FILED COURT OF APPEALS 

### IN THE COURT OF APPEALS OF THE STATE OF WIkGTON 2014 DEC _ 2 

### AM 8: 56 DIVISION II STATE OF WASHINGTON STATE OF WASHINGTON, 

### 0. 4419' I. I TY.,. Respondent,

v. DONALD ISAAC JOHNSON, Appellant. PUBLISHED IN PART OPINION
MELNICK, J. —

### Donald I.Johnson appeals acommunity custody condition imposed after he

was convicted of two counts of voyeurism and criminal trespass in the first degree. 1 Johnson 

### argues that the trial court abused its discretion by imposing a community custody condition that required him to submit to plethysmograph testing ordered by his community corrections officer 

### CCO) ortherapist. We hold thatthe trial courtdid not err in imposing this condition, butwewrite 

### to clarify that a CCO can order plethysmograph testing only forthe purpose ofsexual deviancy treatment. In the unpublished portion ofthis opinion we address the remaining issues and affirm 

### Johnson' s convictions, but we remand for resentencing based on other sentencing errors.
FACTS2 

### Following a bench trial,the trial court found Johnson guilty oftwo counts ofvoyeurism. The trial court sentenced Johnson to prison and to community custody. One of Johnson' s community custody conditions required him to "[ s] ubmit to polygraph and / or plethysmograph


### 1 Johnson also appeals his convictions and othersentencing conditions and provisions. We address these arguments in the unpublished portion ofthis opinion. 2 Facts relevant to the unpublished portion ofthis opinion are discussed in conjunction with the issues presented there.44194 - 2 -II 

### testing upon direction of [his] Community Corrections Officer and / ortherapist at [his] expense." Clerk' s Papers ( CP) at 147. 

### Johnson challenges this condition on appeal, arguing that the trial court did not have 

### authority to order the plethysmograph testing as a monitoring tool subject only to his CCO's discretion. ANALYSIS 

### We reviewthe imposition ofcommunity custody conditions for an abuse ofdiscretion, and

reverse only if the decision is manifestly unreasonable or based on untenable grounds. State v. Valencia, 169 Wn.2d 782, 791 -92, 239 P. 3d 1059 ( 2010); State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 ( 1993). 

### A condition is manifestly unreasonable ifit is beyond the court's authority to impose. See State v. Jones, 118 Wn.App. 199, 207 - 08, 76 P. 3d 258 (2003) ( striking the condition pertaining to alcohol counseling as unauthorized under applicable statutes). A challenger does not 

### need to demonstrate that the condition has been enforced; a preenforcement challenge is ripe for review. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). The Supreme Court has recognized that plethysmograph testing, unlike polygraph testing, does not serve a monitoring purpose. State v. Riles, 135 Wn.2d 326, 345, 957 P.2d 655 ( 1998), abrogated on other grounds, Valencia, 169 Wn.2d 782. " It is a gauge for determining immediate 

### sexual arousal level in response to various stimuli used as part of a treatment program for sex offenders. "3 Riles, 135 Wn.2d at 345.



### 3 More specifically, plethysmograph testing attempts to measure sexual arousal with an electronic 

### recording device attachedto thepenis while the subject is shown images ofmales and females of various ages in various types ofsexual activity. In re Det. ofHalgren, 156 Wn.2d 795, 800 n.1, 132 P.3d 714 (2006). 244194 - 2 -II 

### The trial court has authority to order a defendant to submit to plethysmograph testing only ifthe court also orders a crime - related treatment regimen for sexual deviancy. Riles, 135 Wn.2d
at 352. In Riles, the sentencing courts required two convicted sex offenders, as conditions of 

### community placement, to " submit to polygraph and plethysmograph testing upon the request of their] therapist and / or Community Correction Officer." 135 Wn.2d at 333, 337. Because one 

### ofthe offenders was not ordered to enter into treatment or therapy, the Supreme Court struck the plethysmograph testing provision from his judgment and sentence. Riles, 135 Wn.2d at 353. However, because the other offender was required to participate in sexual deviancytreatment as a 

## condition ofcommunity custody,the Supreme Courtupheldtheplethysmograph condition. Riles, 135 Wn.2d at 353. "[ 

### A] sentencing court may not order plethysmograph testing unless it also requires crime - related treatment for sexual deviancy.... [ Plethysmograph testing] is only useful,
within the context of a comprehensive evaluation or treatment process." Riles, 135 Wn.2d at 352; 

### see also State v. Land, 172 Wn. App. 593, 605 -06, 295 P.3d 782 ( striking condition requiring defendant to submit to CCO-ordered plethysmograph testing without any accompanying treatment requirement), review denied, 177 Wn.2d 1016 (2013). 

### Here, the sentencing court imposed both sexual deviancy treatment and plethysmograph testing. In Riles, the court upheld the same conditions but did not specifically address the 

### circumstances underwhich aCCO can orderplethysmographtesting. Riles made it clear,however, 

### that plethysmograph testing can only be used fortreatment purposes. We affirm the condition at issue here but write to clarify that the CCO's scope of authority is limited to ordering plethysmograph testing for the purpose of sexual deviancy treatment and not for monitoring
purposes.44194 - 2 -II 

### A majority ofthe panel having determined that onlythe foregoing portionofthis opinion will be printed in the Washington Appellate Reports and thatthe remainder shall be filed forpublic record in accordance with RCW 2.06.040, it is so ordered. ADDITIONAL FACTS 

### While taking a shower, twelve - year - old S.V. saw Johnson looking at her through the bathroom window. Frightened, S.V. left the shower to tell her babysitter, Julie Stanley, who managed the apartment complex where S.V. and her mother lived. Stanley called the police and 

### told S.V.to stay inside. A few minutes later,when S.V.was back in the shower rinsing the soap 

### from her hair, she sawJohnson come up again and tryto openthe bathroom window. When S.V. screamed, Stanley ran over and saw Johnson trying to pull the window open. Johnson tried to enter S.V.'s apartment through the front door, but it was locked. He then went to the apartment next door. 

### Marti Melvin,who lived next doorto S.V.,was home that daywith her son. Melvin heard

a knock on the door and yelled for the person to come in. 

### She was expecting Stanley for coffee. 

### Johnson opened the door and asked Melvin about S.V. and another girl, but Melvin did not know
what he was talking about. Johnson then said, " I' m just going to come in," and entered the
apartment. Report of Proceedings ( RP) ( Oct. 8 & 9, 2012) at 73. He walked through Melvin's 

## apartment, opening cupboards and doors, and lookingthrough closets. Dueto confusion,Melvin was not sure what she did next. Melvin testified that she did not mean to invite Johnson into her apartment but added that she never asked him to leave. She explained that he walked out after he 

### did not find anyone. Melvinthen asked Johnson why he had been looking atthe girl next door in the shower, and Johnson responded that he thought S.V. was 21 years old.

444194 - 2 -II 

### Stanley testified that she saw Johnson going through the apartment, that Melvin appeared
shocked and "freaking out," and that Melvin yelled at Johnson to get out ofher house. RP (Oct. 8 9) at 51. 

### Stanley added thatJohnson forced his waythrough the apartment before he left. Johnson eventually wandered to a nearby neighborhood, where an officer approached and questioned him. Johnson told the officer that he had been at the apartment complex trying to talk to a girl. 

### Stanley identified Johnson as the man who had been at the bathroom window and the police arrested him. 

### The State charged Johnson by amended information withtwo counts ofvoyeurism and one count of criminal trespass in the first degree. Johnson chose to represent himselfand waived his right to ajury. 

### During his bench trial, S.V., Melvin, Stanley, and two police officers testified to the above facts. Johnson did not present any evidence. 

### The trial court found Johnson guilty as charged and entered written findings offact and
conclusions of law to support his convictions. The court imposed concurrent standard range
sentences on all counts. In this portion of the opinion, we address Johnson's challenges to the sufficiency of the 

### evidence supporting his convictions, the length ofhis voyeurism sentences, and some additional community custody conditions. I. SUFFICIENCY OF THE EVIDENCE: CRIMINAL TRESPASS 

### To determine whether sufficient evidence supports a conviction, we view the evidence in 

### the light most favorable to the State and determine whether any rational trier offact could have 

### foundthe elements ofthe crime beyond a reasonable doubt. State v. Homan, 181Wn.2d 102, 105,

544194 - 2 -II
330 P. 3d 182 ( 2014). 

### Following a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the
conclusions of law. Homan, 181 Wn.2d at 105 -06. " Substantial evidence" is evidence sufficient to persuade a fair -

minded person ofthe truth ofthe asserted premise. Homan, 181 Wn.2d at 106. We review challenges to a trial court' s conclusions of law de novo. Homan, 181 Wn.2d at 106. 

### In claiming insufficient evidence, a defendant admits the truth ofthe State' s evidence and all reasonable inferences that can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). 

### Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). We defer to the trier of fact on issues of conflicting 

### testimony, credibility ofwitnesses, andthe persuasiveness ofthe evidence. State v. Thomas, 150 Wn.2d 821, 874 -

75, 83 P. 3d 970 (2004). 

### Aperson is guilty ofcriminal trespass in the first degree ifhe or she knowingly enters or
remains unlawfully in a building." RCW 9A.52. 070( 1). " Enters unlawfully" and " remains unlawfully" are alternative means of committing criminal trespass. See State v. Allen, 127 Wn. App. 125, 131 -32, 110 P. 3d 849 (2005) (

### interpreting similarlanguage inthe burglary inthe second degree statute). 

### A person enters or remains unlawfully when he " is notthen licensed, invited, or
otherwise privileged to so enter or remain." RCW 9A.52.010(5). 

### Thetrial court enteredthe following finding offact regardingthe criminal trespass charge: Stanley ... 

### watchedthe defendantgo nextdoor,toApartment #3, and knock on the door. Inside Apartment #3 was Marti Melvin. Melvin heard the knock on her door and told the person outside to come in. Melvin regularly had coffee with 

## Stanleyand believedthat Stanleywas knocking onherdoor. Infact,thedefendant was at Melvin' s door. The defendant then opened Melvin' s door and entered the apartment. Melvin did not knowthe defendant, and had not invited him into her residence. 

### Afterthe defendant entered Melvin's apartment, he began asking for S.V. by name.

644194 - 2 -II
The defendant moved from room to room inside the [ apartment], telling Melvin that he needed to use the bathroom. Melvin followed the defendant through her apartment to ensure that he did not move toward her children. Eventually, the defendant left the apartment, with Melvin following. 

### Stanley had followed the defendant to Melvin's apartment and also observed him inside. While Stanley was watching the defendant move around Melvin' s apartment, she was on the phone with the 911 operator, describing what was happening. After the defendant left Melvin's apartment, she asked him what he had 

### been doing looking at the girl next door in the shower. Melvin told the defendant that she was an 11 year old kid. The defendant responded that he thought that S.V. was 21 years old. CP at 107 -08 ( emphasis added). Johnson challenges the statement highlighted above. He also challenges the highlighted portion ofthe related conclusion of law:



### The defendant knowingly entered or remained in Marti Melvin's apartment. Melvin believed that another person was at her door when she told the defendant to come in after he knocked, having never met the defendant. The defendant knew 

### that the entry into Melvin's apartmentwas unlawful, as he knew that he was not licensed, invited, or otherwise privileged to enter or remain in the apartment.... [ T]he defendant knew that the entry or remaining was unlawful. CP at 110 ( emphasis added). Johnson argues that the evidence does not show that he either entered or remained 

### unlawfully in Melvin's apartment. He arguesthat,tothecontrary, Melvintestifiedthatshe invited him in and nevertold him to leave. Johnson adds that Stanleytestified that he eventually left after being told to do so.

The State asserts that Melvin invited Johnson in by mistake,

### thinkingthat hewas herfriend arriving for coffee. As Melvin testified, " 

### I don't make a habit ofinviting people I don't know in my apartment. 

### The manager comes over for coffee every morning, and I believe that' s who I thought it was." RP ( Oct. 8 & 9, 2012) at 76. Furthermore, even if Johnson was invited to enter,44194 - 2 -II he was never invited to look through Melvin's apartment, including opening closets, cupboards,
and doors. 

### The fact that he left because he could not find who he was looking for does not undermine the factthat he remained in the apartment unlawfully beforehand. SeeAllen, 127 Wn. 

### App. at 138 ( remanding for new trial where evidence supported unlawful remaining means of burglary counts). As stated, we defer to the trier offact on issues ofconflicting testimony and the credibility 

### ofthewitnesses. Accordingly,we find substantial evidenceto supportthe finding that Melvin did not invite Johnson to remain in her residence, and this finding is sufficient to support the conclusion that Johnson committed criminal trespass in the first degree. II. STATUTORY MAXIMUM SENTENCE 

### Johnson next contends that the trial court erroneously imposed a sentence beyond the 

### statutory maximum when it ordered him to serve 57 months in confinement on his voyeurism convictions as well as 36 months of community custody.

A court' s sentencing authority is limited to that granted by statute. State v. Skillman, 60 Wn. App. 837, 838, 809 P. 2d 756 ( 1991). 

### Whether a sentencing court has exceeded its statutory 

## authority is aquestion oflawthatwe reviewde novo. State v. Murray, 118 Wn.App. 518, 521, 77 P. 3d 1188 (2003). A trial court cannot impose a sentence providing for a term ofconfinement or community custody that exceeds the statutory maximum for the crime. RCW 9. 94A.505( 5). The statutory 

### maximumterm ofconfinementforvoyeurism,aclass C felony,is 60 months. RCW 9A.44.115(3); RCW 9A.20. 021( 1)( c). In recognition of this limitation, the trial court added a notation to Johnson' s judgment and sentence stating that the total term of confinement and community custody actually served could not exceed the statutory maximum.

844194 - 2 -II 

### The State concedes that following the enactment of RCW 9.94A.701( 9) in 2009, this
notation is insufficient. State v. Boyd, 174 Wn.2d 470, 472, 275 P. 3d 321 ( 2012). RCW 

### 9.94A.701( 9) provides that a community custodyterm "shall be reduced bythe courtwhenever an offender' s standard range term ofconfinement in combination with theterm ofcommunity custody
exceeds the statutory maximum for the crime." 

### Instead ofleaving the Department ofCorrections 

### responsible for reducing the term ofcommunity custody so that the total term ofconfinement is within the statutory maximum, RCW 9.94A.701( 9) requires the trial court to reduce the term of 

### community custody when it first imposes sentence to avoid a sentence that exceeds the statutory
maximum. Boyd, 174 Wn.2d at 473. 

### Consequently, we must remand for resentencing that complies with the statutory requirements. III. ADDITIONAL COMMUNITY CUSTODY CONDITIONS 

### RCW 9.94A.703 sets forth mandatory, waivable, and discretionary community custody
conditions. 

### Among the waivable conditions is one authorizing the court to order an offender to 

### refrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions. RCW 9. 94.703( 2)( c). The trial court prohibited Johnson from possessing or 

### consuming controlled substances " without a valid prescription from a licensed physician." CP at 

### 146. Johnson arguesthatthetrial court unlawfully limited him to possessing controlled substances prescribed by licensed physicians. The State concedes that the requirement that the prescription must be from a licensed physician should be stricken. We accept this concession. Johnson next challenges condition 16:

944194 - 2 -II Do not initiate, or have in any way, physical contact with children under the age of 18 for any reason, unless approved as per # 14[43 above. Do not have any contact 

### with physically or mentally vulnerable individuals. CP at 146 ( emphasis in original). Johnson objects to the sentence in condition 16 that prohibits 

### him from contact with physically or mentally vulnerable individuals. 

### Atrial courtmayorder an offenderto complywith crime - related prohibitions during aterm of community custody. RCW 9. 94A.703( 3)( f). A " crime- related prohibition" is an order 

### prohibiting conduct that directly relates to the circumstances ofthe crime forwhich the offender has been convicted. RCW 9. 94A.030( 10). In addition to ordering crime - related prohibitions, a 

### court may order an offenderto have no contactwith victims or a " specified class ofindividuals." RCW 9. 94A.703( 3)( b). 

### The specified class must bear some relationship to the crime. Riles, 135 Wn.2d at 350. Johnson contends that his crimes did not involve physically or mentally vulnerable individuals and that the prohibition on his contact with such individuals is not authorized under RCW 9. 94A.703. The State responds that because S.V. was a child who was unclothed and alone at the time
of the voyeurism, she was both physically and mentally vulnerable. The State contends that
condition 16 is therefore related to Johnson' s crimes. We question this reasoning and note that 

### conditions 14 and 16 contain separate prohibitions on any contactwith minors. We do not seethat the additional language prohibiting Johnson from contact with physically or mentally vulnerable individuals was related to his offenses and we order it stricken from condition 16.



### 4 Condition 14 bars Johnson from contact with minors unless approved in advance by his sexual 

### deviancy treatment provider and CCO. 1044194 - 2 -II 

### Finally, Johnson challenges conditions 24 and 25: 24. 

### You shall not have access to the Internet at any location nor shall you have access to computers ( with the exception of for employment purposes) unless 

### otherwise approved bythe CCO. You also are prohibited fromjoining or perusing anypublic social websites (Face book,MySpace, etc.) ortelephoning any sexually oriented " 900" telephone numbers. 

### 25. Do not possess orperuse any sexually explicit materials in any medium. Your sexual deviancy treatment provider will define sexually explicit material. Do not patronize prostitutes or establishments that promote the commercialization of sex. 

### Also, do not possess or use any cell phone that may provide access to the Internet as well. CP at 147. Johnson argues that these conditions are not crime related, and the State agrees. We accept the State' s concession of error and order these conditions stricken from the judgment and

sentence. IV. STATEMENT OF ADDITIONAL GROUNDS ( SAG) 

### Johnson argues in his pro se SAG that the evidence was insufficient to support his convictions. He complains in particular aboutthe absence ofphysical evidence. Johnson does not 

### identifyany particularelements forwhich sufficient evidence is lacking. As set forth above, a challenge to the sufficiency ofthe evidence admits the truth ofthe 

### State's evidence, and we must consider the evidence and all reasonable inferences from it in the light most favorable to the State. Circumstantial and direct evidence are equally reliable. 

### The testimony was more than sufficient to support Johnson's convictions forvoyeurism, which required proofthat he knowinglyviewed anotherperson in a place wherethat person would 

### have a reasonable expectation of privacy, for the purpose of arousing or gratifying his sexual desire. RCW 9A.44. 115( 2)( a). As the trial court concluded, Johnson' s statement that he thought 

### S.V. was 21 years old showed that he watched her shower for the purpose of sexual arousal or gratification. See State v. Diaz - Flores, 148 Wn.App. 911, 919, 201 P.3d 1073 ( 2009). We have already found the evidence sufficient to support Johnson' s criminal trespass conviction. The
1144194 - 2 -II absence ofphysical evidence is irrelevant because there was ample testimony to supportJohnson's
convictions. 

### Accordingly, we affirm Johnson's convictions and remand for resentencing in accordance with this opinion.

We concur: 

# C.X

gen, A.G.J.

12 Melnick, J. J