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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON F- 0.3 0 5;--Itit rnt) STATE OF WASHINGTON, ) T.' ) No. 75834-9-1 7 j :c- Respondent, oo otil ) ) DIVISION ONE cfi ¶2 ••••••
v. ) ) JAMES BRADLEY ANDERSON, ) UNPUBLISHED OPINION ) Appellant. ) FILED: July 30, 2018 )
BECKER, J. —Appellant, tried and convicted on five counts of child rape
and molestation, was exposed to double jeopardy by jury instructions that did not
prevent the jury from basing two convictions on the same act of oral-genital
intercourse. He claims that defense counsel was ineffective for proposing the
deficient instructions. We reject this argument because appellant has not shown
a reasonable likelihood that the trial outcome would have been different had
counsel's error not occurred.
FACTS The State charged appellant James Anderson with one count of second
degree child molestation, two counts of first degree child molestation, one count
of second degree child rape, and one count of first degree child rape. The
alleged victim, KJ, was 20 years old when the trial occurred in 2016. She No. 75834-9-1/2
testified about a sexual relationship with Anderson that he initiated when she was
9 and he was around 18. At the time, NJ was living in Everett with her
grandmother and her grandmother's partner, who was Anderson's father.
Anderson often stayed there, and he later resided with them when they lived in
Mukilteo. Anderson was often left in charge of NJ and other young children in the
house. NJ testified that Anderson secretly had sex with her on a regular basis,
including oral sex and vaginal intercourse. NJ described certain instances in
detail.
When NJ was 13, she moved back in with her mother and her mothers
partner. She told them about her history with Anderson. She was initially
unwilling to share details with police. Four years later, after undergoing therapy,
NJ decided to talk to a detective.
The defense presented testimony from NJ's grandmother, Anderson's
father, and other family members. They denied ever witnessing suspicious
interactions between NJ and Anderson. Anderson did not testify. The defense
strategy was to cast doubt on NJ's version of events.
In closing, with the aid of a PowerPoint presentation, the prosecutor
matched particular incidents described by NJ to each of the five counts. Count 1,
second degree child molestation, had a charging period of May 12, 2008, to May
11, 2010. The State elected the couch" incident to support this count. KJ
testified about a time when she was 11 and she and Anderson had penile-vaginal
Intercourse on the living room couch in the middle of the day when no one else
2 No. 75834-9-1/3
was home. She did not have any clothes on. She testified, "I was on top, and
we were sitting." She recalled that it felt good.
Counts 2, 3, and 4—the first degree rape count and the two counts of first
degree molestation—shared the same charging period of May 12, 2005, to May
11, 2008. For count 2, first degree rape, the State elected "the trampoline"
incident. KJ testified about a time that she performed oral sex on Anderson in
the kitchen of their house while her friends were in the backyard jumping on a
trampoline. She was 11.
Count 3, first degree child molestation, was "the teddy bear incident. KJ
testified that one night when she was 10, Anderson appeared by her bedside,
naked. He told KJ to call him "teddy bear," and he put her hand on his penis.
Count 4, the second count of first degree molestation, was "the pink
nightgown" incident. KJ testified that the first time she and Anderson had penile-
vaginal sex, when she was 11, she was wearing a pink nightgown and the sex
was painful.
Count 5, second degree child rape, had a charging period of May 12,
2008, to May 11,2010. The State elected "the garage" incident. KJ testified
about a time, when she was 12, that she performed oral sex on Anderson while
they were in the garage playing video games.
The jury convicted Anderson as charged. The court imposed a minimum
sentence of 280 months' imprisonment. Anderson appeals the judgment and
sentence.
3 No. 75834-9-1/4
TO-CONVICT INSTRUCTION—COUNT 1 The to-convict instruction for count 1, second degree child molestation,
required the State to prove that KJ was "at least twelve years old" when the
molestation occurred. Neither party objected to this instruction. To support
count 1,the State invoked KJ's testimony about having vaginal sex with
Anderson on a couch. But KJ testified that she was 11 when that incident
occurred.
On appeal, Anderson contends that his conviction for second degree child
molestation must be reversed given the discrepancy between KJ's testimony and
the age requirement in the to-convict instruction. The State concedes that the
conviction on count 1 should be reversed. We accept the State's concession.
The lower age limit of 12 years old, though included in the statute for
second degree child molestation, is not an essential element of the crime. State
v. Goss, 186 Wn.2d 372, 378-82, 378 P.3d 154(2016). But elements in a to-
convict instruction that are not objected to become the law of the case"; the
State must prove those elements beyond a reasonable doubt to prevail. State v.
Hickman, 135 Wn.2d 97, 99,954 P.2d 900(1998). In this case, therefore, the
State was required to prove that KJ was at least 12 at the time of the molestation.
KJ testified about other sexual encounters with Anderson that occurred
when she was 12 or older. But it is not apparent that the jury unanimously
agreed to base the conviction for second degree molestation on one of these
other events. Questions sent by the jury during deliberations suggest confusion
about whether they were bound by the prosecutor's election of the couch incident
to support count 1. In response to these inquiries, the court referred the jury to 4 No. 75834-9-1/5
their instructions. The instructions did not advise jurors that they had to agree
unanimously on a particular act to support count 1, a requirement in the absence
of a valid election by the State. State v. Petrich, 101 Wn.2d 566, 572,683 P.2d
173(1984).
On this record, we conclude that the State did not meet its obligation,
imposed by the to-convict instruction, to prove the lower age limit. We cannot be
sure that the jury rejected the State's election of the couch incident, which did not
provide sufficient evidence on the age element of the crime, as defined by the to-
convict instruction, and we cannot be sure that the jury unanimously agreed on
some other act to support count 1. Ambiguities in a jury verdict must be resolved
in the defendant's favor. State v. Kier, 164 Wn.2d 798, 811, 194 P.3d 212
(2008). The appropriate remedy is to reverse the conviction for second degree
molestation and dismiss the charge with prejudice. Hickman 135 Wn.2d at 99.
INEFFECTIVE ASSISTANCE—DOUBLE JEOPARDY Anderson claims that his right to effective counsel was violated by
counsel's proposal of jury instructions that did not protect him from double
jeopardy. He must establish both deficient performance and prejudice. State v
Jones, 183 Wn.2d 327, 330, 352 P.3d 776(2015). The first prong requires a
showing that counsel's representation fell below an objective standard of
reasonableness, considering all circumstances. Strickland v. Washington, 466
U.S.668,688, 104 S. Ct. 2052,80 L. Ed. 2d 674(1984). Our review is highly
deferential; we indulge a strong presumption of reasonableness. State v.
Thomas, 109 Wn.2d 222, 226, 743 P.2d 816(1987). The prejudice prong
requires Anderson to show a reasonable probability that, but for counsel's errors,
5 No. 75834-9-1/6
the result of the proceeding would have been different. Thomas, 109 Wn.2d at
226. We review ineffective assistance claims de novo. State v. Fedoruk, 184
Wn. App. 866,879, 339 P.3d 233(2014).
Anderson contends that the jury instructions proposed by his counsel
allowed the jury to use the same act to convict him on more than one count; that
is, he faced multiple punishments for the same offense, a double jeopardy
problem. State v. Borsheim, 140 Wn.App. 357, 366, 165 P.3d 417(2007).
Defense counsel proposed instructions that were markedly similar to those
submitted by the State.1 The court adopted a set identical to the prosecutor's,
with one added instruction not relevant here. Defense counsel made no
objections to the court's instructions.
Anderson does not challenge the instructions directly. It is doubtful that he
could because he proposed them. "Under the invited error doctrine, a
defendant may not request that instructions be given to the jury and then
complain upon appeal that the instructions are constitutionally infirm." State v.
Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512(1999); State v. Hood, 196 Wn. App.
127, 131-32, 382 P.3d 710(2016), review denied, 187 Wn.2d 1023(2017).2 But
review "is not precluded where Invited error is the result of ineffectiveness of
1 See Clerk's Papers at 86-101 (defense Instructions), 235-60(State's Instructions); see also Report of Proceedings at 232, 350(court observes "1 don't know if there are many differences in your packages"; "1 don't think there were any material differences in the two packets of instructions"). 2 Proposing a deficient instruction invites error, while merely failing to object to the State's deficient instruction does not. Hood, 196 Wn.App. at 133- 34. Here, the record demonstrates unequivocally that counsel proposed the challenged instructions. 6 No. 75834-9-1f7
counsel." Aho 137 Wn.2d at 745. By asserting ineffective assistance instead of
challenging the instructions directly, Anderson has avoided application of the
Invited error doctrine. Review is not precluded, but the result is that we must
review his double jeopardy claim according to the standard of review for
Ineffective assistance rather than the standard of review for instructions that
violate a constitutional right. Relief is warranted only if counsel's proposal of
deficient Instructions was both deficient performance and prejudicial.
We turn to the specifics. Anderson first contends the State invoked the
same event to convict him on count 1, second degree child molestation, and
count 4, one of the two counts of first degree child molestation, and nothing in the
Instructions proposed by defense counsel prevented this result. Count 1 was
based on the aforementioned incident when KJ and Anderson had sex on a
couch during the day; she was "on top" and had no clothes on; and the sex "felt
good."3 To prove count 4, the State relied in closing argument on a purportedly
different incident of penile-vaginal intercourse during which KJ recalled that they
were on a foldout couch, she was wearing a pink nightgown, and the sex was
painful.4 Anderson contends "A close examination of K.J.'s testimony reveals
that these were a single incident: the first instance of vaginal intercourse between
K.J. and Anderson."
The record does not support Anderson's contention that the State relied
on the same act to prove count 1 and count 4. But even assuming it did, and
3 Report of Proceedings at 278, 331, 434. 4 Report of Proceedings at 436-37. 7 No. 75834-9-1/8
defense counsel was ineffective for contributing to the double jeopardy violation,
the remedy would be dismissal of the lesser punished crime. State v. Villanueva-
Gonzalez, 175 Wn. App. 1, 8, 304 P.3d 906(2013), affd 180 Wn.2d 975, 329
P.3d 78(2014). The lesser of the two crimes was second degree child
molestation, charged in count 1. We have already determined that Anderson's
conviction on count 1 will be reversed and dismissed with prejudice. Thus, it is
unnecessary to consider whether there was a double jeopardy violation with
respect to counts 1 and 4. For the same reason, we do not address whether the
instructions allowed the jury to convict Anderson of counts 1 and 5 based on the
same act, an argument implied by pages 25-26 of his brief of appellant. Count 1
will be dismissed on a different ground.
Anderson next contends that the deficient instructions allowed the jury to
convict him of count 2, first degree child rape, and either count 3 or 4, the counts
of first degree molestation, based on the same act of oral-genital intercourse.5 In
the to-convict instructions for counts 3 and 4,jurors were told that count 3
required proof of an occasion "separate and distinct from that alleged" in count 4,
and vice versa. Anderson contends that there should have been similar
language informing jurors that counts 3 and 4 required proof of an act separate
and distinct from that alleged in count 2. Such language was absent from
defense counsel's proposed to-convict instructions and those given by the court.
Anderson contends that counsel's failure to propose "separate and distinct"
5 Count 5, second degree child rape, is not at issue because it involved a different charging period. 8 No. 75834-9-1/9
language was prejudicial and requires reversal of one of the convictions for first
degree child molestation (count 3 or 4), as child molestation is a lesser crime
than the rape conviction under count 2.
Child rape and child molestation have different elements. First degree
child rape occurs when the defendant has sexual intercourse with a child
younger than 12 years old. RCW 9A.44.073(1). "Sexual intercourse" includes
oral-genital contact as well as penetration of the vagina or anus.
RCW 9A.44.010(1). First degree child molestation occurs when the defendant
engages in sexual contact with a child younger than 12. RCW 9A.44.083(1).
"Sexual contact" means "any touching of the sexual or other intimate parts of a
person done for the purpose of gratifying sexual desire of either party or a third
party. RCW 9A.44.010(2). Thus, child rape requires proof of intercourse, which
is not an element of child molestation, and child molestation requires proof that
the defendant acted for sexual gratification, which is not an element of rape.
State v. Jones, 71 Wn. App. 798, 825, 863 P.2d 85(1993), review denied, 124
Wn.2d 1018(1994).
Child rape and child molestation can nonetheless be the same in fact, for
double jeopardy purposes, when both are proven by the same instance of oral-
genital contact. State v. Land, 172 Wn. App. 593,600, 295 P.3d 782, review
denied 177 Wn.2d 1016(2013). "Where the only evidence of sexual intercourse
supporting a count of child rape is evidence of penetration, rape is not the same
offense as child molestation." Land, 172 Wn. App. at 600. "But where the only
evidence of sexual intercourse supporting a count of child rape is evidence of
9 No. 75834-9-1/10
sexual contact involving one person's sex organs and the mouth or anus of the
other person, that single act of sexual intercourse, if done for sexual gratification,
is both the offense of molestation and the offense of rape." Land 172 Wn. App.
at 600.
Thus, in Land, a potential double jeopardy problem arose when the
defendant was charged with child molestation and child rape based on conduct
involving the same victim and same charging period; the victim testified that the
defendant touched her on her breasts and "'lower part,'" inserted his finger inside
her vagina, and "'kissed'" her "'on the lower half"; and the jury was not instructed
that it could not convict the defendant of both rape and molestation based on a
single act. Land 172 Wn. App. at 597-98, 600-01; see also State v. Mutch, 171
Wn.2d 646,661, 254 P.3d 803(2011). In the final analysis, we found no error
because it was manifestly apparent from the record that the rape count was
supported only by the victim's testimony about digital penetration. Land 172 Wn.
App. at 601-03.
Here, the jury instructions created a potential double jeopardy problem
concerning count 2, the first degree rape count, because the State did not elect
to support that count with evidence of penetration. Like counts 3 and 4, count 2
involved a charging period of May 12, 2005, to May 11,2008. The alleged victim
was the same (KJ) with respect to all three counts. The instructions provided to
jurors did not include penetration as a means of committing rape;"sexual
intercourse" was defined as "any act of sexual contact between persons Involving
the sex organs of one person and the mouth or anus of another." When
10 No. 75834-9-1/11
discussing count 2, the rape count, in closing argument, the prosecutor explained
that "for purposes of[sexual intercourse], we're talking about when she was
giving him oral sex, when she's using her mouth." Under Land, an act of oral sex
is both the offense of molestation and the offense of rape.
The Jury was not instructed that it could not convict Anderson of first
degree molestation, as charged in counts 3 and 4, based on the same incident of
oral-genital contact used to support count 2, first degree rape. Thus,jurors
theoretically could have had In mind the same act for count 2 as they did for
either count 3 or 4(but not 3 and 4, because the jury was Instructed that those
counts required proof of separate acts). For example, if jurors believed KJ's
testimony about the "trampoline" incident—an incident involving oral sex that
occurred when KJ was 11—they could have relied on this event to convict
Anderson of both first degree rape (count 2) and first degree molestation (count 3
or 4). KJ's testimony provided evidence to satisfy the elements of both crimes.
The jury instructions were deficient insofar as they allowed this possibility.
Borsheim, 140 Wn. App. at 370. The problem was not averted by the jury
instruction that stated,"A separate crime is charged in each count. You must
decide each count separately. Your verdict on one count should not control your
verdict on any other count." This instruction did not inform jurors that each crime
required proof of a separate act. Mutch 171 Wn.2d at 663.
Flawed instructions that permit a jury to convict a defendant of more than
one count based on a single act do not necessarily mean that the defendant
received multiple punishments for the same offense; "it simply means that the
11 No. 75834-9-1/12
defendant potentially received multiple punishments for the same offense."
Mutch, 171 Wn.2d at 663. Under the standard of review that applies when
instructions are directly challenged as inadequate to prevent double jeopardy, we
review the entire record to determine whether a double jeopardy violation was
actually effectuated. Mutch, 171 Wn.2d at 664. "No double jeopardy violation
results when the information, instructions, testimony, and argument clearly
demonstrate that the State was not seeking to impose multiple punishments for
the same offense." State v. Haves, 81 Wn. App. 425,440,914 P.2d 788 review
denied, 130 Wn.2d 1013(1996). "While the court may look to the entire trial
record when considering a double jeopardy claim, we note that our review is
rigorous and is among the strictest. Considering the evidence, arguments, and
instructions, if it is not clear that it was 'manifestly apparent to the jury that the
State[was] not seeking to impose multiple punishments for the same offense'
and that each count was based on a separate act, there is a double jeopardy
violation." Mutch, 171 Wn.2d at 664.
Here, the State elected specific incidents to support each count But the
State's elections alone did not eliminate the possibility of a double jeopardy
violation. Closing argument cannot be considered in isolation. Kier, 164 Wn.2d
at 813. Nothing else in the record provides adequate assurance that it was
manifestly apparent to jurors that each count was based on a separate act. The
information charged five separate counts, yet KJ testified about more than five
sexual encounters with Anderson. Cf. Mutch 171 Wn.2d at 665. And, as
discussed, nothing in the instructions prevented jurors from rejecting the State's
12 No. 75834-9-1/13
elections and using the same event to convict Anderson of two counts. The jury
was correctly instructed that statements by counsel are not evidence. In other
words, the instructions, along with the information and evidence, allowed the jury
to use the same act of oral-genital intercourse to convict Anderson of both rape
and molestation "notwithstanding the State's closing argument" Kier, 164 Wn.2d
at 814. If Anderson had been able to challenge the adequacy of the jury
Instructions directly, as was done in Mutch we would find a double jeopardy
violation because, unlike in Mutch, the instructions did not avoid the possibility
that Anderson would be punished twice for the same act. Cf. Mutch 171 Wn.2d
at 665,666.
But this is a claim of ineffective assistance, and our focus must remain on
the conduct of trial counsel. We first conclude Anderson has established
deficient performance. Reasonable conduct for an attorney includes researching
relevant case law. State v. KvIlo, 166 Wn.2d 856,862, 215 P.3d 177(2009).
Proposing detrimental instructions may constitute ineffective assistance. State v.
Woods, 138 Wn. App. 191, 197-98, 156 P.3d 309(2007). In this case, defense
counsel acted unreasonably by proposing instructions that exposed Anderson to
double jeopardy under our decision in Land. The record reveals no strategic
reason defense counsel might have had to propose instructions that exposed
Anderson to double jeopardy. The deficient performance prong of Anderson's
ineffective assistance claim is met under these circumstances.
Anderson has not met his burden, however, of demonstrating prejudice.
The relief he seeks is the striking of either count 3 or 4. He has shown that the
13 No. 75834-9-1/14
Instructions were not enough to eliminate the possibility that the jury used a
single act to convict him on count 2 and either count 3 or 4. But if counsel had
insisted on proper instructions, is it reasonably probable that the jury would have
convicted him on one count less than it did? Anderson does not answer this
question. He does not evaluate the likelihood that the jury followed the State's
election of specific incidents to match each count. Because Anderson fails to
demonstrate that the result of the proceedings would have been different, his
ineffective assistance claim fails on the prejudice prong of Strickland.
INEFFECTIVE ASSISTANCE—INVESTIGATION
Anderson also contends that his lawyer was ineffective for not conducting
adequate pretrial investigation. This claim pertains to KJ's testimony at trial that
she once performed oral sex on Anderson in the kitchen of the Mukilteo house
while her friends played on a trampoline in the backyard. This was the basis for
count 2, first degree child rape.
After the jury verdict, Anderson moved for a new trial on several grounds.
One of his arguments was that KJ's testimony about the trampoline incident was
contradicted by evidence he claimed was newly discovered. According to
Anderson, KJ's testimony prompted the defense investigator to visit the Mukilteo
house. The investigator determined that the kitchen area was visible from the
backyard through a sliding glass door. Anderson claims that if this observation
had been presented to the jury, it would have undermined KJ's credibility
because it was unlikely the sex act described by KJ could have occurred without
her friends seeing it. The State countered that KJ disclosed the trampoline
14 No. 75834-9-1/15
Incident during pretrial defense interviews. The trial court agreed with the State
that the defense had not identified newly discovered evidence. The court
accordingly denied the motion for a new trial.
On appeal, Anderson claims that it was unreasonable for his lawyer to not
Investigate the trampoline incident more thoroughly before trial. He contends
that this error deprived the defense of evidence that KJ's story was not credible.
Anderson asserts that defense counsel should have interviewed KJ's friends who
were in the yard that day to determine if they saw anything.
A showing that counsel failed to conduct appropriate investigations can
support a claim of ineffective assistance. Thomas, 109 Wn.2d at 230; see also
Fedoruk, 184 Wn. App. at 881 (counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary); Jones 183 Wn.2d at 340 (failure to interview a
particular witness can constitute deficient performance).
Here, the pretrial investigation conducted by defense counsel included
Interviews with KJ and her grandmother. They drew maps of the Mukilteo house.
The drawings do not show where the trampoline was located in the backyard.
It is not apparent that a more thorough investigation would have led to
information favorable to the defense. Evidence that the kitchen area was visible
from the backyard does not by itself impeach KJ's story. She did not testify that
the kitchen area could not be seen from the backyard. She said that she was
behind a counter while performing oral sex on Anderson. Thus, KJ's friends
could not necessarily see what she was doing even if they could see into the
15 No. 75834-9-1/16
kitchen area. Another consideration is that had defense counsel interviewed KJ's
friends, they might have corroborated, rather than contradicted, KJ's story.
Anderson fails to demonstrate that counsel's pretrial investigation was deficient,
and he also fails to show a reasonable probability that the result of the
proceeding would have been different if counsel had investigated more
thoroughly.
COUNSELING RECORDS Before trial, the court denied Anderson's request to compel production of
KJ's counseling records. The court made this ruling without reviewing the
records in camera to determine their potential relevance. The court reasoned
that even an in camera review would be an unjustified intrusion on KJ's privacy.
Later, on a defense motion to limit testimony about KJ's counseling experience,
the court ruled that the prosecutor could elicit only that counseling led KJ to
report the abuse to police. The prosecutor was prohibited from eliciting "any
detail about what went on in counseling or what she told the counselor."
At trial, the prosecutor asked KJ "whose idea" it was "to finally go to the
police?" KJ responded,"It was actually therapy." Anderson then moved for a
mistrial, outside the jury's presence, arguing that there was no way to effectively
cross-examine KJ without access to the counseling records. Anderson did not
renew his request for in camera review. The court denied the mistrial motion.
When the jurors returned, the court instructed them to disregard KJ's last answer.
Anderson argues on appeal that the trial court erred by failing to review
the records in camera. We review for an abuse of discretion. State v. Greaorv,
16 No. 75834-9-1/17
158 Wn.2d 759, 791, 147 P.3d 1201 (2006), overruled on other grounds, State v.
W R , 181 Wn.2d 757, 768-69, 336 P.3d 1134(2014).
For due process to justify in camera review of confidential records, as KJ's
counseling records are, the defendant must establish a basis for his claim that
the record contains material evidence favorable to the defense. Pennsylvania v,
Ritchie, 480 U.S. 39, 58 n.15, 107 S. Ct. 989,94 L. Ed. 2d 40(1987). Evidence
is material only if there is a reasonable probability that it would impact the
outcome of trial. Ritchie 480 U.S. at 57. Mere speculation that records contain
material evidence is insufficient. Gregory 158 Wn.2d at 792; see also State v.
Kalakoskv, 121 Wn.2d 525, 550,852 P.2d 1064(1993)(defendant must make a
particularized factual showing that information useful to the defense is likely to be
found in the records); State v. Knutson, 121 Wn.2d 766, 773, 854 P.2d 617
(1993)(mere possibility that evidence might have affected the trial outcome is
Insufficient).
Anderson's relevance arguments below were speculative. During the
pretrial hearing, Anderson asserted that he needed to see "what happened at
counseling, if the disclosures were consistent, if there's matters for impeachment,
or if what she's telling us is true in terms of that this matter was discussed in
counseling at all." He did not articulate, with any particularity, why he needed
information in the counseling records.
When KJ testified that "therapy" led to her delayed disclosure, Anderson
again argued that he needed access to the records for impeachment purposes.
But KJ's remark did not establish a basis for Anderson to claim that her
17 No. 75834-9-1/18
counseling records might contain information inconsistent with her testimony or
contain evidence favorable to the defense that was not already known. Before
trial, Anderson had the opportunity to have defense counsel interview KJ and ask
about her delayed disclosure to police.
In Ritchie and in Greoorv in camera review was warranted because the
defendant established a nonspeculative basis to believe the files contained
material evidence. Anderson did not make an equivalent showing. The trial
court acted within its discretion by denying in camera review.
COMMUNITY CUSTODY CONDITION Anderson's sentence includes a community custody provision stating,"Do
not frequent areas where minor children are known to congregate, as defined by
the supervising Community Corrections Officer." We invalidated an identical
condition for vagueness in State v. Irwin, 191 Wn. App.644,655, 364 P.3d 830
(2015). The State concedes that the condition should be removed from
Anderson's sentence or modified to include specific prohibited locations. We
accept this concession.
In summary, we remand for dismissal with prejudice of Anderson's
conviction for second degree child molestation in count 1 and for revision of the
community custody condition. Otherwise, we affirm.
egecfrece, WE CONCUR:
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