, 165 P.3d 417(2007); State v. Wallmuller, 164 Wn. App. 890, 898-99, 265 P.3d 940 (2011); State v. Daniels, 183 Wn. App. 109, 118-21, 332 P.3d 1142(2014).
6 No. 74358-9-1-7
So what we're talking about in Count 1 is the times that the Defendant penetrated [T.P.], penetrated her vagina with his finger, prior to her turning twelve years old, and any of the many times the Defendant performed oral sex on [T.P.] prior to her turning twelve years old.[161
The State also clearly elected the acts it relied on to support the first degree child
molestation count: "So for Count II, what we're talking about here are the many times
that the Defendant rubbed, massaged [T.P.]'s breasts prior to her twelfth birthday."17
As to the second degree rape of a child count involving the second charging
period, the State noted, "Again, we talked about what sexual intercourse means. For
this particular charging period, again, we're talking about the many times the Defendant
penetrated [T.P.]'s vagina with his finger after she turns twelve and before he moves out
of the house in March 2013."18
Finally, the State addressed the child molestation count based on the second
charging period:
What we're talking about in Count[IV] are the times the Defendant touched, massaged, rubbed [T.P.]'s breasts after her twelfth birthday and before he left the house. That the Defendant himself admitted to in his statement when he said he rubbed her breasts[when]she was thirteen.[19]
Similar to the prosecutor's closing remarks in Pena Fuentes, the State drew a
clear distinction between the alleged acts of rape of a child and child molestation. The
jury received separate to-convict instructions for each count, and the evidence
presented at trial did not blur or confuse the acts of sexual intercourse by oral-genital
16 Report of Proceedings(RP)(Oct. 27, 2015) at 482. 17 Id. at 483.
18 Id. at 484. 19 Id.
7 No. 74358-9-1-8
contact with acts of other sexual contact. And, except for his admission of a single act
of touching T.P.'s chest through her clothes, Nguyen attacked T.P.'s credibility instead
of challenging the number of acts or whether the acts overlapped.
Nguyen's attempts to distinguish Perla Fuentes are not persuasive. Nguyen
suggests the Pena Fuentes court relied on the prosecutor's division of the acts into two
categories: "acts involving penetration, which constituted rape, and the other
inappropriate acts, which constituted molestation.'"2° But Pena Fuentes is not so
narrow. The court emphasized the clarity of the State's closing remarks, not the specific
categories described by the prosecutor.21
Relying on State v. Kier,22 Nguyen argues an election in closing cannot cure a
double jeopardy violation. But the Kier court merely noted that it could not "consider the
closing statement in isolation."23 Here, we do not rely on the State's closing argument in
isolation. As discussed, other factors recognized in the "manifestly apparent" cases are
also present.
Alternatively, Nguyen contends the State's use of a unanimity instruction does
not cure a double jeopardy violation. Nguyen relies on State v. Borsheim.24 In that
case, this court held a unanimity instruction did not cure a double jeopardy violation
where the jury was given one single to-convict instruction for four separate identical
20 Appellant's Reply Br. at 7-8 (quoting Pena Fuentes, 179 Wn.2d at 825). 21 Pena Fuentes, 179 Wn.2d at 826 ("Because of the clarity of the prosecutor's closing argument, we believe. . . .")(emphasis added). 22 164 Wn.2d 798, 194 P.3d 212(2008). 23 Id. at 813(emphasis added).
24 140 Wn. App. 357, 165 P.3d 417(2007).
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counts.25 But here, we do not rely on a unanimity instruction to resolve a separate and
distinct act requirement for identical counts, as was the case in Borsheim.
Nguyen was not charged with identical counts, the jury received separate to-
convict instructions for each count, and the jury reached individual verdicts for each
count. Importantly, the State elected the acts on which it relied for each count. This
narrowed the jury's consideration to specific instances during two charging periods.
None of the acts the State elected for child molestation included oral-genital contact.26
In conclusion, the State's closing argument was clear. There was no suggestion,
direct or indirect, that acts of sexual intercourse including oral-genital contact were the
basis for any of the counts of child molestation. The State clearly referred to the rape
charges and child molestation charges as distinct counts. And the defense focused on
the credibility of the victim rather than the number of acts or whether the acts
overlapped. It was manifestly apparent to the jury that the State was not seeking to
impose multiple punishments for the same act. Nguyen was not denied his right to be
free from double jeopardy.
25 Id. at 370. 26Nguyen's assignment of error and arguments address the lack of instruction and need for the rape charges to be supported by acts separate and distinct from the molestation charges. Nguyen does not assert a need for separate and distinct acts to support multiple identical counts as addressed in Borsheim. See Borsheim, 140 Wn. App. at 367; see Appellant's Br. at 1.
9 No. 74358-9-1-10
Community Custody Conditions
We review community custody conditions for abuse of discretion and "will reverse
them only if they are 'manifestly unreasonable.'"27 "Imposing an unconstitutional
condition will always be 'manifestly unreasonable.'"28
(A) Special Condition 11: Sexually Explicit Material
Nguyen argues the community custody provision prohibiting him from
possessing, using, accessing, or viewing sexually explicit and erotic materials is
unconstitutionally vague and is not crime related.
The guarantee of due process in the Fourteenth Amendment to the United States
Constitution and article 1, section 3 of the Washington Constitution requires that laws not
be vague.29 "The laws must(1) provide ordinary people fair warning of proscribed
conduct, and (2) have standards that are definite enough to `protect against arbitrary
enforcement.'"3° A community custody condition is unconstitutionally vague if it fails to
do either.31 "However, `a community custody condition is not unconstitutionally vague
merely because a person cannot predict with complete certainty the exact point at which
his actions would be classified as prohibited conduct."32
Special condition 11 provides:
v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830(2015)(quoting State v. 27 State Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059(2010)) 28 Id. (quoting Sanchez Valencia, 169 Wn.2d at 791-92).
28 State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). 38 Irwin, 191 Wn. App. at 652-53 (quoting id.).
31 Id. at 653 (citing Bahl, 164 Wn.2d at 753). 32 Id. (quoting Sanchez Valencia, 169 Wn.2d at 793).
10 No. 74358-9-1-11
Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.[331
Nguyen contends the prohibition in the condition is broad and gives no context
that would enable an ordinary person to understand what is disallowed. But the special
condition expressly references the statutory definitions for "sexually explicit materials,"
"erotic materials," and "material depicting any person engaged in sexually explicit
conduct."
Unlike State v. Bahl, where our Supreme Court held that a community custody
condition allowing the supervising community corrections officer to define "sexual
stimulus material" was unconstitutionally vague,34 the condition in this case does not
require further definition. Here, the condition allows a sexual deviancy provider to give
Nguyen prior approval to possess such material, but does not give the provider or
community corrections officer the authority to determine the definition of the prohibited
material. Consistent with the statutory definitions, the terms are not beyond the
understanding of an ordinary person.35
Alternatively, Nguyen argues the condition is not crime-related.
We review the factual basis for crime-related conditions under a "substantial
evidence" standard.36 Reviewing courts will strike community custody conditions when
33 CP at 65. 34 164 Wn.2d 739, 761, 193 P.3d 678 (2008). 35 Nguyen contends the statutory definitions of "sexually explicit material," "sexually explicit conduct," and "erotic material" could lead to uncertainty, but cites no authority for his hypothetical scenarios. See Appellant's Br. at 23-26. 36 Irwin, 191 Wn. App. at 656.
11 No. 74358-9-1-12
there is no evidence in the record that the circumstances of the crime related to the
community custody condition.37 Courts will uphold crime-related community custody
decisions when there is some basis for the connection.38 There is no requirement that
the prohibited activity be factually identical to the crime.39 Conditions regarding "access
to X-rated movies, adult book stores, and sexually explicit materials" are crime-related
and properly imposed for sex offenses.4°
Here, Nguyen was convicted of rape of a child and child molestation based on
numerous acts over several years. Viewed in a light most favorable to the State, these
constituted acts of sexual deviancy involving the inability to control sexual conduct.
Whether viewed under the sufficiency of the evidence or abuse of discretion standard,
Nguyen's criminal conduct is reasonably related to restricting access to sexually explicit
or erotic material because of the inherent sexual nature of the materials.
We conclude that the condition prohibiting Nguyen from possessing, using,
accessing, or viewing any sexually explicit material, or erotic material, or any material
depicting any person engaged in sexually explicit conduct as defined by statute is not
unconstitutionally vague and is reasonably related to the circumstances of Nguyen's
crimes.
(B)Special Condition 7 and Crime-Related Prohibition 18
The State concedes that special condition 7 requiring Nguyen to abide by a
curfew is not sufficiently crime-related and should be stricken. We agree.
37 Id. at 656-57. 38 Id. at 657. 39 Id. at 656-57. 40 State v. Maqana, 197 Wn. App. 189, 201, 389 P.3d 654 (2016).
12 No. 74358-9-1-13
Nguyen argues crime-related prohibition 18 is unconstitutionally vague because it
insufficiently apprises him of prohibited conduct and allows for arbitrary enforcement.
The condition provides,"Do not enter any parks/playgrounds/schools and or any places
where minors congregate."'"
A condition that orders a defendant not to frequent areas where minor children
are known to congregate without specifying the exact off-limits locations is
unconstitutionally vague.42
The State concedes that the "or any place where minors congregate" portion of
the prohibition should be stricken, but argues the first clause,"Do not enter any
parks/playgrounds/schools" is sufficiently definite and need not be stricken. We agree.
"Parks," "playgrounds," and "schools where children congregate" are commonly
understood terms.
We conclude the portion of prohibition 18 reading, "any places where minors
congregate" shall be stricken on remand,43 but the trial court may preclude Nguyen from
entering parks, playgrounds, or schools where children congregate."
Appellate Costs
Appellate costs are generally awarded to the substantially prevailing party.45
However, when a trial court makes a finding of indigency, that finding remains
41 CP at 65. 42 Irwin, 191 Wn. App. at 655. 43 State v. Johnson, 180 Wn. App. 318, 329, 327 P.3d 704(2014)(Division Two of this court remanded and ordered the trial court to either clarify a term in the condition, or strike the portion of the condition using that term.). 44 See Irwin, 191 Wn. App. at 654-55. 45 RAP 14.2.
13 No. 74358-9-1-14
throughout review "unless the commissioner or clerk determines by a preponderance of
the evidence that the offender's financial circumstances have significantly improved
since the last determination of indigency."46
Here, Nguyen was found indigent on appeal by the trial court. If the State has
evidence indicating Nguyen's financial circumstances have significantly improved since
the trial court's finding, it may file a motion for costs with the commissioner. Otherwise,
the State is not entitled to appellate costs.
Statement of Additional Grounds for Review
In his statement of additional grounds for review, Nguyen denies that the events
occurred, asserts he has not threatened or harmed anyone, and believes the jury
already believed he was guilty. But these general statements do not support any relief
on appeal.
We affirm and remand with instruction to strike special condition 7 and the , unconstitutionally vague portion of crime-related prohibition 18 from appendix H of the
judgment and sentence.
WE CONCUR:
cr" 46 Id.