IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE c.nc
rn
STATE OF WASHINGTON, ) No. 77423-9-1 ca-n
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Respondent, ) vt
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v. ) UNPUBLISHED OPINION mer)
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I.
CRAWFORD, CHARLES GENE, )
DOB: 08/09/1948, )
)
Appellant. ) FILED: April 29, 2019
SCHINDLER, J. — Health care provider Charles Gene Crawford appeals the jury
conviction of indecent liberties of A.B. in violation of RCW 9A.44.100(1)(d). RCW
9A.44.100(1)(d) states that a health care provider is guilty of indecent liberties when he
knowingly causes a client or patient to have sexual contact with him and "the sexual
contact occurs during a treatment session, consultation, interview, or examination." The
to-convict jury instruction incorporated the language of the statute that describes when
sexual contact by a health care provider could occur. Crawford does not contend that
sexual contact during a "treatment session, consultation, interview, or examination" are
alternative means of committing the crime of indecent liberties by a health care provider
or that the evidence supports finding sexual contact occurred during a "treatment
session." Crawford asserts that under the law of the case doctrine, the State assumed
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the burden of also proving sexual contact also occurred during a "consultation,
interview, or examination." In State v. Tyler, 191 Wn.2d 205, 422 P.3d 436 (2018), the
Washington Supreme Court recently considered and rejected the same argument. The
court held a to-convict jury instruction that sets forth a statutory multifaceted description
of the ways to commit a crime does not alter the nature of the crime charged and the
State does not have the burden to prove each distinct term. Crawford also contends the
judgment for indecent liberties of A.B. and the judgment for gross misdemeanor assault
in the fourth degree of T.F. contain several errors. The State concedes error. We affirm
the jury conviction of indecent liberties' and remand for resentencing.
Indecent Liberties Charges
Charles Gene Crawford worked as a licensed massage practitioner for the
Wellbeing Center for Health. During a treatment session on February 15, 2016 with
A.B., after massaging one leg, Crawford touched her vagina for 30 to 60 seconds. After
massaging the other leg, he again touched her vagina for 30 to 60 seconds.
During a treatment session on September 6, 2016 with T.F., while massaging her
leg, Crawford touched her vagina with his fingers two or three times. Later, Crawford
also massaged her breasts.
The State charge Crawford with two counts of indecent liberties in violation of
RCW 9A.44.100(1)(d). RCW 9A.44.100(1)(d) states:
A person is guilty of indecent liberties when he or she knowingly causes
another person to have sexual contact with him or her or another. . .
[w]hen the perpetrator is a health care provider, the victim is a client or
patient, and the sexual contact occurs during a treatment session,
consultation, interview, or examination. It is an affirmative defense that
the defendant must prove by a preponderance of the evidence that the
1 On appeal, Crawford does not challenge the jury conviction for assault in the fourth degree.
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client or patient consented to the sexual contact with the knowledge that
the sexual contact was not for the purpose of treatment.
Indecent Liberties and Assault in the Fourth Degree Convictions
Crawford testified at trial. Crawford testified that he has poor vision and often
closes his eyes during a massage. During his testimony, Crawford admitted he may
have touched A.B.'s vagina but denied the contact was deliberate. Crawford admitted
he "accidentally" touched T.F.'s nipple but denied touching her vagina.
The to-convict jury instruction states, in pertinent part:
To convict the defendant of the crime of indecent liberties as
charged in Count 1, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about February 15, 2016 the defendant knowingly
caused [A.B.] to have sexual contact with the defendant;
(2) That this sexual contact occurred when the defendant was a
health care provider and [A.B.] was a client or patient, and the
sexual contact occurred during a treatment session, consultation,
interview, or examination.[2]
The court also instructed the jury on the lesser included crime of assault in the
fourth degree:
To convict the defendant of the lesser crime of assault in the fourth
degree for Count 1, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about the 15th day of February, 2016, the defendant
assaulted [A.B.], and
(2) That this act occurred in Snohomish County.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
2(Emphasis added.) The to-convict jury instruction for indecent liberties of T.F. as charged in
count 2 is identical to the to-convict jury instruction for count 1 except that the date of crime occurred "on
or about September 6, 2016."
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On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.[31
The jury convicted Crawford of indecent liberties of A.B. and the lesser included
offense of assault in the fourth degree of T.F. The court entered a judgment and
sentence on the two convictions. The court also entered a sexual assault protection
order related to A.B. and a harassment no-contact order related to T.F.
Appeal of Indecent Liberties Conviction
Crawford seeks reversal of the indecent liberties of A.B. conviction. Crawford
contends that under the law of the case doctrine, sufficient evidence does not support
the jury finding he committed indecent liberties by knowingly having sexual contact with
A.B. during a "consultation, interview, or examination." RCW 9A.44.100(1)(d).
Crawford does not contend that indecent liberties is an alternative means crime or that
insufficient evidence supports the jury finding he knowingly had sexual contact with A.B.
during a "treatment session." RCW 9A.44.100(1)(d).
In State v. Tyler, 191 Wn.2d 205, 422 P.3d 436 (2018), the Washington Supreme
Court considered and rejected the same argument. Here, as in Tyler, the multifaceted
and disjunctive statutory description of when a health care provider is guilty of
committing indecent liberties is properly regarded as definitional. Tyler, 191 Wn.2d at
212. Similarly, here, sexual contact "during a treatment session, consultation, interview,
or examination" is a description of the ways in which a health care provider can commit
the crime of indecent liberties by engaging in sexual activity with a patient or client.
3 The to-convict jury instruction for assault in the fourth degree of T.F. as charged in count 2 is
identical to the to-convict jury instruction for count 1 except that the date of crime occurred "on or about
the 6th day of September, 2016."
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RCW 9A.44.100(1)(d). As in Tyler, this description merely enhances our understanding
of RCW 9A.44.100(1)(d) as a single means crime. The inclusion of the statutory
definitional language in the to-convict instruction does not change "the nature of the
single means crime" of indecent liberties in violation of RCW 9A.44.100(1)(d). Tyler,
191 Wn.2d at 215. Further, a list of disjunctive terms in the to-convict jury instruction
that do not constitute alternative means does not"'transform[ ]those terms into
alternative means.'" Tyler, 191 Wn.2d at 214 (quoting State v. Makekau, 194 Wn. App.
407, 420, 378 P.3d 577 (2016)).
We affirm the felony conviction for indecent liberties of A.B. in violation of RCW
9A.44.100(1)(d).
Sentencing Errors
Crawford contends the indecent liberties judgment and the assault in the fourth
degree judgment contain numerous sentencing errors.
Crawford argues the court erred by imposing probation for the gross
misdemeanor assault in the fourth degree conviction because the court imposed the
maximum term of confinement. See RCW 9.95.210(1)(a)("Conditions of probation.");
State v. Gailus, 136 Wn. App. 191, 201, 147 P.3d 1300(2006)(RCW 9.95.210(1) does
not authorize probation when the maximum jail sentence is imposed).
Crawford contends the no-contact order related to T.F. exceeds the length of the
sentence. State v. Granath, 190 Wn.2d 548, 555, 41.5 P.3d 1179 (2018)(no-contact
order imposed pursuant to RCW 10.99.050 cannot exceed the length of the sentence
actually imposed).
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Crawford contends the court erred by imposing a 24-month minimum term of
actual confinement in the judgment for indecent liberties in violation of RCW
9A.44.100(1)(d). RCW 9.94A.507(RCW 9.94A.507 allows indeterminate sentencing of
sex offenders for conviction of indecent liberties by forcible compulsion in violation of
RCW 9A.44.100(1)(a)).
Crawford challenges a number of community custody conditions imposed in the
judgment for the indecent liberties conviction. Crawford asserts the condition that
states,"Based on eligibility, enter and successfully complete identified interventions to
assist you to improve your skills, relationship, and ability to stay crime free," is
unconstitutionally vague. State v. Irwin, 191 Wn. App. 644, 652, 655, 364 P.3d 830
(2015)(condition that prohibits a defendant from frequenting areas "'where minor
children are known to congregate, as defined by the supervising'"community
corrections officer, is unconstitutionally vague).
Crawford asserts the condition to "[p]articipate in substance abuse treatment as
directed by the supervising Community Corrections Officer" is not "crime-related." RCW
9.94A.703(3)(c)(a court may order an offender to "[p]articipate in crime-related
treatment or counseling services").
Crawford contends the September 5, 2027 expiration date in the sexual assault
protection order related to A.B. is inconsistent with RCW 7.90.150(6)(c)("A final sexual
assault protection order entered in conjunction with a criminal prosecution shall remain
in effect for a period of two years following the expiration of any sentence of
imprisonment and subsequent period of community supervision, conditional release,
probation, or parole.").
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The State concedes each error. We accept each concession as well taken and
remand.
Statement of Additional Grounds
Crawford raises a number of issues in his statement of additional grounds.
Crawford cannot establish his attorney provided ineffective assistance of counsel by not
introducing character evidence, not questioning A.B. about whether she provided a "firm
barrier" over her genitals during the massage, and not emphasizing the "firm barrier"
defense during closing argument. Counsel's performance is not deficient where it can
be "'characterized as legitimate trial strategy or tactics.'" State v. Grier, 171 Wn.2d 17,
33, 246 P.3d 1260(2011)(quoting State v. KvIlo, 166 Wn.2d 856, 863, 215 P.3d 177
(2009)); Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). The decision whether to pursue a specific defense and whether to
introduce character evidence falls squarely within legitimate trial strategy. See In re
Pers. Restraint of Stenson, 142 Wn.2d 710, 733-34, 16 P.3d 1 (2001).
We affirm the jury conviction of indecent liberties and remand for resentencing.
WE CONCUR:
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