IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78535-4-I Respondent, DIVISION ONE V. UNPUBLISHED OPINION JASON EARL IULIANO,
Appellant. FILED: November 12, 2019
LEACH, J. — A jury convicted Jason luliano of four counts of rape of a child
in the third degree and one count of bail jumping. luliano appeals, challenging
the court’s admission of evidence under ER 404(b), imposition of a condition of
community custody that prohibits luliano from having contact with minors, and
imposition of legal financial obligations (LFO5) that the legislature abrogated in
June 2018. We remand to strike the criminal filing fee and the LFO interest
provision and reconsider the community custody condition prohibiting
unsupervised contact with minors but otherwise affirm luliano’s conviction.
FACTS
A.W. met Jason Earl luliano in the summer of 2015 when she was 15 and
luliano was 34. At the time, A.W. lived with her father, James West, and his wife, No. 78535-4-1/2
Amber West,1 in Snohomish, Washington. Her mother, Khristyanna Wood, lived
in Lynwood, Washington, with her son, T.G., her boyfriend, Mark Seely, and Carl
Higley, a friend of the family. A.W. stayed with her mother at her home on
Wednesdays and every other weekend.
Wood met luliano at a birthday party in August 2015. During the party,
Wood spoke with her friend Lily Gillis about her suspicions concerning A.W. and
her father. luliano, who was the father of Gillis’s daughter M.I., joined the
conversation. He and Amber were friends.2 He told Wood that he thought he
could get information from Amber or James and perhaps help Wood “get to the
bottom of it.”
luliano did get information from Amber about James’s sexual abuse of his
daughter. He shared this information with Wood over a period of time until she
had enough to take the matter to the police. He also encouraged Amber to go to
the police with what she knew. She did. Partly due to luliano’s help, James
admitted to raping A.W.,3 and A.W. was removed from James’s home in
November 2015 and moved in with her mother and brother.
During this same time, luliano also befriended A.W. She was already
friends with his daughter M.l., and, as luliano was gathering information for
Wood, he also began spending more time with A.W. A.W. felt safe with luliano,
I For clarity, we refer to Amber West and James West by their first names. 2 luliano and Amber were romantically involved at the time. ~ A.W. was sexually abused and raped by her father from the ages of 7 to 15.
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and she confided in him. She told him her father had sexually abused her and
that it was still going on during the summer and fall of 2015. luliano became a
friend of A.W.’s family:4 he spent time at Wood’s home with her family, and A.W.
and T.G. began spending weekends at luliano’s home with him and his daughter
M.l. A.W. also went to visit luliano directly from her father’s home, and Wood’s
boyfriend Seely would occasionally pick A.W. up from luliano’s when she was
due to go to her mother’s home.
At first, A.W.’s relationship with luliano was one of friendship. Sometime
between September and November 2015, their friendship became a romantic
sexual relationship. They first had sex in luliano’s bedroom after M.l. had gone
to bed. A.W. and luliano had both been drinking and smoking marijuana. A.W.
testified that she and luliano had sexual intercourse. Afterward, she spent the
night in luliano’s bed but got up early to sneak back into M.l.’s room so that Mi.
would not know.
luliano and A.W. had sex about 20 times. A.W. testified that she and
luliano had sex every weekend that she stayed at his apartment. On a couple of
occasions, they had sex in the shower.
A.W. and luliano attempted to keep their relationship secret. But their
demeanor and a handful of incidents raised suspicions among A.W.’s family
members. For example, luliano attended A.W.’s choir performance in December
and brought her a bouquet of flowers with a rose in the center. And when his
~ luliano and Wood were sexually involved for part of this time.
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own daughter had a recital the following month, luliano did not bring her flowers.
On another occasion, luliano was shopping at a mall with A.W. and her family.
Wood noticed they were holding hands. She asked them to stop. luliano said it
was a father-daughter kind of thing. Around the time of the December holidays,
Wood told luliano the kids could not stay with him one weekend. He got upset
and “bash[ed] in . . . the light. . . outside of the door.”
One weekend when T.G. and A.W. were staying with luliano, T.G. was in
the living room at about 2:30 a.m. when he heard moaning noises. At first, he
thought the sound was coming from the TV but, when he heard more, he went to
luliano’s bedroom. T.G., who was 13 at the time, walked in on luliano and A.W.
naked, in bed, having intercourse. This upset him. He went back to the living
room, but then he thought perhaps he was just seeing things, given how late at
night it was. So T.G. returned to luliano’s bedroom a second time, which
confirmed for him that he was not imagining anything. At that point, he started
screaming at luliano to get off his sister. Afterward, luliano tried to persuade T.G.
not to tell his mother. T.G. was “disgusted” and “disturbed” by what he saw. The
next day, he was too uncomfortable to tell his stepfather more than that he and
luliano had a fight.
T.G. and A.W., along with Carl Higley and his youngest daughter, spent
the weekend of January 22, 2016, with luliano. On Saturday afternoon, Higley
was in the living room when luliano announced he was going to take a shower
and then walked into the only bathroom in the apartment. Ten or fifteen seconds
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later, A.W. followed luliano into the bathroom and shut and locked the door.
Higley then heard the shower running. Between 10 and 20 minutes later, luliano
walked out, followed very soon after by A.W. They were both fully clothed, but
A.W.’s hair was wet.
Higley knew that Wood was out with friends that day. He texted her
because he was concerned about A.W. going into the bathroom with luliano and
being in there with the shower running. Wood was not in a position to drive. So
she asked Higley to send a text to Seely, which he did. Seely did not respond
that day but went to luliano’s Sunday morning to get the children.
The next day, Monday, January 25, 2016, Wood gathered her family for a
game of “20 questions,” so she could ease A.W. into a conversation about her
relationship with luliano. But the game did not unfold exactly as Wood had
hoped. A.W. became defensive when asked if she had ever done something she
was not proud of and if she was hiding anything from her parents. Then, when
someone mentioned luliano’s name, A.W. said, ‘So what? He’s 20 years older
than me. I can have sex with him if I want to. It’s my body. You can’t control
me.”
Tuesday, Seely searched A.W.’s room and found cards and letters hidden
under her mattress. These included love poems, romantic letters, and a
Valentine’s Day card. luliano sent all of them to A.W. In addition to expressing
his love and affection for A.W., the cards and letters include references to their
sexual relationship. For example, in one letter, luliano noted how he hated “the
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fact that we have to hide our love from everyone because we would both get into
a lot of trouble.” He described trying to please himself when A.W. was absent,
saying, “I could not finish no matter how hard I tried. . . . It’s not the same
as. . . having you here so I can please you. It’s like my body won’t do certain
things unless you’re with me.”
A.W. later provided Wood and Seely screenshots of Facebook
conversations she had with luliano during the course of their relationship. The
State introduced approximately 85 pages of Facebook messages at trial. Among
other things, luliano complained to A.W. when he learned she was
communicating with boys she knew, and he expressed frustration and irritation
when Wood refused his request to have T.G. and A.W. over one weekend. He
also sent A.W. messages saying he cared about her whole family and envisioned
a future with their two families combined, which would give his daughter M.I. a
mother she could relate to.5
On January 26, 2018, Wood took A.W. to a nearby hospital. There, A.W.
met with a sexual assault nurse examiner. A.W. summarized her interactions
with luliano, saying that he “basically raped me [H]e supplied me with alcohol
and weed, and I took it, basically he raped me, and we took showers together
and slept in the same bed.”
Within about a week of the meeting with the nurse examiner, Wood
obtained a court order prohibiting luliano from contacting A.W. On February 9,
~ M.l. is about five years younger than A.W.
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2018, in violation of the order, luliano arranged to have a pizza delivered to A.W.
at her school. Concealed with the pizza and beverages, luliano included a cell
phone preprogrammed with his number. luliano called the school in advance to
tell them the pizza was coming. He falsely said he was an uncle of A.W. named
Carl Higley. School officials contacted Wood, who recognized the phone number
associated with the pizza order as luliano’s. A police officer went to the school,
intercepted the pizza delivery, and discovered the contraband. The officer spoke
to A.W. She admitted that she was expecting delivery of a new cell phone from
luliano along with the pizza.
The State charged luliano in December 2016 with two counts of rape of a
child in the third degree. The State amended the charges in September 2017 to
four counts of rape of a child in the third degree. The court scheduled trial to
begin on February 12, 2018, but luliano failed to appear. He was arrested a few
days later in Idaho and returned to Snohomish County. The State added a count
of bail jumping, and the casewenttotrial on March 12, 2018.
After trial, the jury convicted luliano of all counts. The court sentenced
him to 60 months on counts 1, 2, and 3; 24 months on count 4; and 14 months
on count 5, the bail jumping charge. The court ordered counts I through 4 to run
concurrently and count 5 to run consecutively to counts I through 4. The court
also imposed 36 months of community custody to begin after release from
confinement. Legal financial obligations imposed by the court included a $500
mandatory victim penalty assessment, a $200 crimihal filing fee, and a $100
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mandatory DNA collection fee. The court also imposed conditions of community
confinement, including a condition that prohibits luliano from contacting any
minors, including his daughter, without approved adult supervision.
luliano appeals.
ANALYSIS
ER 4 04(b) Evidence
Iuliano contends the trial court abused its discretion by admitting under ER
404(b) evidence of his secret attempt to deliver a cell phone to A.W. at her
school. Before trial, luliano asked the court to exclude evidence of both the no-
contact order and the attempted pizza delivery. The court found that luliano’s
conduct after the purported sexual relationship ended did not contribute to
proving his intent at the time of the alleged crimes. The court also agreed that
the evidence was much more prejudicial than probative.
The State asked the court to reconsider its decision. After a hearing on
the third day of trial, the court admitted the evidence to show luliano’s intent and
motive. The State argued the evidence was admissible to show luliano’s lustful
disposition toward A.W., to corroborate the anticipated testimony of A.W. that she
and luliano had a secret romantic relationship, to show luliano’s consciousness
of guilt, and to prove that the illicit relationship was not over. The court rejected
the argument that the evidence was admissible to show lustful disposition, but it
agreed that the evidence tended to show a preexisting illicit relationship between
A.W. and Iuliano. The court also found that when the evidence was considered
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for its proper purpose the risk of prejudice was not as great as the court had
deemed pretrial. The court concluded that the probative value of the evidence on
the issues of motive and intent far outweighed its prejudicial effect. The court
refused, however, to reconsider its decision to exclude evidence of the no-
contact order.
luliano argues that the court should not have admitted the evidence of the
attempt to deliver a pizza and cell phone to A.W. because intent was not at issue
in the case, the evidence was not probative of motive, and the evidence was
highly prejudicial, tending to portray luliano as a “creepy” person who
masquerades as a family member and attempts to communicate with a student in
school.
We review a trial court’s evidentiary rulings for an abuse of discretion.6 A
trial court abuses its discretion when it makes a manifestly unreasonable
decision or bases its decision on untenable grounds or reasons.7 Abuse of
discretion occurs when the trial court’s decision is manifestly unreasonable or
based upon untenable grounds or reasons, such as the misconstruction of a
rule.8
We need not decide if luliano has shown the court erred in admitting the
evidence of his attempt to deliver A.W. a pizza and a cell phone because he has
not shown prejudice. We will not reverse due to an error in admitting evidence
6 Statev. VyThang, 145 Wn.2d 630,642,41 P.3d 1159 (2002). ~ Vy Thang, 145 Wn.2d at 642. 8 State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
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that does not result in prejudice to the defendant.9 Erroneous admission of ER
404(b) evidence requires reversal only if a reasonable probability exists that the
error materially affected the trial’s outcome.1° There is no such probability in this
case. The overwhelming evidence of luliano’s guilt supports our conclusion that
the outcome of his trial was not materially affected by the admission of luliano’s
attempt to deliver a pizza and cell phone to A.W. at her school.
To convict luliano of rape of a child in the third degree, the State was
required to prove the following elements beyond a reasonable doubt: (1) that on
a specific date between September 1, 2015, and January 27, 2016, luliano had
sexual intercourse with A.W.; (2) that A.W. was at least 14 years old but less
than 16 years old at the time of the sexual intercourse and was not married to
luliano; and (3)thatA.W. was at least 48 months younger than Iuliano.11
The testimony at trial established that luliano knew A.W. and her age and
that A.W. spent numerous weekends at luliano’s apartment. A.W. testified in
detail concerning their relationship and their sexual encounters. Her brother
testified that he walked into luliano’s bedroom, saw luliano and A.W. engaged in
sexual intercourse, left the room, and then went back in a second time to be
absolutely sure that he wasn’t seeing things. Carl Higley testified to watching
A.W. follow luliano when he went into the bathroom to shower and saw her
~ State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004). 10 State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997). 11 RCW 9A.44.079(1); see also State v. Deer, 175 Wn.2d 725, 731, 287 P.3d 539 (2012).
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emerge about 20 minutes later with wet hair. Several eyewitnesses reported
seeing luliano and A.W. behave in ways that caused them concern at the time.
Finally, A.W. read from cards and letters luliano sent her that included romantic
love poems and plain references to their sexual relationship.
This evidence was more than sufficient to support the jury’s verdict.
luliano does not establish, within a reasonable probability that error, if there was
any, in admitting evidence of the attempt to deliver a pizza and cell phone to
A.W. materially affected the outcome of the trial. Admission of the evidence was
harmless.
Community Custody Condition
luliano challenges the imposition of a condition of community custody that
prohibits him from initiating or prolonging contact with minor children without
supervision by an adult who has been approved by his community corrections
officer because it makes no exception for his daughter, M.l., who was 12 at the
time luliano was sentenced. luliano specifically asked the trial court not to
prohibit contact with all minors. He argues that because there is no evidence he
has ever harmed or sexually abused his daughter or is a pedophile, the condition
is insufficiently crime-related and impermissibly infringes on his constitutional
right to parent.
The Sentencing Reform Act of 198112 authorizes the trial court to impose
discretionary crime-related prohibitions and affirmative conditions during a period
12 Ch. 9.94 RCW.
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of community custody.13 A “crime-related prohibition” is an order prohibiting
conduct that directly relates to the circumstances of the crime for which the
defendant has been convicted.14 We review imposition of a crime-related
prohibition for abuse of discretion.15 We reverse only if the decision was
manifestly unreasonable or based on untenable grounds.16
The imposition of an unconstitutional condition of community custody is
manifestly unreasonable.17 Community custody conditions interfering with a
parent’s fundamental constitutional right to parent may be imposed, but they
must be “sensitively imposed” and “reasonably necessary to accomplish the
essential needs of the State and public order.”18 Put differently, because of the
constitutional implications, we apply strict scrutiny in reviewing an order that
impinges on the constitutional right to parent.19 To withstand strict scrutiny, the
order must be narrowly tailored to serve a compelling State interest.20
The State contends that a restriction on luliano’s right to parent is
appropriate if the record includes evidence that his daughter has been harmed,
directly or indirectly, by luliano’s criminal conduct and if the restriction imposed is
no more than is necessary to address the risk of harm in the future. The
13 RCW 9.94A.505(9); RCW 9.94A.703. 14 RCW 9.94A.030(1 0). 15 State v. Williams, 157 Wn. App. 689, 691, 239 P.3d 600 (2010). 16Williams, 157 Wn. App. at691. 17 State v. Sanchez Valencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010). 18 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). 19State v. Schimelpfeniq, 128 Wn. App. 224, 226, 115 P.3d 338 (2005) (citing Shapiro v. Thompson, 394 U.S. 618, 630-31, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969)). 20 Schimelpfeniq, 128 Wn. App. at 226.
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restriction is appropriate here, according to the State, because (a) the victim,
A.W., was only a few years older than luliano’s daughter, M.I., (b) luliano was not
particularly discreet despite his overall efforts to keep the relationship a secret,
and (c) M.l. had become suspicious of the relationship, and luliano responded by
attempting to “throw her off the trail.” The State argues that the closeness in age
between A.W. and M.l. (five years.) could desensitize M.I. to accepted social
mores toward sexual conduct and that witnessing the relationship could be
harmful to M.l. the same way witnessing domestic violence is harmful to children.
luliano argues that the prohibition of unsupervised contact with his
daughter is as unwarranted in his case as it was in the Letourneau21 case. In
Letourneau, the defendant had a sexual relationship with a 13-year-old student in
her class. We concluded that the State failed to demonstrate that prohibiting
unsupervised contact with her own children was necessary to protect them from
being molested by their mother.22 As in this case, the record included no
evidence that Letourneau had ever molested her children or any other children
besides the victim.23 Nor did it include any evidence that Letourneau was a
pedophile.24 But Letourneau has an imjDortant difference. There, the trial court
had access to detailed reports prepared by at least three sexual deviancy
evaluators.25 Here, the record contains no evidence that luliano has had a
21 State v. Letourneau, 100 Wn. App. 424, 441, 997 P.2d 436 (2000). 22 Letourneau, 100 Wn. App. at 441-42. 23 Letourneau, 100 Wn. App. at 439. 24 Letourneau, 100 Wn. App. at 439. 25 See Letourneau, 100 Wn. App. at 438-43.
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sexual deviancy evaluation or that he will be evaluated any time before his
release. The trial court had very little evidence to consider in making a
determination of the potential danger luliano might pose to his daughter.
Letourneau also provides instruction on the extent to which a sentencing
court can meaningfully address the range of harms that could arise during
visitation with a parent like luliano. In Letourneau, this court confined itself to
considering if the community custody condition was reasonably necessary to
protect her children from being molested by Letourneau.26 Although we
concluded that the prohibition on unsupervised contact was unnecessary, we
also noted that “[t}his is not to say that in-person visitation . . . should not be
supervised for other reasons unrelated to the danger of sexual molestation”
because the evidence revealed a number of compelling concerns about
Letourneau’s relationship with her children.27 Those concerns, however, “are
better addressed outside the confines of the criminal sentencing process.”28
We agree with luliano that the record contains no evidence showing his
daughter is at risk of being sexually abused by him. We cannot presume the
constitutional validity of the prohibition on unsupervised contact with minors to
the extent it includes his daughter.29 The trial court did not provide a rationale for
its determination that this condition is reasonably necessary to accomplish the
26 Letourneau, 100 Wn. App. at 442-43. 27 Letourneau, 100 Wn. App. at 442. 28 Letourneau, 100 Wn. App. at 442. 29 State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008).
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essential needs of the State and public order.3° Considering the necessarily fact-
specific nature of crime-related prohibitions, however, we decline to modify the
trial court’s sentencing decision. We note, in this regard, that at sentencing,
when asked by defense counsel to modify the condition prohibiting luliano from
remaining overnight in a residence where minor children live or are staying, the
court agreed to allow luliano to stay overnight in a residence with his daughter if
recommended by his treatment provider and brought to the court’s attention by
luliano’s community corrections officer. On this record, we conclude that the
more appropriate remedy is to remand to the trial court for reconsideration of the
condition in light of luliano’s fundamental right to parent and the State’s interest
in protecting M.I. from sexual abuse and the requirement that any conditions on
luliano’s right to parent must be narrowly tailored to serve a compelling State
interest.
Legal Financial Obligations
luliano asserts the court should not have imposed a criminal filing fee LEO
or ordered that interest accrue on LEO5 assessed at sentencing. The $200
criminal filing fee was mandatory under RCW 36.18.020(2)(h) at the time of
luliano’s sentencing. The statute was amended in 2018 to prohibit imposing this
fee on indigent defendants.31 The amendment went into effect on June 7, 2018,
three weeks after luliano was sentenced. But the Supreme Court held in State v.
30 Nor did the presentence report. 31 LAWS OF 2018, ch. 269, § 17(2)(h).
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Ramirez32 that the LEO amendments of 2018 apply prospectively to cases that
were pending on direct review and thus not final when the amendments took
effect. The parties agree that luliano has shown he is indigent as that term is
defined in RCW 10.101.010(3), and the State concedes the $200 filing fee should
be stricken.
luliano also challenges the accrual of interest on the nonrestitution LEOs
imposed. Amendments in 2018 to RCW 10.82.090 eliminated the accrual of
interest on legal financial obligations other than restitution,33 and Ramirez also
applies to these amendments. The State does not object to striking the provision
requiring the accrual of interest on the nonrestitution LFOs imposed on luliano.
CONCLUSION
We affirm luliano’s conviction. We remand to the trial court to reconsider
the community custody condition prohibiting unsupervised contact with minors to
the extent it includes luliano’s daughter and to strike the criminal filing fee and
the provision imposing interest on LFO5.
WE CONCUR:
32 191 Wn.2d 732, 747, 426 P.3d 714 (2018). ~ LAWS OF 2018, ch. 269, § 1.
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