### IN THE COURTOFAPPEALS OF THE STATE OFWASHINGTON c STATE OFWASHINGTON, Respondent,

v. SHANNON CHRISTOPHERTRAYLOR, Appellant. FILED:August 12, 2013 2 -He: 

## No. 68349-7-1 ^ S^-m DIVISIONONE „ £^3 :t; —£: 

## UNPUBLISHEDOPINION^ ^o

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### Appelwick, J. —Traylor alleges that two of his conditions ofcommunity custody
are unconstitutionally vague. In a statement of additional grounds he argues that his underlying conviction is not supported by sufficientevidence. We affirm. FACTS 

### Police officers responded to an alarm at a smoke shop and discovered that a 

### rock had been thrown through the store's glass door. Shannon Traylor and two others
were spotted fleeing the store and entering a car. The officers stopped the car and arrested the three men. The State charged Traylor with second degree burglary. At trial, the owner ofthe smoke shop testified that 17 cartons of cigarettes, 25 boxes of cigarettes, and several boxes ofcigars were missing. Thejury found Traylorguiltyas charged. The sentencing court sentenced him to 29.75 months ofconfinementand 29.75 months ofcommunity custody. DISCUSSION Traylorchallenges two of his conditions ofcommunity custody: Do not possess or consume alcohol and do not frequent establishments where alcohol is the chiefcommodityfor sale.No. 68349-7-1/2

.... Do not possess drug paraphernalia. He claims thatthe conditions are unconstitutionally vague. The due process vagueness doctrine under the Fourteenth Amendment and article I, section 3 of the state constitution requires that citizens have fair warning of proscribed conduct. Statev. Bahl. 164 Wn.2d 739, 752, 193 P.3d 678 (2008). Astatute is unconstitutionally vague if itdoes not (1) define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct is proscribed, or (2) provide ascertainable standards of guilt to protect against arbitrary enforcement. Id at 

### 752-53. The sentencing court has discretion to impose conditions of community custody, and the sentences will onlybe reversed if manifestly unreasonable. Id at 753. Imposing an unconstitutional condition is manifestly unreasonable. ]d In a vagueness 

### challenge concerning a condition of community custody, as opposed to a statute or 

### ordinance, there is no presumption ofconstitutionality. State v. SanchezValencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010). 

### In interpreting a condition, we consider terms in the context in which they are used. Bahl, 164Wn.2d at 754. When a term is not defined the court may considerthe 

### plain and ordinary meaning as set forth in a standard dictionary, jd. If persons of ordinary intelligence can understand what the law proscribes, notwithstanding some 

### possibleareas of disagreement, thecondition issufficientlydefinite, jd. In otherwords, a condition is not unconstitutionally vague merely because a person cannot predict with 

### complete certainty the exactpoint at which his actions would be classifiedas prohibited conduct. Sanchez Valencia, 169 Wn.2d at 793.No. 68349-7-1/3

I. Alcohol Condition 

### Traylor argues that the term "chief commodity for sale" is unconstitutionally 

### vague because a reasonable person can neither quantify what constitutes a "chief commodity" nor describe a standard necessary to avoid arbitrary enforcement. We disagree. 

### The dictionary definition of "chief is "marked by greatest importance, 

### significance, influence." Webster's Third NewInternational Dictionary 387 (2002). It is a synonym of "principal," "main," and "leading." \± The dictionary definition of 

### "commodity" is "an economicgood." ]d at 458. An establishment where alcohol is the chiefcommodity sold is an establishment where alcohol is the main or most important 

### good for sale. It connotes an establishment whose primary purpose is the sale of
alcohol. 

### Traylor's arguments fall into two broad categories. First, he argues that the condition's ambiguity ishighlighted by thefact thatit isunclear ifhe isprohibited from entering sports venues, stores that sell liquor but are not liquor stores, or a given restaurant. An ordinary person would notperceive selling alcohol to be the main or 

### mostimportant aspect of a sports venue, a theatre, or anothersimilar entertainment venue. The chiefcommodity of those establishments is entertainment, and Traylor is 

### notprohibitedfrom attending a sporting event at a sports venue or a show at atheatre. He is,however, prohibited from entering a beer garden or bar area within those venues. 

### Likewise, despite theprivatization ofliquorsales, anordinarypersonwould notperceive 

### liquorto be thechiefcommodity atgrocery stores,convenience stores, or gas stations, eventhoughthey may sell asignificantquantityofalcohol. Traylor's complaintthatitisNo. 68349-7-1/4

unclear whether he could enter a given restaurant is similarly unpersuasive. Alcohol is the chiefcommodity of a tavern or a lounge or bar area of a restaurant. He is prohibited from being present there, but would not be prohibited from the separate food service

area of a restaurant. Some uncertainty is inherent in any condition. Forexample, even ifthe condition specified in detail that he was banned from any facility holding specific types of liquor licenses, he would have to make an inquiry about the license of the establishment to be certain. Again, we note that a "condition 'is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point atwhich his actions would be classified as prohibited conduct.'" Valencia, 169Wn.2d at 793 (quoting State v. SanchezValencia. 148 Wn. App. 302, 320, 198 P.3d 1065 (2009), reversed by, 169Wn.2d 782)). Second, Traylor argues that there are a variety of tests that could be used to determine whether alcohol is the chiefcommodity of a given establishment. Failure to designate one ofthose tests or some othermore concretetest, he argues, prevents him from ascertaining which establishments he is prohibited from entering and creates a 

### potential for arbitrary enforcement. He argues that an establishment's "chief commodity" could be measured, for instance, as a percentage of income that comes from alcohol sales or from the gross quantity of alcoholic units sold. Thus, Traylor 

### claims he may violate the condition ifhe enters an establishments whose sales receipts show that 25 percent of its sales are alcohol related, or a store that sells more alcohol than any other "commodity class." 

### While including such a parameter might exclude other imagined means to determine a violation, it would provide little real guidance. Those conditions wouldfailNo. 68349-7-1/5

the vagueness test, because sales data is not widely available. It would not be possible for an ordinary person to tellwhat conduct is proscribed without a specific inquiry ofthe establishment. Further, the information would vary over time. It could mean that presence one day was a violation and another itwas not, and the condition would have to include a temporal elementas well as a quantity elementto be accurately interpreted. That additional requirement would make iteven more difficult for an ordinary person to tell what conduct is proscribed. Such parameters are not necessary for an ordinary person to understand when alcohol is an establishment's chiefcommodity. The vagueness doctrine is aimed at preventing the delegation of "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned

v. City of Rockford. 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). This condition adequately addresses that concern. Its ordinary meaning provides both sufficientguidance for an ordinary person to understand what conduct is proscribed and ascertainable standards of guilt. II. Drug Paraphernalia Condition Traylor asserts that the condition prohibiting him from possessing "drug paraphernalia" is unconstitutionally vague. His argument focuses on the second prong of the vagueness test, and he relies primarily on Sanchez Valencia. The challenged provision inthat case provided: "Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including, 

### scales, pagers, police scanners, and hand held electronic scheduling and data storage devices."No. 68349-7-1/6

Sanchez Valencia, 169 Wn.2d at 785. The supreme court held that the condition was vague underboth prongs, jd. at793-95. In determining that the condition did not provide fair notice ofwhat a defendant could or could not do, the court reasoned that the condition referred very broadly to 

### "paraphernalia," as opposed to the more specific term "drug paraphernalia." |d at 794. It also explained that the condition failed to tie potential violations to the defendant's intent. Id The court then concluded that the condition did not provide ascertainable 

### standards of guilt to protect against arbitrary enforcement because an inventive probation officer could envision any common place item as possible for use as drug 

### paraphernalia, such as sandwich bags or paper. Id at 794. It explained that another 

### officermight not arrest the defendant for the same type ofviolation and that a condition that leaves that much discretion to individual corrections officers is unconstitutionally vague. ]d at794-95. 

### Unlike "paraphernalia," "drug paraphernalia" is a statutorily defined term. The definition inthe Uniform Controlled Substances Act provides: 

### "[D]rug paraphernalia" means all equipment, products, and materials of anykind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, 

### analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. 

### RCW 69.50.102. The statute further provides a lengthy, non-exhaustive list of items 

### thatconstitute "drug paraphernalia." RCW 69.50.102. Thatdefinition ameliorates each of the concerns raised by the Supreme Court in Sanchez Valencia. It refers to theNo. 68349-7-1/7 specific term of art "drug paraphernalia," instead of the general term "paraphernalia." Indeed, the ordinary meaning of "paraphernalia" is simply "personal belongings" or "articles of equipment." Webster's Third New International Dictionary 1638 (2002). Also unlike the condition in Sanchez Valencia, the statutory definition contains an explicit intent requirement. RCW 69.50.102. That intent requirement alleviates the Supreme Court's concern that the condition in that case would lead to arbitrary enforcement, because one corrections officer could deem a sandwich bag to constitute paraphernaliawhile anotherdoes not. SanchezValencia, 169Wn.2d at794. Underthe statutory definition, possessing a sandwich bag could only constitute a violation ifthe defendant used or intended to usethe bag for a drug-related activity. RCW 69.50.102. 

### The statutory definition provides sufficient guidance for an ordinary person to determine what conduct is prohibited, and it protects against arbitrary enforcement. But, the sentence condition itself does not reference the statutory definition, and the defendant was not convicted of a crime under the statutory scheme that contains the definition. The issue thus turns to whether the statutory definition is fairly incorporated into the term "drug paraphenalia." In State v. Moultrie, we considered whether a condition prohibiting contact with 

### "'vulnerable, ill or disabled adults'" was unconstitutionally vague despite the fact that 

### "vulnerable adult" and "developmental disability" are defined by statute. 143 Wn. App. 387, 396-97, 177 P.3d 776 (2008). In particular, we emphasized that "vulnerable adult" and "developmental disability" are specific, legalterms thatdiffer fromthe generalterms "vulnerable" and "disabled." Id at 397. Without a specific reference to the statutory 

### definitions, we could not conclude that the trial court intended to incorporate them. Id.No. 68349-7-1/8

at 397-98. We remanded for the trial courtto clarify the condition, and ordered the term "ill," which has no statutory definition, stricken as vague, jd at 398. Unlike in Moultrie, the statutorily defined term here is not more specific than the 

### term imposed by the sentencing court. Rather, the term used in the condition is identical to the term defined in the Uniform Controlled Substances Act. And, "drug 

### paraphernalia" is a term of artwith a specific legal meaning. Traylorhas notidentified a 

### contradictory oralternate ordinary meaning. Nevertheless, we note that, "'[bjecause of 

### the inherent vagueness of language, citizens may need to utilize other statutes and 

### court rulings to clarify the meaning of a statute'"—"'[s]uch sources are considered presumptively available to all citizens.'" Bahl, 164 Wn.2d at 756 (quoting State v. Wilson, 160 Wn.2d 1, 8, 154 P.3d 909 (2008)) (alterations in original) (internal quotation 

### marks omitted). We emphasize that the better practice is for the sentencing court to 

### specificallytie theterm "drug paraphernalia" toits statutory definition. Doing so avoids appeals such as this. But, evenwithoutsuch an expressstatutorycitation, thecondition is notunconstitutionallyvagueinthiscase becausetheonlyreasonableinterpretation is that the sentencing courtintendedto tie theconditionto the statutorydefinition. III. Statement ofAdditional Grounds 

### Traylor makes two sufficiency of the evidence arguments in a statement of 

### additional grounds. Evidence is sufficienttosupport a conviction if, viewed in thelight mostfavorable to theprosecution, itpermits anyrational trieroffact tofind the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992).No. 68349-7-1/9 Traylor first argues that there is no evidence that he or his accomplices had anything in their hands when they left the store, and the police did not recover any of the missing cigarettes or cigars. But, the State only bore the burden to prove that Traylor had intent to commit a crime against a person or property in the building, not that he actually committed a crime against a person or property in the building. RCW 9A.52.030. Theft is not an essential element of second degree burglary. See id Further, even if itwas, Traylor was witnessed fleeing the scene ofthe crime, and the
owner of the shop testified that merchandise was missing after the incident. That evidence is sufficient for a rational trier of fact to conclude that Traylor or his accomplices committed theft. 

### Trayloralso argues that the ownerinitiallyreported thatnothingwas missing, and 

### later changed his assessment. He claims that a responding policeofficer likewise did not notice that anythingin the store was disturbed. Those arguments go to the weight of the evidence, not its sufficiency. And, as mentioned, actual theft is not an essential elementofsecond degree burglary.
We affirm.

WE CONCUR: 

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