State Of Washington, V. Harlan W. Blackburn

• Court: Court of Appeals of Washington
• Decided: April 20, 2026
• Docket: 86238-3
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86238-3-I Respondent, DIVISION ONE v. PUBLISHED OPINION HARLAN W. BLACKBURN,

Appellant.

COBURN, J. — Harlan Blackburn repeatedly sexually assaulted his biological

daughter from the time she was 12 to 20 years old. In their investigation of Blackburn,

law enforcement obtained without a warrant the last four digits of his bank card and its

purchase history at a Lovers store. The trial court admitted the evidence over

Blackburn’s general objection. A jury convicted Blackburn of five counts of incest in the

first degree, two counts of rape of a child in the second degree, and one count of rape

of a child in the third degree. We agree with Blackburn that in proceeding without a

warrant law enforcement violated his right to privacy under article I, section 7 of our

state’s constitution constituting a manifest constitutional error but hold that the

admission of the inadmissible evidence was harmless. Blackburn also argues that (1)

there was insufficient evidence to sustain three of his convictions and (2) remand is

necessary to resentence Blackburn within the statutory maximum on five of his

convictions. We reverse Blackburn’s conviction on Count 8 for insufficient evidence and 86238-3-I/2

remand for resentencing on counts 2, 3, 5, 6, and 7. In all other respects, we affirm.

FACTS

Blackburn’s biological daughter C.B. was born on August 10, 2001. C.B. lived

with her mother in Idaho for the first few years of her life. When she was about three

years old, C.B. began living with Blackburn in Washington on a permanent basis. A

court later awarded Blackburn full custody of C.B.

Starting around when she was in second grade, C.B. and her father lived with her

paternal grandparents Jeana Blackburn (grandmother) and Stephen Blackburn

(grandfather) in a house on Petrovitsky Road in the Renton area (the Petrovitsky

house). Blackburn had sexual intercourse with C.B. multiple times when they lived in the

Petrovitsky house starting when he digitally penetrated C.B. when she was 12 years old

in 2013 or 2014. Blackburn progressed to penetrating C.B. with his penis. Blackburn’s

then girlfriend Caitlin Nitz moved into the Petrovitsky house in 2015, toward the end of

C.B.’s eighth grade year.

In 2018, when C.B. was 16 or 17 years old, she, Blackburn, her paternal

grandparents, and Nitz moved into a house in Kent (the Kent house). Nitz later moved

out of the Kent house sometime in 2018 or 2019.

Blackburn continued to sexually assault C.B. when they lived at the Kent house.

At the Kent house, C.B. had her own bedroom but would sleep in Blackburn’s bed “the

majority of the time” because Blackburn would get upset if C.B. tried to move back into

her room. C.B. would sleep on top of the covers while Blackburn slept under the covers

to put “an extra layer” between them.

2 86238-3-I/3

C.B. later testified generally that there were times that Blackburn would have

vaginal intercourse with her on top of a blanket that had an image of a dragon that was

on Blackburn’s bed in the Kent house. She also testified that Blackburn penetrated her

vagina with a white dildo when she was around 17 or 18 years old. Over time Blackburn

used other sex toys on C.B., including vibrators, butt plugs, and other dildos. Blackburn

provided the sex toys and C.B. thought he got them from “[l]ike, the Lovers store or

something.” C.B. also later testified that Blackburn would talk “dirty” to her, asking her

“to be his dirty little girl or say, [‘]Are you going to let Daddy fuck your pussy tonight?[’]”

Before she graduated high school in June 2019, C.B. told her friend that she was

being sexually assaulted. After graduation, C.B. continued to live in the Kent house

where she worked as a paid caregiver for her grandmother.

For C.B.’s 20th birthday in 2021, Blackburn reserved a room at the Westin Hotel

in Seattle. On August 13, 2021, Blackburn drove C.B. to Seattle and had her wait in the

car while he checked in at the hotel. Blackburn then took C.B. to dinner at Daniel’s

Steakhouse. After dinner, Blackburn took C.B. back to the hotel. C.B. did not want to go

to the hotel because she knew that Blackburn “wanted to have a night where he could

do whatever [sexual acts or intercourse] he wanted.”

When she got to the room at the Westin Hotel, C.B. saw that there was only one

bed in the room. C.B. also saw a black paper bag on the bed from the Lovers store. The

bag contained sex toys, lubricant, and lingerie. When Blackburn and C.B. got to the

room, Blackburn went to the bed and emptied out the bag. The lingerie included three

3 86238-3-I/4

dresses, including a blue fishnet dress 1 and a black fishnet dress with spaghetti straps.

Blackburn asked C.B. to put on one of the dresses. After she put on the dress,

Blackburn had vaginal intercourse with C.B. Blackburn then asked C.B. to change into

the other dress and proceeded to have anal intercourse with her. C.B. testified at trial

that Blackburn brought the dresses to the hotel, and she assumed that Blackburn

purchased them from Lovers because of the bag they were in.

In early October 2021, C.B.’s boyfriend Mark Rooks asked her if she was also in

a relationship with someone else or if something was going on at home because C.B.

was being less friendly toward him. C.B. told Rooks that her father had been sexually

assaulting her. Hours after she told Rooks, C.B. left the Kent home while Blackburn was

sleeping and moved in with Rooks. Soon after she told Rooks, C.B. told her friend about

the sexual abuse. C.B. also told her mother and cousin. C.B. had also told Nitz and her

paternal grandmother about the abuse before she moved out of the Kent house, but

they told her she was lying.

Blackburn later testified that C.B. moved out on October 6, 2021. C.B. did not

see Blackburn again after she moved out of the Kent house until trial. A week after she

moved out, C.B. reported Blackburn to law enforcement by calling 911.

On November 9 law enforcement arrested Blackburn and executed a search

warrant on the Kent house and Blackburn’s truck that resulted in the recovery of a

dragon blanket found on Blackburn’s bed and three cell phones.

1 A photo of a blue dress that C.B. confirmed matched the blue dress she wore at the Westin Hotel was admitted at trial as exhibit 39. This exhibit was not designated in the record on appeal. 4 86238-3-I/5

On November 12 Blackburn was charged with one count of rape of a child in the

second degree (Count 1), one count of rape of a child in the third degree (Count 2), and

one count of incest in the first degree (Count 3). The State later charged Blackburn by

amended information with four additional charges of incest in the first degree (counts 5,

6, 7, and 8) and an additional charge of rape of a child in the second degree (Count 4).

On November 23 law enforcement, without a warrant, obtained a copy of a room

reservation receipt, and a manager’s description of the room listed on the reservation

receipt. See ex. 25; pretrial exs. 22, 23. The reservation receipt showed Blackburn’s

name, address, dates of stay at the hotel, room number, room charges, and the last four

digits of the bank card—“8923”—that he used to pay for the room. Pretrial ex. 22. The

following day law enforcement, also without a warrant, obtained a security video from

the Westin Hotel of Blackburn checking in on August 13.

After Kent Police Department Detective Angela Galetti received a copy of the

Westin Hotel reservation receipt and information from C.B. indicating that Blackburn

purchased an outfit for her to wear from the Lovers store, Galetti went to a Lovers store

in Kent on December 6. Galetti did not have a warrant. Galetti met with the store

manager and provided an image of the blue dress that she had found online that

matched the dress described by C.B. The store manager found the dress in the store

and Galetti photographed it. Galetti then asked the store manager to look up the

purchase history of that dress for the suspected purchase date range of August 1, 2021,

to August 13, 2021. The store manager located a matching purchase receipt dated

August 12, 2021, for items that were purchased with an unidentified “Debit Card” for

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$155.79. Ex. 17. Vicky Murray, 2 an employee at Lovers’ corporate office, later testified

that the items on that receipt included a toy that is a personal vibrator, an open-top

piece of lingerie, a dress, a mini dress, and charge for a bag. Murray explained the store

was required to charge customers when the store provided a bag. Galetti requested the

payment information for the Lovers receipt. Murray emailed Galetti with the last four

digits of the bank card, “8923,” used to make the August 12, 2021, purchase. Ex. 18.

Detective Galetti obtained a search warrant on December 8 to extract data from

Blackburn’s previously recovered cell phones, which resulted in the extraction of two tax

payments made by Blackburn with a bank card with the last four digits of “8923.” Ex. 37.

The last four digits on the tax payments, “8923,” matched the last four digits of the bank

card associated with the Lovers purchase. See exs. 18, 37.

Also in December, C.B.’s boyfriend Rooks contacted Galetti about a sexually

explicit video that he found on C.B.’s cell phone. The video was taken on March 23,

2019. C.B. later testified that the video showed her and Blackburn in his bedroom. 3 C.B.

provided Galetti with photos from a different time to show that C.B. wore the same shirt

as the one she wore in the video.

Before trial, Blackburn moved under CrR 3.6 to suppress evidence that law

enforcement obtained from the Westin Hotel, including the room reservation receipt,

and the tax payment information extracted from Blackburn’s cell phone—both of which,

as stated above, contained the last four digits of Blackburn’s bank card of “8923.” See

pretrial ex. 22; ex. 37. Blackburn argued that the Westin Hotel room reservation receipt

2 Murray identifies herself as “Vicky” and also “Christine.” 3 The video, admitted at trial, was not designated on appeal. At trial the parties agreed the video depicted Blackburn but disputed the identity of the other person in the video. 6 86238-3-I/7

should be suppressed because the last four digits of Blackburn’s bank card constituted

constitutionally protected private information unlawfully obtained without a warrant.

Blackburn also argued that law enforcement extracted the tax payment information

containing the last four digits of Blackburn’s bank card prior to the trial court’s issuance

of the search warrant. He argued law enforcement provided the partial bank card

number from the Westin receipt or tax payment information to Lovers to match purchase

records. Thus, Blackburn argued, the Lovers purchase information should be

suppressed as fruit of the poisonous tree.

The trial court granted Blackburn’s motion to suppress the Westin receipt but

denied his motions to suppress the additional information obtained from the Westin

Hotel search and the tax payment information extracted from Blackburn’s cell phone.

The trial court found that law enforcement searched the cell phone after the search

warrant was obtained on December 8, 2021, which Blackburn does not challenge on

appeal. The court also declined to suppress the Lovers purchase information, finding

that Lovers employee Murray’s pretrial testimony did not establish whether law

enforcement provided the bank card information to Lovers or vice versa and concluding

that the “information was not fruits of the poisonous tree but rather components of the

investigation conducted by [the] Kent [Police Department].”

Blackburn’s trial was held in November and December 2023, during which he

testified in his own defense. Blackburn denied the sexual allegations and testified he

had no idea why C.B. would say that he raped her. He testified that his relationship with

C.B. was closer than the average father-daughter relationship and that they shared a

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bed. Blackburn said the last time they shared a bed was a few days before C.B. left the

Kent house on October 6. He testified he did not know why C.B. moved out.

At trial the tax payment information, the Lovers receipt listing the purchased

items, and the security video of Blackburn checking in at the Westin Hotel on August 13

were admitted into evidence. Exs. 37, 17, 25. A photo that Detective Galetti took of the

blue dress at the Lovers store that matched C.B.’s description was also admitted at trial,

as was a photo of the dragon blanket on Blackburn’s bed that law enforcement found

during their search of the Kent house. 4

Prior to the State questioning Lovers corporate employee Murray about the bank

card digits associated with the Lovers purchase, defense counsel objected “to the last

four digits even being mentioned.” Given the trial court’s previous CrR 3.6 ruling,

defense counsel said she did not think she had a basis to object but was “objecting

anyway.” The trial court overruled the objection as one that was “noted without a

specific basis.” Murray testified that her email to Galetti stated that the last four digits of

the bank card used for the Lovers purchase were “8923.” A copy of Murray’s email was

later admitted without objection during the State’s direct examination of Galetti. See ex.

18.

Blackburn provided his own version of events to explain his reservation at the

Westin Hotel on August 13 and the Lovers purchase. Blackburn testified he made the

Westin Hotel reservation for C.B. and her friends to celebrate C.B.’s birthday. According

to Blackburn, the plan was for C.B. and her friends to stay at the hotel and for him to

meet an escort “Vanessa” in Tukwila. Blackburn said that the “toy” listed on the receipt

4 These exhibits were not designated in the record on appeal. 8 86238-3-I/9

was for his appointment with Vanessa and he purchased the other items for a barista

who worked at a coffee stand that he frequented.

Blackburn said he cancelled the appointment with Vanessa because C.B.’s

friends were not available to come to the Westin Hotel. Blackburn still checked in at the

hotel because “it was past the 24 hours to cancel” for a refund. He testified he made a

“last-minute [dinner] reservation” at “Daniel’s.” After Blackburn checked in, he said he

went back to his truck and “got my bag and [C.B.], and then we went up to the room and

got ready for dinner.” After dinner, he and C.B. went to a cannabis dispensary where he

purchased cannabis that they then smoked in the hotel parking garage. Blackburn and

C.B. then changed in the hotel room and went to 7-Eleven to get snacks.

The prosecution presented Facebook records of sexually explicit “Facebook

Messenger” messages between C.B. and Blackburn. 5 The records were obtained with a

warrant from C.B.’s account because Blackburn had either deleted or deactivated his

account. In one message sent in January 2021, Blackburn tells C.B., “[B]utt stuff when I

get home, ready or not. LOL.” C.B. says, “Okay.” Blackburn then tells C.B., “You should

find the numbing lube or grab some from the Lovers store.”

Blackburn presented testimony from forensic expert Jason Beebe that he

assisted Blackburn and his fiancée with downloading Blackburn’s Facebook-archived

messages between him and C.B. from January 2021 to October 2021, and the

downloaded messages did not include the sexually explicit messages presented by the

State. On cross examination Beebe admitted he instructed Blackburn and his fiancée on

how to download the Facebook archives and that he did not have access to the

5 Copies of the Facebook messages were admitted at trial. These exhibits were not designated on appeal. 9 86238-3-I/10

archives or see what was in the download. What Beebe examined was what was

provided by Blackburn’s fiancée, 6 and Beebe had no way of knowing why the messages

from the Facebook records the State obtained did not exactly match the messages that

he received from Blackburn’s fiancée. On redirect Beebe said the download he received

was unusual in that it did not indicate if there were messages that had been removed by

the user or unsent, which is information that is normally included. During cross

examination, Blackburn acknowledged that Facebook business records presented by

the State showed him telling C.B. to make him a video in response to her request to go

to a friend’s house.

The State also played for the jury multiple jail calls between Blackburn and his

mother Jeana Blackburn. In one jail call, the following exchange occurs:

JEANA BLACKBURN: I read the search order. HARLAN BLACKBURN: Okay. Well, I don’t want to talk about it right now. … JEANA BLACKBURN: But I don’t agree that it’s all your fault, you know. HARLAN BLACKBURN [Unintelligible] – JEANA BLACKBURN: If it really happened. Well … I have to agree now that it happened, but I’m just disappointed that you would do something like that to your daughter. And I’m not going to scold you here. HARLAN BLACKBURN: I understand. JEANA BLACKBURN: It’s just – it’s just – HARLAN BLACKBURN: Just like you said, though, it wasn’t – it wasn’t just me. It was – it takes two. And it’s not -- JEANA BLACKBURN: Oh, yeah. And I told the …. detectives that last night. HARLAN BLACKBURN: It’s not what she says on the report, and it’s ridiculous.

6 At trial Blackburn identified the person who assisted him with the download as his wife “Liz.” 10 86238-3-I/11

When asked what he meant by “it takes two,” Blackburn testified, “It just … it would

have took two. Like, if – if these allegations were – if – if there was something sexual in

nature that we were engaged in, it woulda took two, that there was no – no way that I

would have done the things that were alleged.” Blackburn said he was not referring to

himself as one of the two people who would have been participating.

The State also played for the jury the sexually explicit video taken on March 23,

2019, that Rooks found on C.B.’s cell phone, which was admitted. Photos that C.B.

provided to Galetti showing C.B. wearing the same shirt as in the video were also

admitted. 7 Defense played audio from the video that was enhanced by a forensic

expert. The enhanced audio was admitted into evidence. 8 Blackburn claimed the

sexually explicit video was of him with the escort Vanessa that he recorded with a spare

iPhone. In closing Defense argued that Blackburn can be heard saying the name

“Vanessa” at the end of the enhanced audio. The State said to the jury in closing to

listen carefully to the video, arguing that Blackburn can be heard saying twice to C.B.,

“Let Daddy fuck your pussy,” like what C.B. testified Blackburn would say when he

talked dirty to her.

The jury convicted Blackburn on all eight counts. The trial court sentenced

Blackburn to concurrent prison terms. His longest sentences were for his two

convictions for rape of a child in the second degree, subject to indeterminate sentencing

under RCW 9.94A.507(1)(a)(i), 9 for which the trial court sentenced Blackburn to a prison

term of 210 months to life and lifetime community custody. The trial court imposed the

7 This exhibit was not designated on appeal. 8 The audio exhibit was not designated on appeal. 9 RCW 9.94A.507 has been amended since Blackburn’s sentencing, as of July 27, 2025, but the relevant statutory language remains the same. 11 86238-3-I/12

low end of the standard sentencing range for Blackburn’s minimum 210-month

imprisonment term 10 based on the offense seriousness level XI and Blackburn’s

offender score of 21, which exceeded the maximum offender score of 9 contemplated

by the standard range. 11 See RCW 9.94A.510, .515, 12 .530(1).

Blackburn appeals.

DISCUSSION

Motion to Suppress

Blackburn argues for the first time on appeal that the State violated his right to be

free from unlawful governmental intrusion into his private affairs under article I, section 7

of the Washington Constitution when it obtained the last four digits of his bank card from

the Lovers store without a warrant or warrant exception. Accordingly, he asserts that

Blackburn’s partial bank card number associated with the Lovers purchase should have

been suppressed under the exclusionary rule. 13 We conclude that the admission of the

last four digits of Blackburn’s bank card amounted to a manifest constitutional error

under article I, section 7, but that the error was harmless.

10 Under the indeterminate sentencing scheme, the sentencing court determines a minimum term of confinement, and the maximum term of confinement is always the statutory maximum sentence for the offense. RCW 9.94A.507(3)(b), (5); see RCW 9A.44.076(2) (class A felony); RCW 9A.20.021(1)(a) (maximum lifetime imprisonment). 11 Blackburn’s convictions in the remaining six counts are addressed below. 12 RCW 9.94A.515 has been amended since Blackburn’s sentencing, but the changes did not affect the seriousness levels for the offenses discussed in this opinion. See LAWS OF 2025, ch. 220, § 7. 13 Blackburn also claims in his opening brief that the last four digits of his bank card should be suppressed under the fruit of the poisonous tree doctrine. However, because the trial court rejected this argument and Blackburn does not provide substantive argument to address an error in the court’s decision, we do not consider it. See RAP 10.3(a)(6). 12 86238-3-I/13

A. RAP 2.5(a)

The State argues that Blackburn waived his claim that the trial court erred in

admitting the last four digits of his bank card because it was protected financial

information under article I, section 7.

Under RAP 2.5(a), we may refuse to review a claim or error not raised in the trial

court. An exception to this rule is when the claimed error is a “manifest error affecting a

constitutional right.” RAP 2.5(a)(3). Courts must narrowly construe this exception. State

v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). RAP 2.5(a)(3) is not intended to

provide defendants with a means to obtain new trials whenever they can set forth a

constitutional issue that was not litigated below. State v. Scott, 110 Wn.2d 682, 687,

757 P.2d 492 (1988). Rather, the exception “encompasses developing case law while

ensuring only certain constitutional questions can be raised for the first time on review.”

State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).

Thus, before reviewing the merits of an unpreserved error under RAP 2.5(a)(3),

we must ask two questions: (1) has the party claiming the error shown the error is truly

of a constitutional magnitude and, if so, (2) has the party demonstrated that the error is

manifest? State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). And, even

where a defendant satisfies these threshold questions, the error is still subject to review

under the constitutional harmless error standard. State v. Gordon, 172 Wn.2d 671, 676

& n.2, 260 P.3d 884 (2011); see O’Hara, 167 Wn.2d at 99 (“[A] harmless error analysis

occurs after the court determines the error is a manifest constitutional error. … The

determination of whether there is actual prejudice is a different question and involves a

13 86238-3-I/14

different analysis as compared to the determination of whether the error warrants a

reversal.”). We address each of these inquiries in turn.

(i) Constitutional Magnitude

We do not assume a party’s assigned error is of constitutional magnitude.

O’Hara, 167 Wn.2d at 98. Instead, this court assesses whether the alleged error

implicates a constitutional interest as compared to other forms of trial error. Id. To

determine if the exception under RAP 2.5(a)(3) is applicable, “[i]t is proper to ‘preview’

the merits of the constitutional argument to determine whether it is likely to succeed.”

State v. Kirwin, 165 Wn.2d 818, 823, 203 P.3d 1044 (2009) (quoting State v. Walsh,

143 Wn.2d 1, 8, 17 P.3d 591 (2001)). Here, we are asked to consider whether it is an

unlawful disturbance of private affairs when law enforcement obtains without a warrant

the last four digits of a person’s bank card. Because this question implicates a

constitutional interest, we consider the merits of Blackburn’s argument.

Article I, section 7 of the Washington Constitution provides that “[n]o person shall

be disturbed in his private affairs, or his home invaded, without authority of law.” A

search occurs under article I, section 7 if “the government disturbs ‘those privacy

interests which citizens of this state have held, and should be entitled to hold, safe from

governmental trespass absent a warrant.’” State v. Hinton, 179 Wn.2d 862, 868, 319

P.3d 9 (2014) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)).

“Article I, section 7 ‘is grounded in a broad right to privacy.’” Id. (quoting State v. Chacon

Arreola, 176 Wn.2d 284, 291, 290 P.3d 983 (2012)).

An analysis under article I, section 7 analysis requires a two-part inquiry. State v.

Bowman, 198 Wn.2d 609, 618, 498 P.3d 478 (2021) (citing State v. Miles, 160 Wn.2d

14 86238-3-I/15

236, 243, 156 P.3d 864 (2007)). First, courts must determine if the challenged action

disturbs an individual’s private affairs. State v. McKinney, 148 Wn.2d 20, 27, 60 P.3d 46

(2002). “This determination is not ‘merely an inquiry into a person’s subjective

expectation of privacy but is rather an examination of whether the expectation is one

which a citizen of this state should be entitled to hold.’” Id. (quoting City of Seattle v.

McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994)). Courts look at the historical

treatment of the claimed interest, which in part “focuses on the nature and extent of the

information which may be obtained as a result of the governmental conduct.” Miles, 160

Wn.2d at 244. Second, if the State has disturbed a valid privacy interest, courts

determine whether the disturbance was justified by the authority of law, such as a valid

warrant. Id. Under the exclusionary rule, evidence obtained during an illegal search

must be suppressed. 14 State v. Gaines, 154 Wn.2d 711, 716-17, 116 P.3d 993 (2005).

In Miles, the Supreme Court held that bank records are considered private affairs

protected by article I, section 7. 160 Wn.2d at 244, 247. The court held that private bank

records “potentially reveal[] sensitive personal information,” such as “what the citizen

buys, how often, and from whom” as well as “political, recreational, and religious

organizations a citizen supports” and “where the citizen travels, their affiliations, reading

materials, television viewing habits, financial condition, and more.” Id. at 246-47

(emphasis added). Thus, “[l]ittle doubt exists that banking records, because of the type

of information contained therein, are within a person’s private affairs.” Id. at 247; see

State v. Reeder, 184 Wn.2d 805, 811, 814-15, 365 P.3d 1243 (2015) (citing Miles and

14 Further, all subsequently discovered evidence based on the illegal search becomes fruit of the poisonous tree and must also be suppressed. State v. Olson, 33 Wn. App. 2d 667, 679, 565 P.3d 128 (2025); State v. Allen, 138 Wn. App. 463, 469, 157 P.3d 893 (2007). 15 86238-3-I/16

holding that defendant’s bank records revealing withdrawal of money and use of funds

in casinos and for personal expenses were protected private affairs under article I,

section 7); State v. Meza, 191 Wn. App. 849, 853, 364 P.3d 1081 (2015) (holding that “it

defies reason to extend constitutional protection to bank account records but not to

[seizures of] the funds reflected in those records. The seizure of funds is as much … a

disturbance of a person’s private affairs as the seizure of the records regarding those

funds”) (citing Miles, 160 Wn.2d at 244-47; State v. McCray, 15 Wn. App. 810, 814, 551

P.2d 1376 (1976)).

The Miles court cited State v. Boland, wherein the Supreme Court recognized in

its consideration of a privacy interest in garbage put out for collection that “the type of

information potentially revealed by rummaging through garbage bags could include

sensitive information about business records, bills, correspondence, tax records, and so

on.” Miles, 160 Wn.2d at 245 (emphasis added) (discussing State v. Boland, 115 Wn.2d

571, 578, 800 P.2d 1112 (1990)).

The Miles court distinguished bank records from Department of Licensing (DOL)

driver’s licensing records, see id., which it previously determined in State v. McKinney

did not reveal or allow law enforcement to “draw inferences” about the intimate details of

a defendant’s life, their activities, or the identity of friends or political and business

associates. McKinney, 148 Wn.2d at 23-24, 29-30, 32. In McKinney, the DOL records

included names and addresses of registered vehicle owners associated with license

plate numbers, physical descriptions, and license status. Id. at 30, 32. Importantly, the

court observed that DOL records are kept by a government agency for use by that

agency and law enforcement. Id. at 32. Therefore, “[c]onsidering the purpose for which

16 86238-3-I/17

these records are created, citizens of this state are not entitled to expect that their

information is private and protected from disclosure for law enforcement purposes.” Id.

(emphasis added). 15 Comparatively, the existence of a business relationship with the

holder of the information does not alter a person’s expectation of privacy regarding the

business’s disclosure of such information to law enforcement. Miles, 160 Wn.2d at 245

(citing State v. Gunwall, 106 Wn.2d 54, 67, 720 P.2d 808 (1986)).

In support of the private nature of personal bank records, the Miles court also

observed that bank records have historically been protected by our legislature from

unsupervised access as shown by statutory prohibitions against the disclosure of a

person’s banking records. Id. at 245-46. The Miles court, turning to the Washington

Commercial Bank Act, observed that the legislature designated personal bank records

obtained by the State in bank examinations as “‘confidential and privileged information.’”

Id. at 245. The relevant statute, that has since been recodified as RCW

30A.04.075(1), 16 provides that such records obtained by the director of the state

department of financial institutions or their staff “shall not be made public or otherwise

disclosed to any person, firm, corporation, agency, association, governmental body, or

15 Citing statutory history and RCW 46.52.101(6), the McKinney court also observed that “[t]he driving public is well aware that vehicle and driver licensing procedures require disclosure of such information, and it is unlikely that a citizen would expect this information is not available for law enforcement purposes.” 148 Wn.2d at 27-30. The court held in sum: Based on the historical treatment of driver’s license records, the fact that these records reveal little about a person’s associations, financial dealings, or movements, and the purpose for which the State compiles and maintains these records, we hold that there is no protected privacy interest in the information contained in a DOL driver’s record under article I, section 7 of our state constitution. 148 Wn.2d at 32. 16 Though the statute has been amended since Miles, the relevant language remains the same. We therefore refer to the current recodified version. See LAWS OF 2014, ch. 37, § 2; compare LAWS OF 2014, ch. 37, § 109 with LAWS OF 2005, ch. 274, § 251. 17 86238-3-I/18

other entity.” RCW 30A.04.075(1); see RCW 30A.04.010(7), (8). The Miles court noted

that the statute also requires notice to the customer before bank records are disclosed

to the state, see RCW 30A.04.075(2)(c), further evidencing legislative protection of

personal bank records. 160 Wn.2d at 246. This notice requirement, the court observed,

applies to the disclosure of examination reports from various other financial entities. Id.;

see RCW 32.04.220(2)(c) (savings banks); RCW 33.04.110(2) (savings and loan

associations); RCW 31.12.565(2)(b) (credit unions). 17 “Statutory prohibitions against

disclosing a person’s banking records further support the private nature of these

records.” Miles, 160 Wn.2d at 246; see also Miles, 160 Wn.2d at 246 (citing RCW

31.45.030 (regarding check cashers and sellers)).

The State argues that Miles is distinguishable because the last four digits of an

unidentified person’s bank card do not, on their own, reveal private or personal

information about the cardholder like a specific individual’s bank record. The State

asserted in oral argument that the last four digits of a bank card, without more to

connect the card used for a purchase to a specific individual, are “useless.” Wash. Ct. of

Appeals oral arg., State v. Blackburn, No. 86238-3-I (Nov. 5, 2025), at 11 min., 24 sec.

through 11 min., 59 sec., video recording by TVW, Washington State’s Public Affairs

Network, https://tvw.org/video/division-1-court-of-appeals-2025111101/. The material

concern, however, is not whether the information in a vacuum reveals intimate details

about a person’s life, but whether such information could potentially reveal sensitive

information about a person. See Miles, 160 Wn.2d at 245-47; see also Boland, 115

17 Though RCW 32.04.220 has been amended since Miles, we refer to the current version because the relevant language remains the same. The same applies to RCW 31.12.565. 18 86238-3-I/19

Wn.2d at 578 (“‘Business records, bills, correspondence, magazines, tax records, and

other telltale refuse can reveal much about a person’s activities, associations, and

beliefs.’”) (quoting State v. Tanaka, 67 Haw. 658, 662, 701 P.2d 1274 (1985)). The very

purpose of the last four digits of a bank card is to provide an identifying link to the

cardholder’s bank account and records. Here, law enforcement used the “8923” digits

associated with the Lovers purchase to identify Blackburn’s account. It states the

obvious to observe that a partial bank card number in the hands of law enforcement, as

shown on this record, is not useless.

In State v. Jorden, the Supreme Court concluded that a motel guest registry

reveals intimate details of one’s life to support its protection as a private affair under

article I, section 7. 160 Wn.2d 121, 129, 156 P.3d 893 (2007). The court recognized

“there is more information at stake than simply a guest’s registration information: an

individual’s very presence in a motel or hotel may in itself be a sensitive piece of

information.” Id. (emphasis added). For example, the court observed, guests may

include citizens engaging in extramarital affairs at the hotel or in confidential business

negotiations, domestic violence victims seeking safety from their abusers, or celebrities

taking a respite from public scrutiny. Id. Further, the registry information “may also

reveal co-guests in the room, divulging yet another person’s personal or business

associates.” Id.; see also id. at 129 n.6 (distinguishing court’s upholding of random

government checks of “plainly visible vehicle license plates” in McKinney, 148 Wn.2d at

27-28, 30).

In the instant case, the Kent Police Department’s use of the “8923” bank card

digits exemplifies the sensitive personal information at stake in the government’s

19 86238-3-I/20

collection of partial bank card numbers. The partial bank card number potentially

revealed not only purchases that Blackburn or the cardholder made but was used to

show that Blackburn made purchases at a store that sells products related to intimate

acts. See Miles, 160 Wn.2d at 246-47; McKinney, 148 Wn.2d at 27. The record

supports that law enforcement unlawfully obtained the last four digits of Blackburn’s

bank card through its warrantless Westin Hotel search before it obtained the same

“8923” digits from the Lovers store. See pretrial ex. 22; exs. 17, 18. Therefore, law

enforcement had already connected the partial bank card number to Blackburn and

sought to build its investigation by corroborating C.B.’s report that Blackburn had

purchased items for her to wear from Lovers. By obtaining the last four digits of the

bank card used for the Lovers purchase, law enforcement uncovered, without a warrant,

deeply personal information about Blackburn’s life.

As a piece of banking and financial transaction information, the last four digits of

a person’s bank card can potentially reveal an abundance of intimate information, such

as one’s whereabouts, activities, habits, interests, and financial status. See Miles, 160

Wn.2d at 246-47. The State offers no authority to support its claim that the last four

digits of a bank card do not constitute a financial record. See DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited

in support of a proposition, the court is not required to search out authorities, but may

assume that counsel, after diligent search, has found none.”). Akin to Miles, there is little

doubt that the last four digits of a person’s bank card, because of the type of information

potentially revealed or reasonably inferred, deserves protection as a Washington

20 86238-3-I/21

citizen’s private affair under article I, section 7. See Miles, 160 Wn.2d at 245; McKinney,

148 Wn.2d at 32.

Apparently as evidence of the lack of historical protection afforded to the last four

digits of a bank card, the State cites RCW 19.134.100 of the Credit Services

Organizations Act, arguing that the statute demonstrates “our legislature has recognized

that redacting all but the last four digits of financial numbers effectively neutralizes any

real danger of revealing the full number while allowing for accurate recordkeeping.” The

statute states in relevant part:

To protect against fraud and identity theft, when a credit services organization sends a written communication … that contains personal information of a consumer, the credit services organization shall redact the personal information to include only the last four digits of the social security number, taxpayer identification number, or state identification number, the last four digits of the financial account number, credit card number, or debit card number, or the month and year of the consumer’s date of birth, unless the inclusion of the full number or date is otherwise required by law, or is legally permissible and required to achieve the desired objective.

RCW 19.134.100. However, the purpose of the redaction mandate under RCW

19.134.100 is not to authorize the government’s gathering of the last four digits of bank

cards but “[t]o protect against fraud and identity theft.” 18 See Jorden, 160 Wn.2d at 126-

27 (“[W]here the perceived [privacy] interest [under article I, section 7] involves the

gathering of personal information by the government, this court has also considered the

purpose for which the information sought is kept, and by whom it is kept.”); McKinney,

18 Likewise, we are not persuaded by the State’s references to GR 31(e) and WACs 456- 09-557 and 456-10-415, which address procedures for a party to disclose financial account numbers in court or hearing documents if the party believes such disclosure is necessary or the disclosure is otherwise ordered by the presiding entity. See GR 31(e)(1)(B) (“Access to Court Records”); WAC 456-09-557 (stating regulations for formal hearings before the Board of Tax Appeals), 456-10-415 (stating regulations for informal hearings before the Board of Tax Appeals); Title 456 WAC. 21 86238-3-I/22

148 Wn.2d at 32 (“Considering the purpose for which these [DOL] records are created,

citizens of this state are not entitled to expect that their information is private and

protected from disclosure for law enforcement purposes.”).

In reply, Blackburn cites the Public Record Act (PRA), chapter 42.56 RCW, which

mandates the full disclosure of public records except for limited exemptions provided by

the Act. Cantu v. Yakima Sch. Dist. No. 7, 23 Wn. App. 2d 57, 78, 514 P.3d 661 (2022)

(citing Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for Childhood Deafness & Hr’g

Loss, 194 Wn.2d 484, 491, 450 P.3d 601 (2019)). The Act explicitly exempts from public

inspection and copying “[c]redit card numbers, debit card numbers, electronic check

numbers, card expiration dates, or bank or other financial information as defined in

RCW 9.35.005 including social security numbers, except when disclosure is expressly

required by or governed by other law.” RCW 42.56.230(5). RCW 9.35.005 defines

“[f]inancial information” as “information identifiable to the individual that concerns the

amount and conditions of an individual’s assets, liabilities, or credit,” including account

numbers and balances, “[t]ransactional information concerning an account,” and “other

information held for the purpose of account access or transaction initiation.” RCW

9.35.005(1)(a)-(c). The PRA’s broad exemption of credit or debit card numbers and

other financial information supports that Washington citizens reasonably expect and

should expect that law enforcement would not be able to obtain records associated with

the last four digits of their bank cards without a warrant. 19 See Hinton, 179 Wn.2d at

868; Miles, 160 Wn.2d at 244.

19 “Although Article I, Section 7 provides broader privacy protection than the Fourth Amendment, the blanket of protection covers only those privacy interests citizens have come to [reasonably] expect and should expect.” State v. Harlow, 85 Wn. App. 557, 564, 933 P.2d 1076 (1997) (citing State v. Goucher, 124 Wn.2d 778, 782, 881 P.2d 210 (1994)). 22 86238-3-I/23

We hold that the last four digits of a bank card is a Washington citizen’s “private

affair” falling within the scope of article I, section 7 protections. Our analysis, under the

second part of the inquiry, must then turn to whether law enforcement acted with the

authority of law when it obtained the last four digits of Blackburn’s bank card and his

associated purchase history at Lovers.

“Warrantless searches are per se unreasonable under article I, section 7 unless

they qualify as specific exceptions to the warrant requirement.” State v. White, 141 Wn.

App. 128, 135, 168 P.3d 459 (2007) (citing State v. Ross, 141 Wn.2d 304, 312, 4 P.3d

130 (2000)). Here, law enforcement did not obtain a warrant authorizing or limiting its

inquiry to confirmation of whether Blackburn or the “8923” bank card digits were

associated with the Lovers purchase, but conducted an open-ended, warrantless

investigation at the Lovers store of the purchase information for specific items linked to

specific accounts, thus disturbing the private affairs of the purchaser. The State bears

the heavy burden to show that its examination of Blackburn’s bank card information falls

within one of the jealously guarded and narrow exceptions to the warrant requirement.

See State v. Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266 (2009); State v. Villela, 194

Wn.2d 451, 456, 450 P.3d 170 (2019). The State makes no such attempt. The State

conceded at oral argument that nothing prevented it from getting a warrant. Wash. Ct. of

Appeals oral arg., supra, at 12 min., 25 sec. through 12 min., 31 sec. “‘[W]here the

police have ample opportunity to obtain a warrant, we do not look kindly on their failure

to do so.’” State v. Ferrier, 136 Wn.2d 103, 115, 960 P.2d 927 (1998) (internal quotation

marks omitted) (quoting State v. Leach, 113 Wn.2d 735, 744, 782 P.2d 1035 (1989));

see White, 141 Wn. App. at 135 (stating that warrant exceptions “‘provide for those

23 86238-3-I/24

cases where the societal costs of obtaining a warrant … outweigh the reasons for prior

recourse to a neutral magistrate’”) (internal quotation marks omitted) (quoting State v.

Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002)). During oral argument, when asked

if the State was taking the position that it was acceptable for law enforcement to walk

into Lovers and obtain without a warrant the last four digits of bank cards and

purchasing data for everyone who bought a dildo over the weekend, the State

responded, “Yes.”20 Wash. Ct. of Appeals oral arg., supra, at 09 min., 05 sec. through

10 min., 20 sec. We decline to condone such blatant disregard of Washington citizens’

basic privacy concerns.

The Kent Police Department, without a warrant, requested purchasing history

between specific dates in August 2021 of the blue Lovers dress identified by C.B. After

a matching receipt was located that listed a vibrator and a piece of lingerie in addition to

two dresses, the investigating detective requested payment information and obtained

the last four digits of the bank card that made the purchase. See exs. 17, 18. This

information allowed the Kent Police Department to connect the purchased Lovers items

to Blackburn. The State does not argue that any warrant exception applied and instead

maintains that the last four digits of a person’s bank card do not constitute a private

20 After oral argument, the State submitted a statement of additional authorities to clarify that it was not arguing that law enforcement can go to a store and randomly obtain “the last four digits of credit cards” and instead raised a new argument that law enforcement does not need a warrant to disturb a person’s private affairs if they individually suspect the person of committing a crime. We do not consider new arguments raised for the first time at or after oral argument. Moreover, for support, the State proffered the Supreme Court’s plurality opinion in In re Pers. Restraint of Nichols wherein four justices reasoned a warrantless examination was justified by individualized suspicion in a different context and under different circumstances than the instant case. 171 Wn.2d 370, 376-79, 256 P.3d 1131 (2011) (lead opinion reasoning that individualized suspicion justified police officers’ warrantless examination of motel registry shortly after being informed of possible drug-selling activity in motel room); id. at 379 (Madsen, C.J., concurring in result only). 24 86238-3-I/25

affair under article I, section 7. We disagree and conclude that Blackburn’s private

affairs were disturbed without the authority of law, constituting an error of constitutional

dimension under RAP 2.5(a)(3). See Miles, 160 Wn.2d at 244.

(ii) Manifest Error

The second part of the test under RAP 2.5(a)(3) requires Blackburn to show the

error is manifest, defined as “a showing of actual prejudice.” Kalebaugh, 183 Wn.2d at

584 (internal quotation marks omitted). Actual prejudice requires the challenging party

to make a plausible showing that the claimed error had practical and identifiable

consequences in the context of the trial. Id.; State v. McFarland, 127 Wn.2d 322, 333,

899 P.2d 1251 (1995). In the context of an unpreserved suppression claim, an appellant

“must show the trial court likely would have granted the motion if made.” McFarland,

127 Wn.2d at 334. We must determine “whether the error is so obvious on the record

that the error warrants appellate review.” O’Hara, 167 Wn.2d at 99-100.

Here, the record before the trial court established that law enforcement obtained

the last four digits of Blackburn’s bank card and its related Lovers purchases in violation

of article I, section 7. Therefore, we conclude that the trial court’s error in admitting into

evidence the last four digits of Blackburn’s bank card in connection with the Lovers

purchase is obvious on this record and constituted manifest error under RAP

2.5(a)(3). 21

21 Blackburn agreed at oral argument that if this court determines the trial court committed an error of manifest constitutional error in its admission of the last four digits of Blackburn’s bank card, we need not address his alternative ineffective assistance claim (IAC) for defense counsel’s asserted failure to raise an article I, section 7 challenge to the trial court’s admission of the partial bank card number. Wash. Ct. of Appeals oral arg., supra, at 1 min., 29 sec. through 2 min., 3 sec. Accordingly, we do not reach the IAC issue raised in Blackburn’s opening brief. 25 86238-3-I/26

B. Harmless Error

Even where a manifest error of constitutional magnitude exists under RAP

2.5(a)(3), the rule “does not help a defendant when the asserted constitutional error is

harmless beyond a reasonable doubt.” Scott, 110 Wn.2d at 687. Under the

constitutional harmless error analysis, we presume that constitutional errors are

prejudicial. State v. Irby, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011). The State has

the burden of showing that the constitutional error was harmless. State v. Easter, 130

Wn.2d 228, 242, 922 P.2d 1285 (1996). “We find a constitutional error harmless only if

convinced beyond a reasonable doubt any reasonable jury would reach the same result

absent the error and where the untainted evidence is so overwhelming it necessarily

leads to a finding of guilt.” Id. (internal citation omitted). If the State cannot prove that

the constitutional error was harmless, the remedy is reversal and remand for a new trial.

State v. Fuller, 169 Wn. App. 797, 813, 282 P.3d 126 (2012) (citing Easter, 130 Wn.2d

at 242).

Blackburn asserts that the last four digits of the bank card used to pay for the

August 12, 2021, Lovers purchase was a key piece of evidence for the prosecution

because “[n]othing in the actual sales receipt from Lovers established Blackburn was

the purchaser.” Blackburn claims that it was only the last four digits of the bank card

paired with the tax payment information extracted from his cell phone 22 that indicated he

made the Lovers purchase. This evidence, Blackburn argues, bolstered C.B.’s

22 See ex. 37. 26 86238-3-I/27

testimony in a trial that hinged on the jury’s weighing of the victim’s credibility as the

sole eyewitness to the charged offenses.

However, the record shows that even without the last four digits of the bank card

unlawfully obtained from Lovers, C.B.’s testimony was corroborated to support a

factfinder’s reasonable inference beyond a reasonable doubt that it was Blackburn who

provided the Lovers items the night of August 13, 2021, at the Westin Hotel.

It was undisputed at trial that Blackburn made a reservation at the Westin Hotel

for August 13, 2021, and that Blackburn checked in at the hotel while C.B. waited in the

vehicle before they went to “Daniel’s” for dinner. During her testimony, C.B. also

identified Blackburn in a previously admitted video that showed him checking in at the

Westin Hotel on August 13. See ex. 25.

C.B. described how, after she and Blackburn went to dinner, Blackburn took her

back to the hotel where there was only one bed. When they arrived at the room, C.B.

testified that Blackburn emptied a Lovers bag containing sex toys, lubricant, and lingerie

that included a blue fishnet dress and a black fishnet dress. C.B. testified that Blackburn

asked her “to put on one of the dresses,” had vaginal intercourse with her, asked her to

change into the other dress, and then had anal intercourse with her. C.B. testified that

Blackburn brought the dresses to the hotel, and that she assumed that he purchased

the dresses from Lovers because of the bag they were in.

C.B.’s testimony regarding the Lovers items was corroborated by investigating

detective Galetti. Based on C.B.’s description of the blue dress from the Lovers bag that

Blackburn brought to the Westin, Galetti found a photo of the blue dress online that C.B.

confirmed matched the dress she wore. Galetti testified that she went to a Lovers store

27 86238-3-I/28

in Kent on December 6, 2021, and provided the image of the blue dress to the store

manager who located it and showed it to Galetti. Based on a store receipt admitted at

trial, see exhibit 17, Galetti confirmed that a blue dress that fit C.B.’s description was

purchased the day before Blackburn checked in at the Westin Hotel. The jury heard

testimony about how the August 12, 2021 receipt listed another outfit, which the store

manager was also able to locate in stock. Galetti took photos of the two outfits that

matched those purchased on August 12, 2021, and her photo of the matching blue

dress was admitted at trial. 23 The jury also heard testimony that the August 12 receipt

confirmed items purchased at Lovers were similar to what C.B. described.

In addition to the above, which did not rely on Blackburn’s testimony regarding

the Lovers purchase, Blackburn testified that he purchased the items listed on the

August 12 Lovers receipt. Though Blackburn provided his own explanation for why he

bought the items and why he reserved a room at the Westin Hotel, he nonetheless

admitted that he made the Lovers purchase the day prior to his videotaped check-in at

the hotel.

Blackburn argues that this court should not consider Blackburn’s admission to

the Lovers purchase as it may have been compelled and thus tainted by the erroneous

admission of the last four digits of his bank card. 24 Blackburn relies on State v. Spotted

Elk, wherein this court held that the trial court erred when it did not suppress the

defendant’s statement to the arresting officer that she had heroin on her person and her

23 C.B. testified the blue dress in the photo matched the one she wore during the incident at the Westin Hotel on August 13. 24 In support of this argument, Blackburn also cites State v. Lewis, 130 Wn.2d 700, 705- 06 & n.2, 927 P.2d 235 (1996). Because Lewis concerns the prohibition on commenting on a defendant’s silence at trial, it is inapposite and we need not address it further. 28 86238-3-I/29

testimonial act of retrieving the heroin and handing it to the officer. 109 Wn. App. 253,

256, 260-61, 34 P.3d 906 (2001). The court concluded that Spotted Elk’s admissions

were not preceded by a Miranda 25 warning in violation of her constitutional right to self-

incrimination. Id. Concluding that Spotted Elk’s testimony at trial was not sufficiently

attenuated from the Miranda violations to be untainted, the court concluded that the

improperly admitted evidence “likely triggered” Spotted Elk to testify and explain why

she had the heroin. Id. at 262.

The Spotted Elk court observed that the untainted evidence left “an exceedingly

slim circumstantial thread” to connect the heroin to the defendant to potentially compel

her to testify. Id. “This [untainted] evidence showed (1) [arresting] Officer Linn met Ms.

Spotted Elk, (2) arrested her on an unrelated warrant, (3) deposited heroin into an

evidence bag after arresting Ms. Spotted Elk, and (4) left the heroin at the property

room after escorting Ms. Spotted Elk to the jail.” Id. Therefore, the untainted evidence

was not so “overwhelming as to necessarily result in a guilty verdict.” Id.

In the instant case, unlike the dearth of untainted evidence in Spotted Elk, the

record supports that it was not merely the partial bank card number that indicated

Blackburn had purchased the Lovers items involved in the Westin Hotel incident.

Without Blackburn’s testimony to offer a different explanation, the jury would still be left

with C.B.’s detailed testimony about how Blackburn brought items in a Lovers bag that

included a blue dress he made her wear before having sex with her at the Westin Hotel

on August 13. The jury further saw the security video, exhibit 25, that corroborated

Blackburn’s presence at the Westin Hotel on August 13 and testimony from

25 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 29 86238-3-I/30

investigating detective Galetti and C.B. that supported that the blue dress sold by

Lovers the day prior to Blackburn’s check-in at the hotel matched the dress that C.B.

said her father asked her to wear the night of the incident.

C.B.’s testimony placed Blackburn in a position of having to explain why and how

he would have brought the Lovers items with him to the hotel room he shared with C.B.

Unlike the improperly admitted evidence in Spotted Elk that likely triggered the

defendant’s testimony, it is C.B.’s untainted testimony that likely triggered Blackburn’s

trial testimony. Otherwise, C.B.’s version of events would have been the only version

the jury heard. Based on this record, we conclude that Blackburn’s testimony at trial was

sufficiently attenuated from the admission of the four digits of the bank card used for the

Lovers purchase.

Blackburn argues that because his trial turned on a she-said-he-said contest, the

State’s bolstering of C.B.’s credibility with the improperly admitted bank card digits

cannot be harmless. But the State did not solely rely on C.B.’s testimony to challenge

Blackburn’s credibility. Other evidence included sexually explicit Facebook messages

between Blackburn and C.B., the video Blackburn took of him having sex with C.B., and

Blackburn’s statement made in the jail phone call to his mother that “it wasn’t just me. It

was – it takes two.” Moreover, Blackburn’s version of events raised more questions than

answers. He testified that he purchased the items from Lovers for a barista and

Vanessa, an escort, but offered no explanation as to how it came to be that C.B. would

have known what those items were.

We are convinced beyond a reasonable doubt that any reasonable jury would

reach the same result absent the constitutional error, and that the untainted evidence

30 86238-3-I/31

overwhelmingly supports the convictions, with the exception of Count 8 as discussed

below.

Sufficiency of the Evidence

Blackburn argues that the State presented insufficient evidence to support three

of his convictions. We disagree as to Blackburn’s challenges to his conviction for rape of

a child in the third degree (Count 2) and one of his convictions for incest in the first

degree (Count 5) but agree that the record is insufficient to support his conviction for

incest in the first degree under Count 8.

We review sufficiency of the evidence presented during a trial de novo. State v.

Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014). Our review is still “‘highly deferential to

the jury’s decision.’” In re Pers. Restraint of Arntsen, 2 Wn.3d 716, 724, 543 P.3d 821

(2024) (quoting State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014) (plurality

opinion)). Due process requires the State to prove every element of the crimes charged

beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005).

The test requires an appellate court to determine “whether, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found [the

defendant] guilt[y] beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). Thus, “[a] sufficiency challenge admits the truth of the State’s

evidence and accepts the reasonable inferences to be made from it.” State v. O’Neal,

159 Wn.2d 500, 505, 150 P.3d 1121 (2007). Circumstantial evidence is considered as

reliable as direct evidence. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19

(2017). We draw all reasonable inferences from the evidence in favor of the prosecution

31 86238-3-I/32

and defer to the jury on questions of witness credibility, persuasiveness of the evidence,

and conflicting testimony. Arnsten, 2 Wn.3d at 724.

Under the law of the case doctrine, “‘the State assumes the burden of proving

otherwise unnecessary elements of the offense when such added elements are

included without objection in the “to convict” [jury] instruction.’” State v. Johnson, 188

Wn.2d 742, 756, 399 P.3d 507 (2017) (quoting State v. Hickman, 135 Wn.2d 97, 102,

954 P.2d 900 (1998)). “The to-convict instruction defines the essential elements of a

crime.” Id. at 760. A defendant may assign error to elements added under the law of the

case doctrine on appeal. Hickman, 135 Wn.2d at 102. “When determining whether there

is sufficient evidence to prove the added element, the reviewing court inquires ‘whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” Id. at 103 (internal quotation marks omitted) (quoting State v. Green, 94 Wn.2d

216, 221, 616 P.2d 628 (1980)). We read the jury instructions in the context of the

instructions as a whole. State v. France, 180 Wn.2d 809, 816, 329 P.3d 864 (2014).

In Washington, conviction of a criminal defendant requires a unanimous jury to

conclude that the defendant committed the criminal act as charged. State v. Stephens,

93 Wn.2d 186, 190, 607 P.2d 304 (1980). “In cases where several acts are alleged, any

one of which could constitute the crime charged, the jury must unanimously agree on

the act or incident that constitutes the crime.” State v. Hayes, 81 Wn. App. 425, 430,

914 P.2d 788 (1996) (citing State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984),

overruled on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988)).

In such cases, the trial court must instruct the jury, through a Petrich unanimity

32 86238-3-I/33

instruction, 26 that they must unanimously agree that “the same underlying criminal act”

has been proven beyond a reasonable doubt for each count or the State must elect one

alleged incident to rely on for conviction on each count. State v. Beasley, 126 Wn. App.

670, 682, 109 P.3d 849 (2005).

“In sexual abuse cases where multiple counts are alleged to have occurred within

the same charging period, the State need not elect particular acts associated with each

count so long as the evidence ‘clearly delineate[s] specific and distinct incidents of

sexual abuse’ during the charging periods.” Hayes, 81 Wn. App. at 431 (alteration in

original). The trial court must also instruct the jury that they must be unanimous as to

which act constitutes each count charged and that they must find “‘separate and distinct

acts’” for each count when counts are identically charged. Id. (quoting State v. Noltie,

116 Wn.2d 831, 842-43, 809 P.2d 190 (1991)).

Blackburn argues the State failed to present evidence to support all the elements

as to counts 2, 5, and 8. It is undisputed that the trial court provided a proper unanimity

instruction to the jury on each of the counts that Blackburn challenges. Our inquiry thus

focuses on the question of whether the evidence was sufficient to sustain Blackburn’s

convictions in these counts. The record shows sufficient evidence for specific and

distinct acts of sexual assault for all charged crimes except Count 8, for which we hold

evidence was insufficient to support a reasonable inference that Blackburn had sexual

intercourse with C.B. within the specified time frame.

26 State v. Carson, 184 Wn.2d 207, 216-17, 357 P.3d 1064 (2015) (citing Petrich, 101 Wn.2d at 568, 572). 33 86238-3-I/34

A. Count 2

Blackburn argues that his charge for child rape in the third degree lacked

sufficient evidence because the State presented no evidence that C.B. was at least 14

years old and younger than 16 years old at the time of the offense.

RCW 9A.44.079 provides that “[a] person is guilty of rape of a child in the third

degree when the person has sexual intercourse with another who is at least fourteen

years old but less than sixteen years old and the perpetrator is at least forty-eight

months older than the victim.” The Supreme Court has approved of this court’s prior

holding that the lower age limit is not an element of the offense of child rape in the third

degree. State v. Goss, 186 Wn.2d 372, 381, 378 P.3d 154 (2016) (citing State v. Smith,

122 Wn. App. 294, 296, 93 P.3d 206 (2004)). In concluding that the lower age limit in

the child molestation in the second degree statute does not create an essential element

of the crime, the court in Goss stated:

The lower age limit (unlike the highest) is not a fact “whose specification is necessary to establish the very illegality of the behavior charged.” [State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks omitted).]

Our conclusion is bolstered by the fact that our Court of Appeals has repeatedly held that the lower age limit is not an element of analogous crimes without any corrective legislative response. See, e.g., [Smith, 122 Wn. App. at 296]; State v. Dodd, 53 Wn. App. 178, 180-81, 765 P.2d 1337 (1989). The legislature’s failure to respond suggests it does not think the lower age threshold in statutes involving sexual contact with children functions as an element.

Id. (footnote omitted); see also Smith, 122 Wn. App. at 298 & n.1 (discussing Dodd).

34 86238-3-I/35

However, the trial court in the instant case instructed the jury that to convict

Blackburn of the crime of rape of a child in the third degree, they had to find beyond a

reasonable doubt: 27

(1) That on or about the period between August 10, 2015 and August 9, 2017, on an occasion separate and distinct from other counts, the defendant had sexual intercourse with C.B.; (2) That C.B. was at least fourteen years old but was less than sixteen years old at the time of the sexual intercourse and was not married to the defendant and was not in a state registered domestic partnership with the defendant; (3) That C.B. was at least forty-eight months younger than the defendant; and (4) That this act occurred in the State of Washington.

(Emphasis added.) The instruction’s requirement that C.B. be at least fourteen years old

thus became the law of the case.

Blackburn claims that C.B.’s testimony was too generic to support the reasonable

inference that Blackburn raped her in the specified time frame.

To determine whether a victim’s purportedly generic testimony about repeated

sexual abuse is sufficient to sustain a specific conviction, we apply the three-part Hayes

test:

First, the alleged victim must describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time period in which the acts occurred.

Hayes, 81 Wn. App. at 438; e.g., State v. Yallup, 3 Wn. App. 2d 546, 554, 416 P.3d

1250 (2018) (applying Hayes factors). This test seeks to balance the defendant’s due

27 It appears both parties offered a to-convict instruction for rape of a child in the third degree based on Washington pattern jury instruction 44.15 that included the date and age range elements. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 44.15 (5th ed.) (WPIC). 35 86238-3-I/36

process rights with the inability of the young victim to give extensive details about

regular and frequent abuses, including the specific timing of each assault. Hayes, 81

Wn. App. at 438; Yallup, 3 Wn. App. 2d at 554. “The trier of fact must determine

whether the testimony of the alleged victim is credible on these basic points.” Hayes, 81

Wn. App. at 438.

Here, C.B.’s testimony provides sufficient evidence to support that Blackburn first

anally raped C.B. when she was 14 or 15 years old to support his conviction for rape of

a child in the third degree under Count 2. 28 C.B. testified that Blackburn put his penis

into her anus while they lived at both the Petrovitsky house and the Kent house and that

the first time he did it was in 2016 when she was 15 or 16 years old. C.B. recalled that

this particular time Nitz was at work and her grandma was at the doctor. Blackburn told

C.B. that he wanted to try anal intercourse. C.B. told him no. Blackburn then pushed her

on the bed, pulled her pants down, spit on his hand, rubbed his hand on her anus, held

her down, and penetrated her anus with his penis until he ejaculated. Based on C.B.’s

birthdate, which both C.B. and Blackburn testified was August 10, 2001, C.B. would

have been 14 or 15 years old in 2016. Therefore, viewing this testimony in a light most

favorable to the State, any rational factfinder could have found that the prosecution

28 The State’s response was confusing when asked to clarify at oral argument which incident it relies on in the record to support Blackburn’s conviction under Count 2. Wash. Ct. of Appeals oral arg., supra, at 16 min., 57 sec. through 20 min., 58 sec. Regardless, Blackburn does not dispute that the jury was provided a unanimity instruction, and it is his burden on appeal to “show that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Allen, 159 Wn.2d 1, 7, 147 P.3d 581 (2006). This court reviews the entire record to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Gatlin, 158 Wn. App. 126, 131, 241 P.3d 443 (2010) (citing Salinas, 119 Wn.2d at 201). 36 86238-3-I/37

proved that Blackburn raped C.B. in the time frame specified in the to-convict instruction

beyond a reasonable doubt. 29 Hickman, 135 Wn.2d at 103.

Lastly, we reject Blackburn’s argument that irrespective of evidence that

Blackburn anally raped C.B. within the time frame specified for Count 2, the State

should be held to its ostensible election in closing argument to prove that he vaginally

raped C.B. to sustain the conviction. 30 Blackburn asserts that the prosecution “made the

… election in closing” when the prosecutor stated to the jury: “You pick any vaginal rape

after [Nitz] moved in for Count [2], age 14 or 15. So any that occurred between August

10, 2015, and August 9, 2017.” Blackburn, however, does not dispute that the jury was

provided with a unanimity instruction to agree on the incident of sexual intercourse that

supported his conviction under Count 2. The trial court also instructed the jury that

lawyers’ statements are not evidence and to disregard any statement not supported by

the evidence or the law in the court’s instructions. It is well established that jurors are

presumed to follow the court’s instructions. State v. Gallaher, 24 Wn. App. 819, 822,

604 P.2d 185 (1979). Blackburn concedes that no controlling authority supports his

proposition that a prosecutor’s statements in closing about what incidents the jury may

consider regarding a specific count in a multiple acts case effectively limits what

evidence the jury can consider where a unanimity instruction has been provided. Wash.

Ct. of Appeals oral arg., supra, at 23 min., 54 sec. through 25 min., 52 sec. Blackburn

29 Blackburn argues that because C.B. testified that this incident occurred in 2016 and also at the Kent house, which the family did not move into until 2018, there is insufficient testimony to establish that C.B. was at least 14 years old and less than 16 years old at the time of the offense. Because this court defers to the jury on conflicting testimony, this argument is unpersuasive. State v. Raleigh, 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010). 30 Blackburn clarified this election claim at oral argument. Wash. Ct. of Appeals oral arg., supra, at 22 min., 13 sec. through 22 min., 45 sec., 23 min., 28 sec. through 25 min., 37 sec. 37 86238-3-I/38

instead suggested at oral argument that it is “good policy” for this court to hold the State

to its purported election in closing, 31 which he did not provide substantive argument for

in his briefing and for which we will not create argument on his behalf. See Collins v.

Clark County Fire Dist. No. 5, 155 Wn. App. 48, 95-96, 231 P.3d 1211 (2010); Swank v.

Valley Christian Sch., 188 Wn.2d 663, 675 n.6, 398 P.3d 1108 (2017).

We hold that the evidence is sufficient to sustain Blackburn’s conviction for child

rape in the third degree on Count 2.

B. Count 5

Blackburn argues that C.B.’s testimony was too generic and speculative to

establish that Blackburn committed incest in the first degree within the required time

period of January 1, 2018, to January 1, 2019, in Count 5.

Under RCW 9A.64.020(1)(a), “[a] person is guilty of incest in the first degree if he

or she engages in sexual intercourse with a person whom he or she knows to be related

to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or

sister of either the whole or the half blood.”

Here, the to-convict instruction for Count 5 required the jury to find beyond a

reasonable doubt:

(1) That between January 1, 2018 and January 1, 2019, on an occasion separate and distinct from other counts, the defendant engaged in sexual intercourse with C.B.; (2) That C.B. was related to the defendant as a descendant; (3) That at the time the defendant knew the person with whom he was having sexual intercourse was so related to him; and (4) That any of these acts occurred in the State of Washington.

31 Wash. Ct. of Appeals oral arg., supra, at 26 min., 4 sec. through 26 min., 11 sec. 38 86238-3-I/39

(Emphasis added.) Though time is not an element under RCW 9A.64.020(1)(a), both

the State and defense proposed the to-convict instruction with the same time frame,

which the court adopted. The State does not dispute that the time period became an

element of the offense. Specifically, the State was required to prove that Blackburn

committed a separate and distinct act of incestuous sexual intercourse between

January 1, 2018 and January 1, 2019.

Here, there is sufficient evidence to support that Blackburn had sexual

intercourse between the required time period. C.B. testified that Blackburn put his penis

into C.B.’s vagina multiple times when they lived at the Kent house and that it usually

happened in his bedroom. Specifically, C.B. testified that the first time Blackburn

penetrated her vagina with his penis in the Kent house was soon after they moved to

the house in 2018 when she was around 16 or 17 years old.

C.B. described how Blackburn came into her room and laid down on the bed with

her. C.B. said that when Blackburn started cuddling her, she “already knew what that

was insinuating.” C.B. told Blackburn that “this wasn’t something that I wanted to do”

and Blackburn in response made her feel guilty by telling her that he works all day while

she stays at home and that he has taken care of her since she was little. Blackburn then

took C.B.’s pants off, started touching her on her vagina with his fingers, took his pants

down, and penetrated C.B.’s vagina with his penis. C.B. confirmed that, like a different

time that Blackburn penetrated her vagina with his penis when she was in the eighth

grade after she asked to go to the Puyallup Fair, this time started with Blackburn coming

into the room and touching C.B. and then progressed to Blackburn putting his penis into

her vagina. C.B. testified this was usually how Blackburn’s sexual assaults progressed.

39 86238-3-I/40

Blackburn presents a false dichotomy in his assertion that the prosecutor clarified

with C.B. that this so-called “guilt trip” incident was a “different time” than the first time

that Blackburn had sexual intercourse with C.B. at the Kent house, thus leaving C.B.’s

testimony too sparse to place a distinct act of sexual intercourse between January 1,

2018 and January 1, 2019. Viewed in a light most favorable to the State, the

prosecutor’s questioning can be reasonably interpreted as differentiating this “guilt trip

instance” from the Puyallup Fair incident when C.B. was in eighth grade. See O’Neal,

159 Wn.2d at 505. Regardless, C.B. testified that Blackburn first put his penis inside her

vagina in the Kent house “soon after” they moved in 2018, when she was 16 or 17 years

old. This is sufficient to place one of Blackburn’s incestuous sexual assaults against

C.B. within the time frame required by the to-convict instruction for Count 5. Cf. State v.

Jensen, 125 Wn. App. 319, 323, 328, 104 P.3d 717 (2005) (finding insufficient evidence

for one of three molestation convictions where victim did not testify that sexual contact

occurred during two additional times that defendant entered her room at night); State v.

Edwards, 171 Wn. App. 379, 402-03, 294 P.3d 708 (2012) (finding insufficient evidence

where there was no evidence defining the time period during which the alleged

molestation occurred).

C. Count 8

Like the above-discussed counts, the to-convict instruction for Count 8 the State

added a time-frame element that became the law of the case. The instruction stated that

to convict Blackburn of incest in the first degree on Count 8, the jury had to find beyond

a reasonable doubt:

40 86238-3-I/41

(1) That between October 1, 2021 and October 13, 2021, on an occasion separate and distinct from other counts, the defendant engaged in sexual intercourse with C.B.; (2) That C.B. was related to the defendant as a descendant; (3) That at the time the defendant knew the person with whom he was having sexual intercourse with was so related to him; and (4) That any of these acts occurred in the State of Washington.

(Emphasis added.) Blackburn argues that the State failed to present sufficient evidence

to prove beyond a reasonable doubt that he had sexual intercourse with C.B. within the

specified time period of October 1, 2021 to October 13, 2021. Because the jury would

have to speculate to infer from the evidence that Blackburn had sexual intercourse with

C.B. between the dates set forth in the to-convict instruction, we agree.

C.B. testified to an incident that occurred in fall 2021 when she was 20 years old

and still living at the Kent house in which Blackburn came home frustrated and

demanded that they have sex. Blackburn told C.B. she was “useless” and that having

sex with him was the least she could do because all she does “is watch TV and smoke

weed all day.” Blackburn then penetrated C.B.’s vagina with his penis while C.B. was on

her knees on Blackburn’s bed. The incident occurred with Blackburn’s bedroom door

closed and C.B. recalled, “My grandmother was in her bedroom, and my grandfather

was in his office.”

Our Supreme Court has held that “[t]he ‘to convict’ instruction carries with it a

special weight because the jury treats the instruction as a ‘yardstick’ by which to

measure a defendant’s guilt or innocence.” State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415

(2005). Further, the law of the case doctrine’s requirement that the State prove every

element in a jury instruction to which it does not voice opposition “benefits the system

by encouraging trial counsel to review all jury instructions to ensure their propriety

41 86238-3-I/42

before the instructions are given to the jury.” Hickman, 135 Wn.2d at 105; see CrR

6.15(c). The State does not carry its burden to prove every element by a reasonable

doubt by relying on evidence that requires the jury to draw inferences based on

speculation. State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013). A “‘modicum’” of

evidence is not sufficient. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)

(internal quotation marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979)).

Here, the law of the case doctrine required the State to prove beyond a

reasonable doubt that Blackburn had sexual intercourse with C.B. sometime “between

October 1, 2021 and October 13, 2021.”32 (Emphasis added.) C.B.’s testimony, without

more, required the jury to hypothesize that the incident she described in fall 2021

occurred between the October dates required by the to-convict instruction. The

existence of a necessary fact of an offense cannot be based on such a guess or

conjecture. State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006).

The State relies on Blackburn’s testimony that he last “shared a bed” with C.B. a

few days before she moved out of the Kent house on October 6, 2021. The State

argues that if viewed in combination with C.B.’s testimony that Blackburn had sexual

32 The instant case is different from sexual assault cases where courts have followed the rule that “where time is not a material element of the charged crime, the language ‘on or about’ is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.” Hayes, 81 Wn. App. at 432 (emphasis added); see Yallup, 3 Wn. App. 2d at 550, 553-54 & nn.2-3 (upholding verdict from bench trial where charging language used “on or between” language and the victim’s testimony placed incidents in period that was eight months after the charging period but within statute of limitations period); see also Yallup, 3 Wn. App. 2d at 553 (“When charging using ‘on or about’ or similar language, the proof is not limited to the delineated time period.”) (citing Hayes, 81 Wn. App. at 432 n.12 (collecting cases)); Jensen, 125 Wn. App. at 326-27 (upholding jury verdict based on victim testimony where to- convict instruction required proof of offenses “on or about August 1, 2001 through February 19, 2002”) (emphasis added). 42 86238-3-I/43

intercourse with her sometime in fall 2021, Blackburn’s testimony that he “shared a bed”

with C.B. could be reasonably inferred to mean that Blackburn had sex with C.B. a few

days before October 6. The State posits that this evidence taken together is sufficient to

prove that the fall 2021 incident occurred within the date range specified by the to-

convict instruction to support Blackburn’s conviction on Count 8.

The State’s theory disregards, however, Blackburn’s testimony in which he

clarifies what he meant by “shared a bed.” On redirect defense asked Blackburn:

Q. … Mr. Blackburn, you said that you shared your bed with [C.B.]. Can you elaborate on that? A. “Shared” it as she would come in and hang out and spend time watching TV or conversating. The furniture in the bedroom is a bed. … Q. Okay. And so it was to watch TV. And was there any other reason that she would come in? A. Just – just to hang out. Q. Okay. Do you know if she watched TV in your bedroom when you weren’t there? A. Yes. Yes, she did. Q. How do you know that? A. She would FaceTime me. She would be in my room. It didn’t matter whether I was there or wasn’t there. That was – that was where she hung out and watched TV.

Blackburn otherwise denied any sexual allegations.

The State also disregards C.B.’s testimony that she slept in Blackburn’s bed at

the Kent house “the majority of the time.” C.B. testified that she and Blackburn shared

his bedroom, and that she would sleep on top of the covers while Blackburn slept under

the covers to make an extra layer between them. The record does not support that

Blackburn had sexual intercourse with C.B. whenever they shared or slept in the same

bed. See Jensen, 125 Wn. App. at 327-28. Thus, even viewing the testimony in a light

most favorable to the prosecution, the evidence does not support a reasonable

43 86238-3-I/44

inference that Blackburn had sexual intercourse with C.B. between October 1, 2021 and

October 13, 2021. To find Blackburn guilty of Count 8 would have to be based on

speculation, not evidence. This is insufficient.

The proper remedy where the State does not present sufficient evidence of all

the elements of the crime, including added elements, is to reverse the conviction and

dismiss with prejudice. Hickman, 135 Wn.2d at 103. Because the evidence is

insufficient, we reverse Blackburn’s conviction on Count 8 and remand with instructions

for the trial court to dismiss the charge with prejudice.

The State asserts that the reversal of the conviction does not necessitate

resentencing because Blackburn’s offender score will remain above 9 33 and he was

sentenced to the low end of the standard range on all counts.

If the trial court imposed a low-end sentence and a reduction of the offender

score could not result in a lower sentence within the standard range, then resentencing

is not necessary. See State v. Johnson, 61 Wn. App. 539, 552, 811 P.2d 687 (1991).

This situation does not apply in the instant case. As stated above, the trial court

sentenced Blackburn to an indeterminate sentence of 210 months to life on his most

serious convictions for child rape in the second degree under RCW 9A.44.076. See

RCW 9.94A.507(1)(a)(i), (3)(b), (5); RCW 9A.44.076(2); RCW 9A.20.021(1)(a). For his

concurrent sentences on the four remaining counts of incest in the first degree—counts

3, 5, 6, and 7—the trial court sentenced Blackburn to 102 months of imprisonment,

which is the high end of the sentencing range provided by the sentencing grid under

33 Blackburn does not dispute the State’s assertion that his offender score will remain above 9 “without any or all three [challenged] counts [of 2, 5, and 8].” 44 86238-3-I/45

RCW 9.94A.510 34 and lower than the maximum term of confinement for the offense

under RCW 9A.20.021(1)(b). See RCW 9A.64.020(1)(b) (class B felony); State v.

Toney, 149 Wn. App. 787, 795-96, 205 P.3d 944 (2009). Because the trial court has the

discretion to impose a lower sentence of confinement on Blackburn’s concurrent counts

of 3, 5, 6, and 7 based on a reduced offender score, 35 and those sentences could

become relevant if Blackburn’s convictions under RCW 9A.44.076 were successfully

challenged on collateral review, we remand for resentencing.

Sentence Exceeding Statutory Maximum

Blackburn contends that his combined sentence of confinement and community

custody exceeds the statutory maximum allowable for his convictions under counts 2, 3,

5, 6, and 7. We accept the State’s concession that the trial court erred in imposing

aggregate confinement and community custody terms above the statutory maximum for

the challenged counts. 36

A court may not impose a sentence providing for a term of total confinement or

community custody that exceeds the statutory maximum for the offense. RCW

34 Based on the offense seriousness level of VI and Blackburn’s offender score of 9+, the minimum standard sentence for incest in the first degree is 77 months. RCW 9.94A.510, .515; The high end of the range under the grid is 102 months, which is lower than the maximum allowed 120 months for the class B felony offense. RCW 9A.64.020(1)(b); RCW 9A.20.021(1)(b); RCW 9.94A.510, .515. 35 On Count 2, rape of a child in the third degree, Blackburn was concurrently sentenced to 60 months of confinement under RCW 9A.20.021(1)(c), which is less than the standard range under RCW 9.94A.510 based on the offense seriousness level of VI and his offender score of 9+. RCW 9.94A.515, see RCW 9A.44.079(2) (class C felony); Toney, 149 Wn. App. at 795-96. Because Blackburn’s sentence is below the low end of the standard range under RCW 9.94A.510, resentencing on Count 2 is only necessary to the extent it must comply with RCW 9.94A.701(10) as discussed below. 36 Based on our decision to reverse Blackburn’s conviction for incest in the first degree under Count 8, we do not address his sentencing argument regarding that count. 45 86238-3-I/46

9.94A.505(5). 37 The trial court must reduce the community custody term where the

offender’s standard range term of total confinement combined with the term of

community custody exceeds the statutory maximum for the crime. RCW

9.94A.701(10); 38 State v. Gililung, 31 Wn. App. 2d 718, 722, 552 P.3d 813 (2024),

review denied, 574 P.3d 573 (2025) (citing State v. Boyd, 174 Wn.2d 470, 473, 275

P.3d 321 (2012)). The remedy on appellate review is to remand to the trial court to

either amend the community custody term or to resentence the offender consistent with

the statute. Gililung, 31 Wn. App. 2d at 722 (citing Boyd, 174 Wn.2d at 473).

For each of the five challenged counts—2, 39 3, 5, 6, and 7 40— the trial court

imposed terms of total confinement that, combined with an additional 36 months of

community custody, exceeded the statutory maximum for the corresponding offense.

Accordingly, we remand the matter for the trial court to either amend the term of

community custody or resentence Blackburn on counts 2, 3, 5, 6, and 7 consistent with

RCW 9.94A.701(10).

37 A new version of RCW 9.94A.505 became effective since Blackburn’s sentencing, as of January 1, 2026, but the relevant language of subsection .505(5) remains the same. 38 A new version of RCW 9.94A.701 became effective since Blackburn’s sentencing, as of January 1, 2026, but the related amendments are not material to this analysis. 39 Blackburn was convicted of child rape in the third degree in Count 2. A class C felony, the offense has a statutory maximum of 60 months in confinement. RCW 9A.44.079(2); RCW 9A.20.021(1)(c). The trial court sentenced Blackburn to 60 months of confinement and imposed an additional 36 months of community custody. 40 On counts 3, 5, 6, and 7, Blackburn was convicted of incest in the first degree. A class B felony, the offense has a statutory maximum of 120 months in prison under RCW 9A.20.021(1)(b). RCW 9A.64.020(1)(b). On each count, the trial court sentenced Blackburn to 102 months of confinement and an additional 36 months of community custody. 46 86238-3-I/47

Community Custody Conditions

Blackburn in his opening brief challenged the trial court’s imposition of two

community custody conditions. He acknowledges in his reply brief that recent case law

is dispositive on these claims. We agree and conclude that neither challenge has merit.

First, the trial court imposed a standard community custody condition requiring

him to “[r]emain within geographic boundaries, as set forth in writing by the Department

of Correction Officer or as set forth with SODA [i.e., Stay Out of Drug Areas] order.”

Blackburn argued in his opening brief that the condition was unconstitutionally vague.

We considered the same argument in State v. Lundstrom, concluding that the condition

was not unconstitutionally vague. 34 Wn. App. 2d 977, 979-81, 983, 572 P.3d 1243

(2025). For the reasons set forth in Lundstrom, we continue to conclude the geographic

boundaries condition is not unconstitutionally vague.

Second, the trial court imposed a special community custody condition requiring

Blackburn to “[b]e available for and submit to urinalysis [UA] and/or breathanalysis [BA]

upon request of the [Community Corrections Officer] and/or chemical dependency

treatment provider.” Blackburn argued in his opening brief that because the condition is

not related to his offenses, it violates his privacy interests protected by article I, section

7. He recognizes in his reply brief that our state Supreme Court recently addressed this

issue in State v. Nelson, 4 Wn.3d 482, 484-85, 501-10, 565 P.3d 906 (2025).

In Nelson, the Supreme Court reiterated its holding in State v. Olsen that BA and

UA testing community custody conditions are only supported by the authority of law

under article I, section 7 if “they serve ‘a compelling interest, achieved through narrowly

tailored means.’” Id. at 503 (quoting State v. Olsen, 189 Wn.2d 118, 128, 399 P.3d 1141

47 86238-3-I/48

(2017)). The court, acknowledging a split amongst the Court of Appeals, responded to

Nelson’s request to address whether article I, section 7 permits compliance monitoring

through BA and UA testing if “there is no evidence drugs or alcohol contributed to the

offenses.” Id. at 484-85, 498, 501-10 (internal quotation marks omitted). The court

rejected the notion that the only compelling interest the State could have to support

random BA and UA testing is the prevention of similar crimes. Id. at 505-07. Instead, the

State’s “[p]rotection of the public is achieved not merely by preventing similar crimes but

by ensuring the person on community custody is willing and able to comply with all

applicable legal requirements,” which the State cannot do without tools to monitor the

offender’s compliance with valid sentencing conditions. Id. at 506. Thus, the court held,

“the State has a compelling interest in monitoring Nelson’s compliance with his valid

community custody conditions prohibiting drug and alcohol use, regardless of the

specific facts of his underlying offenses.” Id. at 506-07. Further, where random BA and

UA testing is authorized for the limited purpose of assessing a defendant’s compliance

with a valid prohibition on drug and alcohol use, “such testing ‘is a narrowly tailored

monitoring tool imposed pursuant to a valid prohibition on drug and alcohol use.’” Id. at

507 (quoting Olsen, 189 Wn.2d at 134); see id. at 503-04 (citing RCW 9.94A.703(2)(c),

(3)(e)). Blackburn does not argue that the trial court imposed the random UA and BA

testing for a reason other than to monitor his compliance with valid conditions. Following

Nelson, we conclude the condition does not violate Blackburn’s privacy interests under

article I, section 7.

48 86238-3-I/49

CONCLUSION

We affirm in part, reverse Blackburn’s conviction for incest in the first degree in

Count 8, and remand for resentencing on counts 2, 3, 5, 6, and 7 consistent with RCW

9.94A.701(10).

WE CONCUR: