State Of Washington, V. Jason Dominguez
This text of State Of Washington, V. Jason Dominguez (State Of Washington, V. Jason Dominguez) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JASON DOMINGUEZ, No. 83516-5-I Appellant,
v. DIVISION ONE
STATE OF WASHINGTON, UNPUBLISHED OPINION Respondent.
CHUNG, J. — Jason Dominguez was convicted of one count of rape of a
child in the second degree, one count of rape of a child in the third degree, and
one count of communicating with a minor for immoral purposes, all involving
H.S., the minor friend of his daughter. He seeks reversal of all three convictions
on several bases. He claims missing juror questionnaires deprive him of an
appellate record of sufficient completeness and, thus, violate his constitutional
right to appeal. He further claims the trial court erred by admitting evidence to
show his “lustful disposition” for the victim, allowing the State to amend the
information, and including H.S.’s initials in the to-convict instructions. He also
challenges statements by the prosecutor as misconduct and a variety of
community custody conditions imposed on him. We affirm his convictions.
However, we remand to the trial court to replace overbroad language on
conditions 21 and 24 and to strike the victim penalty assessment (VPA) and DNA
collection fee. No. 83516-5-I/2
FACTS
Dominguez and H.S. first met while living in Gold Bar, Washington, when
H.S. was 11 years old. She was initially introduced to Dominguez and his family
because she was in the same Girl Scout troop as Dominguez’s daughter.
In 2016 and 2017, when H.S. was aged 11 to 13, H.S. spent increasingly
more time with the Dominguez family. During this period, H.S. would spend the
night at the Dominguez house three times a month. The family took H.S. to the
zoo, the aquarium, and “just different things that [her family] didn’t have the
money to do.” H.S. considered Dominguez to be a “second father.”
In mid-2017, H.S.’s mother moved approximately five hours away to
Oroville, Washington, but permitted H.S. to stay in Gold Bar with her mother’s
friend. H.S. then moved to Oroville to join her family, but returned to Gold Bar for
visits, which included staying with the Dominguez family.
H.S. first received a cell phone when she was 12, and Dominguez began
contacting her shortly thereafter. From 2016 to 2019, the two would talk on the
phone and would use Facebook Messenger and Snapchat to communicate. They
also used Facebook Messenger to video chat.
In 2019, H.S. accused Dominguez of several incidences of rape, allegedly
beginning when she was 13 or 14 years old. In October 2021, a jury convicted
Dominguez as charged with rape of a child in the second degree, rape of a child
in the third degree, and communication with a minor for immoral purposes. The
court sentenced him to a life sentence, with the possibility of release after 170
2 No. 83516-5-I/3
months. The sentencing court also imposed numerous community custody
conditions, the VPA, and a DNA collection fee. Dominguez filed a timely appeal.
In October 2022, Dominguez filed a motion in this court to reverse his
convictions and remand for a new trial due to an inadequate record on appeal,
specifically, juror questionnaires. His counsel provided a declaration stating the
steps she had taken to locate the questionnaires, attesting that Dominguez’s trial
counsel, the trial prosecutor, Snohomish County clerk, and the trial judge’s law
clerk all indicated they did not have copies of the completed juror questionnaires.
A commissioner of this court denied the motion without prejudice, allowing
Dominguez to include argument regarding the adequacy of the record in his
merits brief. A panel of this court denied Dominguez’s motion to modify.
DISCUSSION
Dominguez challenges his convictions as well as his judgment and
sentence on multiple grounds. First, he asserts that because the completed juror
questionnaires are missing, he is deprived of a complete record sufficient for
review, and thus reversal of all his convictions is required. Second, he argues the
court impermissibly allowed evidence into trial solely for the purpose of showing
his “lustful disposition,” which is no longer a permissible basis for admitting
propensity evidence after the Washington Supreme Court’s decision in State v.
Crossguns, 199 Wn.2d 282, 505 P.3d 529 (2022). Third, he contends the court
erred by allowing the State to amend the information after completing its case-in-
chief. He additionally argues the use of the victim’s initials, rather than her full
name, on the jury instructions constituted an improper comment on the evidence.
3 No. 83516-5-I/4
Finally, he argues the State engaged in prosecutorial misconduct during its
closing arguments and challenges various community custody conditions.
I. Juror Questionnaires
Dominguez argues that because the completed juror questionnaires are
missing, the appellate record lacks sufficient completeness. He asserts that as a
result, his appellate counsel is unable to determine whether the jury was fair and
impartial, he cannot identify and fully litigate issues on appeal, and reversal for a
new trial is required. In particular, Dominguez claims jury selection was important
given his position in the community and the media attention his case received.
Article I, section 22 of the Washington Constitution guarantees the right to
appeal a criminal conviction. State v. Waits, 200 Wn.2d 507, 513, 520 P.3d 49
(2022). To pursue an effective appeal, a criminal defendant is “constitutionally
entitled to a ‘record of sufficient completeness.’ ” State v. Tilton, 149 Wn.2d 775,
781, 72 P.3d 735 (2003) (quoting State v. Thomas, 70 Wn. App. 296, 298, 852
P.2d 1130 (1993)). However, “[a] ‘record of sufficient completeness’ does not
translate automatically into a complete verbatim transcript.” Id. at 781 (quoting
Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372
(1971)). Indeed, “alternative methods are acceptable, provided they permit
effective appellate review.” Waits, 200 Wn.2d at 513. “Effective review allows
counsel to determine which issues to raise on appeal and provides the relevant,
equivalent report of the trial record where the alleged issues occurred.” Id.
“Effective review on appeal also allows for other methods of reporting trial
proceedings in instances when a trial court record is deficient or missing.” Id. at
4 No. 83516-5-I/5
513-14. Other methods include “ ‘[a] statement of facts agreed to by both sides, a
full narrative statement based perhaps on the trial judge’s minutes taken during
trial or on the court reporter’s untranscribed notes, or a bystander’s bill of
exceptions might all be adequate substitutes, equally as good as a transcript.’ ”
Id. at 514 (quoting State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976)).
RAP 9.3 1 and RAP 9.4 2 set out possible alternative methods to prepare records
of trial proceedings.
Although the “RAPs anticipate that parties will work together to recreate a
lost or missing record,” the “State bears the burden of reconstructing the record
in a criminal appeal.” Waits, 200 Wn.2d at 519-20 n.7. Additionally, “[t]he burden
of showing that alternatives will suffice for an effective appeal rests with the
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JASON DOMINGUEZ, No. 83516-5-I Appellant,
v. DIVISION ONE
STATE OF WASHINGTON, UNPUBLISHED OPINION Respondent.
CHUNG, J. — Jason Dominguez was convicted of one count of rape of a
child in the second degree, one count of rape of a child in the third degree, and
one count of communicating with a minor for immoral purposes, all involving
H.S., the minor friend of his daughter. He seeks reversal of all three convictions
on several bases. He claims missing juror questionnaires deprive him of an
appellate record of sufficient completeness and, thus, violate his constitutional
right to appeal. He further claims the trial court erred by admitting evidence to
show his “lustful disposition” for the victim, allowing the State to amend the
information, and including H.S.’s initials in the to-convict instructions. He also
challenges statements by the prosecutor as misconduct and a variety of
community custody conditions imposed on him. We affirm his convictions.
However, we remand to the trial court to replace overbroad language on
conditions 21 and 24 and to strike the victim penalty assessment (VPA) and DNA
collection fee. No. 83516-5-I/2
FACTS
Dominguez and H.S. first met while living in Gold Bar, Washington, when
H.S. was 11 years old. She was initially introduced to Dominguez and his family
because she was in the same Girl Scout troop as Dominguez’s daughter.
In 2016 and 2017, when H.S. was aged 11 to 13, H.S. spent increasingly
more time with the Dominguez family. During this period, H.S. would spend the
night at the Dominguez house three times a month. The family took H.S. to the
zoo, the aquarium, and “just different things that [her family] didn’t have the
money to do.” H.S. considered Dominguez to be a “second father.”
In mid-2017, H.S.’s mother moved approximately five hours away to
Oroville, Washington, but permitted H.S. to stay in Gold Bar with her mother’s
friend. H.S. then moved to Oroville to join her family, but returned to Gold Bar for
visits, which included staying with the Dominguez family.
H.S. first received a cell phone when she was 12, and Dominguez began
contacting her shortly thereafter. From 2016 to 2019, the two would talk on the
phone and would use Facebook Messenger and Snapchat to communicate. They
also used Facebook Messenger to video chat.
In 2019, H.S. accused Dominguez of several incidences of rape, allegedly
beginning when she was 13 or 14 years old. In October 2021, a jury convicted
Dominguez as charged with rape of a child in the second degree, rape of a child
in the third degree, and communication with a minor for immoral purposes. The
court sentenced him to a life sentence, with the possibility of release after 170
2 No. 83516-5-I/3
months. The sentencing court also imposed numerous community custody
conditions, the VPA, and a DNA collection fee. Dominguez filed a timely appeal.
In October 2022, Dominguez filed a motion in this court to reverse his
convictions and remand for a new trial due to an inadequate record on appeal,
specifically, juror questionnaires. His counsel provided a declaration stating the
steps she had taken to locate the questionnaires, attesting that Dominguez’s trial
counsel, the trial prosecutor, Snohomish County clerk, and the trial judge’s law
clerk all indicated they did not have copies of the completed juror questionnaires.
A commissioner of this court denied the motion without prejudice, allowing
Dominguez to include argument regarding the adequacy of the record in his
merits brief. A panel of this court denied Dominguez’s motion to modify.
DISCUSSION
Dominguez challenges his convictions as well as his judgment and
sentence on multiple grounds. First, he asserts that because the completed juror
questionnaires are missing, he is deprived of a complete record sufficient for
review, and thus reversal of all his convictions is required. Second, he argues the
court impermissibly allowed evidence into trial solely for the purpose of showing
his “lustful disposition,” which is no longer a permissible basis for admitting
propensity evidence after the Washington Supreme Court’s decision in State v.
Crossguns, 199 Wn.2d 282, 505 P.3d 529 (2022). Third, he contends the court
erred by allowing the State to amend the information after completing its case-in-
chief. He additionally argues the use of the victim’s initials, rather than her full
name, on the jury instructions constituted an improper comment on the evidence.
3 No. 83516-5-I/4
Finally, he argues the State engaged in prosecutorial misconduct during its
closing arguments and challenges various community custody conditions.
I. Juror Questionnaires
Dominguez argues that because the completed juror questionnaires are
missing, the appellate record lacks sufficient completeness. He asserts that as a
result, his appellate counsel is unable to determine whether the jury was fair and
impartial, he cannot identify and fully litigate issues on appeal, and reversal for a
new trial is required. In particular, Dominguez claims jury selection was important
given his position in the community and the media attention his case received.
Article I, section 22 of the Washington Constitution guarantees the right to
appeal a criminal conviction. State v. Waits, 200 Wn.2d 507, 513, 520 P.3d 49
(2022). To pursue an effective appeal, a criminal defendant is “constitutionally
entitled to a ‘record of sufficient completeness.’ ” State v. Tilton, 149 Wn.2d 775,
781, 72 P.3d 735 (2003) (quoting State v. Thomas, 70 Wn. App. 296, 298, 852
P.2d 1130 (1993)). However, “[a] ‘record of sufficient completeness’ does not
translate automatically into a complete verbatim transcript.” Id. at 781 (quoting
Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372
(1971)). Indeed, “alternative methods are acceptable, provided they permit
effective appellate review.” Waits, 200 Wn.2d at 513. “Effective review allows
counsel to determine which issues to raise on appeal and provides the relevant,
equivalent report of the trial record where the alleged issues occurred.” Id.
“Effective review on appeal also allows for other methods of reporting trial
proceedings in instances when a trial court record is deficient or missing.” Id. at
4 No. 83516-5-I/5
513-14. Other methods include “ ‘[a] statement of facts agreed to by both sides, a
full narrative statement based perhaps on the trial judge’s minutes taken during
trial or on the court reporter’s untranscribed notes, or a bystander’s bill of
exceptions might all be adequate substitutes, equally as good as a transcript.’ ”
Id. at 514 (quoting State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976)).
RAP 9.3 1 and RAP 9.4 2 set out possible alternative methods to prepare records
of trial proceedings.
Although the “RAPs anticipate that parties will work together to recreate a
lost or missing record,” the “State bears the burden of reconstructing the record
in a criminal appeal.” Waits, 200 Wn.2d at 519-20 n.7. Additionally, “[t]he burden
of showing that alternatives will suffice for an effective appeal rests with the
State.” Id. at 514. However, “[a] new trial will seldom be required when a report of
1 RAP 9.3 sets out the parameters for narrative reports:
The party seeking review may prepare a narrative report of proceedings. A party preparing a narrative report must exercise the party’s best efforts to include a fair and accurate statement of the occurrences in and evidence introduced in the trial court material to the issues on review. A narrative report should be in the same form as a verbatim report . . . . If any party prepares a verbatim report of proceedings, that report will be used as the report of proceedings for the review. A narrative report of proceedings may be prepared if the court reporter’s notes or the electronic recording of the proceeding being reviewed is lost or damaged. 2 RAP 9.4 controls agreed reports of proceedings and states:
The parties may prepare and sign an agreed report of proceedings setting forth only so many of the facts averred and proved or sought to be proved as are essential to the decision of the issues presented for review. The agreed report of proceedings must include only matters which were actually before the trial court. An agreed report of proceedings should be in the same form as a verbatim report, as provided in rule 9.2(e) and (f). An agreed report of proceedings may be prepared if the court reporter’s notes or the electronic recording of the proceeding being reviewed is lost or damaged.
This rule is meant “to allow excerpts from the verbatim report, a narrative report, or some combination of each.” Waits, 200 Wn.2d at 515. Additionally, “[t]he agreed report must be submitted to the trial judge under RAP 9.5(b). Id.
5 No. 83516-5-I/6
proceedings is not recorded or is lost.” Tilton, 149 Wn.2d at 785. “In most cases
an adequate narrative can be constructed by the attorneys, witnesses, jurors,
court attaches or anyone present during the trial.” Id. However, when such efforts
“are unable to produce a record which satisfactorily recounts the events material
to the issues on appeal, the appellate court must order a new trial.” Id. at 783.
This court has identified the following factors to consider when reviewing a
reconstructed record: (1) whether all or only part of the trial record is missing or
reconstructed, (2) the importance of the missing portion to review the issues
raised on appeal, (3) the adequacy of the reconstructed record to permit
appellate review, and (4) the degree of resultant prejudice from the missing or
reconstructed record, if any, to the defendant. State v. Classen, 143 Wn. App.
45, 57, 176 P.3d 582 (2008) (reviewing cases involving sufficiency of
reconstructed records and summarizing that “[r]ead together, the pertinent
holdings largely depend on [these] factors”).
Here, we are not asked to review the sufficiency of a reconstructed record;
there is a complete verbatim report of proceedings, including voir dire. 3
Nevertheless, Dominguez argues he has a constitutional right under article I,
section 22 of the Washington Constitution to the questionnaires themselves for a
record of sufficient completeness to allow effective appellate review.
3 In dicta, the court in Waits noted it could be difficult to reconstruct an adequate record of jury voir dire, pointing to a case in which it recently had heard oral argument involving GR 37 and whether race was a basis for a peremptory strike. 200 Wn.2d at 522 n.8 (citing State v. Tesfasilasye, 200 Wn.2d 345, 518 P.3d 193 (2000)). The Waits court stated, “Review of [that] case involved a granular examination of juror statements for which a transcript was critically important. It is hard to imagine that a narrative or agreed report would be sufficient to allow such a case to come before appellant review.” Id.
6 No. 83516-5-I/7
Though derived from cases involving review of reconstructed records for
sufficient completeness, the Classen factors are helpful to consider here as well,
as the same question is at the core: whether the record allows for effective
review, that is, whether the record “allows counsel to determine which issues to
raise on appeal and provides the relevant, equivalent report of the trial record
where the alleged issues occurred.” Waits, 200 Wn.2d at 513.
Thus, as to the first Classen factor, whether all or only part of the record is
missing or reconstructed, here, only the completed juror questionnaires are
missing. The questionnaires were not filed with the trial court as part of the
record, 4 but there is a complete record of the voir dire proceedings. In addition,
the appellate record contains the form juror questionnaire proposed by the
State. 5 Along with standard hardship questions, the questionnaire asked
prospective jurors if they or any of their close friends or family members had ever
been victims of “sexual assault or abuse.” It also inquired if the jurors, members
of their family, or close friends had “ever been accused of, investigated for, or
charged with a sexual assault or sexually motivated offense.” The questionnaire
4 The State suggests that unlike the transcript of the voir dire, the completed juror questionnaires were not required to be a part of the record. In support, the State points to State v. Beskurt, a case involving the right to a public trial, in which the Washington Supreme Court held that the questionnaires are not part of the record subject to public disclosure under GR 31(a), which addresses access to court records. 176 Wn.2d 441, 448, 293 P.3d 1159 (2013). The court explained that that a questionnaire is used to assist in jury selection, but “[n]othing suggests the questionnaires substituted for actual oral voir dire. Rather, the answers provided during oral questioning prompted, if at all, the attorneys’ for cause challenges, and the trial judge’s decisions on those challenges all occurred in open court.” Id. at 447. In dicta, the Beskurt court also stated, “We doubt the completed questionnaires in this case qualify as court or trial records.” Id. at 448 n.8. However, to address Dominguez’s claims, we need not resolve the issue of whether completed juror questionnaires are required to be part of the official record. 5 The parties submitted an agreed questionnaire to prospective jurors. While the final questionnaire is not in the record, the trial court appears to have utilized the State’s proposed questionnaire, adding an additional question proposed by Dominguez, some ministerial changes, and a cautionary instruction.
7 No. 83516-5-I/8
also asked if any of the jurors had seen, heard, or read anything about the case,
either through media or word of mouth.
As to the second factor, the importance of the missing portion to review
the issues raised on appeal, Dominguez emphasizes the significance of juror
questionnaires in determining whether there was a fair and impartial jury, pointing
to State v. Guevara Diaz, 11 Wn. App. 2d 843, 456 P.3d 869 (2020). In Guevara
Diaz, despite answering “no” to the question, “Can you be fair to both sides in a
case involving allegations of sexual assault or sexual abuse?”, a juror sat on the
jury that convicted the defendant. Id. at 846. Although defense counsel requested
to interview this prospective juror outside the presence of other jurors during voir
dire, the court refused the request. Id. The court held this juror showed actual
bias through her response on the questionnaire, and thus violated the
defendant’s right to a fair and impartial trial. Id. It reasoned the trial court was
obligated to oversee the juror selection process, and it failed to do so when
“nothing occurred during voir dire to provide any assurance of her impartiality.”
Id. at 861. See also State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015)
(the court has an independent obligation to safeguard the process and prevent
biased jurors from being seated). Here, even though there is a complete record
of the voir dire questioning, Dominguez claims without the completed
questionnaires, he cannot determine whether any prospective jurors responded
in a way that showed actual bias, as did the juror in Guevara Diaz, but were not
subjected to follow-up questioning to provide an assurance of impartiality.
8 No. 83516-5-I/9
The report of proceedings shows the following voir dire process. First, the
venire was divided into 4 batches of 15, and as to each, the court asked counsel
if there were any jurors who needed to be questioned individually. The parties
and the court considered the jurors sequentially, discussing whether the
questionnaires raised any issues regarding either potential hardship or bias.
Based on their questionnaire responses, multiple jurors on the panel were
individually questioned about their ability to be fair and impartial. 6
After identifying jurors for individual questioning and engaging in individual
voir dire, the court again attempted to identify anyone in each group who might
require individual questioning. For instance, the court asked the first group of 15,
jurors 1 through 15, about their ability to be fair and impartial: “Again, we did talk
to a number of jurors individually regarding issues on your questionnaire, but are
there any of you who feel you cannot be a fair and impartial juror in this case for
any reason that we have not already discussed with you? . . . The record shows
no response.” 7 Dominguez asked similar questions to the second, third, and
fourth groups of jurors, and again, for each group, the record shows no juror
responded that they could not be fair and impartial. 8
6 Juror 8 confirmed he could be fair and impartial despite family law enforcement connections. Juror 11 confirmed they could not convict someone if there was any reasonable doubt in their mind. Juror 37 disagreed with the sentiment that if someone reached the trial stage of a charge, they must have done something wrong. Juror 38 emphasized their ability to keep track of their own biases and follow the law as directed. The parties and the court affirmed on the record that jurors 42, 47, and 48 did not have anything on their forms that required further questioning. 7 But see Guevara Diaz, 11 Wn. App. 2d at 859 & n.45 (“Several courts have pointed out that silence and even answers during group voir dire ‘cannot substitute for individual questioning.’ ”). 8 Dominguez’s counsel asked the second panel if, after “[h]earing a bit more, can anyone think of any reason why they would not be able to be fair and impartial to my client? . . . Anything we haven’t covered . . . ? Okay. Thank you very much.” He asked the third panel the following question: “And I have a catch-all for everyone here, all right? I just want you to think. You’ve
9 No. 83516-5-I/10
On appeal, Dominguez highlights examples in which the trial court and
parties occasionally skipped over questionnaires or misread a juror’s number and
overlooked the hardship answers of some jurors. However, as to each of the
jurors Dominguez claims were initially not identified for potential individual
questioning, the trial court or one of the parties eventually identified them and
then discussed whether individual questioning was needed.
For juror 28, the trial court noted a hardship, and Dominguez also noted
individual questioning was needed because they replied that a close family
member or friend was assaulted. Similarly, while the trial court initially missed
juror 33, Dominguez immediately highlighted that that juror’s close family
member or friend was assaulted. Likewise, though the court missed juror 38, the
State pointed out individual questioning was needed. And though the court
initially skipped over juror 44, it immediately realized its error, said it saw no need
for individual questioning, and Dominguez agreed. 9
Dominguez also identifies two instances when neither the court nor either
party caught a missed juror response. First, the court noted that juror 2 inquired
as to why they were not questioned about their hardship. But the court
subsequently did ask the group whether anyone felt they might have a hardship,
juror 2 again identified himself, and the court questioned him about his concerns
and ultimately excused him. Second, the court also noted that neither party had
heard more about this case. Can anyone think of any reasons why they feel like they would not be able to be fair to my client, Jason Dominguez, who’s in the Defendant’s chair? . . . Okay. Thank you very much.” Similarly, he asked the fourth panel, “Can anyone think of any reason that they feel that they would not be able to be fair to my client, Jason Dominguez if you were selected as a juror for a case like this? Okay. Thank you very much.” 9 After discussing juror 45, the court stated, “I skipped over 44. Sorry. I didn’t see anything on that one.”
10 No. 83516-5-I/11
asked juror 35 about their potential hardship and that “we may want to ask about
that when we bring in the whole group.” Subsequently, the State followed up and
questioned juror 35 about their hardship. Thus, while Dominguez focuses on the
fact that the need to question some jurors was initially overlooked, the record
shows that not only did the court or a party identify each such instance, but also
each time, follow-up questioning did occur later.
Dominguez also notes that the court jumped from juror 17 to 20 when
assessing who needed to be individually questioned. But here too, the fuller
record reveals that in context, the gap does not indicate that there were any
oversights. This portion of voir dire began with the discussion of the process:
THE COURT: . . . I thought we could go over who you want to individually question in the next group. . . . Have you had a chance to look at those? Do you have those in front of you?
[DEFENSE COUNSEL]: Yes, your Honor. Give me just a moment.
THE COURT: All right. If we could go to the top. I think we can go through them just sort of as we go here. I’m going to have my law clerk advise Juror No. 2 that we are excusing him for hardship. All right. The first one I saw with any issue was No. 17 has a family member who was sexually abused. No one has checked the box. It seems to be getting missed, but maybe they really don’t care. I don’t know. But had a member of their family or close friend sexually abused. So, I’m just pointing out each one that might have an issue. Do either one of you want to interview this person individually?
[DEFENSE COUNSEL]: Yes, your Honor.
THE COURT: All right. Any objection, Counsel?
[STATE]: No, your Honor.
THE COURT: 20 said that both themselves and others that they know had been sexually abused. Do you
11 No. 83516-5-I/12
wish to interview that person individually?
[STATE]: No objection.
THE COURT: We’ll do 20. 20 has indicated a hardship and has indicated a member of the family is sexually abused.
[STATE]: I’m sorry. Are you –
THE COURT: 21, excuse me.
[STATE]: Thank you.
[DEFENSE COUNSEL]: And Defense would request individual voir dire as well.
THE COURT: All right. I’ll do 21. So we’re doing 17, 20, 21.
As this context shows, the court did not overlook jurors 18 and 19, but rather, no
one identified any need to question them. Indeed, though not mentioned by
Dominguez, the court also skipped from juror 2 to juror 17, explaining, “The first
one I saw with any issue was No. 17 . . . . I’m just pointing out each one that
might have an issue.” Thereafter, each juror from this group that the court or a
party discussed had either a potential hardship or bias and, thus, was identified
for further questioning. Moreover, the record shows that the parties did not
hesitate to interject to clarify which juror was being discussed, as did the State, or
to request individual voir dire, as did Dominguez. Thus, overall, the existing
report of the voir dire proceedings shows that the parties and the court worked
together to ensure that they identified anyone whose responses to the
questionnaire warranted follow-up questioning, whether for hardship or bias.
12 No. 83516-5-I/13
Finally, under factor four, prejudice, the likelihood of prejudice is low.
Dominguez points to nothing in the voir dire record that suggests the missing
information would support a claim of actual juror bias. 10 While Dominguez does
have different counsel on appeal, he is unable to establish that the record is
lacking in sufficient completeness to allow appellate counsel to identify issues for
appeal. Instead, he provides only speculation that the missing questionnaires
remove the opportunity for appellate counsel to review. Additionally, unlike in
Tilton and Waits, in which significant portions of the proceedings were not
contemporaneously recorded and had to be reconstructed, here, there is a
complete verbatim report of the voir dire process. Accordingly, because the
existing record is sufficient for appellate review, Dominguez’s claim under article
I, section 22, fails.
II. Admission of Evidence to Show “Lustful Disposition”
At trial, the State moved to admit evidence of Dominguez’s Facebook,
Snapchat, and text messages, as well as past sexual behavior towards H.S. for
the purpose of establishing Dominguez’s “lustful disposition” toward her. Defense
counsel did not contest the State’s motion, and the trial court admitted the
evidence without conducting an analysis under ER 404(b). Based on the court’s
ruling, the parties agreed on a limiting instruction informing the jury that it could
consider this evidence “only for the purpose of showing the defendant’s ‘lustful
disposition,’ ” and that the limitation applied only to the two counts for rape of a
child, not the third count of communicating with a minor for immoral purposes.
10 Jurors 1, 8, 11, 13, 18, 19, 23, 29, 37, 38, 42, 47, and 48 were seated.
13 No. 83516-5-I/14
Shortly after Dominguez filed his appeal, the Washington Supreme Court
held “lustful disposition” is not a proper basis to admit other-acts evidence.
Crossguns, 199 Wn.2d at 285. 11 Dominguez argues the decision in Crossguns
mandates a conclusion of error, as the court admitted the evidence only to show
his “lustful disposition” and explicitly instructed the jury to consider the evidence
for that purpose.
The State argues that Dominguez waived the issue as he failed to object
below and does not establish manifest error affecting a constitutional right under
RAP 2.5(a). We agree with the State.
Under RAP 2.5(a), the appellate court may refuse to review an error not
raised before the trial court. “Appellate courts will not approve a party’s failure to
object at trial that could identify error which the trial court might correct (through
striking the testimony and/or curative jury instruction).” State v. Kirkman, 159
Wn.2d 918, 935, 155 P.3d 125 (2007). As an exception, the party may raise a
manifest error affecting a constitutional right for the first time on appeal. RAP
2.5(a)(3). For this exception to apply, the appellant must identify a constitutional
error and show how the error actually affected their rights at trial. Id. at 926-27.
The appellant must make a plausible showing that the asserted error had
practical and identifiable consequences in the trial. State v. A.M., 194 Wn.2d 33,
38, 448 P.3d 35 (2019).
11 In Crossguns, the court held that use of the term “lustful disposition” “wrongly suggests that evidence of collateral offenses relating to a specific victim may be admitted for the purpose of showing that the defendant has a propensity for committing sexual misconduct. Therefore, we now reject the ‘lustful disposition’ label and hold that ‘lustful disposition’ is not a distinct or proper purpose for admitting evidence.” 199 Wn.2d at 285.
14 No. 83516-5-I/15
Dominguez failed to lodge any objection at trial to the admission of the
propensity evidence which the State sought to admit for the purpose of
establishing “lustful disposition.” Dominguez argues that despite his failure to
object, he did not waive any claimed error because he “acted in accordance
[with] precedent in effect at the time of the trial,” and his trial concluded before
the Crossguns decision was issued. He argues that in these circumstances, he
did not need to preserve the error. However, despite citing authorities that involve
constitutional error, 12 Dominguez does not provide argument explaining how in
his case, the claimed error affects a constitutional right.
Nor does the change in law on the use of “lustful disposition” evidence
allow Dominguez to bypass the requirements of RAP 2.5(a). “[I]n a narrow class
of cases. . . . principles of issue preservation do not apply where the following
four conditions are met: (1) a court issues a new controlling constitutional
interpretation material to the defendant’s case, (2) that interpretation overrules an
existing controlling interpretation, (3) the new interpretation applies retroactively
to the defendant, and (4) the defendant’s trial was completed prior to the new
interpretation.” State v. Robinson, 171 Wn.2d 292, 305, 253 P.3d 84 (2011).
Dominguez fails to explain how Crossguns satisfies the threshold condition of
establishing a “new controlling constitutional interpretation.” (Emphasis added).
12 See Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (applying federal waiver rule to allow appeal of issue that involved a judge incorrectly determining a fact instead of submitting it to the jury); State v. Harris, 154 Wn. App. 87, 98, 224 P.3d 830 (2010) (holding defendant’s failure to file pre-trial motion to suppress did not waive claim as the U.S. Supreme Court announced a new rule of constitutional procedure); State v. Rodriguez, 65 Wn. App. 409, 417, 828 P.2d 636 (1992) (holding defendant did not waive a seizure issue when Washington’s Supreme Court determined art. I, section 7 of Washington Constitution was more protective than federal standards).
15 No. 83516-5-I/16
This is not one of the “narrow class of cases” to which the Robinson exception to
RAP 2.5(a) applies.
Thus, while it is understandable that Dominguez did not object below to
the admission of propensity evidence to show “lustful disposition,” because at
that time this was a proper purpose, he does not establish that the error affects a
constitutional right as required under RAP 2.5(a). Therefore, we decline to review
his claim that the trial court erred by allowing propensity evidence.
III. Amended Charges
Dominguez challenges the amendment of charges by the State after it
changed the time frame in count I from “on a specific date between or about [a
date] through on or about [a date]” to remove the “or about” language—i.e., to
read “on a specific date between [a date] and [a date].” 13 He claims because this
amendment happened after the State “functionally rested,” it violated his rights
under article I, section 22 of the Washington Constitution. We disagree.
The initial information charged Dominguez with three counts, including
one count of rape of a child in the second degree (count I) and one count of rape
of a child in the third degree (count II). The original language in the information
for count I stated “on a specific date between or about the 15th day of April, 2017
through on or about the 14th day of April, 2018,” the defendant had sexual
intercourse with H.S. Based on H.S.’s birthdate, during this period she would
have been age 13. Count II contained the same “on or about” language
modifying the beginning and end of the date range.
Although the State amended similar language in both counts I and II, Dominguez 13
maintained his objection only to count I.
16 No. 83516-5-I/17
Rape of a child in the second degree requires proof that the victim was at
least 12 years old but less than 14 years old, RCW 9A.44.076, whereas rape of a
child in the third degree requires proof that the victim was at least 14 years old
but less than 16 years old. RCW 9A.44.079. At the beginning of trial, Dominguez
argued that because there was conflicting evidence about whether H.S. was 13
or 14 years old at the time of the first charged incident, the “on or about”
language in the charge left room for the defendant to argue H.S. was 14 at that
time, which would prove a lesser degree crime of rape in the third degree. 14
Thus, Dominguez argued for a lesser degree instruction, as the lesser degree
crime carried a lower penalty.
Later, during a discussion on jury instructions, the State objected to a
lesser degree instruction on count I. The court noted that the “on or about”
language in the charge allowed Dominguez to argue the victim was age 14. The
State then suggested it could amend the information to remove the “on or about”
language, but made no motion at that time. Dominguez objected, arguing that it
had been his theory during the trial that H.S. was 14. The trial court postponed
ruling, determining it needed to hear further argument first.
The next day, the State presented its last four witnesses. After it did so,
the trial court and parties revisited the issue of the lesser degree instruction as
well as the State’s proposed amendment to the charges. Following extensive
argument by the parties, the court allowed the State to amend counts I and II to
14 Rape of a child in the second degree is a Class A felony and requires a life sentence with a lifetime of parole following release. RCW 9A.44.076; RCW 9.94A.507. Rape of a child in the third degree is a Class C felony with a maximum penalty of five years in prison and no more than three years of community custody. RCW 9.94A.701; RCW 9A.44.079.
17 No. 83516-5-I/18
remove the “on or about” language, so that the charges instead alleged acts “on
a specific date between [a date] and [a date].” Dominguez maintained his
objection to the change to count I. 15 Based on the amendment, the court denied
Dominguez’s request for a lesser degree instruction on count I. Immediately after
the court’s ruling on the amended charges, the State rested.
This court reviews a trial court’s ruling on a proposed amendment
to an information for abuse of discretion. State v. Brooks, 195 Wn.2d 91,
96, 455 P.3d 1151 (2020). The court abuses its discretion if its decision is
manifestly unreasonable or based on untenable reasons. Id. at 97.
Article 1, section 22 of the Washington Constitution provides defendants
the right “to demand the nature and cause of the accusation against him.”
“Pursuant to this right, ‘[t]he accused . . . has a constitutional right to be apprised
of the nature and cause of the accusation against him.’ ” State v. Gehrke, 193
Wn.2d 1, 6, 434 P.3d 522 (2019) (plurality opinion) (quoting State v. Ackles, 8
Wn. 462, 464-65, 36 P. 597 (1894)). Therefore, the State must allege in the
charging document all essential elements of a crime to inform a defendant of the
charges against them and to allow for preparation of a defense. Brooks, 195
Wn.2d at 97.
“A criminal charge may not be amended after the State has rested its
case-in-chief unless the amendment is to a lesser degree of the same charge or
a lesser included offense.” State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854
(1987). “Anything else is a violation of the defendant’s article I, section 22 right to
15 Also, the amended information erroneously expanded the date range by a year. However, the jury instructions used the original date range.
18 No. 83516-5-I/19
demand the nature and cause of the accusation against him or her.” Id. Under
“the Pelkey rule,” any amendment from one crime to a different crime after the
State has rested is per se prejudicial. State v. Martinez Platero, 17 Wn. App. 2d
716, 721, 487 P.3d 910 (2021) (citing State v. Vangerpen, 125 Wn.2d 782, 791,
888 P.2d 1177 (1995)).
“ ‘Where the Pelkey rule does not apply, the defendant has the burden of
demonstrating prejudice under CrR 2.1(d).’ ” Brooks, 195 Wn.2d at 98 (quoting
State v. Ziegler, 138 Wn. App. 804, 809, 158 P.3d 647 (2007)). CrR 2.1(d) states
that “[t]he court may permit any information or bill of particulars to be amended at
any time before verdict or finding if substantial rights of the defendant are not
prejudiced.” CrR 2.1(d) “necessarily operates within the confines of article I,
section 22.” Pelkey, 109 Wn.2d at 490 (referring to former CrR 2.1(e), now CrR
2.1(d)).
Dominguez first argues that the Pelkey rule applies here and the amended
charges were per se prejudicial because the State had “functionally rested,”
citing Gehrke. In Gehrke, “[a]fter the State called its last witness but before it had
formally rested, the prosecutor moved to amend the information” to add a
manslaughter charge to the charge of murder in the second degree. 193 Wn.2d
at 5. “The State made clear that it intended to rest even if the amendment was
not allowed.” Id. Defense counsel objected, but the trial court granted the motion
to amend, reasoning the defense strategy was “essentially the same” as the
defense to the prior charge. Id. This court affirmed, but the Washington Supreme
Court reversed. The lead opinion, signed by four justices, held that the Pelkey
19 No. 83516-5-I/20
rule “is not concerned with whether the State has formally rested,” but “a trial
court cannot allow the ‘State to amend the information . . . after the State has
completed presentation of its case in chief.’ ” Id. at 9 (quoting Pelkey, 109 Wn.2d
at 487). Thus, the lead opinion in Gehrke reasoned, “when the State explicitly
states that it will rest its case after moving to amend, it has functionally rested its
case in chief,” and after completing its case in chief, “it may no longer amend,”
and the Pelkey rule of per se prejudice applied. 193 Wn.2d at 11. Three justices
dissented, holding Pelkey outlined a bright line rule so there was no per se
prejudice when the State had not formally rested. Id. at 22 (González, J.,
dissenting). And two justices agreed with the dissent that the Pelkey per se
prejudice rule did not apply, but concurred with the lead opinion in result because
Gehrke had demonstrated actual prejudice. Id. at 20 (Fairhurst, C.J., concurring).
This court subsequently declined to follow the plurality decision in Gehrke.
Martinez Platero, 17 Wn. App. 2d at 723 (“A plurality has little precedential value
and is not binding.”) (quoting State v. Johnson, 173 Wn.2d 895, 904, 270 P.3d
591)(2012)). Applying the Pelkey “bright line rule,” we held that there was no per
se prejudice when the State finished examining its witnesses, but before formally
resting, moved to amend three counts of rape in the first degree to child
molestation in the first degree. Martinez Platero, 17 Wn. App. 2d at 720.
We agree with the reasoning in Martinez Platero that because the
“functionally rested” language was supported only by four justices, it is not
binding, and, further, “Pelkey remains good law and draws a bright line that per
se prejudice does not occur where the State amends the charges to something
20 No. 83516-5-I/21
other than a lesser degree or lesser included offense before the State formally
rests.” 17 Wn. App. 2d at 723. Thus, here, there is no per se prejudice because
the State amended the charges before it formally rested.
In the alternative, Dominguez argues reversal is still required, as the
amendment to the information was prejudicial to his substantial rights. In
determining prejudice under CrR 2.1(d), this court considers factors such as
whether a defendant’s ability to defend themselves is jeopardized and whether
the amended charge arose out of the same factual scenario. State v. Hakimi, 124
Wn. App. 15, 28, 98 P.3d 809 (2004). Here, Dominguez fails to demonstrate the
requisite prejudice from the amendment. First, although the State initially did not
make a formal motion to amend, it unequivocally stated it intended to amend the
day before it presented its last four witnesses and formally rested. At that point,
Dominguez still had an opportunity to cross-examine the four remaining
witnesses and to highlight any inconsistencies in the evidence regarding H.S.’s
age.
Moreover, an amendment to the time period of a charge does not
ordinarily show prejudice if the crime charged remains the same. Brooks, 195
Wn.2d at 99. In Brooks, the defendant was charged with rape of a child in the
third degree and child molestation in the third degree. Id. at 95. Both counts
included “on or about” language. Id. The court held the defendant was not
prejudiced by an expansion of the date range of the alleged crime. Id. at 103. It
reasoned:
“Cases involving amendment of the charging date in an information have held that the date is usually not a material element of the
21 No. 83516-5-I/22
crime. Therefore, amendment of the date is a matter of form rather than substance, and should be allowed absent an alibi defense or a showing of other substantial prejudice to the defendant.”
Id. at 99 (quoting State v. DeBolt, 61 Wn. App. 58, 61-62, 808 P.2d 794
(1991)). It further reasoned the defendant was on sufficient notice the
“charge was alleged flexibly as to the timing of that incident.” Id. at 100.
Contrasting Brooks, Dominguez claims the narrowing, as opposed to
expansion of the dates in the charges is significant and warrants reversal of
count I. He claims he was not on sufficient notice of the charges brought against
him because he relied on these flexible dates when forming his trial strategy,
which included efforts to cast doubt as to whether H.S. was 13 or 14 years old
when the first rape occurred so to establish evidentiary support for a lesser
degree instruction. However, Dominguez fails show how he was misled or
surprised by the amendment and thus prejudiced, as the charge in count I
ultimately remained the same, arose from the same set of facts, and no new
charges were added.
Because Dominguez has not shown that his substantial rights were
prejudiced by the State’s amendment of the time period for count I, the court did
not err in allowing the State to amend the charges. Because we determine that
no prejudice resulted from the amendment, we need not address whether
Dominguez was initially permitted to request the lesser included instruction.
IV. Comment on the Evidence
Dominguez argues the trial court impermissibly commented on the
evidence because the to-convict instructions included the victim’s initials, rather
22 No. 83516-5-I/23
than her name. Dominguez requests this court reject its previous decision in
State v. Mansour, which held the use of initials to identify the victim of child
molestation in the to-convict instruction did not deprive the defendant of due
process or his right to a fair and impartial jury. 14 Wn. App. 2d 323, 470 P.3d 543
(2020). We decline to do so.
The court reviews whether a jury instruction amounts to a judicial
comment on the evidence de novo and in the context of the instructions as a
whole. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Article IV,
section 16 of the Washington Constitution provides, “Judges shall not charge
juries with respect to matters of fact, nor comment thereon, but shall declare the
law.” This section intends to prohibit a judge “from ‘conveying to the jury his or
her personal attitudes toward the merits of the case’ or instructing a jury that
‘matters of fact have been established as a matter of law.’ “ Levy, 156 Wn.2d at
721 (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)).
To determine whether a trial court’s statements amount to a comment on
the evidence, the court analyzes “the facts and circumstances of the case.” State
v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). The primary concern
animating the analysis is whether the description of a fact in a jury instruction
“conveys the idea that the fact has been accepted by the court as true.” Levy,
156 Wn.2d at 726. The court assumes a comment on the evidence is prejudicial,
and the State bears the burden of showing no prejudice occurred. Id. at 723.
In Mansour, we held the use of initials in the to-convict jury instructions did
not constitute a comment on the evidence. 14 Wn. App. 2d at 326. There, the
23 No. 83516-5-I/24
court reasoned the name of the alleged victim of child molestation is not a factual
issue requiring resolution. Id. at 329. Thus, utilizing initials on a to-convict
instruction does not impermissibly convey to the jury that “matters of fact ha[ve]
been established as a matter of law.” Id. at 329-30. The court also reasoned it is
unlikely a jury would presume the party is a victim “—or believe the court
considered her one—merely because the court chose to use [the victim’s]
initials.” Id. at 330.
Dominguez also attempts to analogize to State v. Jackman, in which the
to-convict instructions included the victims’ birthdates as well as their initials. 156
Wn.2d 736, 740-41, 132 P.3d 136 (2006). Though our Supreme Court held the
instructions were judicial comments on the evidence, the reason was not the
inclusion of the victims’ initials, but their birthdates. Id. at 744. Because the
charges required proof that the victims were minors, by including their birthdates,
the instructions “conveyed the impression that those dates had been proved to
be true.” Id. But here, unlike the victims’ ages in Jackman, H.S.’s name was not
an element of the charged crime.
Dominguez additionally relies on federal cases that involved using a
pseudonym to bolster his argument that the grant of anonymity conveyed to the
jury that the court believed the complaining witness was a crime victim who
needed protection. Doe v. Cabrera, 307 F.R.D. 1, 10 (D.D.C. 2014) (a jury may
perceive a grant of anonymity as “a subliminal comment on the harm the alleged
encounter with the defendant has caused”); James v. Jacobson, 6 F.3d 233, 240-
41 (4th Cir. 1993); Doe v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.
24 No. 83516-5-I/25
2000); Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 WL 9150620 (C.D. Cal.
Sept. 22, 2016). The court in Mansour did not find Cabrera and Rose persuasive
because those cases concerned maintaining anonymity throughout the entire
trial, so the risk of “subliminal comment on the harm” through concealing an
identity was more pronounced. 14 Wn. App. 2d at 330. In Mansour, “[b]y
contrast, [the victim] was referred to by her full name throughout trial; her identity
was not concealed.” Id.
We hold that using H.S.’s initials in the to-convict instructions was not an
impermissible judicial comment on the evidence. As in Mansour, the initials were
not a fact to be proven, and so inclusion of them on the jury instruction did not
indicate to the jury a relevant fact was established by law. Nor did the use of
initials impermissibly indicate to the jury that H.S. needed to be protected. H.S.’s
full name was used at trial, she testified at trial, and no steps were taken to
conceal her identity. Thus, any risk that the use of initials indicated harm to H.S.
was significantly reduced.
V. Prosecutorial Misconduct
Dominguez argues the prosecutor engaged in prejudicial misconduct in
closing argument necessitating reversal. We disagree.
In closing, Dominguez conceded guilt on the communication charge but
contested the rape charges. While acknowledging the messages were
inappropriate, Dominguez noted H.S. routinely rejected the advances, arguing
nothing sexual occurred in reality. In the alternative, Dominguez argued the State
did not prove H.S. was under the age of 14 when the first rape occurred, and
25 No. 83516-5-I/26
thus the jury should acquit on the charge of rape of child in the second degree. In
rebuttal, the prosecutor challenged this argument:
That doesn’t make any sense. Think about it. That’s like saying a kid definitely opened a candy wrapper, but don’t find that he ate the candy. But then if you do find that he ate the candy, he only ate half of it.
Dominguez contends this commentary was prejudicial misconduct and a
misstatement of the law because it invited the jury to convict him on the rape
counts based on his concession of guilt on the communication count. The State
counters that the analogy was not a call for the jurors to rely on propensity
evidence, and even if there was prosecutorial misconduct, it was not so
prejudicial that it could not be cured by the accompanying jury instruction.
“Allegations of prosecutorial misconduct are reviewed under an abuse of
discretion standard.” State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014)
(quoting State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995)). The
defendant bears the burden of showing the comments were improper and
prejudicial. Lindsay, 180 Wn.2d at 430 (citing State v. Warren, 165 Wn.2d 17, 26,
195 P.3d 940 (2008)). “[I]f the defendant fails to object or request a curative
instruction at trial, the issue of misconduct is waived unless the conduct was so
flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice.” Lindsay, 180 Wn.2d at 430 (citing State v. Stenson, 132 Wn.2d 668,
719, 940 P.2d 1239 (1997)). When applying this standard, courts should “ ‘focus
less on whether the prosecutor’s misconduct was flagrant or ill intentioned and
more on whether the resulting prejudice could have been cured.’ ” Lindsay, 180
26 No. 83516-5-I/27
Wn.2d at 444 n.2 (quoting State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653
(2012)).
As Dominguez did not object to the prosecutor’s comment
contemporaneously or ask for a curative instruction, he must show the conduct
was so flagrant and ill intentioned that an instruction could not have cured the
resulting prejudice. “In the context of closing arguments, the prosecuting attorney
has ‘wide latitude in making arguments to the jury and prosecutors are allowed to
draw reasonable inferences from the evidence.” State v. Fisher, 165 Wn.2d 727,
747, 202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 860, 147
P.3d 1201 (2006), overruled on other grounds by State v. W.R., 181 Wn.2d 757,
336 P.3d 1134 (2014)). A prosecutor may also argue that evidence does not
support the defense theory. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747
(1994). But comments on the presumption of innocence are improper if a
prosecutor misstates the law in closing argument. Warren, 165 Wn.2d at 27-28
(prosecutor’s statements on three separate occasions during closing argument
that the defendant did not enjoy the benefit of any reasonable doubt were
improper). Nevertheless, “[s]ome improper prosecutorial remarks can touch on a
constitutional right but still be curable by a proper instruction.” State v. Smith, 144
Wn.2d 665, 679, 30 P.3d 1245 (2001); see also Warren, 165 Wn.2d at 28
(improper statements that defendant did not enjoy benefit of any reasonable
doubt were not prejudicial as the trial court provided a thorough curative
instruction).
27 No. 83516-5-I/28
Here, the prosecutor’s comments suggested that, because Dominguez
admitted that he engaged in improper and inappropriate conversations, there
was a heightened likelihood he carried through with escalating the situation at
other times as well. Dominguez particularly emphasizes this was the last
argument the jury heard before it deliberated, citing a study that indicate such
propensity arguments affect defendants negatively. 16 However, the State drew
the comparison only once before reaffirming that H.S. did not have an ulterior
motive in testifying about the abuse.
Moreover, “[t]he prejudicial effect of a prosecutor’s improper comments is
not determined by looking at the comments in isolation but by placing the
remarks ‘in the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the instructions given to the jury.’ ” State v.
McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132
Wn.2d 529, 561, 940 P.2d 546 (1997)). Here, in context, the prosecutor’s rebuttal
argument was in response to perceived inconsistencies in the defense counsel’s
closing arguments, which conceded that certain facts in evidence and testimony
from H.S. were true but argued the accusation of rape was a fabrication.
Furthermore, the jury was instructed, “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 the other count.” We presume the jury is able to follow
instructions. Smith, 144 Wn.2d at 679 (“Some improper prosecutorial remarks
can touch on a constitutional right but still be curable by a proper instruction.”).
16 Thomas J. Leach, How do Jurors React to ‘Propensity’ Evidence?—A Report on a Survey, 27 Am. J. Trial Advoc. 559, 572 (2004).
28 No. 83516-5-I/29
We hold that the prosecutor’s comments in closing were not so flagrant
and ill intentioned that any prejudice was incurable. Thus, the prosecutor’s
argument based on Dominguez’s admitting he engaged in the conduct charged
in count III did not constitute reversible error.
VI. Community Custody Conditions
Dominguez challenges eight of the community custody conditions
imposed by the trial court. He argues that each of the challenged conditions is
either unconstitutional, unauthorized by law, or not crime-related.
Under RCW 9.94A.703, some conditions are mandatory, some conditions
must be either imposed or explicitly waived, and some conditions are within the
court’s discretion to impose. A court is also permitted to impose “any crime-
related prohibitions.” RCW 9.94A.703(3)(f). A crime-related condition must be
reasonably related to the crime of conviction. State v. Nguyen, 191 Wn.2d 671,
684, 425 P.3d 847 (2018).
On appeal, community custody conditions are reviewed for an abuse of
discretion and will be struck when manifestly unreasonable. Id. at 678. A
manifestly unreasonable condition is unconstitutional. State v. Bahl, 164 Wn.2d
739, 753, 193 P.3d 678 (2008). Additionally, a trial court cannot impose a
community custody condition absent legislative authorization. State v. Warnock,
174 Wn. App. 608, 612, 299 P.3d 1173 (2013).
A. Polygraph Testing (Condition 8)
Condition 8 mandates Dominguez to “[p]articipate in polygraph
examinations as directed by the supervising Community Corrections Officer, to
29 No. 83516-5-I/30
ensure conditions of community custody.” Dominguez contends that condition 8
is not narrowly tailored to protect his right to refrain from speaking in violation of
the First Amendment 17 and violates his Fifth Amendment right against self-
incrimination by compelling him to speak.
Community custody conditions that “implicate free speech rights must be
narrowly tailored to serve an important government interest and must be
reasonably necessary to achieving that interest.” State v. K.H.-H., 185 Wn.2d
745, 751, 374 P.3d 1141 (2016). A condition requiring a defendant to submit to
polygraph testing is constitutional as a tool to monitor compliance with conditions
of community custody and to monitor progress with treatment. State v. Combs,
102 Wn. App. 949, 952, 10 P.3d 1101 (2000). However, polygraph testing may
not be used to “discover evidence of other crimes, past or present.” Id. at 953
(holding that condition cannot allow for “fishing expeditions” to unearth evidence
of other crimes and should have limited polygraph testing only for monitoring
progress and compliance with community custody conditions).
Here, condition 8 permits testing only to monitor compliance with other
conditions. The State cites to State v. Olsen, in which a urinalysis testing
condition was held to be narrowly tailored to monitor compliance with a condition
prohibiting the defendant from possessing or consuming alcohol or drugs. 189
Wn.2d 118, 130, 399 P.3d 1141 (2017). The State argues that here, similarly,
because it has a compelling interest in protecting the public and promoting and
17 The First Amendment protects both the right to speak and the right not to speak. See Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (plurality opinion).
30 No. 83516-5-I/31
monitoring the rehabilitation of the defendant, and condition 8 allows testing to
monitor compliance with other conditions, it is constitutional. We agree. Because
condition 8 limits administration of polygraphs to the purpose of ensuring
compliance with community custody conditions, it is narrowly tailored to serve a
compelling interest and is constitutional.
B. Plethysmograph Testing (Condition 9)
Condition 9 requires Dominguez to “[s]ubmit to plethysmograph testing, as
directed by a certified sexual deviancy treatment provider.” 18 Dominguez argues
that condition 9 impedes his right to privacy in his body and mind and should be
stricken or limited to clarify that its intended purpose is to monitor community
custody conditions.
In general, a person has a right to privacy under the U.S. and Washington
Constitutions. U.S. CONST. amend. IV; WASH. CONST. art. I, § 7. 19 While people
do not “forfeit all constitutional protections by reason of their conviction,” Bell v.
Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), a person in
community custody has a reduced expectation of privacy. Olsen, 189 Wn.2d at
124-25 (explaining that probationers have a lesser expectation of privacy
because they have been sentenced to confinement but serve time outside of
prison); In re Det. of Herrick, 198 Wn. App. 439, 445, 393 P.3d 879 (2017)
18 Plethysmograph testing “ ‘involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.’ ” United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006) (quoting Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004)). 19 Washington provides greater privacy protection than that of the Fourth Amendment by explicitly guaranteeing a person may not be disturbed in their private affairs. See State v. Meneese, 174 Wn.2d 937, 946, 282 P.3d 83 (2012).
31 No. 83516-5-I/32
(explaining that persons convicted of sex offenses have a reduced privacy
interest).
Plethysmograph testing is very intrusive and can be ordered only to
provide crime-related “deviancy” treatment, but cannot be used by a community
custody officer (CCO) to monitor compliance. State v. Land, 172 Wn. App. 593,
604-05, 295 P.3d 782 (2013) (finding that plethysmograph testing condition was
inappropriate because it permitted a CCO to conduct the testing at their
discretion). A court imposing plethysmograph testing as a condition of community
custody “must make an individualized determination that the testing is
necessary.” Herrick,198 Wn. App. at 447.
Dominguez cites U.S. v. Weber, 451 F.3d 552, 562-63 (9th Cir. 2006), to
argue that the plethysmograph testing is a physical and mental violation of his
constitutional right to privacy because it “involv[es] not only a measure of the
subject’s genitalia but probing of his innermost thoughts as well.” . He further
argues that the condition must be explained to restrict testing for treatment
purposes only.
We agree that plethysmograph testing intrudes upon Dominguez’s right to
privacy. However, here, the condition is constitutionally permissible because it
limits such testing in two ways: only a “sexual deviancy treatment provider” may
request plethysmograph testing, and such a request must be for treatment
purposes. This provision is constitutionally compliant because under Land, such
language sufficiently indicates that the testing is for treatment and not to monitor
compliance. 172 Wn. App. at 605.
32 No. 83516-5-I/33
C. Home Inspection and Random Device Searches (Conditions 12 & 21)
Condition 12 requires Dominguez to “consent to DOC home visits to
monitor your compliance with supervision. Home visits include access for
purposes of visual inspection of all areas of the residence in which you live.”
Condition 21 permits a CCO “to make random searches of any computer, phone,
or computer-related device to which the defendant has access to monitor
compliance with this [] condition.” Dominguez contends that these two conditions
are unconstitutionally overbroad and should be stricken.
All persons have a federally protected right to privacy under both the
federal and Washington constitutions. U.S. CONST. amend. IV; WASH. CONST. art.
1, § 7. However, a person under community supervision has a reduced
expectation of privacy and can be searched by a CCO when they have
reasonable suspicion. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226
(2009). Further, a probationer may be subjected to warrantless searches of their
property “where there is a nexus between the property searched and the alleged
probation violation.” State v. Cornwell, 190 Wn.2d 296, 306, 412 P.3d 1265
(2018).
The State asserts that Dominguez’s challenge to conditions 12 and 21 is
not yet ripe for review because the State has not yet tried to enforce them. On
appeal, a defendant can challenge a community custody condition only when it is
ripe, meaning “ ‘the issues raised are primarily legal, do not require further factual
development, and the challenged action is final.’ ” Bahl, 164 Wn.2d at 751
(quoting First United Methodist Church v. Hr’g Exam’r for the Seattle Landmarks
33 No. 83516-5-I/34
Pres. Bd., 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996)). A reviewing court must
also evaluate any hardship the parties may endure if the court declines to
consider the claim because it is not ripe. State v. Valencia, 169 Wn.2d 782, 789,
239 P.3d 1059 (2010) (explaining that a condition subjecting a defendant to a
search is ripe when “the State attempts to enforce [it] because [its] validity
depends on the particular circumstances of the attempted enforcement.”).
In support of its argument, the State cites State v. Cates, 183 Wn.2d 531,
535, 354 P.3d 832 (2015). Cates involved a condition similar to the conditions at
issue here that required the defendant to consent to home visits to monitor
compliance and allowing a CCO to visually inspect all areas of the defendant’s
residence. Id. at 533. The court explained that there was a need for additional
factual development because “[s]ome future misapplication of the community
custody condition might violate article I, section 7, but that ‘depends on the
particular circumstances of the attempted enforcement,’ ” which would require
the State to try to enforce the condition by “requesting and conducting a home
visit after [the defendant’s] release[].” 183 Wn.2d at 535 (quoting Valencia, 169
Wn.2d at 789).
Here, as in Cates, there is additional factual development that is required,
meaning the State must attempt to enforce the home inspection and random
device inspection conditions. 183 Wn.2d at 535; see also State v. Holmes, 31
Wn. App. 2d 269, 292-93, 548 P.3d 570 (2024) (following Cates and holding
34 No. 83516-5-I/35
condition allowing home search was not ripe). 20 Therefore, we hold that
Dominguez’s claims regarding conditions 12 and 21 are not ripe for review.
D. Prohibition on Proximity to Children’s Activities (Condition 16)
Condition 16 states that Dominguez must “[s]tay out of areas where
children’s activities regularly occur or are occurring. This includes parks used for
youth activities, schools, daycare facilities, playgrounds . . . church services,
restaurants, and any specific location identified in advance by DOC or CCO.”
Dominguez asserts that condition 16 is unconstitutionally vague in violation of his
due process rights and violates his First Amendment right to free exercise of
religion.
Both the federal and the state constitutions guarantee all people due
process of law. U.S. CONST. amend. XIV, WASH. CONST. art. I, § 3. Due process
mandates that all “citizens have fair warning of proscribed conduct.” Bahl, 164
Wn.2d at 752. A statute is said to be unconstitutionally vague when a reasonable
person would not understand what conduct is proscribed or if it does not have
ascertainable standards to safeguard against arbitrary enforcement. State v.
Wallmuller, 194 Wn.2d 234, 238-39, 449 P.3d 619 (2019).
First, Dominguez contends that condition 16 is unconstitutionally vague
because it fails to explain with “sufficient definiteness” what it means for a
location to be one where “children’s activities regularly occur.” He claims that
20 While we do not reach the merits based on Cates, we note that Division II of this court has held that comparable conditions were overbroad and unconstitutional. State v. Franck, No. 51994-1-II, slip op. at 21-23 (Wash. Ct. App. Feb. 4, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051994-1-II%20 Unpublished%20Opinion.pdf; State v. Daniels, No. 54094-1-II, slip op. at 12-13 (Wash. Ct. App. Aug. 3, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2054094-1-II%20Unpublished%20Opinion.pdf.
35 No. 83516-5-I/36
condition 16 expressly listed “restaurants” and “parks used for youth activities” as
places that he is not permitted to go, but that he is forced to determine when
something is a children’s activity and when it regularly occurs, 21 and, therefore,
the condition is too vague to tell him what conduct is proscribed.
Our Supreme Court has held that a condition barring the defendant from
“loiter[ing] in []or frequent[ing] places where children congregate such as parks,
video arcades, campgrounds, and shopping malls,” was a “nonexclusive list of
‘places where children congregate’ ” and did not violate due process. Wallmuller,
194 Wn.2d at 237, 245.
Here, like the condition in Wallmuller, condition 16 contains a
nonexclusive list that includes places where children may congregate. To
safeguard from arbitrary enforcement, the initial sentence of the condition acts as
a modifier of the list that follows and instructs Dominguez where he cannot go.
See State v. Barragan, No. 80365-4-I, slip op. at 22 (Wash. Ct. App. Nov. 30,
2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/803654.pdf. 22
Therefore, condition 16 is not unconstitutionally vague because the list of places
with the modifying clause sufficiently apprises him of the proscribed conduct.
Dominguez also claims condition 16 functions as a categorical ban on his
ability to attend church services, and because there are other less drastic
21 Dominguez also argues that the condition gives his CCO discretion in “setting forbidden locations,” which could permit arbitrary enforcement in violation of the vagueness standard. 22 Though unpublished opinions have no precedential value, we may consider them when “necessary for a reasoned decision.” GR 14.1(c). Here, we adopt the reasoning as stated in Barragan, relying on Wallmuller, concluding that the same condition as in this case was not unconstitutionally vague because the first part of the sentence modifies the entire list of places and, thus, sufficiently instructed the defendant as to the locations from which he was prohibited. Barragan, No. 80365-4-I, slip op. at 22.
36 No. 83516-5-I/37
measures that the court could have imposed, condition 16 violates his First
Amendment right and should be stricken. We disagree.
The First Amendment protects a person’s right to freely exercise their
religion. U.S. CONST. amend. I. However, a state may “restrict an individual’s
exercise of conduct under a religious belief” when it “ha[s] a compelling interest
and the restrictive statute [] ha[s] a ‘nexus of necessity’ with the asserted state
interest.” State v. Meacham, 93 Wn.2d 735, 740, 612 P.2d 795 (1980) (quoting
State v. Lotze, 92 Wn.2d 52, 57, 593 P.2d 811 (1979) (Abrogated on other
grounds by Collier v. City of Tacoma, 121 Wn.2d 737, 854 P.2d 1046 (1993). A
constraint on a person’s ability to practice their religion must be the least
restrictive measure possible. Backlund v. Bd. of Comm’rs of King County Hosp.
Dist. 2, 106 Wn.2d 632, 641, 724 P.2d 981 (1986).
Here, the State has a compelling interest in protecting the public and
promoting his rehabilitation. A prohibition on going to places where children may
be regularly present, including church services, is narrowly tailored to serve that
interest. Despite the condition, he is free to practice his religion, including, for
example, through remote church services, self-study, or in adult communities.
Despite claiming that there are less restrictive measures that the court could
have imposed, Dominguez provides no specifics as to what those would be. His
claim that condition 16 violates his First Amendment rights is unavailing. 23
23 The State also argues that Dominguez failed to meet his burden of demonstrating that the condition coercively impacts his ability to practice his religion, citing Barragan, No. 80365-4-I, slip op. at 23. As noted above, Barragan involved a condition similar to condition 16 in this case, and the defendant there “[did] not argue or point to any evidence that the condition has a coercive effect on his practice of religion.” Id. However, Barragan provides no useful guidance on this issue because the court concluded that “the question of whether this condition unconstitutionally burdens Barragan’s freedom of religion is not squarely before us.” Id.
37 No. 83516-5-I/38
E. Prohibition on Dating and Disclosure of Sex Offender Status (Condition 17)
Condition 17 mandates Dominguez “not date women nor form
relationships with families who have minor children, as directed by the
supervising [CCO].” Further, condition 17 states that “[s]exual contact in a
relationship is prohibited until the treatment provider/CCO approves of such” and
requires him to “[d]isclose sex offender status prior to any sexual contact.”
However, it provides an exception for Dominguez to have sexual contact with his
wife absent approval. Dominguez asserts that condition 17 unconstitutionally
compels him to speak by forcing him to disclose his status as a sex offender to
people with whom he may have sexual contact. He further contends that
condition 17 violates his right to marry and to sexual intimacy by prohibiting him
from dating absent approval.
A community custody condition barring a defendant from dating or forming
relationships with families with minor children is not overbroad or
unconstitutionally vague when it is reasonably related to the crime and is
necessary to protect the public. State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d
870 (2014). RCW 9.94A.030(10) defines a crime-related prohibition as one that
directly relates to the circumstances of the crime for which the offender has been
convicted. There need only be “some basis” of nexus between the crime and the
condition. State v. Irwin, 191 Wn. App. 644, 657, 364 P.3d 830 (2015); see also
Nguyen, 191 Wn.2d at 684 (explaining there must be a reasonable relationship
between the crime of conviction and the condition).
38 No. 83516-5-I/39
Here, although Dominguez’s conviction did not arise from a dating
relationship, he was convicted of sexual offenses involving a minor. In Kinzle, the
court held that a prohibition on dating women and forming relationships with
persons who have minor children was valid because the defendant connected
with the minor-victim through a social relationship. 181 Wn. App. at 785. Also, in
State v. Autrey, the court approved of a similar prohibition limiting the defendant’s
ability to date, reasoning it was reasonably related to his crime because
“potential romantic partners may be responsible for the safety of live-in or visiting
minors.” 136 Wn. App. 460, 468, 150 P.3d 580 (2006). Thus, Kinzle and Autrey
support the imposition of the condition here because Dominguez’s crime was a
sexual offense involving a minor, and potential romantic partners may be
responsible for minors.
Second, Dominguez argues that condition 17 is not crime-related and
compels him to speak in violation of his First Amendment right because it
requires him to tell potential sexual partners about his status as a sex offender.
But in In re Personal Restraint of Sickels, the court held that a similar condition
requiring disclosure of sex offender status was necessary to protect potential
sexual partners “by providing them with knowledge of the potential risk [the
defendant] presents to minors.” 14 Wn. App. 2d 51, 61, 469 P.3d 322 (2020).
Similarly, requiring Dominguez to disclose his status as a sex offender is crime-
related because his interactions with H.S. were initiated through H.S.’s friendship
with Dominguez’s daughter and connection with H.S.’s mother through parent
organizations. Disclosing his sex offender status protects the public from the risk
39 No. 83516-5-I/40
he poses to minors. Condition 17 is crime-related and does not violate
Dominguez’s constitutional rights.
F. Prohibition on Staying in a Residence with a Minor (Condition 18)
Condition 18 prohibits Dominguez from “remain[ing] overnight in a
residence where minor children live or are spending the night.” Dominguez
argues that condition 18 impedes his fundamental right to parent his children
because he may be released while his youngest daughter is a minor and the
condition prevents him from staying overnight in the same place as a minor.
A crime-related condition impacting person’s “fundamental right to the
care, custody, and companionship of one’s children” is subject to more careful
review. In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686
(2010). Such a condition must be “sensitively imposed” and “narrowly drawn” as
to ensure that it is “reasonably necessary to accomplish the essential needs of
the State and public order.” Warren, 165 Wn.2d at 32, 34. This means there must
not be a reasonable alternative means to achieve the State’s interest. Id. at 34-
35. However, this right can be restricted by a community custody condition if the
record supports that it is “reasonably necessary to prevent harm to the children.”
State v. Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001) (holding the
condition prohibiting the defendant from contacting his children was not
reasonably necessary to prevent them from witnessing domestic violence).
Dominguez relies on an unpublished decision, State v. Escobar, in which
the trial court had initially failed to consider the impact it would have on the
defendant’s right to parent his son, so we remanded for the trial court to consider
40 No. 83516-5-I/41
a condition prohibiting contact with minors. No. 82135-1-I, slip op. at 12-13
(Wash. Ct. App. Jan. 18, 2022) (unpublished),
https://www.courts.wa.gov/opinions/pdf/821351.pdf. Dominguez argues that
there is no evidence that his own children are in danger, so a prohibition that
would prevent him from living with his minor daughter is not reasonably
necessary to prevent harm to her.
In response, the State argues that Dominguez has not demonstrated that
he is in fact restricted from communicating with his daughter or making parenting
decisions for her. 24 The State further argues that condition 18 is necessary to
prevent harm to Dominguez’s minor daughter given that he was convicted of
“rap[ing] a teenage girl with whom he had a close emotional relationship, akin to
that of a father and daughter.”
Here, Dominguez informed the court of the possibility of release while his
youngest daughter was still a minor. Thus, even if Dominguez will be barred from
living under the same roof as her while she is still a minor, the court was made
aware of this possibility and considered it, unlike in Escobar, where the record
reflected no consideration of the defendant’s son. Because the State has a
compelling interest in protecting Dominguez’s minor daughter given his
conviction for rape of a teenage girl with whom he had a close relationship, the
condition does not unconstitutionally burden his right to parent.
24 The State also argues that Dominguez has not sufficiently demonstrated that condition 18 will impede his right to parent because he has not shown that his daughter will be a minor upon his release from 170 months of incarceration. Because the precise date of release is unknown, this is not a basis on which to reject Dominguez’s claim.
41 No. 83516-5-I/42
G. Restrictions on Use of Internet and Computer (Conditions 21 and 24)
Condition 21 bars Dominguez from “access[ing] the Internet on any
computer, phone, or computer-related device with access to the Internet or on-
line computer service except as necessary for employment purposes [] in any
location, unless such access is approved in advance by the supervising [CCO]
and your treatment provider.” Similarly, condition 24 provides that Dominguez
“may not possess or maintain access to a computer, unless specifically
authorized . . . [and] may not possess any computer parts . . . including but not
limited to hard drives, storage devices, digital cameras, web cams, wireless video
devices, [etc.].” Dominguez contends that these restrictions are overbroad
because they prohibit constitutionally protected conduct and are not crime-
related.
As previously discussed, a crime-related condition is valid when there is
some nexus, i.e., a reasonable relation, between it and the crime of conviction.
Irwin, 191 Wn. App. at 657. A condition that restricts a defendant’s access to the
internet is valid if it is “narrowly tailored to the dangers posed by the specific
defendant.” State v. Johnson, 197 Wn.2d 740, 745-46, 487 P.3d 893 (2021)
(holding that an internet condition permitted the defendant to use the internet
only with the use of approved filters was not overly broad). Dominguez asserts
that although he communicated with H.S. through internet applications there is
no evidence that his crimes stemmed from the internet or computers. He further
argues that condition 24 is not crime-related because nothing in the record
suggests that he used any computer or related devices to perpetrate his crimes
42 No. 83516-5-I/43
and that this type of condition is more apt for “individuals convicted of possessing
or creating child pornography.” But Dominguez used internet applications
(Snapchat and Facebook) to contact H.S. and send her sexually explicit
messages. Dominguez also sent H.S. pornography and asked her to replicate
such acts and “sent photographs of his own erect penis to H.S. and asked her to
remove her clothes during video chats to expose her breasts.” Conditions 21 and
24 are crime-related given that Dominguez’s use of technology to commit in the
crimes of conviction.
As to his overbreadth argument, Dominguez relies on In re Personal
Restraint of Sickels, in which the court accepted the State’s concession that a
condition similar to condition 21 here was overbroad because it limited internet
use only to employment purposes. 14 Wn. App. 2d at 72-74. Here, the State
agrees that condition 21 is overbroad and proposes narrower language that
would allow Dominguez to use the internet with the appropriate protections that
reads, “Do not use or access the World Wide Web unless specifically authorized
by your community custody officer through approved filters.” 25 We accept the
State’s concession that condition 21 is overbroad and remand to the trial court to
consider the State’s proposed language to narrow the condition.
VII. VPA and DNA Collection Fee
Dominguez asserts that this court should strike the VPA and DNA
collection fee because he is indigent and recent amendments to the statute bar
courts from imposing such fees on indigent defendants. The State agrees that
25 The State’s proposed language is based on language that was held not to be overly broad in Johnson, 197 Wn.2d at 744, 746-47.
43 No. 83516-5-I/44
the VPA and DNA collection fee should be stricken. In 2023, legislature amended
RCW 7.68.035 to prohibit courts from imposing the VPA when the defendant is
indigent pursuant to RCW 10.01.160(3). The 2023 amendment to RCW 7.68.035
took effect on July 1, 2023. LAWS OF 2023, ch. 449, § 1. Further, the legislature
wholly eliminated the DNA collection fee. LAWS OF 2023, ch. 449, § 4. The 2023
amendments apply to matters pending on direct appeal. State v. Ellis, 27 Wn.
App. 2d 1, 16, 530 P.3d 1048 (2023). Thus, we remand to strike the VPA and
DNA collection fee from Dominguez’s judgment and sentence.
CONCLUSION
We affirm the convictions for rape of a child in the second degree (count
I), rape of a child in the third degree (count II), and communication with a minor
for immoral purposes (count III). We additionally affirm the community custody
conditions, but remand on conditions 21 and 24 to replace overbroad language
with State’s suggested language and to strike VPA and DNA collection fee.
WE CONCUR:
Related
Cite This Page — Counsel Stack
State Of Washington, V. Jason Dominguez, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-washington-v-jason-dominguez-washctapp-2025.