* State Of Washington, Respondent V. Jesse Joseph Reedy, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JESSE REEDY,
Appellant,
v.
STATE OF WASHINGTON,
Respondent.
No. 83039-2-I
DIVISION ONE
OPINION PUBLISHED IN PART
DÍAZ, J. — Appellant Jesse Reedy appeals his conviction of one count of
child rape and two counts of child molestation, claiming that the jury was not
informed that each conviction must be based on separate and distinct incidents
and, thus, his double jeopardy rights were violated. 	Reedy requests vacatur of
one of the child molestation convictions and re-sentencing of the other, as well as
remand on some of his community custody conditions. 	We disagree with his
double jeopardy claim because the State made that requirement “manifestly
apparent” to the jury and, therefore, we affirm his conviction. However, we agree
that some of his conditions of community custody are improper and remand this
matter for re-sentencing.
I. 	FACTS
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A. 	Pre-arrest
In 2019, PJR, who was eight years old at the time, lived with her biological
parents, Holly Duclose (Duclose) and Reedy, in Monroe, WA. 	The two parents
cohabitated for co-parenting purposes, but their relationship was no longer
romantic. 	At that time in 2019, Reedy carried out caregiving tasks for PJR while
PJR’s mother was undergoing treatment for a medical condition.
PJR has been diagnosed with an autism spectrum disorder. 	Additionally,
Reedy claims he also received an autism diagnosis and other mental health
diagnoses.
In August 2019, Duclose began to notice Reedy and PJR spending more
time in PJR’s room with the door closed, which was not typical for their household.
Duclose also observed that Reedy began to buy PJR more gifts costing hundreds
of dollars, which he had not done before. PJR told Duclose “I have a secret,” but
would not tell her what it was.
On December 10, 2019, Duclose asked her daughter again to disclose the
secret to her, and PJR said, “Dad doesn’t want me to tell.” 	After Duclose asked
“has Daddy been touching you?” PJR answered in the affirmative and pointed to
her breasts and vagina. 	At this point, Duclose took PJR to their neighbor’s
apartment. Duclose’s neighbor called the police. Upon the neighbor telling Reedy
she would call Child Protective Services, Reedy tried to destroy his laptop and
threw it in a dumpster.
Upon arriving at the apartment, the police detective, Paul Henderson
(Henderson), asked PJR what happened and she stated Reedy had “pulled her
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No. 83039-2-I/3
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pants down” and “touched” her “privates.” 	In this interview, and subsequent
interviews, PJR disclosed that Reedy had touched her five times, approximately
between October 7, 2019 and December 10, 2019. 	PJR described two specific
incidents an indeterminate amount of time apart, but both taking place separately.
One incident occurred when Reedy wanted to show her a magnet. 	The second
incident she described occurred after Reedy worked out.
B. 	Arrest and Pre-trial
On December 10, Reedy was arrested and transported to the Monroe
Police Department. 	Detective Henderson interviewed Reedy that day. 	Reedy
admitted to watching child pornography and bestiality, but not on the computer he
tried to destroy. 	He also admitted he created his own three-dimensional anime
child pornography to “satiate his desire to experience his . . . ‘deviant side.’” In the
interview, he denied sexual contact with PJR, but claimed that she “lick[ed] her
lips,” and asked him to “sleep with her in a sexual manner.” 	Reedy contends he
did nothing “intentionally sexual” with her and that “all [he] did was tickle her once
in a while.”
Reedy was incarcerated in the Snohomish County jail and the court ordered
a competency evaluation, which—as both parties agreed—found him competent
to stand trial. 	He was arraigned on January 15, 2020, at which time he was
charged with rape of child in the first degree.
On April 14, 2020, the court ordered a second evaluation of Reedy’s
competency because he had “devolved significantly” over those weeks. 	Reedy
was found not competent and was provided restoration services. During this time,
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No. 83039-2-I/4
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his evaluator concluded that Reedy “appear[ed] to have a major mental illness.”
By January 15, 2021, he was found competent once more. His trial date was reset
to March 5, 2021. The trial was then continued to June 25, 2021.
Between these events, in April 2021, PJR disclosed another incident where
Reedy and his friend, “Devon” convinced her to stay in a closet, pulled down her
pants and “looked at [her] privates.” On June 25, 2021, the State filed an amended
information to include two counts of child molestation.1
During the pre-trial child hearsay hearing, when PJR was testifying, Reedy
interjected, “I didn’t do it. Tell the truth.”
C. 	Trial
At trial, Detective Henderson testified that PJR told him that Reedy touched
her “like five times” over the previously described general time period. 	PJR
testified that Reedy had touched her at least once. 	At the end of PJR’s own
testimony, as she left the stand, Reedy stated out of turn, “I love my daughter.”
PJR’s mother testified consistent with PJR, and discussed the events leading up
to Reedy’s arrest.
After both parties rested, the jury was instructed, in instruction no. 2, that
the State had the burden of proving each element of each crime (one count of rape
of a child in the first degree and two counts of child molestation in the first degree)
beyond a reasonable doubt. 	In instruction no. 7, the jury was instructed that, “A
separate crime is charged in each count. You must decide each count separately.
1 The prosecution and defense were unable to locate or identify “Devon,” including
determining his last name or any other significant information about him.
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No. 83039-2-I/5
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Your verdict on one count should not control your verdict on any other count.” Jury
instruction no. 8 (a Petrich instruction) further informed the jury that, because a
separate crime was charged in each count, the jury must decide each separately:
In Counts 1, 2, and 3, in alleging that the defendant committed Rape
of Child in the First Degree and Child Molestation in the First Degree,
the State relies upon evidence regarding a single act constituting
each alleged crime. To convict the Defendant as to each count, you
must unanimously agree that this specific act was proved.
Finally, in instructions nos. 9, 12, and 13, the court instructed the jury as to
the elements of each crime alleged.
In closing argument, the State described the three different charges. 	The
State differentiated the three charges by explaining the first charge was rape of a
child in the first degree, and explained the elements of that charge. The State next
discussed instructions nos. 12 and 13 which defined child molestation.
The State further explained that there must be a separate factual basis for
each charge, and that there were three “distinct” events that occurred in the
roughly two-month period between when PJR turned eight years old in October
2019 and Reedy’s arrest in December 2019, stating:
So you don’t need to know or agree as to what the date was in order
to find Mr. Reedy guilty of these three counts. You just must believe
beyond a reasonable doubt that three separate incidents occurred
during the date range that [PJR] described.
(emphasis added).
The 	State 	further 	described 	three 	“distinct” 	incidents 	of 	abuse
corresponding with the three charges against Reedy: 1) the “magnet count,” 2) the
“work out count,” and 3) the “Devon count.” 	As to the first, the State stated, “the
first incident of rape of child . . . I’m going to refer to as the magnet incident. She
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No. 83039-2-I/6
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describes that before this sexual abuse occurred, Mr. Reedy was showing her a
magnet . . . [t]hat’s one distinct incident.”
The State then described the two counts of child molestation. 	The State
described the second count as a different time Reedy touched PJR after Reedy
“had been working out . . . in that charge, he’s charged merely with child
molestation in the first degree for the sexual contact.” 	Then finally, the State
described the third count, as “the Devon incidents,” when Reedy and his friend,
Devon, engaged in sexual contact with PJR.
The jury found Reedy guilty as charged on all three counts.
D. 	Sentencing
The court sentenced Reedy within the standard range for each of the three
separate counts, to be run concurrently. 	The court also imposed conditions of
community custody upon Reedy’s release. 	In condition 2, uncontested in the
sentencing hearing, the court mandated that Reedy would have a lifetime no-
contact order protecting PJR, which his counsel indicated he would “abide by []
scrupulously.” 	In conditions 21-24, the court restricted Reedy’s access to a
computer, the internet, and various activities on the internet. 	And finally, in
condition 12, the court required Reedy to “submit” to searches of his home by his
Community Corrections Officer (CCO).
Reedy appealed his conviction and conditions of community custody.2
2 On September 3, 2021, the State filed a notice of cross-appeal “of the Judgment
& Sentence entered on the 24th day of August, 2021.” The State, however, after
review of the record noted in their brief that “no counter-assignments of error
should be raised” and motioned to withdraw their cross-appeal. 	The motion to
withdraw the State’s cross-appeal is granted.
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No. 83039-2-I/7
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II. 	ANALYSIS
A. 	Double Jeopardy
We conclude that Reedy’s double jeopardy rights were not violated because
the State made it manifestly apparent which specific acts were tied to which counts
of child molestation, and informed the jury that, to convict, each act must be distinct
and proven beyond a reasonable doubt.
1. 	Law
“The constitutional guaranty against double jeopardy protects a defendant .
. . against multiple punishments for the same offense.” State v. Noltie, 116 Wn.2d
831, 848, 809 P.2d 190 (1991) (citing State v. Vladovic, 99 Wn.2d 413, 423, 662
P.2d 853 (1983)); see U.S. CONST. amend. V; W ASH. CONST. art. I, § 9. However,
“[i]f one crime is over before another charged crime is committed, and different
evidence is used to prove the second crime, then the two crimes are not the ‘same
offense’ and a perpetrator may be punished separately for each crime without
violating a defendant’s double jeopardy rights.” Id. (citing In re Pers. Restraint of
Fletcher, 113 Wn.2d 42, 49, 776 P.2d 114 (1989)) (emphasis added).
A so-called “separate and distinct” jury instruction is one where the court
informs the jury that each crime requires proof of a different act. 	State v. Mutch,
171 Wn.2d 646, 663, 254 P.3d 803 (2011) (citing State v. Borsheim, 140 Wn. App.
357, 367, 165 P.3d 417 (2007)). In other words, a separate and distinct instruction
informs the jury that, to convict, “one particular act has [to be] proved beyond a
reasonable doubt for each count.” 	Id. (quoting State v. Ellis, 71 Wn. App. 400,
402, 859 P.2d 632 (1993)). Where jury instructions are “lacking for their failure to
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No. 83039-2-I/8
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include a ‘separate and distinct’ instruction . . .” they may be flawed. 	Id. at 663.
“However, flawed jury instructions that permit a jury to convict a defendant of
multiple counts based on a single act do not necessarily mean that the defendant
received multiple punishments for the same offense; it simply means that the
defendant potentially received multiple punishments for the same offense.” Id.3
Our Supreme Court has “disapproved” of courts of appeals looking only at
the jury instructions and conducting no further inquiry into the record. Id. at 663-
664 (citing Noltie, 116 Wn.2d at 848-49). 	Our Supreme Court “has established
that in reviewing allegations of double jeopardy, an appellate court may review the
entire record to establish what was before the court.” Id. at 664 (internal quotations
omitted). “Considering the evidence, arguments, and instructions, if it is not clear
that it was manifestly apparent to the jury that the State [was] not seeking to impose
multiple punishments for the same offense and that each count was based on a
separate act, there is a double jeopardy violation.” 	Id. at 664 (quoting State v.
Berg, 147 Wn. App. 923, 198 P.3d 529 (2008)) (internal quotations omitted). Such
a review must be rigorous and strict. Id.
Several cases have addressed whether the record satisfied the “manifestly
3 In its response, the State conflates this requirement with the requirement for
unanimity declared in State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984),
abrogated on other grounds, where, in cases involving multiple counts of similar
acts, “any one of which could constitute the crime charged, the jury must be
unanimous as to which act or incident constitutes the crime.” Noltie, 116 Wn.2d at
842-43 (emphasis added). In short, Petrich is concerned with unanimity and how
to ensure it; the claims here are concerned with whether a convicting jury found a
different act formed the basis for different, though similar, counts. 	As will be
discussed further, a Petrich instruction by itself does not absolve the failure to show
a jury convicted similar counts based upon separate and distinct acts. Borsheim,
140 Wn. App. at 369.
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No. 83039-2-I/9
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apparent” test. 	State v. Sanford, 15 Wn. App. 2d 748, 754, 477 P.3d 72 (2020)
(surveying cases). Two cases are instructive. In Mutch itself, our Supreme Court
found that it was “manifestly apparent that the jury found [the defendant] guilty of
five separate acts of rape” because the victim testified to five separate acts, and
the State discussed five different incidents in its closing arguments. 	Mutch, 171
Wn.2d at 665. 	In State v. Land, the court concluded it was “manifestly apparent
the state was not seeking to impose multiple punishments for the same offense”
because the prosecution expressly distinguished an incident of child rape from one
of child molestation. State v. Land,172 Wn. App. 593, 603, 295 P.3d 782 (2013).
“A double jeopardy claim is of constitutional proportions and may be raised
for the first time on appeal.” 	Mutch, 171 Wn.2d at 661 (citing State v. Jackman,
156 Wn.2d 736, 746, 132 P.3d 136 (2006)). 	Double jeopardy challenges are
reviewed de novo. Id. at 661-62.
2. 	Application of Law to Facts
In this case, the trial court’s jury instructions did not contain a “separate and
distinct” instruction, as defined above. As in Mutch, none of the instructions here,
including instruction no. 8, “expressly stated that the jury must find that each
charged count represents an act distinct from all other charged counts.” 	Mutch,
171 Wn.2d at 662 (considering an instruction identical to instruction no. 7 herein).
Moreover, as in Borsheim, the unanimity instruction alone also does not protect
against a double jeopardy violation, unless the jury is instructed that it must
unanimously agree that at least one particular act has been proved beyond a
reasonable doubt for each count. Borsheim, 140 Wn. App. at 369 (citing Ellis, 71
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No. 83039-2-I/10
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Wn. App. at 402)(considering an instruction similar to instruction no. 8 herein).
“The unanimity instruction given in this case . . . did not contain the ‘for each count’
language. 	Thus, although it adequately instructed the jury with regard to the
concern for jury unanimity, it did not adequately instruct the jury with regard to the
concern of double jeopardy.” Id.
Our inquiry does not end with a deficient jury instruction, however. This court
considers the arguments and the evidence “to establish what was before the
court.” 	Mutch, 171 Wn.2d at 664. 	Here, the State’s closing argument described
three separate incidents occurring within the same few months, using the same
nomenclature as its witnesses: the “magnet count,” the “work out count,” and the
“Devon count.” The State described each incident as “distinct” multiple times and
specifically stated that it must have been proven “beyond a reasonable doubt that
three separate incidents occurred during the date range that [PJR] described . . . .
And there are three specific incidents that I think you can correlate to both - all
three counts.”
Additionally, the State distinguished between (a) the incident and charge of
child rape and (b) the two incidents and charges of child molestation as different
types of sexual contact, again explaining that they could have occurred at any time
within a specific two-month period in 2019.
The State’s arguments and evidence are similar to that of the prosecution in
State v. Peña Fuentes, 179 Wn.2d 808, 825-826, 318 P.3d 257 (2014). 	In Peña
Fuentes, as here, the jury convicted Peña Fuentes of first-degree rape of a child
and two counts of first-degree child molestation for conduct spanning a period of
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No. 83039-2-I/11
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approximately 35 months. Peña Fuentes, 179 Wn.2d at 823. At least one of the
instructions stating the elements of the crime “did not include an instruction that
the conduct must have occurred on an occasion separate and distinct from” the
other crimes. 	Id. 	Nonetheless, our Supreme Court found that it was “manifestly
apparent 	that 	the 	convictions 	were 	based 	on 	separate 	acts 	because 	the
prosecution made a point to clearly distinguish between the acts that would
constitute rape of a child and those that would constitute child molestation,” by
detailing each sequentially, reciting different alleged conduct, and using consistent
nomenclature “to describe separate and distinct acts.” Id. at 825. “Because of the
clarity in the prosecutor’s closing argument,” our Supreme Court concluded that it
was “‘manifestly apparent’ that the jury convicted Peña Fuentes based on separate
and distinct acts.” Id. at 826.
In the present case, the State described each incident sequentially, as
“separate,” and used consistent identifying nomenclature. 	The State further
explained which count corresponded with each incident. 	Moreover, the State
further advised the jury that, to convict, it must be convinced beyond a reasonable
doubt that three separate incidents occurred. The State, thus, remedied the lack
of any similar jury instruction. Finally, as in Peña Fuentes, Reedy did not challenge
the number of acts or whether they overlapped, but focused his defense on the
credibility of the victim. Peña Fuentes, 179 Wn.2d at 825-26.
For these reasons, we conclude that the State made it manifestly apparent to
the jury that each separate charge related to a separate, distinct incident, and
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No. 83039-2-I/12
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therefore, Reedy’s double jeopardy rights were not violated.
B. 	Lifetime No-Contact Order
Reedy argues that the imposition of a lifetime no-contact order barring
contact with PJR should be remanded to the superior court for an examination, on
the record, of less restrictive alternatives, because it violates his fundamental right
to parent. Without expressing any opinion as to whether a lifetime no-contact order
with PJR ultimately may be appropriate, we agree.
1. 	Law
“[F]or an objection to a community custody condition to be entitled to review
for the first time on appeal, (1) it must be manifest constitutional error or a
sentencing condition that . . . is ‘illegal or erroneous’ as a matter of law, and (2) it
must be ripe.” 	State v. Peters, 10 Wn. App. 2d 574, 583, 455 P.3d 141 (2019)
(quoting State v. Blazina, 182 Wn.2d 827, 833, 344 P.3d 680 (2015)). The State
has not argued that this condition is not ripe, and such a response will not be
considered.
A sentencing court may impose conditions that restrict a defendant’s
fundamental 	constitutional 	rights, 	provided 	those 	conditions 	are 	imposed
“sensitively.” State v. Bahl, 164 Wn.2d 739, 757, 193 P.3d 678 (2008) (citing State
v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). Limitations on constitutionally-
protected conduct must be “narrowly tailored and directly related to the goals of
protecting the public and promoting the defendant’s rehabilitation.” 	Bahl, 164
Wn.2d at 757.
Parents have a fundamental constitutional right “to the care, custody, and
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No. 83039-2-I/13
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companionship of their children.” 	State v. DeLeon, 11 Wn. App. 2d 837, 841, 456
P.3d 405 (2020) (citing State v. Warren, 165 Wn.2d 17, 34, 195 P.3d 940 (2008)).
As such, a sentencing condition that infringes on this fundamental constitutional
right may only be upheld if the condition is reasonably necessary to accomplish
the essential needs of the State and public order and, again, must be “sensitively
imposed.” Warren, 165 Wn.2d at 32.
More specifically, courts may limit the fundamental right to parent when
“reasonably necessary” to protect a child’s physical or mental health. DeLeon, 11
Wn. App. 2d at 841 (citing State v. Howard, 182 Wn. App. 91, 101, 328 P.3d 969
(2014)). 	Before restricting a defendant’s contact with his biological children,
however, this court has held that a sentencing court must expressly, i.e., on the
record, (a) consider the constitutional right to parent, (b) explain why the no-contact
provision 	is 	necessary, 	and 	(c) 	explore 	whether 	any 	viable 	less 	restrictive
alternatives exist. 	Id. at 841-42; State v. Martinez Platero, 17 Wn. App. 2d 716,
725, 487 P.3d 910 (2021).
In cases where a sentencing court gave an indeterminate or lengthy timeline
for a no-contact order with a defendant’s child, particularly those cases that did not
involve a defendant’s direct sexual abuse of a child, the reviewing courts of this
state often have looked skeptically at the no-contact order. For example, in In re
Pers. Restraint of Rainey, 168 Wn.2d 367, 374-75, 229 P.3d 686 (2010), our
Supreme Court remanded a lifetime no-contact order with a child whom the
defendant kidnapped (but did not sexually abuse). Rainey, 168 Wn.2d at 381-82.
Further, in State v. Ancira, this court concluded that the State failed to demonstrate
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No. 83039-2-I/14
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a five-year no-contact order between a defendant and his child was reasonably
necessary to prevent the child from witnessing domestic violence against the
defendant’s spouse, when weighed against the constitutional right to parent his
child. State v. Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001). Additionally,
this court remanded for clarification a no-contact order covering all of a defendant’s
children, when a defendant abused their step-child, but not their biological children.
Martinez Platero, 17 Wn. App. 2d at 725.
Not all reviewing courts seemingly have required the sentencing court to
articulate the reasons for a lengthy no-contact order on the record. 	See, e.g.,
Howard, 182 Wn. App. at 101 (“Reviewing courts must analyze the scope and
duration of no-contact orders in light of the facts in the record.”) (citing Rainey, 168
Wn.2d at 378-82); see also, e.g., State v. Sweidan, No. 36060-1-III, slip op.
(unpublished 	portion) 	at 	57-58 	(Wash. 	Ct. 	App. 	Apr. 	21, 	2020),
https://www.courts.wa.gov/opinions/pdf/360601_pub.pdf.4 	(“the trial court [must]
articulate the reasons for the reasonable necessity for a no-contact order or the
record must demonstrate the necessity”) (emphasis added).
While we do not rule out the possibility that the facts in a particular case
may obviate the need for a trial court, on the record, to consider the constitutional
right to parent, to articulate the need for a lengthy no-contact provision, and/or to
4 “Washington appellate courts should not, unless necessary for a reasoned
decision, cite or discuss unpublished opinions in their opinions.” 	GR 14.1(c).
“However, unpublished opinions of the Court of Appeals filed on or after March 1,
2013, may be cited as nonbinding authorities, if identified as such by the citing
party, 	and 	may 	be 	accorded 	such 	persuasive 	value 	as 	the 	court 	deems
appropriate.” GR 14.1(a).
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No. 83039-2-I/15
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explore whether any viable less restrictive alternatives exist, we conclude that the
record in the present case requires us to remand this matter to the trial court to
articulate each such consideration on the record.
2. 	Application of Law to Facts
Here, Reedy did not object to the lifetime no-contact order at sentencing.
On the contrary, his counsel volunteered that Reedy would abide by the condition
“scrupulously.”5 Therefore, this court should consider only whether the imposition
of a lifetime no-contact order is manifest constitutional error, in light of Reedy’s
fundamental right to parent his child.
On the record before us, we are unable, without becoming fact-finders
ourselves, to consider whether the no-contact order was imposed “sensitively” or
whether it was “narrowly tailored” to meet the safety needs of the community and
PJR. Bahl, 164 Wn.2d at 757 (citing Riley, 121 Wn.2d at 37-38). Again, a condition
infringing upon the right to parent one’s child can only be upheld if the condition is
reasonably necessary to accomplish the essential needs of the State and public
order. Warren, 165 Wn.2d 17 at 32. On the record in this case, the State’s interest
is protecting PJR from further abuse is abundantly clear.6 The outstanding factual
5 We decline to address whether Reedy invited error by so volunteering because
the State did not fully brief this issue. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d
440 (1990) (“[t]his court will not consider claims insufficiently argued by the
parties.”) (citing State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d 797 (1988)).
6 This court recognizes that this case presents a particularly serious series of
sexual 	assaults, 	against 	a 	vulnerable 	victim, 	and 	that 	each 	assault 	was
premeditated and manipulative. 	We further understand that Reedy attempted to
coerce PJR to keep the abuse a secret from her mother and to influence her
testimony in hearings and at trial. This court finally recognizes that Reedy admitted
to investigators that he has an untreated “deviant side,” which includes viewing or
creating child pornography. For these reasons, counsel for Reedy conceded that
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No. 83039-2-I/16
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question, however, is to what extent or how a trial court should “sensitively” and
“narrowly” tailor the conditions related to those interests, short of the de facto
termination of his parental rights.
After such a record is made, this court then would be in a position, if needed,
to review that record to determine the legal question of whether the trial court
abused its significant discretion, as with any other crime-based prohibition, and –
because there was no objection at the time – whether such abuse constituted
manifest constitutional error. Rainey, 168 Wn.2d at 374-75; RCW 9.94A.030(10)
(“‘Crime-related prohibition’ means an order of a court prohibiting conduct that
directly relates to the circumstances of the crime for which the offender has been
convicted . . .”). We remand this matter for the trial court to conduct that inquiry.
A majority of the panel having determined that only the foregoing portion of
this opinion (section II.B) 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.
C. 	Other Conditions of Community Custody
The trial court imposed several conditions of community custody related to
computer access and related to the CCO’s authority, which Reedy challenges.
1. 	Condition 21: Prior Authorization for Internet Access
a no-contact order was reasonably necessary, and only argued against the
duration imposed. Wash. Court of Appeals oral argument, State of Washington v.
Jesse Joseph Reedy, No. 83039-2-I (Jan. 25, 2023), at 1 min., 35 sec. through 4
min., 5 sec., video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-
2023011357/?eventID=2023011357.
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No. 83039-2-I/17
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Condition 21 requires Reedy to request prior authorization from his CCO
before accessing the internet at nearly any time, when mandating:
Do not access the Internet on any computer, phone, or computer-
related device with access to the Internet or on-line computer service
except 	as 	necessary 	for 	employment 	purposes 	(including 	job
searches) 	in any location, unless 	such access 	is approved in
advance by the supervising Community Corrections Officer and your
treatment provider. The CCO is permitted to make random searches
of any computer, phone, or computer-related device to which the
defendant has access to monitor computer compliance with this . . .
condition.
(emphasis added).
Constitutional challenges to conditions of community custody may be raised
for the first time on appeal. 	Bahl, 164 Wn.2d at 745. 	Community custody
conditions are reviewed for an abuse of discretion. State v. Johnson, 197 Wn.2d
740, 744, 487 P.3d 893 (2021) (citing Bahl, 164 Wn.2d at 753). 	“A trial court
necessarily abuses its discretion if it imposes an unconstitutional community
custody condition.” State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019)
(citing Bahl, 164 Wn.2d at 744, citing State v. Irwin, 191 Wn. App. 644, 652, 364
P.3d 830 (2015)). 	“Issues of statutory interpretation and constitutional law are
reviewed de novo.” State v. Cornwell, 190 Wn.2d 296, 300, 412 P.3d 1265 (2018)
(citing State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013)).
An overbreadth challenge “goes to the question of whether [S]tate action is
couched in terms so broad that it may not only prohibit unprotected behavior but
may also prohibit constitutionally protected activity as well.” In re Sickels, 14 Wn.
App. 2d 51, 67, 469 P.3d 322 (2020) (citing Blondheim v. State, 84 Wn.2d 874,
878, 529 P.2d 1096 (1975) (citing Grayned v. City of Rockford, 408 U.S. 104, 114,
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No. 83039-2-I/18
18
92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972))). 	However, the “mere fact that a
community custody condition impinges on a constitutional right does not invalidate
it.” Id. at 69.
The United States Supreme Court has emphasized the importance of
internet access, noting that “to foreclose access to social media altogether is to
prevent the user from engaging in the legitimate exercise of First Amendment
rights.” Packingham v. North Carolina, 582 U.S. 98, 108, 137 S. Ct. 1730, 198 L.
Ed. 2d 273 (2017). 	But “the First Amendment permits a State to enact specific,
narrowly tailored laws that prohibit a sex offender from engaging in conduct that
often presages a sexual crime, like contacting a minor or using a website to gather
information about a minor.” Id. at 107. A court may restrict a defendant’s access
to the internet if those restrictions are “narrowly tailored to the dangers posed by
the specific defendant.” 	Johnson, 197 Wn.2d at 745 (citing State v. Padilla, 190
Wn.2d 672, 678, 416 P.3d 712 (2018); United States v. Holena, 906 F.3d 288, 290
(3rd Cir. 2018) (citing United States v. Albertson, 645 F.3d 191, 197 (3rd Cir.
2011))).
A community custody condition is unconstitutionally vague if “(1) it does not
sufficiently define the proscribed conduct so an ordinary person can understand
the prohibition or (2) it does not provide sufficiently ascertainable standards to
protect against arbitrary enforcement.” Padilla, 190 Wn.2d at 677 (citing Bahl, 164
Wn.2d at 752-53) (citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795
P.2d 693 (1990)). 	When considering the meaning of a community custody
condition, “the terms are not considered in a ‘vacuum,’ rather, they are considered
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No. 83039-2-I/19
19
in the context in which they are used.” Bahl, 164 Wn.2d at 754 (citing Douglass,
115 Wn.2d at 180). 	“If 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. 	However, a community
custody condition that implicates material protected under the First Amendment is
held to a stricter standard of definiteness to prevent a chilling effect on the exercise
of those rights. Bahl, 164 Wn.2d at 753 (citing Grayned, 408 U.S. at 109).
Courts have held that community custody conditions which require further
definition by a CCO are unconstitutionally vague. Padilla, 190 Wn.2d at 682; Irwin,
191 Wn. App. at 654. 	In Bahl, the condition prohibiting access or possession of
pornographic materials “as directed by the supervising Community Corrections
Officer,” did not adequately protect against arbitrary enforcement. 	Bahl, 164
Wn.2d at 754. The CCO’s discretion to determine the extent of the condition “only
makes the vagueness problem more apparent, since it virtually acknowledges that
on its face it does not provide ascertainable standards for enforcement.” 	Id. at
758.
Finally, when a condition of community custody prohibits specific conduct,
“[t]he prohibited conduct need not be identical to the crime of conviction, but there
must be ‘some basis for the connection.’” State v. Nguyen, 191 Wn.2d 671, 684,
425 P.3d 847 (2018) (quoting Irwin, 191 Wn. App at 657). 	If it is “reasonable to
conclude that there is a sufficient connection between the prohibition and the crime
of conviction, [the appeals court] will not disturb the sentencing court’s community
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No. 83039-2-I/20
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custody conditions.” Nguyen 191 Wn.2d at 685-86.
For example, in Johnson, the defendant was arrested in a sting operation
for soliciting sex with a minor on Craigslist. Johnson, 197 Wn.2d at 746-47. The
court found that restricting his internet use was not unconstitutionally overbroad or
vague because: “Johnson [was] not prohibited from accessing any particular social
media site. 	Instead, he [was] required to use the Internet only through filters
approved by his community custody officer.” Id.
Here, Reedy complains that the restrictions on his internet use are not
crime-related, improperly impinge on his first amendment rights, and are thus
overbroad.
The first argument (crime-relatedness) may be disposed of quickly because
Reedy, by his words and actions, connected his crimes to his “deviant” side of
viewing and creating digital child pornography. However, condition 21 suffers from
an unconstitutional lack of clarity by restricting Reedy’s use of the entire internet
without providing enforcement guidance to the CCO and, thus, without protecting
against arbitrary enforcement. 	There is no limitation to, and it is unclear which,
websites the CCO would or could prohibit from Reedy viewing, other than those
viewed for employment purposes. 	It is also unclear what happens if there is a
disagreement between the CCO and the treatment provider about which websites
or even filters are appropriate, or when and how to update those approved internet
locations. 	Without more clarity, the condition infringes on his first amendment
rights and is unconstitutionally vague.
In addition, the condition’s application to all internet-related inquiries in all
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No. 83039-2-I/21
21
internet-capable devices results in overbreadth. 	Under the condition’s express
terms, Reedy could not check on his phone when the next bus is coming without
first asking his CCO and treatment provider. 	Such breadth does not support the
valid interests in public safety or the safety of PJR. 	The community custody
condition in this case raises the concern suggested by the Johnson dissent: “the
condition here is a complete ban on Web use subject only to the permission of a
corrections officer, which may be granted under unspecified conditions.” Johnson,
197 Wn.2d at 756.
Therefore, we remand for the court to consider the contours of the CCO’s
approval and/or to incorporate a requirement for appropriate monitoring or filtering
software, rather than requiring approval over every instance of desired internet
access.
2. 	Conditions 22 and 23: Chat Rooms and False Identity
We affirm conditions of community custody 22 and 23 because they are
reasonably related to preventing Reedy from further contact with children.
Condition 22 states that Reedy must not use “computer chat rooms” and
condition 23 states that Reedy may not “use a false identity at any time on the
computer.” 	There was no objection to these conditions in Reedy’s sentencing
hearing. 	Nonetheless, in Reedy’s appeal, his brief contests all of conditions 21-
24. Reedy does not include separate arguments as to conditions 22 and 23 and,
instead, argues generally that these conditions are unrelated to his convictions.
As stated above, a court does not abuse its discretion if a reasonable
relationship exists between the crime of conviction and the community custody
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No. 83039-2-I/22
22
condition. Irwin, 191 Wn. App. at 658-59. For the reasons provided above, there
is a clear nexus between his self-described “deviant” interests, his internet use,
and the crimes he was convicted of.
Further, unlike conditions 21 (discussed above) and 24 (discussed below),
conditions 22 and 23 are narrowly tailored to specific activities that involve potential
online contact with children. Although Reedy did not use online forums or a false
identity to abuse his daughter, using an internet forum or false identity on the
internet 	can 	run 	the 	risk 	of 	violating 	other 	conditions 	of 	release 	such 	as
communicating with children unsupervised. 	Because there is a reasonable
relationship between these activities and Reedy’s conviction, we do not disturb
conditions 22 and 23.
3. 	Condition 24: Computer Parts or Components
We accept the State’s concession and agree with the parties that condition
24 should be struck as overbroad.
4. 	Condition 12: Home Searches
We remand the condition of community custody requiring Reedy to “submit”
to searches of his home, so that the trial court may clarify the conditions required
to perform such a search and avoid unconstitutional vagueness.
People 	released 	on 	probation 	have 	reduced 	expectations 	of 	privacy
because they are “‘serving their time outside the prison walls.’” 	State v. Olsen,
189 Wn.2d 118, 124-25, 399 P.3d 1141 (2017) (quoting State v. Jardinez, 184 Wn.
App. 518, 523, 338 P.3d 292 (2014)). Accordingly, it is constitutionally permissible
for a CCO to search an individual based only on a “well-founded or reasonable
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No. 83039-2-I/23
23
suspicion of a probation violation,” rather than a warrant supported by probable
cause. 	State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). 	The
legislature 	has 	codified 	this 	exception 	to 	the 	warrant 	requirement 	at 	RCW
9.94A.631. . . . ” Cornwell, 190 Wn.2d at 301-02.
An individual’s privacy interest [in their home] can be reduced “only to the
extent necessitated by the legitimate demands of the operation of the [community
supervision] process.” 	Id. at 303-04. 	When there is a “nexus” between the
property searched and the suspected probation violation, reduced privacy is
safeguarded by: 1) the CCO having reasonable cause to believe a violation
occurred 	before 	conducting 	a 	search 	and 	2) 	the 	parolee’s 	privacy 	is 	only
diminished 	to 	the 	extent 	necessary 	for 	the 	State 	to 	monitor 	the 	parolee’s
compliance. Cornwell, 190 Wn.2d at 304 (citing RCW 9.94A.631(1)).
In Cornwell, the court held the CCO did not have reasonable cause to
search Cornwell’s home for potential drug paraphernalia after Cornwell was in a
car accident because there was no nexus between Cornwell’s suspected probation
violation and his car. Id. at 306-307.
Again, “issues of statutory interpretation and constitutional law are reviewed
de novo.” 	Cornwell, 190 Wn.2d at 300 (citing Evans, 177 Wn.2d at 191). 	A
challenge to conditions of community custody can be ripe for review if “the issues
raised are primarily legal, do not require further factual development, and the
challenged action is final.” 	State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832
(2015) (citing State v. Sanchez Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059
(2010) (quoting First United Methodist Church v. Hearing Examiner for the Seattle
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No. 83039-2-I/24
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Landmark Preservation Board, 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996)).
The court must also consider “the hardship to the parties of withholding court
consideration.” 	First United Methodist Church, 129 Wn.2d at 255 (internal
quotation marks omitted); Bahl, 164 Wn.2d at 751.
In Bahl, the court held that the appellant’s challenge to conditions of release
were ripe for review because, although he was incarcerated at the time, the
conditions would take effect as soon as he was released, and a violation would
result in a warrantless arrest. Id. at 751-752.
In Reedy’s sentencing hearing, the court imposed condition 12, requiring
Reedy to submit to home visits, with the Court stating:
There’s another one that says you must consent to DOC home visits,
but I’m going to change that, because I don’t care if you consent or
not. 	You 	must 	submit 	to 	DOC 	home 	visits 	to 	monitor 	your
compliance with supervision . . .
On the sentencing form, the court crossed out “consent” on the conditions
form and wrote “submit.”
Contrary to the State’s arguments, Reedy’s challenge is ripe for review
because 	this 	purely 	legal 	issue 	is 	clear 	and 	requires 	no 	additional 	factual
development and Reedy would be subject to such searches as soon as he was
released. Bahl, 164 Wn.2d at 751-52.
Here, Reedy’s conditions of community custody (allowing home searches)
are more related to his offense than the contested conditions in Cornwell. 	The
repeated sexual abuse of PJR occurred at his home and Reedy made an effort to
spend more time alone with her there. Further, there is a nexus between Reedy’s
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No. 83039-2-I/25
25
living space and any potential violations of other unchallenged conditions of
release, such as restricting unsupervised time with children. 	Because there is a
nexus, the next question is how his reduced privacy should be safeguarded.
Again, reduced privacy is safeguarded by: 1) the CCO having “reasonable
cause to believe” a violation occurred before conducting a search and 2) the
parolee’s privacy is only diminished to the extent necessary for the State to monitor
the parolee’s compliance. Cornwell, 190 Wn.2d at 304 (citing RCW 9.94A.631(1)).
Condition 12 does not require the CCO to have a reasonable suspicion that Reedy
is violating any of his conditions of release. 	Further, there is no explanation of
what a reasonable suspicion for inspection would look like anywhere in the record.
For these reasons, we remand this condition of community custody for the
trial court to consider whether to add the requirement that his CCO must have
reasonable suspicion of a probation violation, and to make clear that the search
will 	only be 	conducted 	to 	the 	extent 	necessary “for 	the 	[CCO] 	to 	monitor
compliance with the particular probation condition that gave rise to the search,”
where there is such a nexus. Cornwell, 190 Wn.2d at 304.
D. 	Statement of Additional Grounds
In addition to his attorney’s briefing on appeal, Reedy submitted a statement
of additional grounds. 	Statements of additional grounds are permitted by RAP
10.10. The rule serves to ensure that an appellant can raise issues in their criminal
appeal that may have been overlooked by their attorney. Recognizing the practical
limitations many incarcerated individuals face when preparing their own legal
documents, RAP 10.10(c) does not require that the statement be supported by
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No. 83039-2-I/26
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reference to the record or citation to authorities. However, it does require that the
appellant adequately “inform the court of the nature and occurrence of alleged
errors.” RAP 10.10(c). It also relieves the court of any independent obligation to
search the record in support of the appellant’s claims, making it prudent for the
appellant to support their argument through reference to facts. RAP 10.10(c).
In those sections of his statement of additional grounds for review which
have not been addressed above or are not duplicative of his appellate counsel’s
arguments, Reedy contests the sufficiency of the evidence for his conviction
(Statement of Additional Grounds (SAG) 1 and 2), and raised the issue of his
competency to participate in his defense before trial (SAG 3). We address each
in turn.
1. 	Sufficiency of Evidence
We conclude Reedy did not carry his burden to show the evidence against
him was insufficient.
In determining the sufficiency of the evidence, our standard of review is
“whether, after viewing the evidence in a light most favorable to the State, any
rational trier of fact could have found the essential elements of the charged crime
beyond a reasonable doubt.” State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134
(1990) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), overruled
on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165
L. Ed. 2d 466 (2006)).
A challenge to the sufficiency of the evidence admits the truth of the State’s
evidence. State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014) (citing
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No. 83039-2-I/27
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State v. Green, 94 Wn.2d at 220–22). 	“[A]ll reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly against
the defendant.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing
State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977), overruled on other
grounds).
In SAG 1, Reedy contests that the “Devon count” occurred because Devon
was not at the apartment during the alleged time, instead, he was at “Job Corps.”
He further states that PJR lied about this incident, and therefore must have lied
about the other counts because she is “known to lie.” SAG 2 states that because
Duclose once filed a “fraudulent” no-contact order against Reedy and later revoked
it in 2016, neither her nor PJR are credible witnesses.
We view the evidence presented about the Devon count in the light most
favorable to the State. Salinas, 119 Wn.2d at 201. 	Viewing the evidence in that
light, a reasonable trier of fact could find PJR’s consistent and cogent reporting of
the Devon count credible. 	Further, Reedy did nothing more than question PJR
and Duclose’s credibility, which if viewed in the light we must, is not sufficient to
meet his burden to show a rational jury could not have found them credible, as to
PJR’s demeanor on reporting. 	Therefore, the evidence is not insufficient as a
matter of law.
2. 	Competency
We conclude that Reedy was competent to participate in his own defense.
In SAG 3, Reedy contends that he was unable to competently participate in
his defense. Reedy explained that during the time he was incarcerated, his autism,
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No. 83039-2-I/28
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social anxiety, and ADHD were not treated, and this affected his ability to talk about
his case with his attorney. He described part of this time as being “in a temporary
state of questioning [his] reality.” 	Reedy describes that the time he was found
incompetent to stand trial and treated at Western State Hospital demonstrated his
inability to participate.
Although Reedy accurately described the time period in which he received
competency rehabilitation at Western State before trial, he does not address that,
after 	such 	time, 	he 	was 	professionally 	evaluated 	and 	found 	competent 	to
participate in his defense. It is during that period of competency that the trial was
held. 	The basis for the claim of incompetency during this time period is unclear
and this court is not required to search the record to locate the portions relevant to
a litigant’s arguments. Cowiche Canyon Conservancy v. Bosley,118 Wn.2d 801,
819, 828 P.2d 549 (1992). 	Stated otherwise, Reedy’s “passing treatment of an
issue or lack of reasoned argument are insufficient to merit judicial consideration.”
Joy v. Dep’t of Labor & Indus.,170 Wn. App. 614, 629, 285 P.3d 187 (2012) (citing
West v. Thurston County,168 Wn. App. 162, 187, 275 P.3d 1200 (2012)).
III. 	Conclusion
We affirm Reedy’s conviction and remand this matter to the sentencing
court to reconsider the lifetime no-contact order, as well as conditions 12, 21, and
24 consistent with this opinion.
WE CONCUR:
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