### FILED NOV. 20, 2014 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31820-6-III Respondent, ) ) 

### v. ) ) JASONLEE DUTCHER, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, J. Jason Dutcher challenges his conviction for third degree child molestation, arguing that the evidence was insufficient, thejurywas**incorrect~y** instructed, and two ofthe court's sentencing conditions were improper. We partially agree with his latter arguments and remand for correction ofthe sentence, but otherwise affirm the conviction. FACTS Mr. Dutcher, then 20, was watching a movie with H.N.D., then 14, and her school friend when all three fell asleep in H.N.D.'sbedroom sometime after 2:00 a.m. H.N.D. awoke later in thenightto find Dutchertouching her. Heputhis hand down her shorts and underherpanties, touching her clitoris and vaginal area. Dutcherthen thrust his hips againsther lower back. H.N.D. believed hispenis was outside his clothing at that time, but she was facing away and did not see him. When Dutcherreached for her breast,No. 31820-6-111 State v. Dutcher

H.N.D. blockedhim and told himto keep his hands to himself. Dutcherrolled over and pretendedhe was asleep. H.N.D. later leftthe room for the statedpurpose ofgoing to the bathroom. Dutcher announced thathe "didn't do it." H.N.D. reported the touching to an adult housemate who then ordered Mr. Dutcher from the premises. He denied any wrongdoing and insisted he had been asleep. He subsequently told the same thing to police. Theprosecutor filed charges ofthird degree child molestation and indecent liberties. Ajury acquitted Mr. Dutcher ofindecent liberties, but did convicthim onthe molestation count. At sentencing, the trial court imposed community custody conditions thatMr. Dutchernot possess pornography and be subjectto plethysmographtesting at the direction ofhis community corrections officer (CCO). Mr. Dutcherthen timely appealed to this court. ANALYSIS Mr. Dutcherraises two challenges to his conviction and challenges the two sentencing conditions noted above. We first address his challenges to the conviction beforejointly addressing the sentencing arguments. Sufficiency of the Evidence Mr. Dutcher initially argues that there was insufficient evidence thathe acted for the purpose ofsexual gratification. The evidence amply permittedthejury to reach its decision. 2No. 31820-6-111 

### State v. Dutcher Appellate courts review sufficiency ofthe evidence challenges to see ifthere

was evidence from which the trier offact could find each element ofthe offense proven beyond a reasonable doubt. 

### Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); 

### State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. 

### Id. To prove third degree child molestation as charged here, the State was required to establish that H.N.D. was less than 16 years old, Mr. Dutcher was at least 48 months older than she was, and that he had sexual contact with her. RCW 9A.44.089(1). "Sexual contact" means "any touching ofthe sexual or other intimate parts ofa person done for the purpose ofgratifying sexual desire." RCW 9A.44.010(2). The effect ofthat definition is that the State must prove defendant acted intentionally. 

### State v. Stevens, 158 Wn.2d 304, 311, 143 P.3d 817 (2006). Initially, the prosecutor argues that "sleep sexual contact" should be an affirmative defense as it is in cases ofchild rape. 

### See State v. 

### Deer, 175 Wn.2d 725,287 P.3d 539 (2012). Mr. Dutcher argues in rejoinder that unknowing sexual contact would simply negate the State's case and should not be an affirmative defense on which he would have to bear the burden ofproof. We are inclined to Mr. Dutcher's view ofthe argument in

3

### No. 31820-6-111 State v. Dutcher 

### light ofrecentI 

### authority, but need not reach the issue in this case because he does not contend that he was denied an appropriate instruction or not pennittedto argue his theory ofthe case. He styles his challenge solely as a sufficiency ofthe evidence argument and, thus, that is our focus. The evidence supported the verdict. The age-related elements are not in issue, nor does Mr. Dutcher contend that his touching did not involve H.N.D.'s "sexual or intimate parts." Instead, he simply asserts his alleged sleeping condition as the basis for establishing that he acted without intent. However, our focus in reviewing ajury's verdict is on the evidence in support ofthat verdict-in other words, the evidence supporting the State's

case. Green, 

### 94 Wn.2d at 222. That evidence squarely puts Mr. Dutcher awake and in control ofhis actions. 2 

### The victim described the touching as purposeful. 

### It was oriented solely to her intimate bodily parts without additional contact that might support a theory of unknowing behavior. Even more significantly, Mr. Dutcher's actions in thrusting his hips against her strongly suggested that his purpose was sexual gratification, regardless of whether he had removed his penis from his clothing. Thejury did not have to believe that Mr. Dutcher's actions were accidental or without purpose. Indeed, his protestation to H.N.D. when she left the room strongly

I See State 

### v. WR., 

### No. 88341-6,2014 WL 5490399 (Wash. Oct. 30, 2014). 2 

### Mr. Dutcher did not testify, so the only evidence that he was allegedly sleeping came from his statements to others. 4No. 31820-6-111 

### State 

### v. Dutcher suggested that he was fully aware ofhis actions. Nonetheless, our focus is on whatthe State proved ratherthan whatthe defense argued. Here, the victim describedpurposeful acts ofintimate contact that beliedthe defendant's argument and supported thejury's determination about the purpose ofthebehavior. The evidence supported thejury's verdict. 

### Unanimity Instruction Mr. Dutcher argues that H.N.D. described multiple instances ofsexual contact and that the court therefore erredby failing to instructthejury on the need to be unanimous in its view ofwhat action occurred. We believe a commonsense view ofthe evidence establishes that this was one continuing course ofconduct and the court did not err in its instruction. Only a unanimousjury can return a "guilty" verdict in a criminal case. 

### State v. 

### Camarillo, 115 Wn.2d 60,63, 794 P.2d 850 (1990). Where the evidence shows multiple acts occurred that could constitute the charged offense, the State must either elect which act it relies upon orthejurymust be instructed that it must unanimously agree upon which act it found. 

### State v. 

### Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984). Constitutional error

occurs ifthere is no election and no unanimity instruction is given. 

### State v. 

### Bobenhouse, 166 Wn.2d 881,893,214 PJd907 (2009); 

### State v. 

### Kitchen, 110 Wn.2d 403,411, 756 P.2d 105 (1988). This type oferror requires a new trial unless shown to be harmless beyond a reasonable doubt. 

### Camarillo, 115 Wn.2d at 64. 5No. 31820-6-111 

### State v. 

### Dutcher However, no election orunanimity instruction is needed ifthe defendant's acts were part ofa continuing course ofconduct. 

### State v. 

### Handran, 113 Wn.2d 11, 17, 775 P.2d453 (1989). Appellate courts must "reviewthe facts in a commonsense mannerto decide whether criminal conduct constitutes one continuing act." 

### State v. 

### Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). A continuing course ofconduct exists when actions promote one objective and occur at the same time andplace. 

### Petrich, 101 Wn.2d at 571; 

### State v. 

### Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996).3 That is the situation here. All ofthe acts ofchild molestation occurred at the same time andplace-justmoments apart in the victim's bedroom. All ofthese briefincidents ofsexual touching were done for the same purpose ofachieving Mr. Dutcher's sexual gratification. A commonsense view ofthis evidence confirms thatthere was one continuing course ofcriminal conduct. Thejury did not needtoparse this episode down into its individual components. It was one incident and there was no need for either an election ora unanimity instruction. Thejurywas properly instructed. There was no 

### Petrich violation.

3 A continuing course ofconduct also exists when the charged criminal behavioris an "ongoing enterprise." 

### State v. 

### Gooden, 51 Wn. App. 615,620, 754 P.2d 1000 (1988) (promoting prostitution was ongoing enterprise). 6No. 31820-6-III 

### State v. 

### Dutcher Sentencing Conditions Mr. Dutcher also argues thatthe trial court erred by imposingtwo ofits sentencing conditions. He challenges the condition that he not possess pornography as well as the condition that he submit to plethysmograph testing at the direction ofhis CCO. The State concedes thatthe first condition is improper, but argues that the second challenge is not yetripe. We accept the concession and remand to clarifY thejudgment and sentence. We agree with the parties that the no possession ofpornography condition is unconstitutionally vague. 

### State 

### v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). Although it wouldbepossible to remedy the conditionby more explicitly describingthe prohibited behavior in thejudgment and sentence, the parties simply ask thatthe conditionbe strickenrather than corrected. We therefore directthe trial courtto strike the condition. Mr. Dutchercontends thatthe trial court impermissibly empoweredthe CCOto order plethysmograph monitoring. In 

### State v. Riles, 135 Wn.2d 326, 345, 957 P.2d 655 (1998), the courtconcluded thatplethysmograph testing could be ordered to support treatment or other affirmative obligations imposed on an offender, but could not be used merely to monitor compliance with sentence conditions. Mr. Dutcherwas directed to enterinto treatment counseling as directed by his CCO. Clerk's Papers at 80. He apparently fears thatthe CCO might require plethysmograph monitoring without imposing the treatment counseling. 7No. 31820-6-111 State 

### v. Dutcher

There is nothing in this record to suggest that the assigned CCO will violate his or her obligations underthe law and order monitoring without treatment. Since there is no factual basis for believingthe condition is improper, we doubt this issue is ripe for review. State v. Valencia, 169 Wn.2d 782, 788-89, 239 P.3d 1059 (2010). Nonetheless, because we are remanding the matter to strike the pornography condition, we also direct the trial courtto clarify that a CCO can only orderplethysmograph testing at the direction ofthe treatmentprovider. Affirmed and remanded. A majority ofthe panel has determined this opinion will notbe printed inthe Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

### r~mo,J. WE CONCUR:



### J.

8