Filed
Washington State
Court of Appeals
Division Two
April 21, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50522-3-II
Respondent,
v. UNPUBLISHED OPINION
ON REMAND
KYLE T.W. BELL,
Appellant.
MAXA, J. – In a previous opinion, we remanded for the trial court to strike community
custody condition 8, which prohibited Bell from frequenting “places where children congregate”
because that condition was unconstitutionally vague. State v. Bell, No. 50522-3-II, slip op. at 16
(Wash. Ct. App. Mar. 27, 2019) (unpublished) (Lee, J., dissenting in part),
http://www.courts.wa.gov/opinions/pdf/D2%2050522-3-II%20Unpublished%20Opinion.pdf.
The State petitioned for review to the Supreme Court, which granted review and remanded to
this court for reconsideration in light of State v. Wallmuller, 194 Wn.2d 234, 449 P.3d 619
(2019). We now hold that community custody condition 8 is not unconstitutionally vague and
affirm the trial court’s imposition of that condition.
At sentencing, the trial court imposed the following community custody condition:
The defendant shall not loiter in nor frequent places where children congregate
such as parks, video arcades, and day care facilities or other such places as may
be designated by the CCO and/or the state certified sexual deviancy treatment
provider.
Bell, 50522-3-II, slip op. at 2. Bell argues that this condition is unconstitutionally vague.
No. 50522-3-II
In Wallmuller, the Supreme Court addressed the constitutionality of a similar community
custody condition that provided: “The defendant shall not loiter in nor frequent places where
children congregate such as parks, video arcades, campgrounds, and shopping malls.” 194
Wn.2d at 237. The court noted that the Court of Appeals in State v. Irwin, 191 Wn. App. 644,
649, 655, 364 P.3d 830 (2015) “properly recognized that the phrase ‘where children . . .
congregate’ is vague standing on its own.” Wallmuller, 194 Wn.2d at 243. But the court
concluded that the phrase “modified by a nonexclusive list of places illustrating its scope” was
sufficiently specific. Id. Therefore, the court upheld the condition. Id. at 245.
The condition at issue here includes a nonexclusive list of places that Bell must avoid that
is very similar to the list in Wallmuller. Therefore, we affirm the trial court’s imposition of
community custody condition 8. In all other respects, the March 27, 2019 unpublished opinion’s
decision stands.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
LEE, C.J.
CRUSER, J.
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