IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 77860-9-I Respondent, v. DIVISION ONE
JAY MAXWELL GRAY, UNPUBLISHED OPINION
Appellant. FILED: April 29, 2019
LEACH, J. — Jay Maxwell Gray appeals the revocation of his special sex
offender sentencing alternative (SSOSA) and conditions of community custody.
Gray pleaded guilty to two counts of first degree rape of a child. The trial court
imposed a SSOSA and several conditions of community custody. Later, the trial
court revoked the SSOSA because Gray had failed to make reasonable progress
in treatment.
Substantial evidence supports the court’s finding that Gray had failed to
make reasonable, satisfactory progress in treatment. The State concedes the
condition of community custody imposing a curfew is not reasonably crime
related and that several other conditions, as worded, are unconstitutionally vague
or not crime related. Gray’s remaining challenges to the conditions of community
custody lack merit. So we affirm the revocation of the SSOSA, reverse in part, No. 77860-9-I /2
and remand to the trial court to address the conditions of community custody in a
manner consistent with this opinion.
BACKGROUND
In August 2013, Jay Maxwell Gray pleaded guilty to two counts of first
degree rape of a child. He admitted to engaging in sexual intercourse with his
minor daughter twice during 2011 and 2012. The trial court sentenced Gray to
131 months to life and suspended all but 6 months under a SSOSA. The
SSOSA required Gray to make reasonable progress in, and successfully
complete, 5 years of sex offender treatment. The sentencing court also imposed
several community custody conditions.
Gray served 6 months in jail. He shared a home in Bellevue with other
sex offenders. In spring 2016, Gray reported to his community custody officer
(CCO), Kelly Buchanan, that he violated the conditions by viewing pornography
on two separate occasions. On June 1, 2016, the court ordered he serve 30
days in jail.
In October 2016, Gray failed a polygraph test. Gray provided deceptive
answers to two questions: “Have you had any unreported contact with minors
since your last polygraph? Have you looked at any pornography since your last
violation?”
Molly Thiessen, a community correction supervisor, spoke to Gray after
the polygraph test. Gray told Thiessen that “he had noticed a young girl who
looked like his daughter (victim) walk by his house.” He said he did not have
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fantasies about the girl and claimed that because he did not have contact with
her, he did not have to report it.
Thiessen then spoke to Willem Jillson, Gray’s sexual deviancy counselor
at Bellevue Community Services Inc. (BCS). She told Jillson that Gray failed the
polygraph and disclosed his statements about the minor girl in his neighborhood.
Jillson told her that Gray’s sex offender treatment program therapy contract
required him to disclose all contact and be transparent about his behavior.
Specifically, the contract required him to report all thoughts, fantasies, or
contacts with a minor, particularly one that reminded him of his daughter.
Thiessen also spoke with Detective Frank Nunnelee of the Bellevue Police
Department. He monitors the sex offender registry in Bellevue. Nunnelee knew
of Gray and had not received any reports about him from the community in his
neighborhood.
Later in October 2016, Gray met with Thiessen and Nunnelee. Gray told
them that he had been watching the minor girl for three years. He also told them
he had sexually abused his daughter 1,000 times and raped her 300 times. He
said he fantasized about his daughter and missed his relationship with her,
including the sex. He reported that he wanted to have a relationship with the girl
in his neighborhood and that he had followed her on a trail between his
neighborhood and hers. The police arrested Gray. Thiessen recommended that
the court revoke his SSOSA.
In November 2016, Jillson and Dr. Bill Lennon terminated Gray from
treatment with BCS because he failed “to be adequately transparent by
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withholding information [from his treatment provider, treatment group, or
corrections officer] about his deviant sexual cycle that included a girl in his
neighborhood that he says reminded him of his victim.” They said Gray was “not
making adequate progress in treatment” and that “he [was] not safe to be in the
community.” They concluded that Gray was “not adequately progressing in
treatment” and recommended the court revoke his SSOSA.
After a hearing, the trial court revoked Gray’s SSOSA because he failed to
make “reasonable progress in treatment.” It ordered Gray to serve the remainder
of his indeterminate sentence. It also ordered all of the community custody
conditions imposed in his original sentence and judgment remain in full force and
effect.
Gray appealed.
ANALYSIS
Gray challenges the sufficiency of the evidence to support the court’s
finding that he was not making reasonable progress in treatment. He also claims
that several community custody provisions are unconstitutionally vague and/or
imposed without statutory authority because they were not crime related.
Substantial evidence supports the trial court’s revocation decision. We accept
the State’s concessions on several of the community custody conditions, but
Gray’s other challenges fail.
SSOSA
Gray contends that the trial court should not have revoked his SSOSA
because the evidence does not support the trial court’s finding that he “failed to
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make reasonable satisfactory progress in a sexual deviancy treatment program
with Bellevue Community Services.” He contends the record shows him making
reasonable progress in treatment.
A trial court has discretion to revoke a SSOSA.1 It abuses that discretion
when it makes a manifestly unreasonable decision or exercises it on untenable
grounds or for untenable reasons.”2
RCW 9.94A.670 provides certain first time sex offenders with an
opportunity for a sentencing alternative, a SSOSA.3 The statute authorizes a trial
court to
revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment.~41 Because substantial evidence establishes that Gray had not made
reasonable progress in a treatment program when BCS terminated him from its
program, the court did not abuse its discretion when it revoked his SSOSA. The
providers terminated Gray’s treatment because he was not transparent about his
thoughts and activities and so he violated his contract with the program. The
provider also terminated him because they concluded that he was “not
adequately progressing in treatment” and was “not safe to be in the community.”
1State v. McCormick, 166 Wn.2d 689, 705, 213 P.3d 32 (2009). 2State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). ~ RCW 9.94A.670(2)(a), (b). ~ RCW 9.94A.670(11); State v. Miller, 180 Wn. App. 413, 416, 325 P.3d 230 (2014).
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After failing a polygraph test, Gray revealed that he had watched a girl similar in
age to his victim and had even followed her. Gray’s disclosure and the treatment
expert’s conclusion that Gray was not progressing with treatment provide
sufficient evidence to support the court’s finding.
The trial court did not abuse its discretion by revoking Gray’s SSOSA.
Community Custody Conditions
Gray challenges five conditions of community custody as not sufficiently
crime related and three conditions as unconstitutionally vague.
We review the trial court’s statutory authority to impose community
custody conditions de novo.5 We review authorized community custody
conditions for abuse of discretion6 and do not presume a condition is
constitutional.7 We reverse manifestly unreasonable conditions.8 “The
imposition of an unconstitutional condition is always manifestly unreasonable.”9
Crime-Related Challenges
Gray challenges five community custody conditions as not sufficiently
crime related.1° RCW 9.94A.703(3) authorizes a sentencing court to impose
~ State v. Johnson, 180 Wn. App. 318, 325, 327 P.3d 704 (2014). 6 State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). ~ State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010). 8 Irwin, 191 Wn. App. at 652. ~ In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161, 167, 430 P.3d 677 (2018) (citing Irwin, 191 Wn. App. at 652), “motion” for review filed, No. 96677-0 (Wash. Dec. 19, 2018). 10 He challenges conditions 5, 7, 10, 11, and 12 as not reasonably crime related.
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discretionary conditions. These include requiring the offender to “[c]omply with
any crime-related prohibitions.”11
RCW 9.94A.030(1O) defines a crime-related prohibition as “an order of the
court prohibiting conduct that directly relates to the circumstances of the crime for
which the offender has been convicted.” “Directly related’ includes conditions
that are ‘reasonably related’ to the crime.”12 “This court reviews the factual bases
for crime-related conditions under a ‘substantial evidence’ standard.’13 The
prohibited conduct does not need to be identical to the crime underlying the
conviction although there must be “some basis for the connection.”14
“Community custody conditions are ‘usually upheld if reasonably crime
related. “15
Gray challenges condition 7 that he “[abide] by a curfew.” The State
concedes that this condition is not reasonably crime related. We accept the
State’s concession and remand for the trial court to strike it.
Gray challenges part of condition 12, which states, “Do not use or
consume alcohol.” He contends that the trial court exceeded the authority RCW
9.94A.703(3)(e) provides by including the word “use.” The State concedes that
the words “use or” should be stricken so that the condition only prohibits
11RCW 9.9A.703(3)(f). 12Irwin, 191 Wn. App. at 656 (citing State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014)). 13 Irwin, 191 Wn. App. at 656. 14 Irwin, 191 Wn. App. at 657. 15 State v. Norris, 1 Wn. App. 2d 87, 97, 404 P.3d 83 (2017) (quoting State
v. Warren, 165 Wn.2d. 17, 32, 195 P.3d 940 (2008)), rev’d on other grounds, State v. Hai Minh Nguyen, 191 Wn.2d 671, 687, 425 P.3d 847 (2018).
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consumption. We accept this concession and remand for the trial court to revise
this condition.
Gray challenges, as not crime related, two parts of condition 5, which
requires that he “{i]nform the supervising CCC and sexual deviancy treatment
provider of any dating relationship. Disclose sex offender status prior to any
sexual contact. Sexual contact in a relationship is prohibited until the treatment
provider approves of such.” He also makes a constitutional challenge we
address later. The State concedes that prohibiting Gray from ‘sexual contact in a
relationship without prior approval” is not reasonably crime related. We accept
this concession.
Gray also challenges this condition’s requirements that he disclose his sex
offender status before any sexual contact and that he report any dating
relationship to his CCC and treatment provider. After noting that his crime
involved a child, he claims that these restrictions do not reasonably relate to his
crime and unreasonably restrict his “association with a specified class of
individuals.”16
But monitoring Gray’s sexual involvement reasonably relates to protecting
the public and furthering treatment. Gray raped his daughter, the child of a
woman with whom he had a sexual relationship. Requiring him to disclose his
sex offender status before any sexual contact with a dating partner relates
reasonably to protecting dating partners and their children. This challenge fails.
16 See State v. Moultrie, 143 Wn. App. 387, 399, 177 P.3d 776 (2008).
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We direct the trial court, on remand, to revise condition 5.
Gray challenges, as not crime related, conditions 10 and 11, which
prohibit him from entering sex-related businesses or possessing sexually explicit
materials, as not reasonably crime related.
Condition 10 states, “Do not enter any sex-related businesses, including:
x-rated movies, adult bookstores, strip clubs, and any location where the primary
source of business is related to sexually explicit material.”
Condition 11 states,
Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.01 1(4) unless given prior approval by your sexual deviancy provider. In State v. Hai Minh Nguyen,17 the Washington Supreme Court upheld
similar conditions for two people convicted of similar crimes. The court rejected
the same arguments that Gray makes here.18 Like Gray, the defendants in Hai
Minh Nguyen claimed that their crimes did not involve the behavior prohibited by
the conditions while committing their crimes, so the conditions were not
reasonably crime related.19 But the Supreme Court concluded that they were
reasonably crime related because “[ut is both logical and reasonable to conclude
that a convicted person who cannot suppress sexual urges should be prohibited
17 191 Wn.2d 671, 675, 425 P.3d 847 (2018). 18 Hai Minh Nguyen, 191 Wn.2d at 686-87. 19 Hai Minh Nguyen, 191 Wn.2d at 683, 687.
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from accessing ‘sexually explicit materials,’ the only purpose of which is to invoke
sexual stimulation.”2°
The trial court did not abuse its discretion in imposing these conditions
because they are reasonably crime related.
Vagueness Challenges
Gray challenges three conditions as unconstitutionally vague.21 To satisfy
constitutional due process requirements, a community custody condition must
give fair warning of proscribed behavior.22 So a community custody condition
must (1) “define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is proscribed” and (2) “provide
ascertainable standards of guilt to protect against arbitrary enforcement.”23 If a
condition implicates a First Amendment right, including the right of assembly or
speech, the condition must also be particularly clear to avoid causing a chilling
effect on that right.24
We consider the context of words when resolving a vagueness claim.25 If
a statute does not define a word, we may consider a standard dictionary
definition.26 A community custody condition is not unconstitutionally vague if a
20 Hai Minh Nguyen, 191 Wn.2d at 686. 21 Conditions 5, 11, and 18. 22 u•5~ CONST. amend. XIV; WASH. CONST. art. I, § 3; State v. BahI, 164
Wn.2d 739, 752-53, 193 P.3d 678 (2008). 23 Bahl, 164 Wn.2d. at 752-53 (quoting City of Spokane v. Douglass, 115
Wn.2d 171, 178, 795 P.2d 693 (1990)). 24 BahI, 164 Wn.2d at 753. 25 BahI, 164 Wn.2d at 754 (citing Douglass, 115 Wn.2d at 180). 26 BahI, 164 Wn.2d at 754 (citing State v. Sullivan, 143 Wn.2d 162, 184-
85, 19 P.3d 1012 (2001)).
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person of ordinary intelligence can understand what behavior a condition forbids,
given the context in which its terms are used.27 A sufficiently clear condition can
survive a vagueness challenge “notwithstanding some possible areas of
disagreement.”28 It need not provide “complete certainty as to the exact point at
which [the convicted person’s] actions would be classified as prohibited
conduct.”29
Gray challenges that part of condition 18 that prohibits him from entering
“any parks/playgrounds/schools and or any places where minors congregate.”
The State concedes that the language “or any places” is unconstitutionally
vague. We accept this concession and remand for the trial court to modify this
condition.
Gray contends that condition 5, requiring him to “[i]nform the supervising
CCC and sexual deviancy treatment provider of any dating relationship” is
unconstitutionally vague. The Supreme Court in Hai Minh Nguyen concluded
that the term “dating relationship” provided sufficient information for a person of
ordinary intelligence to distinguish it from other types of relationships.3° So
Gray’s claim fails.
Gray challenges as unconstitutionally vague condition 11, restricting his
access to “sexually explicit materials,” “erotic materials,” “or any material
27BahI, 164 Wn.2d at 754. 28BahI, 164 Wn.2d at 754 (quoting Douglass, 115 Wn.2d at 179). 29 Hai Minh Nguyen, 191 Wn.2d at 681 (citing City of Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366 (1988)). 30 Hai Minh Nguyen, 191 Wn.2d at 682-83.
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depicting any person engaged in sexually explicit conduct as defined by ROW
9.68A.O1 1(4)” without prior approval.
The Supreme Court in Hai Minh Nguyen concluded that the term “sexually
explicit material” was not unconstitutionally vague.31 But it did not consider the
terms “sexually explicit conduct” or “erotic materials.”32
Gray contends the statutory definition “sexually explicit conduct” lacks
specificity.
ROW 9.68A.O11(4) defines “sexually explicit conduct” as “actual or
simulated”:
(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals; (b) Penetration of the vagina or rectum by any object; (c) Masturbation; (d) Sadomasochistic abuse; (e) Defecation or urination for the purpose of sexual stimulation of the viewer; (f) Depiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer. For the purposes of this subsection (4)(f), it is not necessary that the minor know that he or she is participating in the described conduct, or any aspect of it; and (g) Touching of a person’s clothed or unclothed genitals, pubic area, buttocks, or breast area for the purpose of sexual stimulation of the viewer. The language of the statute is specific enough that a person of ordinary
intelligence can understand the depictions of sexually explicit conduct that make
Hai Minh Nguyen, 191 Wn.2d at 681. 31 Hai Minh Nguyen, 191 Wn.2d at 681; see Soundgarden v. Eikenberry, 32
123 Wn.2d 750, 758-59, 871 P.2d 1050 (1994) (finding the term “erotic” under ROW 9.68.050 not unconstitutionally vague).
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materials prohibited without permission. Gray says, “It would be difficult to fairly
identify images that showed masturbation or sadomasochistic abuse.” But he
does not provide examples to support this contention. Without any supporting
context, this is an unreasonable statement. Grey also contends that “[w]ithout
knowing the purpose for which a depiction was created, it is impossible to know
whether the depiction shows sexually explicit conduct under the statutory
definition.” But only two subsections of the statute require a purpose for
depiction. Gray has not established that the condition is vague.
And in BahI, the court concluded that substituting the term ‘sexually
explicit” for “pornographic” to modify the word “material” changed an
unconstitutionally vague condition into a constitutionally sufficient one.33 In Hai
Minh Nguyen, the court determined that “sexually explicit material” used in the
same condition challenged here was not unconstitutionally vague.34 While these
cases do not consider “sexually explicit” when it modifies “conduct,” they show
that an adult of ordinary intelligence could understand the materials the term
prohibited Gray from possessing. We conclude that “sexually explicit conduct” as
used in this condition is not unconstitutionally vague.
Gray also challenges the term “erotic material” as lacking specificity.
The court in BahI analyzed the term “erotic” in a condition that did not
incorporate a statutory definition.35 It concluded that, in the context of a condition
~ BahI, 164 Wn. 2d at 760. ~ Hai Minh Nguyen, 191 Wn.2d at 680. ~ BahI, 164 Wn. 2d at 758-60.
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restricting him from frequenting particular establishments, the term “erotic”
was not unconstitutionally vague.36 Gray does not explain why the use of
“erotic” here is less specific. Indeed, unlike in BahI, here the condition defines
“erotic materials” by reference to RCW 9.68.050. And an available statutory
definition “bolsters the conclusion that [a term] is not. . . unconstitutionally
vague.”37
RCW 9.68.050(2) states,
“Erotic material” means printed material, photographs, pictures, motion pictures, sound recordings, and other material the dominant theme of which taken as a whole appeals to the prurient interest of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters or sado-masochistic abuse; and is utterly without redeeming social value. Gray contends the phrase “utterly without redeeming social value” means
that the “definition could never provide fair notice in advance to distinguish
between permitted and proscribed materials.” But a person of ordinary
intelligence can understand what is meant by materials “utterly without
redeeming social value” in this context because these materials also “appeal[ Ito
the prurient interest of minors in sex” and are “patently offensive because [they]
affront[ ] contemporary community standards relating to the description or representation of sexual matters or sado-masochistic abuse.”38
Condition 11 is not unconstitutionally vague.
36 BahI, 164 Wn. 2d at 762. ~ Hai Minh Nguyen, 191 Wn.2d at 680; see also BahI, 164 Wn.2d at 760. 38 RCW 9.68.050(2).
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CONCLUSION
We affirm in part, reverse in part, and remand. Substantial evidence
supports the trial court’s finding that Gray had failed to make reasonable,
satisfactory progress in treatment. So the trial court did not abuse its discretion
when it revoked his SSOSA.
We affirm the community custody conditions that prohibit Gray from
entering sex-related businesses and from possessing sexually explicit material.
We reverse the community custody condition that imposes a curfew. We remand
for modification consistent with this opinion the community custody conditions
that require he refrain from sexual contact in a relationship until he receives
approval, that he refrain from using alcohol, and that he refrain from entering any
places where minors congregate.
WE CONCUR:
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