### FILED DECEMBER 14, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. 

### DENNIS NEAL GASTON, Appellant. ) ) ) 

### ) ) ) 

### ) ) ) No. 34719-2-111

UNPUBLISHED OPINION

PENNELL,

### J.
- Dennis Gaston appeals the imposition oftwo community custody conditions, sustained as a result ofhis conviction for second degree childmolestation. He has also submitted a statement ofadditional grounds for review, challenginghis conviction. Finding meritto Mr. Gaston's appeal, butnot his statement ofadditional grounds, weremandthis matter sothe contested community custodyconditions canbe stricken ormodified. The conviction is affirmed. FACTS Afterhis second degree child molestation convictionwas reversed and remanded by this court in 2016, Mr. Gaston was re-triedtothe bench andhis conviction wasNo. 34719-2-111 

### State v. Gaston reimposed. At sentencing, Mr. Gaston received a term of 18 months inprison and 36 months' community custody. Two ofMr. Gaston's community custody conditions are pertinent to this appeal: "14. Do notpurchase, possess orview any pornographic material.
... 20. No frequent [sic] playgrounds, parks, schools, or any locations where children are known to congregate." Clerk's Papers at 110. ANALYSIS 

### Community custody condition 14 Mr. Gaston argues and the state concedes that the pornography condition is not crime related. We acceptthe state's concession. Condition 14 shall be stricken. 

### Community custody condition 20 Mr. Gaston argues community custody condition 20 is unconstitutionally vague because it fails to provide fair notice ofprohibited conduct and exposes him to arbitrary enforcement. Dueprocess prohibits the imposition ofvague community custody conditions. 

### State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). A community custody condition is not vague so long as it: (1) provides ordinarypeople with fair warning ofthe proscribed conduct, and (2) has standards that are definite enoughto protect against arbitrary enforcement. 

### Id. at 652-53.
2No. 34719-2-III 

### State v. Gaston
As explained in ourrecent decision in 

### State v. Velazquez, 1 condition 20 is not unconstitutionally vague. Unlike the condition deemedproblematic in 

### State v. Irwin, Mr. Gaston's conditionprovides fair warning ofproscribed conduct because the illustrative list ofplaygrounds, parks, and schools demonstrates whatthe court meantby "locations where 'children are knownto congregate."' 

### See Irwin, 191 Wn. App. at 655 (an otherwise vague term can be made definite by an illustrative list). In addition, condition 20 is not vulnerable to arbitrary enforcement because Mr. Gaston's community corrections officer is not empowered to define whether or not a given location meets the terms ofthe court's order. 

### Id. Although notunconstitutionally vague, the State recognizes that condition 20 could be more precise. The term "children" is somewhat indefinite. It couldreferto an individual under 16 years ofage, or one under 18. However, in the context ofchild rape and child molestation, our laws are concerned with children under 16, not those under 18. RCW 9A.44.073-.089. Giventhis circumstance, the trial court's orderrestricting Mr. Gaston's access to areas where children congregate shouldbe interpreted as applying only to locations specific to children under 16. This limitationprovides betternotice to

1

### State v. Velazquez, No. 34713-3-III (Wash. Ct. App. Oct. 17, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/347133_unp.pdf 3

### No. 34719-2-111 

### State v. Gaston
Mr. Gaston and ensures he will notbe prohibited from frequenting locations such as work settings orcolleges where older children may congregate. In sum, because this matter is subjectto remand to strike condition 14 and because the term "children" lacks some precision, we also remand so that the trial court may modify condition 20 to prohibit Mr. Gaston from frequenting playgrounds, parks, schools,
or any locations where children 

### under 16are known to congregate. This remedy is consistent with our decision in 

### Velazquez, supra. 

### STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW In his statement ofadditional grounds for review (SAG), Mr. Gaston argues: (1) the trialjudgewas biased since he presided over both ofMr. Gaston's trials, (2) the court commissioner was biased because he is related to the child molestation victim, (3) there was ineffective assistance because defense counsel failed to follow Mr. Gaston's request to change venue orjudges, or objectto the term "urges" being used out ofcontext
or suggestively, (4) the trialjudge and prosecutorwere afraid ofMr. Gaston suing the county or State due to the first trial, (5) defense counsel, the prosecutor Mr. Gaston originally hired to be his defense counsel,2 

### and the prosecutor from the secondtrial had a

2 

### Mr. Gaston initially retained David Quesnel as his defense attorney, priorto Mr. Quesnel becoming a prosecutor. ChristopherLanz ended up stepping in and defended Mr. Gaston through trial. 4No. 34719-2-111 

### State v. 

### Gaston planto convict Mr. Gastonbecause the day before trial Mr. Gaston called defense counsel's office and was told defense counsel, both prosecutors, and the trialjudge had a conference call without Mr. Gastonpresentto decide howthe trial wouldproceed, and (6) violations ofattorney-clientprivilege andprosecutorial misconduct because Mr. Gaston hired an attorney who then arranged for Mr. Gaston's defense counsel to step in for him since he ran for prosecutor. To prevail on an ineffective assistance ofcounsel claim, Mr. Gaston must establish both deficient performance and resulting prejudice. 

### Stricklandv. 

### Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); 

### State v. 

### Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Mr. Gaston's arguments do not meetthis standard. The
use ofthe term "urges" was approved by the court underER404(b) through an in limine pretrial ruling. Given this circumstance, any objections during trial wouldhave been futile. Trial counsel's conductwas not deficient in this regard. As to the change ofvenue andjudgerequest, along withthe rest ofMr. Gaston's contentions in his SAG, these arguments relate to facts and materials that exist outside the record. The proper avenue for bringing claims based on evidence outside the record is through a personal restraint petition, not an appeal. 

### State v. 

### McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Also, ifa SAG argument does not inform the court ofthe


### 5

### No. 34719-2-111 

### State v. Gaston

nature and occurrence ofthe alleged errors, review may be declined. 

### State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008); RAP 10.IO(c). We decline to review as Mr. Gaston's SAG does not cite to anyportion ofthe record, nor are these arguments found in the record. CONCLUSION We remand for the trial court to strike condition 14 and modify condition 20 as set forth in this opinion. Mr. Gaston's conviction is affirmed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Pennell, J. WE CONCUR:

6