IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DONNA CHARBONNEAU on behalf of OLIVIA CHARBONNEAU, Respondents/Cross Appellants,

v. TANNER FOSTER, Appellant/Cross Respondent. No. 67922-8-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: June 10, 2013 ^;1: '--J''".
zi: tr

_- "?•'--• o ital :/• >• Schindler, J. — A superior court commissioner denied a petition for a sexifitl 

### assault protection order. On revision, the superior court reversed and entered a sgjcuatvcr 

### assault protection order. Tanner Foster contends that on revision, the superiorcourt erred in (1) reviewing the record de novo and (2) relying on RCW 7.90.090(4), the 

### statutory requirementthat prohibits denial of a protection order based on voluntary intoxication. Inthe alternative, Foster claims de novo review on revision violates due 

### process and RCW7.90.090(4) is unconstitutionally vague. Donna Charbonneau cross appeals denial of her motion to seal, redact, or strike the declaration of a Whatcom 

### County deputy under the Criminal Records PrivacyAct, chapter 10.97 RCW. We affirm the decision on revision but remand to redact the name of thejuvenile sexual assault
victim from the declaration.No. 67922-8-1/2
FACTS 

### On July 13, 2011, 16-year-old Tanner Fosterasked 15-year-old Olivia 

### Charbonneau to "walkto thepierwith him and hisfriend John Martinez."1 Afterwards, Foster contacted her several more times. Charbonneau said that Foster acted 

### "increasingly more flirty" but she "passed itoff as friendliness, because he had a serious girlfriend and Iwas notinterested in being more than friends with him, Iwas friendly, but
I did not flirt back." 

### On SaturdayJuly 16, Foster sent Charbonneau a textmessage asking her ifshe wanted to get together "to drinkwith him and [Martinez] later." Charbonneau got 

### together with Foster and Martinez at about 6:00 p.m., and "did a couple of shots in the car" before leaving to meet her friends. Later, Charbonneau received several text messages from Foster "asking if Iwould finish the bottlewith him and probably [Martinez] the next day." 

### The next day, Foster picked up Charbonneau from church at approximately 10:00 a.m. and drove to his house. Foster's parents were not home. Charbonneau 

### said that after they arrived at the house, she and Foster drank the rest of the liquorfrom the night before and a bottle of beer. Foster then opened a bottle ofwhite wine. Charbonneau said that Fosterforced herto drink the wine and the "[n]ext thing Iknew it 

### Iwas on the floor, Ican only remember flashes, butIremember that what he was doing
was painful and that Iwas crying. Ialso remembertelling him 'no.'" Fosterdropped Charbonneau off at her friend Dustin Effinger's house at 

### approximately 4:00 p.m. Charbonneau told Dustin and his older sister Kaleigh that
1We note that OliviaCharbonneau's name is used in the caption in the superiorcourt and on appeal. Wefurther note thatOlivia Charbonneau's name isreferred tothroughouttherecord andin the briefs on appeal.No. 67922-8-1/3 

### Fosterhad raped her.2 Laterthatnight, Charbonneau told herfriend EmmyJohnson that Foster had raped her. Whatcom County Deputy SherriffColin Bertrand interviewed Charbonneau and Foster. Foster told Deputy Bertrand that he had sex with Charbonneau but itwas consensual. On August 17, Donna Charbonneau filed a petition on behalfofher daughterfor issuance of a sexual assault protection order. Olivia submitted a declaration in support ofthe sexual assault protection order stating that on July 17, Fosterforced her to have 

### sex threetimes.3 Olivia says that she told Foster"no multiple times and to stop and that it hurt" but "he kept going." After [the liquor and beer] he got a bottle ofwhite wine, Ididn't wantto drink that, but he basically forced it on me. After that Iremember sobbing to him about my then-boyfriend Eddie. Next thing Iknew itIwas on the floor, Ican only rememberflashes, but Irememberthat what he was doing was painful and that Iwas crying. Ialso remember telling him "no". The next part that Iremember happening was him carrying me out to the hot tub. After being inthere for a couple minutes, he carried me back inside. Ithen rememberthrowing up due to all the alcohol. Then Iremember being on the floor again. Iremember him pulling what Ithought was a condom out of him [sic] pocket, then Iblacked out. Olivia also states that after she "blacked out[,].
. . [t]he next memory Ihave was going out to the car to pick up [Martinez] at his house. Since Ididn't want any more bad things to happen, Idecided to act as ifnothing was wrong, so Icould get home safely." Olivia said that she was still drunk when Foster dropped her offat approximately 4:00
p.m.



### 2We refertoDustin andKaleigh Effingerby theirfirst names forpurposes ofclarity and mean no disrespect by doing so. 3WerefertoOlivia Charbonneau and hermother Donna Charbonneau by theirfirst namesfor purposes ofclarity and mean no disrespect by doing so.No. 67922-8-1/4 

### Olivia recalled telling Kaleighand Dustin Effingerthat Foster had raped her, and telling EmmyJohnson later that night that Foster had raped her. Olivia also said that Foster sent her a text message that night asking her ifshe "had any regrets." According to Olivia, Foster's girlfriend told herthat Foster said they had sex three times. Itold [Foster's girlfriend] everything, and she told me what he had said. I only remember being sexually assaulted twice. She told me he said we hooked up three times, Ithought that it could very well have been three times, because Icouldn't remember hours ofthat day. The point is, before Iwent to his house, Ihad no interest in having sex with him, and afterward Ifelt like Ihad been taken advantage of, and sexually assaulted by him. 

### Iam not the type ofgirl to just have sexwithanyone. Prior to this incident Ihad only had sex once, in a relationship. 

### Donna Charbonneau, Emmy Johnson, Christopher Poole, and Kaleigh and 

### Dustin Effingeralso submitted declarations insupport of the petition for a sexual assault protection order. 

### Poole states that he and Oliviaexchanged text messages on July 17 and that 

### over the course of the day, her textmessages became "gibberish." When he called Olivia to check on her, Poole said that she "sounded drunk [and] when [Foster] came 

### back though, she immediately hung up withoutanotherword." Poole states that when he called back later, Olivia "sounded very upset saying shejust wanted to go home." DustinEffinger states that he also called Olivia whileshe was with Foster on July 17. Dustin said her responses "were timid and sporadic, and itwas obvious she'd been 

### drinking." Dustin states that Olivia was "crying hysterically" and "looked as though she had endured a serious physical toll." Kaleigh Effingeralso states that when Olivia arrived at their house, she was crying and eventually told her that Foster raped her. Dustin states that Olivia latertold him that Foster had raped her and she "has neverNo. 67922-8-1/5

once lied to me, and Iknow her well enough to know that she, under no circumstance, would lie about something so serious." Poole states that when he arrived at the Effingers' house, Olivia was "crying saying she'd been raped. She told us she didn't remember much more than him practically pouring drinks down her throat, forced himselfon her, she told him no, and thatthere was pain." In her declaration, Emmy Johnson states that Olivia sent her a text message at around 5:30 p.m. telling Johnson that Foster had raped her. While on shift, at about 5:30, Igot a text message from Olivia saying "I 

### think Igot raped." Ifreaked out and called [Poole] and Dustin, and Dustin said that Olivia had come to their house crying and went to talk to his older 

### sister Kaleigh. Then she went home. So Icalled Olivia at about 9:30 and asked her what happened and she told me he ([Foster]) had gotten her drunk and then raped her, and that she couldn't remember a lot, but that she remembered saying "no" and that "it hurt." Donna Charbonneau states that after her daughter returned home that evening, 

### she looked like "a complete mess" and had been crying. Donna also states that she 

### provided Deputy Bertrand withphone records showing the number of times Foster contacted Olivia before July 17. According to Donna, Deputy Bertrand told her that "he
was an experienced drug investigator but NOTexperienced with investigating rape." Donna also states that Deputy Bertrand interviewed her daughter on two separate 

### occasions before interviewing Fosterand his friend John Martinez approximately one week later. 

### Acommissionerentered a "Temporary Sexual Assault Protection Order" and 

### scheduled a hearing. Prior to the hearing, Foster submitted a declaration in opposition to issuance of a sexual assault protection order. Foster also submitted a declarationNo. 67922-8-1/6 

### from Deputy Bertrand and a memorandum from the Whatcom County Chief Deputy
Prosecutor. In his declaration, Foster states that he had consensual sexual intercourse with 

### Olivia three times that day. According to Foster, "We were both pretty drunk, and Olivia threw up at one point," but when "Olivia felt better," he asked ifshe wanted to have sex 

### again, and she said," '[Y]es.'" Foster said that "[a]fterthe sex," they watched a movie and went to "pick up John Martinez." According to Foster, "Everything seemed fine. Nothing seemed abnormal." 

### Deputy Bertrand states that he interviewed Olivia and Foster, and another detective interviewed Martinez. Deputy Bertrand said that Olivia "struck me as 

### emotionless and very matter of fact and did notseem upset by the events that occurred, [and] maintained only one instance ofsexual intercourse had taken place." Deputy 

### Bertrandstates that by contrast, Foster admittedhaving sex with Olivia three times and "gave a complete and full statementof what had happened." Deputy Bertrandstates that he "found [Foster] to be veryforthright and sincere." Deputy Bertrand also said that 

### according to the detective whointerviewed Martinez, Martinez said that Foster and Olivia did not appear "to be intoxicated" and "all seemed normal." 

### Deputy Bertrandsays that "based upon my general experience in investigation of crimes of this type and a number of factors," including the interview ofMartinez, he recommended againstfiling criminal charges. The memorandum from the Whatcom 

### County ChiefCriminal Deputystates that aftertalking to Deputy Bertrand and reviewing the file, there was insufficientevidence to file a criminalcharge. The memorandum

6No. 67922-8-1/7 states, in pertinent part: After drinking, what appears to be a large amount ofalcohol (vodka, beer, wine), [Foster and Olivia] had sexual intercourse. The details of this contact are not entirely consistent. [Foster] recalls having sex on three occasions at this [sic] house. [Olivia] recalls only one occasion. [Olivia] reports that she [t]old him "NO" repeatedly and at one point hit his head. [Olivia] appears to have significant gaps in her memory which Iexpect is due to alcohol toxicity. A third party, a mutual friend, who was present with them several hours afterthe events, reports seeing nothing unusual intheir behavior together other than them holding hands during the time he was with them. Atthe beginning of the hearing on September 15, the commissioner told the parties that calling witnesses to repeat the testimony in the declarations was not necessary. Deputy Bertrand and Fosterwere the only witnesses who testified at the hearing. Foster's testimony was very limited. Fostertestified that the phone records showed that he and Oliviaexchanged over 130 text messages on Saturday July 16. Deputy Bertrand testified about the interviews with Olivia and Foster. Deputy Bertrand said that he never spoke to Martinez. But Deputy Bertrand said that he placed "great emphasis" on what Martinez told the other detective because Martinez was a "mutual friend," and that Martinez's version ofevents "was the primary reason" he did not arrest Foster. However, on cross-examination, Deputy Bertrand admitted that he assumed Martinez was a mutual friend. Q. [I]n your declaration you stated that you placed great emphasis on [Martinez's statement] because they were mutual friends? A. Correct. Q. That John Martinez was a mutual friend of both the petitioner as well as the respondent, correct? A. Correct. Q. Would itsurprise you to know that the very first time thatthe petitioner actually met John Martinez was on the 16th, which was one day prior to the alleged rape?

7No. 67922-8-1/8 A. Yeah. That would be surprising. 

### Q. But you made that assumption . . . [t]hatthey were mutual friends? A. Absolutely. 

### Deputy Bertrand admitted that he did not interview Christopher Poole or Kaleigh and Dustin Effinger. Deputy Bertrand also agreed that the delay in interviewing Foster and Martinez could have influenced their testimony. Q Is there the possibility that either [Foster or Martinez] may have discovered or that word may have spread that there was an allegation ofrape and a possible investigation? A. Absolutely. 

### Nonetheless, Deputy Bertrand testified that he was not concerned about the inconsistent statements because Oliviawas a "very small young lady and there was a lot ofalcohol, so it would not surprise me ifshe didn't remember." 

### The commissionerdenied the requestto issue a sexual assault protection order. The memory lapses, the voluntary intoxication ofalcohol, ofthe statement of Chief Deputy Prosecutor Mac Sutter [sic], the recommendation ofthe investigating Deputy Sheriff's office to not 

### charge[,] the conflictsin the statements presented by various individuals. I'm sorry, Ms. Charbonneau, therejust is insufficientevidence to justify the issuance of a sexual assault protection order. 

### The order dismissing the petitionstates, in pertinent part: "No permanent Order for Protection shall issue because: evidence does not support a Sexual Assault Protection Order as set forth in this Court's oral ruling." Donna Charbonneau filed a motion to revise the commissioner's decision 

### denying the requestto issue a sexual assault protection order, and her motion to seal, redact, or strike information set forth inthe declaration ofDeputy Bertrand thatwas 

### protected by the Criminal Records PrivacyAct, chapter 10.97 RCW, and the Public Records Act, chapter 42.56 RCW.

8No. 67922-8-1/9 

### The court rejected Foster's argument thatthe court should give deference to the commissioner. The court ruled that as a matter of law, the commissioner's decision was improperly based on Olivia's intoxication. The court ruled the commissioner erred in failing to take into account the statutory requirement prohibiting denial of a protection order based inwhole or in part on voluntary intoxication. So Ithen go back and look at the provisions ofthe statute regarding sexual assault protection orders, and keeping in mind that the Court can in this instance make its own independent determination based upon the record below as to whether or not there is a basis for such an order. I'm going to look at it from that perspective.
. . . [D]enial of an order cannot be based inwhole or in part on evidence that the petitioner was intoxicated. Ithink CommissionerVerge in his decision clearly relied upon that, and he spoke to it in many, many instances, and spoke to it in detail as to how he believed that impacted the petitioner's ability to recall or her behavior or her response to the events ofthe day. Ithink that's inappropriate underthe context ofthe statute. The court also concluded the commissioner "relied very heavily on Detective 

### Bertrand's testimony" and did not take into account the othertestimony in the record. Based on the record, the court found that by a preponderance ofevidence, Olivia
was a victim of nonconsensual sexual intercourse. The superior court ruled that Donna Charbonneau was entitled to issuance of a sexual assault protection order on behalfof her daughter. 

### [L]ookingat the evidence as was presented to CommissionerVerge, and only that evidence^] by a preponderance ofthe evidence, the petitioner has established that this was non-consensual, because of not only what she has said and done, but because ofthe fact that she was intoxicated to the level that she was. That would indicate to me that herfree willwas impacted and her recollections may be impacted, and under a circumstance such as this, the Courtwould have to find that a person who is in that condition may be incapable of giving the necessary consent.... She's never told anybody that she gave consent. What she's told people is that she didn't. That's consistent with the behavior, Ithink, of someone who has been placed in her situation.No. 67922-8-1/10 

### Therefore, Ithink that the commissioner in his reading of the evidence made his decision, but Ican't agree with his decision. Idon't think his decision is necessarily one that Iwould find to be appropriate underthe evidence that has been presented here and underthe provisions ofthe statute as they apply. So it is my beliefand my decision that the denial ofthe order should be revised, that an order should be entered; that the terms of that order should be that there is to be no contact between the respondent and the petitioner in the language ofthe statute; that that no contact include nonphysical contact with her directly, indirectly, or through third-parties, regardless ofwhether those third parties are on the order. In otherwords, no emails, no phone calls, no texting, no letters, no notes, nothing, no contact of any sort to her directly orthrough a third-party with her. The court entered a sexual assault protection order. The court denied the request to strike, seal, or redact Deputy Bertrand's declaration. Foster appeals the decision to issue the sexual assault protection order. Donna cross appeals denial ofthe motion to strike, seal, or redact Deputy Bertrand's declaration.
ANALYSIS Standard of Review on Revision Foster contends that the superior court on revision erred by reviewing the record 

### de novo. Foster argues that because Foster and Deputy Bertrand testified, the superior court should have determined whether substantial evidence supported the commissioner's decision.4 The decision of a court commissioner is subject to revision by the superior court. 

### RCW 2.24.050.5 RCW 2.24.050provides, in pertinentpart: All ofthe acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry ofany order orjudgment 4Whatcom County Civil Rule 53.2(a) provides: "All revisions ofCommissionerrulings shall be de novo on the record made by the Commissioner, based only [sic] those materials, papers and pleadings in the courtfile and previously submitted to the Commissioner." 5See alsoWash.Const, art. IV, § 23.

10No. 67922-8-1/11 

### ofthe court commissioner. Such revision shall be upon the records ofthe case, and the findings offact and conclusions of law entered by the court commissioner. On revision, the superior court reviews de novo the findings offact and conclusions of law ofthe commissioner based upon the evidence and issues presented 

### to thecommissioner. Statev. Ramer. 151 Wn.2d 106, 113, 86P.3d 132 (2004).6 Where the superior court does not agree with the decision of the commissioner on revision, we review only the superior court decision. Ramer, 151 Wn.2dat113. Foster relies on State v. Lown. 116 Wn. App. 402, 66 P.3d 660 (2003), to argue 

### the superiorcourt erred in reviewing the record de novo. The court in Lown held that on revision, the superior court reviews the commissioner's findings for substantial evidence. Lown, 116 Wn. App. at 407-08. 

### InRamer, our Supreme Courtexpressly disagreed withthe holding in Lown. Ramer, 151 Wn.2d at 113 n.9. In Ramer, a number ofwitnesses testified during the 

### hearing before the commissioner. Ramer. 151 Wn.2dat 110-12. On revision, the superior court reviewed the record and reversed the commissioner's decision. Ramer, 151 Wn.2d at 112. The Supreme Court held that according to RCW2.24.050, "[o]n 

### revision, the superior court reviews both the commissioner's findings of fact and conclusions of law de novo based upon the evidence and issues presented to the commissioner." Ramer, 151 Wn.2d at 113. The Court expressly states that "[a]ny 

### language to the contraryin State v. Lown. 116Wn.App. 402, 66 P.3d 660 (2003), is disapproved." Ramer, 151 Wn.2d at 113 n.9.
6See also In re Marriage of RE., 144 Wn.App. 393, 406, 183 P.3d 339 (2008)(citing Ramer, 151 Wn.2d 113)(noting that undercontrolling Supreme Court precedent, the superior court reviewsa commissioner's decision de novo); 14 Karl B. Tegland, Washington Practice: CivilProcedure § 3.13, at 42 (2d ed. 2009)(citing Ramer as holding that the superior courtalwaysreviews a commissioner's decision de novo "regardless of the nature ofthe evidence considered bythecommissioner").

11No. 67922-8-1/12
Foster also cites In re Marriage of Moody, 137 Wn.2d 979, 976 P.2d 1240 (1999), and Perez v. Garcia, 148 Wn. App. 131, 198 P.3d 539 (2009), to argue there is "an exception to the de novo review standard for cases in which credibility is involved." Neither case supports Foster's argument. In Moody, the Supreme Court addressed whether a superior court may consider
new evidence on a motion for revision, and affirmed the superior court's refusal to consider new issues and new evidence not raised at the hearing before the commissioner. Moody, 137 Wn.2d at 993. The Court held that the statute limits the superior court's review on revision to the record before the commissioner. Moody, 137 Wn.2d at 992-93. Foster points to the court's statement in Moody that "where the evidence before the commissioner did not include live testimony, then the superior court judge's review ofthe record is de novo." Moody, 137 Wn.2d at 993. But as we previously noted, the court in Ramer held that where live testimony is presented, review is still de novo. Ramer, 151 Wn.2d at 113. Further, in In re Marriage of Rideout, 150 Wn.2d 337, 351, 77 P.3d 1174(2003), the Court recognized that "where competing documentary evidence [has] to be weighed and conflicts resolved," trial courts make credibility determinations based on documents. And in In re Marriage of Dodd, 120 Wn. App. 638, 86 P.3d 801 (2004), the court held that on revision, the superior court "is authorized to determine its own facts based on 

### the record." Dodd. 120Wn. App. at644/

7The othercases Fostercites do not address the standard of review on revision. See In re Marriage of Lanqham, 153 Wn.2d 553, 106 P.3d 212 (2005) (addressing the standard of review that an appellate court applies to a superior court's decision, not a superior court's revision of a commissioner's decision under RCW 2.24.050); Rideout, 150 Wn.2d at 337 (same); In re Parentage ofJannot, 149 Wn.2d 123. 65 P.3d 664 (2003) (same); State v. Bartolome, 139 Wn. App. 518, 161 P.3d 471 (2007) (standard of review for criminal trials on stipulated records).

12No. 67922-8-1/13 In Perez, the court addressed whetherthe superior court on revision erred in relying on evidence that was not presented to the commissioner. Perez, 148 Wn. App. at 138. In dicta, the court incorrectly cites to Dodd, 120 Wn. App. at 643, for the proposition that "[w]here the commissioner hears livetestimony,
... the superior court is to review the commissioner's findings offact and conclusions of law for substantial evidence." Perez. 148 Wn. App. at 139. But contrary to the dicta in Perez, the court in 

### Dodd states that "the superiorcourt on revision may review factual determinations for substantial evidence, but is not limited to a substantial evidence inquiry under RCW 

### 2.24.050." Dodd. 120Wn. App. at645.8 Foster also overstates the importance ofthe testimony ofFoster and Deputy 

### Bertrand. First, at the beginning of the hearing, the commissionertold the parties that he read each declaration multiple times, and that calling witnesses to repeat what was 

### setforth in thedeclarations was notnecessary.9 Further, Foster'stestimonywasvery limited. Fostertestified about the number oftext messages he and Olivia exchanged 

### the day before. And while Deputy Bertrand testified at some length, the superior court
on revision stated that "Detective Bertrand's testimony is less valuable in this case than 

### the testimony of the parties in the case." The court ruled that as a matter oflaw, the commissioner improperly relied on the level of Olivia's intoxication. 

### [Thecommissioner's] decision wasn't based on credibility so much as his decision was based upon what he thoughtwas the fact that [Olivia] was so 

### intoxicated] that he couldn't rely on what she had provided in terms of her affidavit and the other information.

(Emphasis added.) 9Forexample, rightbeforetheexamination ofFoster, thecommissionerstated,"Go ahead counsel, again, recognizing I'veread every wordin thefile multiple times and I've paid close attention to the testimony."

13No. 67922-8-1/14 We conclude that the superior court on revision did not err in reviewing the
record before the commissioner de novo. In the alternative, Foster claims that de novo review ofa commissioner's decision violates his procedural due process rights under the state and federal constitutions. "When a state seeks to deprive a person of a protected interest, procedural due process 

### requires that an individual receive notice ofthe deprivation and an opportunity to be 

### heard to guard againsterroneous deprivation." Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006). Foster has the burden to show that he was deprived of 

### a protected interest. Mathews v. Eldridqe. 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976). 

### Foster does not clearly identify a protected interest. To the extent Foster claims 

### hisreputation is a protected interest, reputation alone is generallyinsufficientto trigger due process. See Nguyen v. Dep'tofHealth Med. QualityAssurance Comm'n, 144 Wn.2d 516, 541-42, 29 P.3d 689 (2001). And the case Foster relies on in support of his 

### argument, BuffelenWoodworking Co. v. Cook. 28Wn. App. 501,505-07, 625 P.2d 703 

## (1981), holdsthatdenovo reviewdoes notviolatedue process.10
Void for Vagueness 

### Foster claims the superior courtviolated hisrightto due process byrelying on the 

### statutory requirementthatprohibits denial of a protection order based onvoluntary intoxication, RCW 7.90.090(4).

10We do notconsider the argument Foster makes that the de novo standard ofreview onrevision violates substantive due process and equalprotection. Further, Foster does notidentify similarly situated classes orindividuals or cite equalprotection cases to support hisargument. See Holland v. City of Tacoma, 90Wn. App. 533, 538, 954 P.2d 290(1998) ("Passing treatmentofan issue orlackofreasoned 

### argumentisinsufficienttomeritjudicial consideration."); Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

14No. 67922-8-1/15 

### RCW 7.90.090(1 )(a) states that the court shall issue a sexual assault protection order "[i]fthe courtfinds by a preponderance of the evidence that the petitioner has been a victim of nonconsensual sexual conduct or nonconsensual sexual penetration by 

### the respondent."11 RCW 7.90.090(4) provides that denial of a sexual assault protection order shall not be based inwhole or in part on evidence that "[t]he petitioner was voluntary 

### intoxicated," or the petitioner "engaged in limitedconsensual sexual touching." RCW 7.90.090(4)(b), (c). 

### Foster argues that as applied, RCW7.90.090(4) is unconstitutionally void for vagueness. Where a vagueness challenge does not implicate the FirstAmendment, we evaluate the statute as applied to the particularfacts ofthe case and the party's conduct. City of Seattle v. Montana. 129 Wn.2d 583, 597, 919 P.2d 1218 (1996). The 

### party asserting a statute is void forvagueness bears the burden of proving beyond a reasonable doubt that the statute does not make plain the conduct that is proscribed. State v. Halstien. 122Wn.2d 109, 118, 857 P.2d 270 (1993). Underthe due process clause ofthe Fourteenth Amendment, a statute is unconstitutionally vague if (1) the statute does not define the offense with "sufficient definiteness that ordinary people can 

### understand what conduct is proscribed," or (2) itdoes not provide ascertainable 

### standards of guilt to protect against arbitrary enforcement. City ofSpokane v. Douglass. 115Wn.2d 171, 178, 795 P.2d 693 (1990). Giacciov. Pennsylvania. 382 U.S. 399, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966), 

### does not support Foster's argumentthat RCW7.90.090(4) is unconstitutionally vague.
11 The statute specifically mentions victims who do not reportthe rape and "cases in which the rape is reported [and] not prosecuted." RCW 7.90.005.

15No. 67922-8-1/16 In Giaccio, the United States Supreme Court held that a Pennsylvania statue allowing thejury to impose costs on an acquitted criminal defendant was unconstitutionally 

### vague. Giaccio, 382 U.S. at 402-03. The Court concluded the statute contained "no standards at all," and did not "place any conditions ofany kind upon thejury's power to impose costs upon a defendant who has been found by thejury to be not guilty of a 

### crime charged against him." Giaccio, 382 U.S. at 403. Here, unlike in Giaccio, the 

### statute provides ascertainable standards.12 See RCW7.90.010(1), (4), (5) (defining "nonconsensual," "sexual conduct," and "sexual penetration"). Cross Appeal 

### In her cross appeal, Donna Charbonneau argues the superiorcourterred by not 

### sealing orredacting the declaration of Deputy Bertrand to remove her daughter's name under GR 15 and the Criminal Records Privacy Act, chapter 10.97 RCW. We review a trial court's decision on a motion to seal or redact for abuse ofdiscretion. Indigo Real 

### Estate Servs. v. Rousev. 151 Wn. App. 941, 946, 215 P.3d 977 (2009). On a motion to seal or redact, the court considers a number offactors, including whether sealing or 

### redacting is "effective in protecting the interests threatened." Seattle Times Co. v. Ishikawa. 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). 

### In denying the motion to seal the declaration under GR 15, the superiorcourt 

### properly considered the Ishikawa factors on the record. However, the court erred in denying the requestto redact under RCW 10.97.130 on the grounds that "Deputy

12 Foster also argues that the statuteviolates due process by precluding evidence ofvoluntary intoxication. Foster mischaracterizes the statute. RCW 7.90.040 does not remove consideration of intoxication from the factfinder, it merely requires thatvoluntary intoxication not be the basis for denial of a sexual assault protection order. For the first time in his replybrief, Foster claims that RCW 7.90.090(4) violates the doctrine ofseparation of powers. We do notaddress arguments raised for the first time in a reply brief. Cowiche, 118 Wn.2d at 809.

16No. 67922-8-1/17 Bertrand is entitled, Ithink, as a citizen to present an affidavit in a civil matter." The record is clear that the information set forth in Deputy Bertrand's declaration is based on a criminal investigation ofthe rape allegation. Information identifying child victims of sexual assault is protected by the Criminal Records Privacy Act and exempt from public 

### disclosure. RCW 10.97.130; RCW42.56.240(5).13 In Bainbridge Island Police Guild v. CitvofPuvallup. 172 Wn.2d 398, 418, 259 P.3d 190 (2011), the court held that the police officer's identity was exempt from disclosure underthe Criminal Records Privacy 

### Act even though the remainder of the investigative records were subjectto disclosure. We affirm the decision on revision to enter a sexual assault protection order but 

### remand to redact the name ofthejuvenile victim from the declaration of Deputy
Bertrand. 

# VrP^Mfc.

WE CONCUR:



### W£e.

# ^,4.or &#,^

13We note the 2012 and 2013 amendments to RCW 42.56.240 made no change to subsection (5) of the statute. See LAWSQF2012.ch. 88, § 1; Substitute H.B. 1612, at 1-2, 63rd Leg., Reg. Sess. (Wash. 2013).
17