State v. Hai Minh Nguyen

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IN CLillKt OFFICE
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DNTE SEP 1 3 2018

^..GMIBFJUSTIGE SUSAN L CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 94883-6
Respondent, (eonsol. w/95274-4)

HAI MINK NGUYEN,

Petitioner.

En Banc
STATE OF WASHINGTON

Respondent,

V.

DOMINIQUE DEBRA NORRIS,
SEP 1 3 2018
Petitioner. Filed
J

MADSEN,J.—These consolidated cases concern whether certain community

custody conditions imposed by sentencing courts were sufficiently crime related or

unconstitutionally vague. Each case involves a defendant who was convicted of sexually

assaulting a minor.
No. 94883-6 (consol. w/95274-4)

For Hai Minh Nguyen,the sentencing court imposed a condition prohibiting the

defendant from possessing or viewing "sexually explicit material." We hold that this

condition is not unconstitutionally vague and is crime related.

For Dominique Debra Norris, the sentencing court imposed conditions requiring

the defendant to inform the community corrections officer of any "dating relationship"

and prohibiting the defendant from entering any "sex-related business." We hold that the

condition requiring the defendant to disclose any "dating relationship" is not

unconstitutionally vague. We also hold that the condition prohibiting the defendant from

entering any "sex-related business" is crime related.

FACTS

State V. Hai Minh Nsuven

In 2015, Nguyen was convicted of first degree child molestation, first degree child

rape, second degree child molestation, and second degree child rape.

His victim, T.P., was bom in 1999 and lived in South Seattle with her parents and

younger sister. T.P.'s parents rented one of the bedrooms in their house to Nguyen. T.P.

spent a considerable amount oftime with Nguyen, as he would come home from work

around the same time that she came home from school. They grew quite close—T.P.

referred to Nguyen as "uncle," and Nguyen would let T.P. use his computer for her

leisure.

Nguyen began sexually assaulting T.P. when she was 6 years old. Nguyen put his

hand under T.P.'s shirt and began massaging her breasts. Around this time, Nguyen
No. 94883-6 (consol. w/95274-4)

began putting his mouth on T.P.'s breasts and also bit her chest. By the time T.P. was 8

or 9 years old, Nguyen's activity escalated. Nguyen began penetrating T.P.'s vagina with

his fingers on a near weekly basis and also began engaging in oral sex. By the time T.P.

was 11 years old, Nguyen had penetrated her vagina with his penis. The last time

Nguyen sexually assaulted her, T.P. was 13 years old, and Nguyen put his mouth on her

vagina.

Initially, T.P. did not tell her parents about the sexual assault because she felt

uncomfortable discussing it. T.P eventually wrote a note to her mother, disclosing that

Nguyen had touched her. 3 Verbatim Report of Proceedings (Oct. 22, 2015) at 173. T.P.

also told her therapist about Nguyen, and the police subsequently became involved.

The trial court sentenced Nguyen to a prison term of 279 months to life, with

lifetime community custody. The trial court also imposed several community custody

conditions, including special condition 11:

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.011(4) unless given prior approval by your
sexual devianey provider.

Clerk's Papers(CP)at 65.

On appeal, Nguyen argued, among other things, that special condition 11 is invalid
because it is unconstitutionally vague and not crime related. The Court of Appeals, in an

unpublished decision, affirmed the trial court, holding that "sexually explicit material" is

not unconstitutionally vague and that the condition was sufficiently related to Nguyen's
No. 94883-6 (consol. w/95274-4)

crimes. State v. Hai Minh Nguyen, No. 74358-9-1, slip op.(Wash. Ct. App. July 17,

2017)(unpublished), https://www.courts.wa.gov/opinions/pdf/743589.pdf.

Nguyen sought review ofthe Court of Appeals' decision.

State V. Norris

In 2012, Norris pleaded guilty to three counts of second degree child molestation.

Her victim, D.T., was the younger brother of her children's father and was 12

years old when Norris first sexually assaulted him. In 2009, Norris and D.T. willfully

began having sexual intercourse with each other while Norris and her children were

staying at D.T.'s home in Federal Way, Washington. Norris was 25 years old at the time.

Norris and D.T. had sexual intercourse several times throughout the relationship, both at

D.T.'s Federal Way home and Norris' home in Kent, Washington. Norris also sent text

messages to D.T., expressing her love for him, and sent photo messages of herself in a

bra and pants.

Eventually, D.T. told a basketball teammate about his relationship with Norris.

The teammate notified the basketball coach, who subsequently informed D.T.'s mother.

In 2010, Norris was arrested for rape of a child.

The court imposed a 72-month standard range sentence, which it suspended in

favor of imposing a special sex offender sentencing alternative(SSOSA)under ROW

9.94A.670(4). The court subsequently revoked Norris' SSOSA because she violated the

terms ofthe special sentence by ingesting marijuana and failing to consume prescribed
No. 94883-6 (consol. w/95274-4)

medication. As a result, the court imposed the previously suspended sentence of 72

months' confinement, including several community custody conditions.

Norris challenged six ofthe community custody conditions. State v. Norris,

1 Wn. App. 2d 87,404 P.3d 83(2017). The Court of Appeals, in a published decision,

held that four of the six conditions were invalid. Id. at 90. Notably, the court held that

the condition requiring Norris to inform the community corrections officer of any "dating
relationship" is valid, as it is not unconstitutionally vague. Id. The court also held that
the condition prohibiting Norris from entering any "sex-related business" is invalid

because it is not crime related. Id.

Norris sought review ofthe Court of Appeals decision affirming the "dating

relationship" condition. Additionally, in a cross petition for review, the State sought

review ofthe Court of Appeals decision reversing the "sex-related business" condition.
ANALYSIS

We review community custody conditions for an abuse of discretion and will

reverse them if they are manifestly unreasonable. State v. Bahl, 164 Wn.2d 739, 753, 193

P.3d 678(2008)(citing State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). A trial

court's imposition of an unconstitutional condition is manifestly unreasonable. Id.
Vagueness Challenges

The Fourteenth Amendment to the United States Constitution along with article 1,

section 3 ofthe Washington State Constitution require that citizens be afforded fair

warning of proscribed conduct. Id. at 752(citing City ofSpokane v. Douglass, 115
No. 94883-6(consol. w/95274-4)

Wn.2d 171, 178, 795 P.2d 693 (1990)). To that end, a community custody condition is

unconstitutionally vague if it

"(1) • . • docs not define the criminal offense with sufficient defmitcness
that ordinary people can understand what conduct is proscribed, or(2)...
docs not provide asccrtainablc standards of guilt to protect against arbitrary
enforcement."

Id.(alterations in original){c^olmg Douglass, 115 Wn.2d at 178 {cWing Kolender v.

Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983))). Importantly, the

disputed terms are considered in the context in which they are used, and "[i]f persons of

ordinary intelligence can understand what the [law] proscribes, notwithstanding some

possible areas of disagreement, the [law] is sufficiently definite." Douglass, 115 Wn.2d

at 179. A community custody condition "is not unconstitutionally vague merely because

a person cannot predict with complete certainty the exact point at which his actions

would be classified as prohibited conduct." City ofSeattle v. Eze, 111 Wn.2d 22, 27, 759

P.2d 366 (1988). However, a stricter standard of defmitcness applies where the

community custody condition prohibits material protected by the First Amendment.

Bahl, 164 Wn.2dat753.

"Sexuallv Explicit Material"—Nsuyen

Nguyen argues that the community custody condition prohibiting him from

possessing, using, accessing, or viewing any sexually explicit material is "intolerably

vague." Suppl. Br. ofPefr Hai Minh Nguyen at 12. Specifically, special condition 11

states:
No. 94883-6 (consol. w/95274-4)

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.011(4) unless given prior approval by your
sexual deviancy provider.

CP at 65.

Nguyen primarily relies on our decision in Bahl, where we held the term

"pornographic materials" was unconstitutionally vague. Suppl. Br. ofPefr Hal Minh

Nguyen at 11. Nguyen correctly asserts that "pornographic material""may 'include any

nude depiction, whether a picture from Playboy Magazine or a photograph of

Michelangelo's sculpture of David.'" Id. (quoting 5a/i/, 164 Wn.2d at 756). However,

this case does not concern the aseertainability of"pornographic material" but, rather, the

ascertainability of"sexually explicit material." In Bahl, we drew a distinction between

the two.

Unlike "pornographic material," we held that the term "sexually explicit material"

was not unconstitutionally vague. Bahl, 164 Wn.2d at 760. Specifically, we held

"[w]hen all ofthe challenged terms, with their dictionary definitions, are considered

together, we believe the condition is sufficiently clear." Id. at 759. In Bahl, the condition

prohibited Bahl from frequenting '"establishments whose primary business pertains to

sexually explicit. .. material.'" /J. at 758. We found that a person of ordinary

intelligence, considering the dictionary definition of establishments whose primary

business pertains to "sexually explicit material," would understand those establishments

to include "adult bookstores, adult dance clubs, and the like." Id. at 759.
No. 94883-6 (consol. w/95274-4)

We also noted that "sexually explicit material" is defined in RCW 9.68.130(2).

And while we did not determine whether a statutory definition is sufficient to give the

requisite notice of proscribed conduct, we did recognize that it bolsters the conclusion

that "sexually explicit material" is not an unconstitutionally vague term. RCW

9.68.130(2) states:

"Sexually explicit material". . . means any pictorial material displaying
direct physical stimulation of unclothed genitals, masturbation, sodomy (i.e.
bestiality or oral or anal intercourse), flagellation or torture in the context of
a sexual relationship, or emphasizing the depiction of adult human genitals:
PROVIDED HOWEVER,That works of art or of anthropological
significance shall not be deemed to be within the foregoing definition.

Despite Nguyen's concerns that "[c]ountless works of art, literature, film, and

music explicitly describe, depict, and relate sex and sexuality," persons of ordinary

intelligence can discern "sexually explicit material" from works of art and

anthropological significance. Suppl. Br. ofPefr Hai Minh Nguyen at 11.

We hold that the term "sexually explicit material" is not unconstitutionally vague.

"Dating Relationship"—Norris

Norris challenges the community custody condition that requires her to inform the

community corrections officer of any "dating relationship." Norris argues that the term

"dating relationship" is unconstitutionally vague because a reasonable person cannot

understand what qualifies as "dating relationship" in a nonarbitrary manner. Norris

attempts to bolster this point by offering a series of hypothetical scenarios:

Suppose Norris has dinner with a man in a restaurant. Is that a date?
Would that constitute a "dating relationship"? What if it was a one-time
occasion? Is that enough to form a "relationship" with someone? Does
No. 94883-6 (consol. w/95274-4)

meeting someone twice for a social activity turn an ordinary relationship
into a dating relationship? Three times? Suppose Norris strikes up a
relationship with a man online, and then they go out to a movie. Is that a
dating relationship? What if Norris and another person enjoy social
activities together, but(perhaps contrary to outward appearances)they
consider themselves "just friends." Does that qualify as a dating
relationship?

Am. Suppl. Br. ofPet'r (Norris) at 5-6. Norris correctly acknowledges that some level of

ambiguity will always remain in community custody conditions. However,"impossible

standards of specificity are not required." Eze, 111 Wn.2d at 26. And a convicted person

is not entitled to complete certainty as to the exact point at which his actions would be

classified as prohibited conduct. Id. at 27. Instead, all that is required is that the

proscribed conduct is sufficiently definite in the eyes of an ordinary person. Douglass,

115 Wn.2datl79.

As we did in Bahl, here, we "may consider the plain and ordinary meaning as set

forth in a standard dictionary." 164 Wn.2d at 754 (citing State v. Sullivan, 143 Wn.2d

162, 184-85, 19 P.Sd 1012(2001)). A "date" is defined as "an appointment between two

persons" for "the mutual enjoyment ofsome form of social activity," "an occasion (as an
evening) of social activity arranged in advance between two persons." WEBSTER'S

Third New International Dictionary 576 (2002). A "relationship" is defined as "a

state of affairs existing between those having relations." Id. at 1916. Additionally,

"dating relationship" is defined in RCW 26.50.010(2),^ which states:
"Dating relationship" means a social relationship of a romantic nature.
Factors that the court may consider in making this detenuination include:

^ RCW 10.99.020(4) states that '"[djating relationship' has the same meaning as in RCW
26.50.010."
No. 94883-6 (consol. w/95274-4)

(a)The length of time the relationship has existed;(b)the nature ofthe
relationship; and (c)the frequency of interaction between the parties.

Indeed, a person of ordinary intelligence can distinguish a "dating relationship" from

other types of relationships. Despite Norris' contentions, a reasonable person, in

considering the factors, would not conclude that individuals who are "just friends" or

engage in a single social activity with one another are in a "dating relationship."

Norris also argues that the term "dating relationship" is unconstitutionally vague

in light ofthe federal decision United States v. Reeves, 591 F.3d 77(2d Cir. 2010).

There, the court held that the term "significant romantic relationship" was

unconstitutionally vague. Id. at 79. In coming to its conclusion, the court explained:

What makes a relationship "romantic," let alone "significant" in its
romantic depth, can be the subject of endless debate that varies across
generations, regions, and genders. For some, it would involve the exchange
of gifts such as flowers or chocolates; for others, it would depend on acts of
physical intimacy; and for still others, all ofthese elements could be present
yet the relationship, without a promise of exclusivity, would not be
"significant."

Id. at 81. Norris' argument is unpersuasive, as the keys facts in Reeves are

distinguishable from this case. The terms "significant" and "romantic" are highly

subjective qualifiers, while "dating" is an objective standard that is easily understood by

persons of ordinary intelligence.

We hold that "dating relationship" is not an unconstitutionally vague term.

Crime-Related Challenges

As a condition of community custody, a sentencing court may,in its discretion,

impose "any crime-related prohibitions." RCW 9.94A.703(3)(f). A'"[cjrime-related

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No. 94883-6(consol. w/95274-4)

prohibition' means an order of a eourt prohibiting conduct that directly relates to the

circumstances of the crime for which the offender has been convicted." RCW

9.94A.030(10).

"Sexually Explicit Material"—Hai Minh Nsuyen

Nguyen first argues that the State failed to show that the community custody

condition prohibiting Nguyen from possessing or viewing "sexually explicit materials"

directly relates to the circumstances of his crime. Suppl. Br. ofPet'r Hai Minh Nguyen at

5. Relying on dictionary definitions, Nguyen explains:

[RCW 9.94A.030(10)] does not permit a prohibition based upon a mere
circumstance ofthe crime but only one that "directly relates" to such a
circumstance. To "relate" means "to show or establish a logical or causal
connection between." WEBSTER'S [at] 1916. "Directly" means "in close
relational proximity." Id. at 641. Thus, the prohibition must pertain to a
close, logically connected part of the crime.

Id. While it is true the prohibited conduct must directly relate to the circumstances ofthe

crime,"[tjhis court reviews sentencing conditions for abuse of discretion. State v. Riley,

121 Wn.2d 22, 37, 846 P.2d 1365 (1993). Such conditions are usually upheld if

reasonably crime related. Id. at 36-37." State v. Warren, 165 Wn.2d 17, 32, 195 P.3d

940(2008). A court does not abuse its discretion if a "reasonable relationship" between

the crime of conviction and the community custody condition exists. State v. Irwin, 191

Wn. App. 644,658-59, 364 P.3d 830(2015). The prohibited conduct need not be

identical to the crime of conviction, but there must be "some basis for the connection."

Id. at 657.

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No. 94883-6(consol. w/95274-4)

In Warren, the defendant sexually abused his two stepdaughters. 165 Wn.2d at

23. As a condition of his sentence, the defendant was prohibited from having contact

with his wife, the mother of his victims. Id. at 31. While the defendant's wife was not

the victim of his crimes, this court affirmed the no-contact order because it was

"reasonably related" to the crime. Id. at 34. Specifically, the court explained that the

defendant's wife "is the mother of the two child victims of sexual abuse for which [the

defendant] was convicted;[the defendant] attempted to induce her not to cooperate in the

prosecution ofthe crime; and [the defendant's wife] testified against [the defendant]

resulting in his conviction of the crime." Id.

Similarly, m' . State v. Kinzle, 181 Wn. App. 774, 777-78, 326 P.3d 870(2014), the

defendant sexually assaulted his girlfriend's daughters. The sentencing court imposed a

community custody condition prohibiting the defendant from "dat[ing] women [or]

form[ing] relationships with families who have minor children." Id. at 785. In affirming

the prohibition, the Court of Appeals held that it was "reasonably crime-related"

"[b]ecause [the defendant's] crime involved children with whom he came into contact

through a social relationship with their parents." Id.

As with Warren and Kinzle, Nguyen's access to "sexually explicit material" is

certainly "reasonably related" to his crime of child rape and molestation. The respective

sentencing judges in Warren and Kinzle used their discretion to impose prohibitions that

address the cause ofthe present crime or some factor ofthe crime that might cause the

convicted person to reoffend. For example, in Warren, the no-contact order aimed to

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No. 94883-6 (consol. w/95274-4)

protect the defendant's wife, despite the fact that she was not the victim. And,in Kinzle,

the prohibition against forming relationships with women who have minor children

aimed to prevent the defendant from reoffending. Similarly, here, by imposing a

prohibition on sexually explicit material, the sentencing court appeared to believe that

such materials may trigger the defendant to reoffend or, perhaps, eommit another sex

crime. The State correctly argues that

sexually explicit and erotic materials exist almost entirely for the purposes
of sexual stimulation and ideation. It was reasonable for the trial eourt to
decide that under the circumstances of Nguyen's child rape and
molestation, it was appropriate to prohibit Nguyen from accessing materials
designed to stimulate the dangerous sexual urges that Nguyen eould not
eontrol, resulting in unspeakable harm to a child.

Suppl. Br. of Resp't(Nguyen) at 16. Nguyen argues that sueh a reading may permit a

prohibition of"sexually explicit material" in all sex crimes. That is no different from

requiring all drunk drivers to refrain from using alcohol or all persons convicted of drug

offenses not to use drugs.^ Nguyen also argues that there is no direet relationship

between possessing or viewing sexually explicit materials and his crime. But, the State

need not establish that access to "sexually explicit materials" directly caused the crime of

eonviction or will neeessarily prevent the convict from reoffending. Rather, on review,

we must decide if the trial court abused its diseretion in prohibiting eertain eonduct. So

2 Division Three of the Court of Appeals took a similar position in State v. Magana, 197 Wn.
App. 189, 389 P.3d 654(2016). There the defendant was found guilty ofthird degree rape, and
the sentencing court imposed a number of eommunity custody conditions, including prohibitions
against "sexually explicit material" and "sex-related businesses." Id. at 193-94, 201. The Court
of Appeals affirmed the prohibition, holding that the defendant"was convicted of a sex offense,
[thus] conditions regai'ding access to X-rated movies, adult book stores, and sexually explicit
materials were all crime related and properly imposed." Id. at 201.
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No. 94883-6 (consol. w/95274-4)

long as it is reasonable to eonclude that there is a sufficient connection between the

prohibition and the crime of conviction, we will not disturb the sentencing court's

community custody conditions.

Here, we find no abuse of discretion. Nguyen committed sex crimes and, in doing

so, established his inability to control his sexual urges. It is both logical and reasonable

to conclude that a convicted person who cannot suppress sexual urges should be

prohibited from accessing "sexually explicit materials," the only purpose of which is to

invoke sexual stimulation.

Furthermore, because Nguyen's crimes of conviction were sex crimes, it is likely

that a sexual deviancy program would order such conditions, even if a judge did not.

We hold that the community custody condition prohibiting Nguyen from

possessing or viewing "sexually explicit material" is sufficiently crime related.

"Sex-Related Business"—Norris

In Norris, the Court of Appeals held that a community custody condition

prohibiting the defendant from entering "sex-related businesses" was not crime related,

but that a community custody condition prohibiting access to "sexually explicit

materials" was crime related. 1 Wn. App. 2d at 98-99.

The State argues that the court's holding is contradictory because "the purpose of

prohibiting sex offenders from entering sex-related businesses is not to keep them away

from the business of sex or the buildings in which it is housed—it is to keep them away

from sexually explicit material." Suppl. Br. of Resp't(Norris) at 14. The issue of

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No. 94883-6 (consol. w/95274-4)

viewing or possessing "sexually explicit materials," as it relates to Norris, is not before

this court, nor is either party raising it. Thus, we address only whether prohibiting Norris

from entering "sex-related businesses" is crime related.

Here, the State contends that there is a sufficient relationship between Norris'

crimes and "entering businesses that peddle in sexual performance and sexually explicit

materials." Id. at 13. Specifically, the State points to the fact that Norris' crimes

included instances of"text-messaging sexually suggestive photos of herself to [the

victim]." Id.

Norris asserts that "[tjhere is no evidence that sex-related businesses, including

businesses 'where the primary source of business is related to sexually explicit material'

played any role in the crimes in this ease." Am. Suppl. Br. ofPet'r (Norris) at 15.

Indeed, nothing in the record suggests that Norris met her victim in a "sex-related

business" or that her presence in such a business played a role in her crimes.

However, like Nguyen's condition discussed above, this condition has more to do

with Norris' inability to control her urges and impulsivities than it does with the specific

facts of her crimes. Norris' case is like Kinzle, in that it was clear that the prohibition

was imposed to prohibit conduct that might cause the convict to reoffend. Here, it is

unlikely that Norris will meet a minor, and potential victim, in a "sex-related business."

But, it is reasonable to conclude that Norris will struggle to rehabilitate from her sexual

deviance so long as she frequents "sex-related businesses." Norris' crimes have as much

to do with her inability to control her sexual urges as they do with her access to minors.

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No. 94883-6 (consol. w/95274-4)

We hold that the community custody condition prohibiting Norris from

entering "sex-related businesses" is sufficiently crime related and that the trial

court did not abuse its discretion in imposing this restriction.

CONCLUSION

We affirm the Court of Appeals and hold that(1)the community custody

condition prohibiting Nguyen from possessing or viewing "sexually explicit material" is

not unconstitutionally vague,(2)the community custody condition requiring Norris to

inform the community corrections officer of any "dating relationship" is not

unconstitutionally vague, and(3)the community custody condition prohibiting Nguyen

from possessing or viewing "sexually explicit material" is crime related. Additionally,

we reverse the Court of Appeals and hold the community custody condition prohibiting

Norris from entering any "sex-related business" is crime related.

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No. 94883-6(consol. w/95274-4)

WE CONCUR:

'hdAA llUJy1ii4 c C-d

I

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