* State Of Washington, Respondent V. Sidney S. Hicklin, Appellant

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56077-1-II
Respondent,
v.
SIDNEY S. HICKLIN, PART-PUBLISHED OPINION
Appellant.
LEE, P.J. — Sidney S. Hicklin appeals his convictions for second degree rape—forcible
compulsion, second degree assault—strangulation, felony harassment—threats to kill, and
unlawful imprisonment. Hicklin argues that the trial court violated his public trial right by closing
the courtroom during a rape shield hearing. In the published portion of this opinion, we address
Hicklin’s public trial right argument and hold that, because a rape shield hearing does not implicate
the public trial right, the trial court did not violate the public trial right.
In the unpublished portion of this opinion, we address Hicklin’s argument that his
convictions for second degree assault—strangulation, felony harassment—threats to kill, and
unlawful imprisonment violate double jeopardy. Hicklin’s convictions for second degree assault
and felony harassment do not violate double jeopardy. However, the State concedes that Hicklin’s
conviction for unlawful imprisonment violates double jeopardy. We accept the State’s concession
and remand to the trial court to vacate Hicklin’s conviction for unlawful imprisonment.
Filed
Washington State
Court of Appeals
Division Two
April 25, 2023
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
2
Also in the unpublished portion of this opinion, we address Hicklin’s arguments that the
trial court imposed an unconstitutionally vague community custody condition and improperly
required him to pay community custody supervision fees. The State concedes that the challenged
community custody condition and community custody supervision fees should be stricken. We
accept the State’s concession.
Accordingly, we affirm Hicklin’s convictions for second degree rape—forcible
compulsion, second degree assault—strangulation, and felony harassment—threats to kill, but we
remand for the trial court to vacate Hicklin’s conviction for unlawful imprisonment and to strike
the challenged community custody condition and community custody supervision fees.
FACTS
A. BACKGROUND FACTS
On the evening of July 4, 2020, Officer Geraldine Smith of the City of Port Angeles Police
Department was dispatched to an address on East 9th Street. When she arrived, Officer Smith
contacted K.H.1 K.H. was crying and visibly upset.
K.H. told Officer Smith that she went to Hicklin’s apartment because he was a friend and
needed some support. K.H. left to get some beverages for them at the store and, when she returned,
Hicklin got angry and upset. K.H. told Officer Smith that Hicklin grabbed her by the throat and
applied pressure to her neck multiple times. K.H. said she was afraid that Hicklin was going to
kill her. K.H. also said that Hicklin raped her.
1 We refer to the victim of a sexual assault by initials to protect their privacy.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
3
Officer Smith brought K.H. to the police station for a formal interview. Officer Smith also
took photographs documenting redness on K.H.’s neck and bruising on her thigh. Officer Smith
then took K.H. to the hospital for a sexual assault exam by a sexual assault nurse examiner (SANE
exam).
The State charged Hicklin with second degree rape—forcible compulsion, second degree
assault—strangulation, felony harassment—threats to kill, and unlawful imprisonment.
B. RAPE SHIELD HEARING
Prior to trial, Hicklin filed a motion in limine seeking to admit evidence of K.H.’s prior
sexual history with him. Hicklin provided a written offer of proof to support his motion in limine.
The offer of proof asserted that Hicklin would testify that Hicklin became friends with K.H. while
attending self-help meetings. Shortly after meeting, Hicklin and K.H. began having sex. On the
night of the incident, Hicklin invited K.H. to his mother’s house. Hicklin and K.H. had been naked
in the hot tub at Hicklin’s mother’s house once before. When K.H. arrived at Hicklin’s mother’s
house, they were both drinking and began kissing on the couch. When Hicklin wanted more
alcohol, K.H. agreed to go get it. Hicklin stated that K.H. took his bank card to pay for beer, but
K.H. never returned to the house.
At the hearing on Hicklin’s motion in limine, the State noted that, under the rape shield
statute, RCW 9A.44.020, a hearing on the victim’s prior sexual conduct was required to be closed.
The trial court closed the courtroom.
During the closed hearing, the trial court inquired about whether Hicklin needed to testify
as part of the hearing. Initially, Hicklin’s attorney stated they had filed an offer of proof but then
agreed to have Hicklin testify.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
4
During examination by defense counsel, Hicklin testified that he met K.H. about three
years ago at self-help meetings in the recovery community. They started having sex after their
second meeting. K.H. had previously been naked with Hicklin in the hot tub at his mother’s house
and previously had sex with Hicklin.
Hicklin also testified that, on the night of the incident, he invited K.H. over to “get naked
in the hot tub.” 1 Verbatim Rep. of Proc. (VRP) (Feb. 11, 2021) at 41. When K.H. arrived, she
had a half gallon bottle of vodka that was half empty. K.H. drank from the bottle while she was
with Hicklin. Hicklin and K.H. started kissing “and hands kinda all over the place,” but they did
not have sex. 1 VRP (Feb. 11, 2021) at 42. After about 15 minutes, Hicklin asked K.H. to go
down the block to buy more alcohol because he was out of alcohol. K.H. took his bank card to
buy the alcohol and left. K.H. never came back.
The trial court asked if the State had any questions. The State declined any cross-
examination because it was an offer of proof.
The State argued that evidence of a past sexual relationship was not admissible because
Hicklin was not alleging consent and was instead claiming that no sex occurred. The trial court
agreed that the defense was not consensual sex with K.H and allowed the defense to submit a brief
on the issue.2 After the trial court heard argument on the admissibility of evidence of K.H.’s past
sexual conduct with Hicklin, the trial court reopened the courtroom.
Hicklin appeals.
2 There is no record that the defense submitted additional briefing or that the matter was further
addressed by the trial court.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
5
ANALYSIS
Hicklin argues that the trial court violated his public trial right by holding the rape shield
hearing in a closed courtroom. We disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a defendant’s right to a public trial.3 State v. Whitlock, 188
Wn.2d 511, 519-20, 396 P.3d 310 (2017). We review whether a defendant’s public trial right was
violated de novo. Id. at 520.
“A public trial is a core safeguard in our system of justice.” State v. Wise, 176 Wn.2d 1,
5-6, 288 P.3d 1113 (2012). “We have recognized that the right to a public trial serves to ensure a
fair trial, to remind the prosecutor and judge of their responsibility to the accused and the
importance of their functions, to encourage witnesses to come forward, and to discourage perjury.”
State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012) (lead opinion); id. at 99 (Madsen, C.J.,
concurring). However, the right to a public trial is not absolute. Wise, 176 Wn.2d at 9. “Courts
have recognized that while openness is a hallmark of our judicial process, there are other rights
and considerations that must sometimes be served by limiting public access to a trial.” Id.
We engage in a three-part inquiry to determine whether the right to a public trial has been
violated, asking: “‘(1) Does the proceeding at issue implicate the public trial right? (2) If so, was
the proceeding closed? And (3) if so, was the closure justified?’” Whitlock, 188 Wn.2d at 520
(quoting State v. Smith, 181 Wn.2d 508, 521, 334 P.3d 1049 (2014)).
3 Hicklin acknowledges that the rape shield statute requires a closed courtroom and argues that
the rape shield statute “cannot trump the constitutional right to a public trial.” Br. of Appellant at
19. Hicklin does not argue that the rape shield statute is unconstitutional.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
6
Washington courts use the experience and logic test to determine whether a proceeding
implicates the public trial right. Smith, 181 Wn.2d at 514. “Under the experience prong, we
consider whether the proceeding at issue has historically been open to the public.” Whitlock, 188
Wn.2d at 521. The logic prong asks “‘whether public access plays a significant positive role in
the functioning of the particular process in question.’” Id. (internal quotation marks omitted)
(quoting In re Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d 774 (2014)). “If the answer to both
prongs of the experience and logic test is yes, the public trial right ‘attaches’ and the trial court
must consider the Bone-Club[4] factors on the record before closing the proceeding to the public.”
State v. Wilson, 174 Wn. App. 328, 341, 298 P.3d 148 (2013), review denied, 184 Wn.2d 1026
(2016). The experience and logic test allows the determining court to “‘consider the actual
proceeding at issue for what it is, without having to force every situation into predefined factors.’”
State v. S.J.C., 183 Wn.2d 408, 431, 352 P.3d 749 (2015) (quoting Sublett, 176 Wn.2d at 73).
Washington courts have not addressed whether the public trial right is implicated in
proceedings under the rape shield statute. However, Hicklin asserts that we need not apply the
experience prong because courts have already held that the public trial right is implicated by
pretrial evidentiary hearings.
Although a hearing to admit evidence under the rape shield statute falls into the broad
category of pretrial evidentiary hearings, a rape shield hearing is a very specialized type of hearing,
governed by statute, and implicates a different set of rights and considerations than other, more
generic, pretrial evidentiary hearings. See RCW 9A.44.020; Wise, 176 Wn.2d at 9. Forgoing the
4 State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
7
experience and logic test to address a hearing under the rape shield statute would be forcing a
specific proceeding into predefined factors rather than examining the actual proceedings, which
undermines the reason for utilizing the experience and logic test. See S.J.C., 183 Wn.2d at 431.
Accordingly, we apply the experience and logic test to determine whether a hearing to admit
evidence under the rape shield statute implicates the public trial right.
The rape shield statute provides:
Evidence of the victim’s past sexual behavior including but not limited to the
victim’s marital history, divorce history, or general reputation for promiscuity,
nonchastity, or sexual mores contrary to community standards is inadmissible on
the issue of credibility and is inadmissible to prove the victim’s consent except as
provided in subsection (3) of this section, but when the perpetrator and the victim
have engaged in sexual intercourse with each other in the past, and when the past
behavior is material to the issue of consent, evidence concerning the past behavior
between the perpetrator and the victim may be admissible on the issue of consent
to the offense.
RCW 9A.44.020(2). If the court determines that a hearing on the admissibility of evidence under
the rape shield statute is warranted, “the hearing shall be closed except to the necessary witnesses,
the defendant, counsel, and those who have a direct interest in the case or in the work of the court.”
RCW 9A.44.020(3)(c).
Historically, rape shield hearings have never been open to the public. Since the inception
of the rape shield statute, hearings on the admissibility of evidence under the statute have been
required to be held in a closed courtroom. LAWS OF 1975 1st Ex. Sess., ch. 14 § 2. Therefore, the
experience prong indicates that the public trial right would not attach to rape shield hearings.
Also, public access would not play “‘a significant positive role in the functioning’” of rape
shield hearings. Whitlock, 188 Wn.2d at 521 (internal quotation marks omitted) (quoting Morgan,
180 Wn.2d at 325). The purpose of the rape shield statute is “to encourage rape victims to
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
8
prosecute, and to eliminate prejudicial evidence of prior sexual conduct of a victim which often
has little, if any, relevance on the issues for which it is usually offered, namely, credibility or
consent.” State v. Carver, 37 Wn. App. 122, 124, 678 P.2d 842, review denied, 101 Wn.2d 1019
(1984). Allowing discussion on a rape victim’s past sexual conduct to be discussed in an open
courtroom, especially when it may ultimately be inadmissible, would not encourage victims to
prosecute. And it is likely that subjecting a victim’s past sexual conduct to such public scrutiny
would result in additional trauma and humiliation to rape victims.
Furthermore, a rape shield hearing is a particularly discrete and limited aspect of a criminal
trial. Any admissible evidence continues to be subject to public scrutiny during the actual trial,
which achieves the aims of the public trial right. See Sublett, 176 Wn.2d at 72 (lead opinion); id.
at 99 (Madsen, C.J., concurring). And, when necessary, the conduct of the attorneys and the court
is subject to the scrutiny of the appellate process. See id. Accordingly, the logic prong of the
experience and logic test demonstrates that rape shield hearings do not implicate the public trial
right. See Whitlock, 188 Wn.2d at 521.
Neither experience nor logic demonstrate that the public trial right attaches to hearings on
the admissibility of evidence under the rape shield statute. Therefore, the public trial right is not
implicated and our inquiry is at an end. See id. at 520. The trial court did not violate Hicklin’s
public trial right by closing the courtroom during the rape shield hearing.
A majority of the panel having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports and that the remainder shall be filed for public record
pursuant to RCW 2.06.040, it is so ordered.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
9
ADDITIONAL FACTS
A. JURY TRIAL
K.H. testified at trial that she knew Hicklin for about three years through the recovery
community. She considered Hicklin a friend.
On July 4, K.H. was bickering with her significant other, A.M., about going to a barbecue.
Ultimately, K.H. made plans to see Hicklin. K.H. wanted to see Hicklin to talk about the struggles
she was going through. Prior to seeing Hicklin, she had two shots of vodka.
Hicklin was staying at his mother’s house. When K.H. arrived, she and Hicklin sat on the
couch and talked. After a time, Hicklin asked K.H. to go buy more alcohol. Hicklin gave K.H.
his bank card to pay for the alcohol. K.H. denied kissing Hicklin prior to leaving to buy more
alcohol.
K.H. went to a store a block away to buy the alcohol. After purchasing the alcohol with
Hicklin’s bank card, K.H. returned to Hicklin’s mother’s house. K.H. gave Hicklin the bag with
the alcohol; she thought she had also put the bank card in the bag. When Hicklin realized the bank
card was not in the bag he became very angry. Hicklin began pacing and yelling at K.H., asking
where the bank card was.
K.H. testified that once Hicklin got angry about the bank card, everything happened very
fast. K.H. was sitting on the couch, and Hicklin grabbed her around the neck. Although Hicklin
was holding her down and squeezing her neck, K.H. testified “it wasn’t a real hard squeeze” at that
point. 1 VRP (June 2, 2021) at 295. K.H. explained that she only weighed 90 to 92 pounds and it
simply was not possible for her to move when Hicklin was holding her. Hicklin’s body weight
was on K.H.’s legs, pushing them open.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
10
Over time, the pressure on K.H.’s neck got harder, and it was difficult to breathe and talk.
While Hicklin had his hands around K.H.’s throat, he told her, “I will end you.” 1 VRP (June 2,
2021) at 300. K.H. believed Hicklin meant that he would kill her. K.H. wanted to get to the door,
but she was unable to get up.
Then, Hicklin put his penis inside K.H. K.H. was unable to describe the details of how the
incident went from Hicklin holding her throat to putting his penis inside of her. K.H. resisted a
little, “like pushing someone off of you to let them know that it’s not okay,” but she did not try to
physically fight. 1 VRP (June 2, 2021) at 302. K.H. explained:
There was no way I’d win, there was—he would’ve hurt me more. I mean, it’s just
. . . .
. . . .
. . . Because he’s a very big man and the position, it was the position alone
was enough and it just there was no way.
1 VRP (June 2, 2021) at 302. K.H. remembered telling Hicklin that she had some money in her
car and he stopped raping her.
K.H. was able to get out to her car, but Hicklin kept her keys. K.H. called A.M. from the
car. A.M. called the police.
A.M., Officer Smith, additional investigating officers, the SANE nurse, and a forensic
scientist also testified consistent with the background facts presented above.
Hicklin testified in his own defense. Hicklin testified that he had known K.H. for a little
over three years. On July 4, 2020, Hicklin messaged K.H. to see if she wanted to hang out. Hicklin
invited K.H. to come over to his mother’s house and use the hot tub. K.H. accepted his invitation.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
11
K.H. arrived with a full half-gallon bottle of vodka and was taking “chugs out of the bottle”
while she was there. 2 VRP (June 7, 2021) at 650. Hicklin and K.H. sat on the couch kissing for
approximately fifteen minutes. When Hicklin finished his beer, he asked K.H. if she would be
willing to go get more beer. Hicklin then clarified it was not beer but a different alcoholic
beverage. Hicklin gave K.H. his bank card to pay for the alcohol.
Hicklin testified that K.H. never returned from the store. Hicklin messaged and called K.H.
several times trying to find out where she was. At one point, Hicklin spoke to K.H. and told her
he would call the police if she did not bring his bank card back. He did not speak to K.H. again.
Hicklin denied assaulting or raping K.H.
The jury found Hicklin guilty as charged.
B. SENTENCING
At sentencing, Hicklin argued that his convictions violated double jeopardy or,
alternatively, should be considered the same criminal conduct, and therefore, he should be
sentenced with an offender score of zero. The trial court ruled that the convictions did not violate
double jeopardy. However, the trial court found that the unlawful imprisonment was the same
criminal conduct, resulting in an offender score of three on each conviction. The trial court found
that Hicklin was indigent and stated that it would impose only the mandatory minimum legal
financial obligations (LFOs).
The trial court imposed a standard range sentence of 136 months to life on the second
degree rape—forcible compulsion conviction. The trial court also imposed standard range
sentences on all other convictions to be served concurrently with the sentence on the second degree
rape—forcible compulsion conviction. The trial court imposed lifetime community custody on
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
12
the second degree rape—forcible compulsion conviction. As a condition of community custody,
the trial court ordered that Hicklin not “enter drug areas as defined by court or [Community
Custody Officer (CCO)].” Clerk’s Papers (CP) at 25. The judgment and sentence also included a
provision requiring Hicklin to pay community custody supervision fees.
ANALYSIS
A. DOUBLE JEOPARDY
Hicklin argues that his convictions for second degree assault—strangulation, felony
harassment—threats to kill, and unlawful imprisonment violate double jeopardy because they were
the basis of proving the second degree rape—forcible compulsion conviction. The State concedes
that the unlawful imprisonment conviction violates double jeopardy and should be vacated. We
affirm Hicklin’s convictions for second degree assault—strangulation and felony harassment—
threats to kill, but we accept the State’s concession and remand to vacate Hicklin’s conviction for
unlawful imprisonment.
1. Legal Principles
We review claims of double jeopardy de novo. State v. Fuller, 185 Wn.2d 30, 34, 367 P.3d
1057 (2016). The right to be free from double jeopardy protects a defendant from being punished
multiple times for the same offense. Id. at 33-34. We apply a “three-step analysis to determine
whether the legislature authorized multiple punishments for a single course of conduct.” State v.
Thompson, 192 Wn. App. 733, 737, 370 P.3d 586, review denied, 185 Wn.2d 1041 (2016). First,
we attempt to determine legislative intent from the relevant statutes. Id. If the statutes are silent,
then we apply the “same evidence” test. Id. Then, if applicable, we may apply the merger doctrine.
Id. at 737-38.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
13
As relevant here, a person is guilty of second degree rape if the person engages in sexual
intercourse with another person by forcible compulsion. RCW 9A.44.050(1)(a).5 A person is
guilty of second degree assault if the person assaults another person by strangulation. RCW
9A.36.021(g). A person is guilty of felony harassment if the person harasses another person by
threatening to kill that person. RCW 9A.46.020(2)(b)(ii). And a person is guilty of unlawful
imprisonment if the person knowingly restrains another person. RCW 9A.40.040.
The relevant statutes do not contain any explicit statement indicating whether the
legislature intended to punish the crimes at issue separately. Without a clear statement of
legislative intent, we must then turn to additional doctrines to determine legislative intent. See
Thompson, 192 Wn. App. 737-38.
2. Blockburger “Same Elements/Same Evidence” Test
When legislative intent is unclear, we may turn to the Blockburger6 test, also referred to as
the “same elements” or “same evidence” test. In re Pers. Restraint of Orange, 152 Wn.2d 795,
816, 100 P.3d 291 (2004). Under the Blockburger test, “[i]f each crime contains an element that
the other does not, we presume that the crimes are not the same offense for double jeopardy
purposes.” State v. Freeman, 153 Wn.2d 765, 772, 108 P.3d 753 (2005). However, we do not
consider the elements of the crimes only on an abstract level. Id. “‘[W]here the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires proof of
5 RCW 9A.44.050 was amended in 2021. However, no substantive changes were made affecting
this opinion. Therefore, we cite to the current statute.
6 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
14
a fact which the other does not.’” Id. (alterations in original) (internal quotation marks omitted)
(quoting Orange, 152 Wn.2d at 817).
As charged, second degree rape required proof of forcible compulsion. RCW
9A.44.050(1)(a). “‘Forcible compulsion’ means physical force which overcomes resistance, or a
threat, express or implied, that places a person in fear of death or physical injury to herself or
himself or another person, or in fear that she or he or another person will be kidnapped.” RCW
9A.44.010(3).7
Here, K.H. testified that Hicklin’s weight on top of her holding her down overcame her
resistance. Therefore, K.H.’s testimony about Hicklin holding her down on the couch was the fact
required to prove forcible compulsion. Because this fact was also required to prove unlawful
imprisonment, the State properly concedes that Hicklin’s convictions for both second degree rape
and unlawful imprisonment violate double jeopardy.
However, given our record, neither proof of the second degree assault nor the felony
harassment are required for the State to prove second degree rape by forcible compulsion. The
record supports three separate actions by Hicklin that could have independently established
forcible compulsion: holding K.H. down on the couch with his body, strangling K.H., or
threatening to kill K.H. But only one of these actions was required to prove forcible compulsion.
Since any of these actions could have independently proven forcible compulsion, Hicklin’s double
7 RCW 9A.44.010 was amended in 2022, and the definition of “forcible compulsion” was
renumbered from subsection (6) to subsection (3). No substantive changes were made affecting
this opinion. Therefore, we cite to the current statute.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
15
jeopardy claim fails. See State v. Lee, 12 Wn. App. 2d 378, 399-400, 460 P.3d 701, review denied,
195 Wn.2d 1032 (2020).
As charged in this case, the State had to prove Hicklin assaulted K.H. by strangulation.
RCW 9A.36.021(1)(g). “‘Strangulation’ means to compress a person’s neck, thereby obstructing
the person’s blood flow or ability to breathe, or doing so with the intent to obstruct the person’s
blood flow or ability to breathe.” RCW 9A.04.110(26). Proving strangulation was not required
to prove forcible compulsion. Therefore, proof of second degree assault by strangulation was not
required for the State to prove second degree rape—forcible compulsion.
Similarly, the State was not required to prove that Hicklin threatened to kill K.H. in order
to prove forcible compulsion. As explained above, K.H. testified that Hicklin holding her on the
couch with his body caused her to realize that fighting back or resisting would be ineffective. This
was the evidence required to prove forcible compulsion, and the State was not required to prove
that Hicklin made a threat to kill in order to prove the second degree rape charge.
Hicklin asserts that the mere possibility that his acts of strangulation or threatening to kill
K.H. could have been viewed by the jury as proof of the forcible compulsion required to convict
him of second degree rape requires us to reverse both the second degree assault and felony
harassment convictions in addition to the unlawful imprisonment conviction. In essence, Hicklin
argues that it is the State’s burden to establish that the jury did not base its verdict on the rape
charge on Hicklin’s acts of second degree assault or felony harassment. Hicklin’s argument fails
because “[i]t is his burden to affirmatively establish that he faces multiple punishments for the
same offense.” Lee, 12 Wn. App. 2d at 399.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
16
Because evidence of the strangulation or threat to kill was not required to prove the second
degree rape by forcible compulsion charge, the second degree assault and felony harassment are
not the same in fact as the second degree rape. See State v. Nysta, 168 Wn. App. 30, 48-49, 275
P.3d 1162 (2012) (holding that felony harassment and second degree rape were not the same in
fact where jury did not have to rely on death threats for forcible compulsion because there was
ample evidence that defendant used physical force to overcome victim’s resistance), review
denied, 177 Wn.2d 1008 (2013). Accordingly, Hicklin’s convictions for second degree rape and
felony harassment do not violate double jeopardy under the Blockburger test.
3. Merger
The merger doctrine is an additional tool to help determine legislative intent. Freeman,
153 Wn.2d at 772. “Under the merger doctrine, when the degree of one offense is raised by
conduct separately criminalized by the legislature, we presume the legislature intended to punish
both offenses through a greater sentence for the greater crime.” Id. at 772-73.
Here, forcible compulsion increases the degree of rape from third degree to second degree.
See RCW 9A.44.060, .050. However, as discussed above, the strangulation required to prove
second degree assault and the threats required to prove felony harassment were not required to
prove forcible compulsion. Therefore, the conduct that is criminalized as second degree assault or
felony harassment did not raise the degree of the rape in this case. Accordingly, the merger
doctrine also indicates that the legislature intended for the second degree rape—forcible
compulsion to be punished separately from the second degree assault—strangulation and the
felony harassment—threats to kill.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
17
4. Independent Purpose or Effect
Even if either the Blockburger test or the merger doctrine indicated that the legislature
intended for these offenses to be punished as one crime, or on an abstract level, the “two
convictions appear to be for the same offense or for charges that would merge, if there is an
independent purpose or effect to each, they may be punished as separate offenses.” Freeman, 153
Wn.2d at 773.
Hicklin argues that there was no independent purpose or effect of the second degree
assault—strangulation or felony harassment—threats to kill because they were all used to
effectuate the rape. However, the record belies this argument. K.H. testified that the strangulation
and threats to kill occurred when Hicklin was yelling at her and asking where his bank card was.
K.H.’s testimony shows that Hicklin’s strangulation and threats to kill were due to K.H. not giving
the bank card back, not for the purpose of overcoming her resistance to the rape. Therefore, there
was an independent purpose and effect that supports punishing each conviction as a separate
offense.
5. Rule of Lenity
Despite the fact that the strangulation and threats to kill were not required to prove second
degree rape—forcible compulsion, Hicklin argues that the rule of lenity requires the ambiguous
jury verdicts to be interpreted in his favor.
When the evidence and jury instructions create “an ambiguity in the jury’s verdict,” the
ambiguity must, “under the rule of lenity, . . . be resolved in the defendant’s favor.” State v. Kier,
164 Wn.2d 798, 811, 194 P.3d 212 (2008). Determining whether there is ambiguity in the jury’s
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
18
verdict requires examining how the case was presented to the jury, including the specific evidence
presented. Id. at 808.
Here, looking at the jury instructions in isolation, it appears there would be ambiguous
verdicts. The jury was instructed only that it needed to find forcible compulsion to find Hicklin
guilty of second degree rape. The jury instructions did not specify what act was alleged to be the
forcible compulsion, and the jury verdicts did not specify what act the jury found was forcible
compulsion. However, K.H.’s testimony clearly established that the restraint was what overcame
her resistance to the rape. The evidence in this case is distinguishable from Kier, where the
evidence established that the assault victim was one of two potential robbery victims and it was
unclear if the assault elevated the robbery to first degree robbery. 164 Wn.2d at 808-813. Based
on the evidence presented in this case, we decline to apply the rule of lenity.
B. COMMUNITY CUSTODY CONDITION AND SUPERVISION FEES
Hicklin argues that the community custody condition requiring that he “not enter drug
areas” is unconstitutionally vague. Hicklin also argues that his judgment and sentence improperly
includes a provision requiring him to pay supervision fees. The State concedes these provisions
should be stricken from Hicklin’s judgment and sentence. We accept the State’s concession.
A community custody condition is unconstitutionally vague if it does not define the
violation with sufficient definiteness that ordinary people can understand what is prohibited or
does not provide ascertainable standards to prevent arbitrary enforcement. See State v. Bahl, 164
Wn.2d 739, 752-53, 193 P.3d 678 (2008). Here, the community custody provision requiring
Hicklin to not “enter drug areas as defined by court or [CCO]” does not sufficiently define that
violation such that ordinary people can understand what is prohibited. CP at 25. Further, it does
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56077-1-II
19
not contain ascertainable standards to prevent arbitrary enforcement. Therefore, the State properly
concedes that the community custody provision should be stricken.
The judgment and sentence also imposes community custody supervision fees. The
community custody supervision fee is a discretionary LFO. State v. Markovich, 19 Wn. App. 2d
157, 176, 492 P.3d 206 (2021), review denied, 198 Wn.2d 1036 (2022). The trial court found that
Hicklin was indigent and intended to impose only mandatory LFOs. Therefore, the State properly
concedes that the provision requiring Hicklin to pay community custody supervision fees should
be stricken.
CONCLUSION
We affirm Hicklin’s convictions for second degree rape—forcible compulsion, second
degree assault—strangulation, and felony harassment—threats to kill, but we remand to the trial
court to vacate Hicklin’s conviction for unlawful imprisonment and to strike the challenged
community custody condition and community custody supervision fees.
Lee, P.J.
We concur:
Veljacic, J.
Price, J.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.