FILED 


NOV. 20, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31820-6-III 

Respondent, ) 

) 

v. ) 

) 

JASON LEE DUTCHER, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

KORSMO, J. Jason Dutcher challenges his conviction for third degree child 

molestation, arguing that the evidence was insufficient, the jury was 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.'s bedroom sometime after 2:00 a.m. H.N.D. 

awoke later in the night to find Dutcher touching her. He put his hand down her shorts 

and under her panties, touching her clitoris and vaginal area. Dutcher then thrust his hips 

against her lower back. H.N.D. believed his penis was outside his clothing at that time, 

but she was facing away and did not see him. When Dutcher reached for her breast, 
No. 31820-6-111 

State v. Dutcher 

H.N.D. blocked him and told him to keep his hands to himself. Dutcher rolled over and 

pretended he was asleep. 

H.N.D. later left the room for the stated purpose of going to the bathroom. 

Dutcher announced that he "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. 

The prosecutor filed charges ofthird degree child molestation and indecent liberties. 

A jury acquitted Mr. Dutcher of indecent liberties, but did convict him on the molestation 

count. At sentencing, the trial court imposed community custody conditions that Mr. 

Dutcher not possess pornography and be subject to plethysmograph testing at the direction 

of his community corrections officer (CCO). Mr. Dutcher then timely appealed to this 

court. 

ANALYSIS 

Mr. Dutcher raises two challenges to his conviction and challenges the two 

sentencing conditions noted above. We first address his challenges to the conviction 

before jointly addressing the sentencing arguments. 

Sufficiency ofthe Evidence 

Mr. Dutcher initially argues that there was insufficient evidence that he acted for 

the purpose ofsexual gratification. The evidence amply permitted the jury to reach its 

decision. 

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No. 31820-6-111 

State v. Dutcher 

Appellate courts review sufficiency of the evidence challenges to see ifthere 

was evidence from which the trier of fact 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 of a person 

done for the purpose of gratifying sexual desire." RCW 9A.44.0 10(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 of child 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 of proof. We are inclined to Mr. Dutcher's view ofthe argument in 

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No. 31820-6-111 

State v. Dutcher 

light of recentI authority, but need not reach the issue in this case because he does not 

contend that he was denied an appropriate instruction or not pennitted to argue his theory 

of the case. He styles his challenge solely as a sufficiency of the 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 of that 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 of his 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. 

The jury 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. 

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No. 31820-6-111 

State v. Dutcher 

suggested that he was fully aware of his actions. Nonetheless, our focus is on what the 

State proved rather than what the defense argued. Here, the victim described purposeful 

acts of intimate contact that belied the defendant's argument and supported the jury's 

determination about the purpose ofthe behavior. 

The evidence supported the jury's verdict. 

Unanimity Instruction 

Mr. Dutcher argues that H.N.D. described multiple instances of sexual contact and 

that the court therefore erred by failing to instruct the jury 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 of conduct and the court did not err in its 

instruction. 

Only a unanimous jury 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 or the jury must 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 PJd 907 (2009); State v. Kitchen, 110 Wn.2d 403,411, 756 P.2d 

105 (1988). This type of error requires a new trial unless shown to be harmless beyond a 

reasonable doubt. Camarillo, 115 Wn.2d at 64. 

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No. 31820-6-111 

State v. Dutcher 

However, no election or unanimity instruction is needed if the defendant's acts were 

part of a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 

(1989). Appellate courts must "review the facts in a commonsense manner to 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 of conduct exists when actions promote one 

objective and occur at the same time and place. 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 of child molestation occurred at the same 

time and place-just moments apart in the victim's bedroom. All of these brief incidents 

ofsexual touching were done for the same purpose of achieving Mr. Dutcher's sexual 

gratification. A commonsense view of this evidence confirms that there was one 

continuing course of criminal conduct. The jury did not need to parse this episode down 

into its individual components. It was one incident and there was no need for either an 

election or a unanimity instruction. 

The jury was properly instructed. There was no Petrich violation. 

3 A continuing course of conduct also exists when the charged criminal behavior is 

an "ongoing enterprise." State v. Gooden, 51 Wn. App. 615,620, 754 P.2d 1000 (1988) 

(promoting prostitution was ongoing enterprise). 

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No. 31820-6-III 

State v. Dutcher 

Sentencing Conditions 

Mr. Dutcher also argues that the trial court erred by imposing two of its 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 of his CCO. The State 

concedes that the first condition is improper, but argues that the second challenge is not 

yet ripe. We accept the concession and remand to clarifY the judgment 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 would be possible to remedy the condition by more explicitly describing the 

prohibited behavior in the judgment and sentence, the parties simply ask that the 

condition be stricken rather than corrected. We therefore direct the trial court to strike 

the condition. 

Mr. Dutcher contends that the trial court impermissibly empowered the CCO to order 

plethysmograph monitoring. In State v. Riles, 135 Wn.2d 326, 345, 957 P.2d 655 (1998), 

the court concluded that plethysmograph 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. Dutcher was directed to enter into 

treatment counseling as directed by his CCO. Clerk's Papers at 80. He apparently fears 

that the CCO might require plethysmograph monitoring without imposing the treatment 

counseling. 

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No. 31820-6-111 

State v. Dutcher 

There is nothing in this record to suggest that the assigned CCO will violate his or 

her obligations under the law and order monitoring without treatment. Since there is no 

factual basis for believing the 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 court to clarify that a CCO can only order plethysmograph testing at the direction 

ofthe treatment provider. 

Affirmed and remanded. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

r~mo,J. 

WE CONCUR: 

J. 

8