RICHARD D. JOHNSON, Court Administrator/Clerk The Courtof Appeals ofthe State ofWashington Seattle

November 16, 2015 Andrew Edward Alsdorf Snohomish County Prosecutors' Office 3000 Rockefeller Ave Everett, WA 98201-4046 aalsdorf@snoco.org Seth Aaron Fine Attorney at Law Snohomish Co Pros Ofc 3000 Rockefeller Ave Everett, WA 98201-4060 sfine@snoco.org DIVISION I One Union Square 600 University Street 98101-4170 (206)464-7750 TDD: (206)587-5505

Maureen Marie Cyr Washington Appellate Project 1511 3rd Ave Ste 701 Seattle, WA 98101-3647 maureen@washapp.org Prosecuting Attorney Snohomish Snohomish County Prosecuting Attorney 3000 Rockefeller Ave M/S 504 Everett, WA 98201
Washington Appellate Project 1511 Third Avenue Suite 701 Seattle, WA 98101 wapofficemail@washapp.org

CASE #: 71547-0-1 State of Washington, Respondent v. Shane Jackson. Appellant
Snohomish County, Cause No. 13-1-01658-8
Counsel: 

### Enclosed is a copy ofthe opinion filed in the above-referenced appeal which states in part: "Affirmed, in part. Remanded for the judgment and sentence to be amended consistent with this opinion." 

### Counsel may file a motion for reconsideration within 20 days offiling this opinion pursuantto 

### RAP 12.4(b). Ifcounsel does not wish tofile a motion for reconsideration but doeswish to seekreview by theSupreme Court, RAP 13.4(a) provides that ifno motion for reconsideration is made, a petition for review must be filed in this courtwithin 30 days.

Page 1 of 2In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by a cost bill filed and served within ten days after the filing of this opinion, or claim for costs will be deemed waived. Should counsel desire the opinion to be published by the Reporter of Decisions, a motion to publish should be served and filed within 20 days of the date of filing the opinion, as provided by RAP 12.3(e).
Sincerely,

Richard D. Johnson Court Administrator/Clerk jh Enclosure

c: The Honorable Michael T. Downes Shane Allen Jackson

71547-0-1 Page 2 of 2L'.'l J l!'J.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. SHANE ALLEN JACKSON, Appellant. DIVISION ONE No. 71547-0-1 UNPUBLISHED OPINION

FILED: November 16, 2015 

### Dwyer, J. —Following ajury trial, Shane Jackson was convicted ofrape 

### in the third degree. On appeal, Jackson contends (1) that insufficientevidence 

## supports his conviction, (2) thatthe community custody condition requiring him to 

## participate in substance abusetreatment asdirected bythe Departmentof Corrections (DOC) is invalid, and (3) thatthe community custody condition 

### requiring him to "consent" to searches ofhis home bythe DOC is facially unconstitutional. Weaffirm Jackson's conviction butremand for thejudgment and sentence to be amended consistent with this opinion.
I 

### On August24, 2012, Jackson asked S.D. to dinnerathis house. S.D. asked herfriend, A.M., to accompany her. Priortothis, A.M. hadonly met 

### Jackson once. The plan was for A.M. and S.D. to play video games while Jackson made dinner. Since they would bedrinking alcohol, S.D. and A.M. 

## planned to sleep on the couch. A.M. was 20 years old atthe time.No. 71547-0-1/2
S.D. drove A.M. to Jackson's house. While Jackson prepared dinner, S.D. and A.M. drank mixed drinks. By the end ofthe night, the three ofthem had consumed two fifths of hard liquor. Jackson did not drink as much as S.D. and
A.M. After dinner, A.M. and S.D. were drunk. S.D. got sick and vomited inthe bathroom. While A.M. was comforting S.D., Jackson came in and started 

### rubbing A.M.'s back. A.M. "shoved" his hand offof her. When S.D. was done "being sick," A.M. and Jackson helped her to Jackson's bedroom, where she 

### passed out on the floor. After situating S.D. in the bedroom, A.M. went to clean
the dishes. Later, whileA.M. was checking the house to make sure things were in 

### properorder,1 Jackson approached herin the laundry room. Jackson put his arm aroundA.M.'s waist, pulled herin toward him, and tried to kiss her. She pushed 

### him away and said, "No. What are you doing?" Jackson persisted, andA.M. decided to allow him to kiss her. She later explained her decision thusly: "It's 

### very weird to be in a position where someonemuch largerthanyou istrying to 

### hold you and is trying toforce you into kissing them. And Itried to beokay with the idea.
... Iwas hoping he was justdoing a drunken thing and was going to 

### give up on thewhole kissing thing." Jackson then lifted A.M. up onto thewashing machine and tried to remove her shorts. A.M. pushed his hand away, said, "No, 

### don't." Shejumped offthewashing machine and pushed Jackson away. He stumbled back, and she said, "I'm sorry. But, no."
1Jackson, S.D., and A.M. had made a bonfire earlier, and A.M. was particularly concernedwith making sure that ithad been properly extinguished.No. 71547-0-1/3 Despite A.M. telling him "no," Jackson again lifted her up onto the washing machine. This time, he removed her shorts and underwear in "one fell swoop." He pushed her back, spread her legs and "fitted his hips" between her legs. As Jackson leaned down to attempt oral sex on her, A.M. crunched up, clamped her legs together, and said, "No, stop. Just don't." Jackson asked why. She replied, "I don't want to." He then asked, "Why not?" This time A.M. said, "No. Thank 

### you, though. I'm sorry." Jackson said, "Okay, just kissing." Hetried to kiss her again. A.M. felt uncomfortable so, after several seconds, she stopped him, saying, "I'm really sorry but Ijust want to go to bed. I'm dizzy." Jackson told A.M. to stay there and he would be right back. He then left 

### the laundry room. A.M. did notwait but, instead, put her underwear and shorts back on and leftthe laundry room. She saw Jackson in the hallway, told him that she needed to laydown, and asked him where she was sleeping. Jackson 

### grabbed A.M.'s elbow, placed his hand on herback, and took hertohis brother's bedroom. A.M. thoughtshe was going to be able to lie down and go to sleep. 

### A.M. lay down on thebed. Jackson took offhis shirt and knelt down on thebed next to her. A.M. asked Jackson what he was doing. He replied, "Just kissing you." Jackson removed A.M.'s shorts. A.M. said, "No, don't." Jackson asked 

### "Why not?" A.M. did notthink that she had togive him an answer, but she replied, "No, pleasedon't." Jackson grabbed herknees, puthis mouth on her vulva, and attempted toperform cunnilingus. A.M. said, "No. Just stop." Jacksonpersisted. A.M. then pushed his head and said, "No. You're noteven

-3No. 71547-0-1/4 doing it right." A.M. later explained that "[she] was so dizzy at that point, [she] just wanted him to stop. . . . [She] was angry and [she] figured that maybe if [she] tried to hurt his male ego, he would just give up." Jackson replied, "I love that you're trying to tell me what to do." A.M. said, "No, you just suck at this, and I don't want you to." She crossed her legs and turned to the side. Jackson sat up, pulled A.M.'s legs around his waist, bumped his hips against her pelvis and said, "I just want you so bad." A.M. replied, "I'm sorry but no." Jackson asked, "Why not?" She replied, "I don't want you to." Jackson 

### again asked, "Why not?" A.M. then replied, "I'm not even on birth control. I'm not going to get pregnant. No." Jackson told her that she could not get pregnant from the first time. A.M. said, "That's just stupid." Jackson said, "Okay, fine," 

### patted her on the leg, and left the bedroom. A.M. thought she would finally be able to go to sleep. Jackson came back into the bedroom and got on the bed. A.M. asked him 

### what he was doing. Jackson showed her that he had placed a condom on his 

### penis. Jackson then pushed the blanket away, grabbed A.M. by herknees, and forced his penis into hervagina. A.M. instantly felt excruciating pain, like she


### was being torn apart.2 She pushedherselfup on herelbows, scootedback on the bed and said, "Ow, ow, ow. Stop." Jackson's response to A.M.'s 

### exclamation of pain was, "God, you're so fucking tight." He placed her legs over his shoulders and continued thrusting. When asked how she felt in that moment, 

### A.M. explained, "Itwas really overwhelming.
... Ijustfelt completely defeated 2A.M. was examined by SealjaPuvogel, a SexualAssault Forensic Nurse Examiner, on August 30, 2012. Puvogel observed atear in A.M.'s fossa navicularis. According to Puvogel, "[A] tear to the fossa navicularis would be very uncomfortable."No. 71547-0-1/5
because everything that Ihad done up to that point to kind of placate him without angering him and just trying not to let ithappen was just over." Jackson moved A.M.'s legs back around his waist and she again told him that his forcible penetrations were hurting her. He asked why. She said, "[b]ecause this is likesandpaper. It's just dry." Jackson then reached over, grabbed something from the windowsill, and said, "I have lube." A.M. told Jackson that she did not feel well. He asked her what was wrong and she said, "This hurts and Ithink I'm going to throw up." A.M. removed her legs from Jackson's shoulder, tossed them to her left, and laid on her side. Jackson 

### continuedthrusting. A.M. attempted to get up by straightening her legs, rolling onto her front side, and pushing herself up onto her hands and knees. At that 

### point, she gotdizzy and hervision wentblack. As a result, she "slumped" back on her knees and her head "collapsed" in her hands. Jackson grabbed her waist 

### and pulled her upsaying, "Hey, hey, hey. Stayawake. Stayup here." A.M. collapsed on the bed. (Attrial, A.M. was askedwhether, at thatmoment, she 

### had considered physically fighting Jackson in orderto getaway from him.3 A.M. replied, "I did butIwas very drunk. There was not a lot of strengthgoing on. And a long time ago Iremember being told that ifsomething bad like that was 

### going tohappen tome that ifIfelt like they could overpower me that Ishouldn't anger them or hit them because they might hit back.") 

### Jackson then flipped A.M. onto her back and raised one of her legs in the air. A.M. later rememberedthinking in that moment, "I [can]'t do this anymore." 3"Did you think about physically fighting [Jackson], justgiving iteverything you had physically to get out of that room?"
-5-No. 71547-0-1/6 She became angry and asked Jackson, "Do you have a whiskey dick or 

### something?" Jackson replied, "Oh, Iwasn't going to finish." A.M. then said, "Get off of me," and Jackson moved away from her on the bed. 

### A.M. went to get S.D. so that they could leave, but she could not awaken 

### her. Jackson pulled A.M. onto the bed with him and told her to just go to sleep. 

### A.M. could not sleep and went to the bathroom. When she tried to use the toilet, 

### she felt "a gush ofblood." Thesight of"all theblood" madeA.M., who already felt sick, vomit. When she was done, A.M. went back to againtry to awaken S.D. S.D. would not wake up, so A.M. ended up lying on the floor next to her. As a result ofthese events, Jackson was charged with rape in the third 

### degree. Thejuryfound him guilty as charged. Jackson was sentenced to 20 months ofconfinement, followed by 36 months ofcommunity custody. The court imposed 25 conditions ofcommunity custody.
II 

### Jackson first contends that insufficient evidence supports the jury'sverdict 

### ofguilt. This is so, he asserts, because the State did notestablish thatA.M. "clearly expressed," by herwords orconduct, her lack ofconsentto sexual intercourse with Jackson, as required to sustain a conviction. His contention is unavailing. 

### The due process clauses ofthe federal and state constitutions require that 

### the government prove every elementofacrime beyond areasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 

## 435 (2000); U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he criticalNo. 71547-0-1/7 inquiry on review of the sufficiency ofthe evidence to support a criminal conviction must be
... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt." Jackson. 443 U.S.

at 319."The purpose of this standard of review is to ensure that the trial court fact finder 'rationally appl[ied]' the constitutional standard required by the due process clause of the Fourteenth Amendment, which allows for conviction of a criminal 

### offense only upon proof beyond a reasonable doubt." State v. Rattana Keo Phuong, 174 Wn. App. 494, 502, 299 P.3d 37 (2013) (alteration inoriginal) 

### (quoting Jackson, 443 U.S. at 317-18), review denied, 182Wn.2d 1022 (2015). This standard of review is also designed to ensure that the fact finder at trial 

### reached the "subjective state of near certitude of the guilt ofthe accused," as required by the Fourteenth Amendment'sproofbeyond a reasonable doubt standard. Jackson, 443 U.S. at 315. 

### A claim of evidentiary insufficiency admits the truth of the State's evidence and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537, 

### 551, 238 P.3d470 (2010). Circumstantial evidence and direct evidence can be 

### equally reliable. State v. Delmarter, 94Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to thejury on questions ofconflicting testimony, credibility ofwitnesses,

7No. 71547-0-1/8
and the persuasiveness ofthe evidence. State v. Killinqsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012). In order to convict Jackson of rape in the third degree, the jury was required to find that "[A.M.] did not consent... to sexual intercourse with 

### [Jackson] and such lack ofconsent was clearlyexpressed by [A.M.'s] words or conduct." RCW 9A.44.060. "'Consent' means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating 

### freely given agreement to have sexual intercourse or sexual contact." RCW 9A.44.010(7). "'Clearly expressed' is notdefined bythe statute, but'clearly' 

### ordinarily means something asserted orobserved leaving nodoubt orquestion and 'expressed' ordinarily means to makeknown an emotion orfeeling." State v. Hiqgins. 168Wn. App. 845, 854, 278 P.3d 693 (2012) (citing Webster's Third NewInternational Dictionary420, 803 (1993)). In determining whether a lack 

### of consent was "clearly expressed," the focus is properly on the victim's words and actions rather than a defendant's subjective assessment of what is being communicated. Hiqgins, 168 Wn. App. at 854. 

### Herein, A.M. toldJackson at least 15 times that she did not want to 

### engage in sexual intercourse with him: (1) When hetried to remove her shorts, she pushed his hand away and said, "No, don't." (2) After she pushed him away from her, she said, "I'm sorry. But no." (3) When he first forcibly put his mouth 

### on hervulva, she clamped her legstogether and said, "No, stop. Justdon't." (4) When he asked herwhy, she said, "I don'twantto." (5) When he again asked 

### why not, shesaid "No. Thankyou, though." (6) When hetried to kiss her again,No. 71547-0-1/9 she said, "I'm really sorry but I just want to go to bed." (Emphasis added.) (7) When he started removing her underpants, she said, "No, don't." (8) When he again asked why not, she said "No, please don't." (9) When he again tried to put his mouth on her vulva, she said, "No. Just stop." (10) When he nonetheless continued, she pushed his head and said, "No. You're noteven doing itright." 

### (11)When he said that he loved her telling him what to do, she crossed her legs and said, "No,
... Idon't want you to." (12) When he bumped his hips against 

### herpelvis, she said, "I'm sorry butno." (13) When he asked why not, she said, 'I don't wantyou to." (14) When he again asked why not, she said, "I'm notgoing 

### to getpregnant. No." (15) When heforced his penis into hervagina, she said, "Ow, ow, ow. Stop," and pushed herselfawayfrom him. It is clearfrom this evidentiary recitation that the State presented notjustsufficient—but overwhelming—evidence thatA.M. clearly expressed herlack of consent to engage insexual intercourse with Jackson. Jackson nevertheless contends to the contrary, asserting that A.M.'s 

### words and conduct were ambiguouswith regard to whether she was consenting to sexual intercourse. However, when viewed in the lightmost favorable to the State—as the federal and state constitutions require—the specific statements to 

### which Jackson points, in claiming ambiguity, actually supportthe State's position. A.M.'s statements to Jackson that he was not "doing itright" and that he "just 

### suck[s] atthis" when heforced oral sexon her, her statementthat itwas"like 

### sandpaper" when Jackson forced his penis into hervagina, and her repeated statements that Jackson's actions were hurting her, particularly when combinedNo. 71547-0-1/10
with A.M.'s many statements that she did not want to have sexual contact with Jackson, support thejury's finding that A.M. expressed her lack ofconsent with clarity.
Ill Jackson next contends that a community custody condition requiring him to participate in DOC-directed substance abuse treatment is invalid. This is so, he asserts, because the condition is not related to the crime of which he was convicted. We disagree but remand forclarification that the condition applies to
treatment for alcohol only. 

### Atrial court's authorityto impose sentencing conditions is derived wholly from statute. State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008). A 

### condition ofcommunity custodyrequiring the offenderto participate in alcohol or 

### drug treatment must be "crime-related." RCW 9.94A.703(3)(c); Statev. Jones, 118Wn. App. 199, 207-08, 76 P.3d 258 (2003); State v. Parramore, 53Wn. App. 527, 529, 768 P.2d 530 (1989). A"crime-related prohibition" is one that "directly relates to the circumstances ofthe crime for which the offender has been 

### convicted." RCW9.94A.030(10). Tojustify such a condition, the evidence must show and the court must find that alcohol or drugs contributed to the crime. Jones, 118 Wn. App. at 203, 208. 

### Sentencing conditions are reviewed for abuse ofdiscretion. In re Pers. Restraint of Rainev, 168 Wn.2d 367, 374, 229 P.3d 686 (2010). A sentencing 

### courtabuses itsdiscretion in imposing a condition if itapplies the wrong legal standard. Rainev, 168 Wn.2d at 375.

10No. 71547-0-1/11
The trial court herein ordered that Jackson "[participate in substance abuse treatment as directed by the [DOC]," as a condition ofcommunity custody. The evidence adduced at trial showed that, on the night that he raped A.M., Jackson supplied alcohol to A.M., notwithstanding that she was under the legal drinking age, and himselfconsumed alcohol. At sentencing, in explaining its decision, the trial court repeatedly referenced the involvement of alcohol in Jackson's commission ofthe crime. Thus, Jackson's contention that there was
no evidence showing that alcohol contributed to his offense is without merit. However, as the State concedes, Jackson's parallel contention that there
was no evidence showing that drugs were involved in the crime is correct. Because, unlike several other conditions considered by the trial court, the challenged condition is not explicitly limited to alcohol but refers, generally, to "substance[s]," there is ambiguity regarding its application. Therefore, we remand the cause to the trial court to amend the judgment and sentence to 

### indicate that the challengedcondition applies only to alcohol abuse treatment.4
IV Jackson's final contention is that the community custody condition 

### requiring him to "consent" to certain searches of his residence byDOC isfacially unconstitutional.5

4The State contends that this is the warranted remedy. We agree. 5The condition at issue herein provided: You must consent to DOC home visits to monitor your compliance with supervision. Home visitsinclude access for the purposes of visualinspection of all areas of the residence in which you live or have exclusive/joint control/access.

11No. 71547-0-1/12
Our Supreme Court recently addressed a facial constitutional challenge to
a substantially similar community custody condition. See State v. Cates, 183 Wn.2d 531, 354 P.3d 832 (2015).6 Therein, the court held that "[f]urtherfactual development [was] needed" before the challenge was ripe for review, and "[the defendant] [did] not face a significant risk of hardship by [the court] declining to review the merits inthe absence ofdeveloped facts." Cates, 183 Wn.2d at 536. The Cates decision controls our analysis. Therefore, we hold that the challenge presented is not ripe for review. 

### Affirmed, in part. Remanded for the judgment and sentence to be amended consistent with this opinion. 

# 2v

We concur: 

# *f^Jf^v ^\^A •**

6The condition at issue inCates added, "to also include computers which you have access to" at the end. 183Wn.2d at 533. This difference is of nomomentto ouranalysis.

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