IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, 

### ) No. 78532-0-I

Respondent, 

### )

v. 

### ) UNPUBLISHED OPINION DEWITT, MARC JAMES, 

### )

Appellant. 

### ) FILED: November 12, 2019 SCHINDLER, J.

— MarcJames Dewitt appeals the decision to revoke the “Special Sex Offender Sentencing Alternative” (SSOSA) suspended sentence. We affirm. FACTS On March 3, 2012, 21-year-old Marc James Dewitt pulled the covers offa 7-yearold girl while she was sleeping, placed his hand inside of her clothing, and rubbed her vagina. Dewitt admitted he was sexually aroused bytouching the vagina ofa 7-year-old girl. The State charged Dewittwith attempted child molestation in the first degree in violation of RCW 9A.28.020 and RCW 9A.44.083. Dewitt pleaded guilty. Before pleading guilty, Dewitt had completed a SSOSA evaluation. The evaluation recommended community based treatmentwith a sexual offendertreatment program (SOTP) provider.No. 78532-0-1/2

The Department ofCorrections (DOC) submitted a presentence investigation assessment. DCC recommended a SSOSA, provided Dewitt fully engages in the associated treatment process,” “complies with the requirements oftreatment and community custody,” and is subjectto imposition ofa numberofconditions. With an offenderscore of0, the standard range was 51 to 68 months. At sentencing, the court exercised its discretion to impose a SSOSA. The court sentenced Dewitt to 51 months suspended and compliance with conditions. The judgment and sentence states: Revocation of Suspended Sentence. At anytime during the period of community custody, ifthe defendant violates the conditions ofthe suspended sentence orthe courtfinds thatthe defendant is failing to make satisfactory progress in treatment, the court may revoke the suspended sentence and orderexecution ofthe sentence, with creditfor any confinementserved during the period ofcommunity custody. RCW 9.94A.670. The community custody conditions state: The defendant shall complywith all rules, regulations and requirements of DOC and shall perform affirmative acts as required by DCC to confirm compliance with the orders ofthe court. The defendantshall abide by any additional conditions ofcommunity custody imposed by DOC under RCW 9.94A.704 and .706. Additional conditions ofcommunity custody include: Participate and make progress in sexual deviancytreatment with a certified provider. Follow all conditions outlined in yourtreatment contract. Do not change therapists without advanced permission ofthe supervising Community Corrections Officer. Another condition also prohibits Dewittfrom possessing oraccessing “depictions of minors engaged in sexually explicit conduct.” Dewitt entered into a contractwith SOTP provider Stephanie Overton at Family First Family Services LLC and agreed to complywith a number ofconditions, including

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that he not “engage in the use ofor possess pornography orsexually explicit materials in anyform. This includes but is not limited to the Internet, magazines, books, movies, stores, and establishments.” Dewitt repeatedlyviolated conditions of his SSOSA and treatment plan. For example, in August2014, DCC issued a notice ofviolation alleging Dewitt violated the conditions ofsupervision by “[hjaving contactwith a minoron orabout 8/10/2014.” In March 2016, DCC issued a notice ofviolation alleging Dewittviolated the following conditions: (1) Failing to complywith sexual deviancytreatment byviewing pornographic videos and pictures in violation of his treatment contract in or around February 2016 in King County, WA; (2) Failing to complywith sexual deviancytreatment by accessing the Internet without CCOt1J Isaacs’ permission in violation of his treatment contract in oraround February2016 in King County, WA; and (3) failing to complywith sexual deviancytreatment by consuming marijuana in violation of his treatment contract on or about 3/10/2016 in King County, WA. The State requested the court modify or, in the alternative, revoke Dewitt’s SSOSA. Dewitt argued the pornography condition in his treatment contractwas unconstitutionallyvague. The courtfound Dewittviolated the terms of his treatment contractwith Overton, accessed the Internetwithout his CCC’s permission, and consumed marijuana in violation of his treatment contract. The court entered an order modifying the SSOSAjudgment and sentence. The April 11,2016 orderstates: The sentence previously entered in the above entitled matter, including any previous modifications, is still in effect but MODIFIED in the following manner: Shall complywith the conditions as setforth by Ms. Overton in her letter dated April of2016 including a chemical dependency & psychological eval[uation]. Also:

1 Community corrections officer.
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(1) No use, possession, orviewing ofsexually explicit conduct as defined in ROW 9.68A.01 1. (2) No use of marijuana unless prescribed by a treatment provider. Confinement is IMPOSED. The defendant shall serve 28 days of. confinement in the Snohomish CountyJail. The court imposed a sentence ofcreditfortime served. In January2017, Dewitt stipulated to not complying with sex offendertreatment. The notice ofviolation states: On 1/4/2017, Mr. Dewittwas addressed with a CourtJurisdiction Only Notice ofViolations/Stipulated Agreementfor (1) Failing to complywith Sex OffenderTreatment by accessing the [I]nternet withoutthe approval ofthe treatment provider or Community Corrections Officer approximately fourtimes between 6/1/2016 and 6/30/2016; and (2) Failing to complywith Sex OffenderTreatment by engaging in the use of pornography on or about 7/4/2016. Dewitt agreed to attend and complete cognitive therapy sessions. On October 10, 2017, Dewitt stipulated to violating the conditions of his SSOSA byfailing to complywith sexual deviancytreatment when he used another individual’s computer. Dewitt agreed to increase SOTP therapy sessions to everyweekforthree months as a sanction. On December 28, 2017, Overton terminated Dewittfrom the SOTP. Atthe hearing on March 16, 2018, the courtfound Dewitt violated the SSOSA conditions. The court ordered Dewitt to participate in SOTP therapy sessions with Randy Green and imposed 23 days confinementwith creditfortime served. On March 18, Dewitt entered into an SOTP contractwith Green. Dewitt agreed to a numberof conditions, including that he “must notview or possess pornography and erotic material. This includes sexually explicit computer or Internet images.”

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On May 3, DOC issued a notice ofviolation. The notice ofviolation alleged that
on March 28, 2018, Dewitttold his COO that he watched an anime2 movie with nudity in it. The CCC told Dewittthat “he was to not use the [l]nternet at all.” During a polygraph examination on April 25, Dewitt “admitted that he was aware he was not supposed to
use the [Ijnternet, but has done so daily, since given the verbal directive on 3/28/2018.” Dewitt also admitted that he “viewed pornography on other people’s computers approximately 50 times since his last polygraph” in October2017. DCC found pornography on Dewitt’s cell phone with titles such as, “Real Defloration Porn Video,” “Teens Virgin First Time,” and “Blonde Pigtailed Virgins.” The notice ofviolation states that based on this evidence, “[c]learly Mr. Dewitt’s viewing of pornographic materials on his phone was contraryto his SOTP treatment contactwith Randy Green as well as using the [I]nternetwithout approval from his treatment provider.” The notice ofviolation also alleged Dewitt had “made little to no progress in SOTP,” “gives the impression to have no goal oriented behaviors or motivation,” and “appears to be in total{] noncompliance with his SOTP treatment.” The State filed a petition to revoke Dewitt’s SSOSA. The State specifically alleged Dewitt violated the following conditions: 1. Failing to follow a Community Corrections Officer’s verbal orwritten directive since on orabout March 28, 2018; 2. Failing to complywith sexual deviancytreatment byviewing pornographicvideos in violation of his treatment contract on or aboutApril 11,2018; and, 3. Failing to complywith sexual deviancytreatment by accessing the [l]nternetwithout the approval ofthe treatment provideror

2 “Anime” is defined as “a style ofanimation originating in Japan that is characterized by stark, colorful graphics depicting vibrant characters usually drawn with large eyes in action-filled plots often with fantastic orfuturisticthemes.” MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/anime (lastvisited Nov. 5,2019).
5No. 78532-0-1/6 Community Corrections Officer’s permission in violation of his treatment contract since on or about March 28, 2018. In response to the notice ofviolation and petition to revoke the SSOSA, Dewitt filed a reportfrom Green. Green concedes Dewitt violated his treatment contract by viewing pornography. However, Green recommended continuing SOTP: Revocation of Marc’s SSOSA agreement is being considered. Given the repeated nature ofthese violations, thatwould seem a reasonable conclusion. However, I am unable to support revocation atthis time.

. [lit is my position that he would be betterserved by enhanced services in the communitythatwould provide him the extensive support he will require to successfully negotiate not onlythe stringent requirements of community supervision, butto also begin forward progress in life. Atthe May 11 hearing on the motion to revoke Dewitt’s SSOSA, the prosecutor emphasized the repeated violations and Dewitt’s lack ofcorrective behavior. The prosecutorargued that given the crime Dewittwas convicted of, ‘this does cause

. concern that he is not making any progress in his treatment

. . . [ajs noted in the notice ofviolation.” The court revoked the SSOSA. The courtfound Dewitt repeatedlyviolated the SSOSA conditions. The court noted the “individuals involved have truly gone the extra mile to tryto workwith Mr. Dewitt” to no avail. The courtfound Dewitt committed the three alleged violations and “on an independent basis,” given the “totality ofthis record,” Dewitt failed to make satisfactory progress in treatment. The court stated, “Regardless ifone views this action in terms ofviewing these porn[ography] sites as a violation or not, itdoes raise anew serious concerns ofwhether Mr. Dewitt is making, in fact, satisfactory progress.”

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The court rejected the defense requestto call Green as a witness to address whether Dewittfailed to make satisfactory progress. The court ruled that under RCW 9.94A.670(11)(b), it has “overarching authority’ to find “an individual is not making satisfactory progress to ultimately decide that a SSOSA is no longerthe appropriate option.” Dewitt appeals the decision to revoke the SSOSA suspended sentence. ANALYSIS Due Process Dewitt contends the courtviolated his right to due process by revoking the SSOSA. Dewitt asserts he did not have notice thatthe courtwould consider his progress in treatment atthe revocation hearing. We review alleged due process violations de novo. State v. Simpson, 136 Wn. App. 812, 816, 150 P.3d 1167 (2007). “The revocation ofa suspended sentence is not
a criminal proceeding.” State v. DahI, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). In SSOSA revocation hearings, offenders are entitled to minimal due process rights afforded in probation or parole revocation hearings. DahI, 1 39 Wn.2d at 683. Minimal due process requires (a) written notice ofthe claimed violations, (b) disclosure to the defendant ofthe evidence against him, (c) the opportunityto be heard in person and to presentwitnesses and documentary evidence, (d) the rightto confront and cross-examine witnesses (unless there is good cause for not allowing confrontation), (e) a neutral and detached hearing body, and (f) a written statement by the court as to the evidence relied upon and the reasons forthe revocation. Morrissey
v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). “Courts have limited the rightto confrontation afforded during revocation proceedings by admitting

7No. 78532-0-1/8

substitutes for live testimony, such as reports, affidavits and documentary evidence.” DahI, 139 Wn.2d at 686.~ The courtfound that under RCW 9.94A.670(1 1)(b), Dewittfailed to make satisfactory progress in treatment based on the facts contained in the notice ofviolation. Dewitt contends that because the notice did not explicitlyseek revocation based on unsatisfactory progress in treatment, Dewitt was not afforded his due process rightto notice. We disagree. The court may revoke a SSOSA sentence at anytime ifthere is sufficient proofto reasonablysatisfythe courtthat “(a) [t]he offenderviolate[d] the conditions ofthe suspended sentence, or (b) the courtfinds thatthe offender is failing to make satisfactory progress in treatment.” RCW 9.94A.670(11); State v. McCormick, 166 Wn.2d 689, 705, 213 P.3d 32 (2009); State v. Miller, 180 Wn. App. 413, 416, 325 P.3d 230 (2014); State v. Ramirez, 140 Wn. App. 278, 291-92, 165 P.3d 61(2007). In addition to the three violations, the notice ofviolation describes a lengthy history of noncompliance with treatment requirements. The notice also alleges Dewitt has made “little to no progress” in treatment and “appears to be in total[] noncompliancewith his SQTP treatment.” The uncontroverted evidence shows Dewitt committed the three alleged violations. The record shows the courtfound thatthe violations, coupled with Dewitt’s

~ Dewitt cites the civil commitmentcase In re Cross, 99 Wn.2d 373, 382-85, 662 P.2d 828 (1983), to argue the State must provide written notice ofall alternative grounds on which it seeks to revoke a SSOSA. Dewitt contends if he had adequate notice his treatment progress was at issue, he would have called Green as a witness. Cross is inapposite. However, we note an offender’s due process rights are notviolated where, as here, documentary evidence is presented in lieu of live testimony in a revocation proceeding. .~J, 139 Wn.2d at 686. 8No. 78532-0-1/9

failing to make progress in treatment and his lengthy history ofviolating conditions, justified the decision to revoke the SSOSA under ROW 9.94A.670(1 1)(b): [T]he Court is finding not onlythe specificviolations but also this overarching finding which is kind of implicit in I thinkthe violations that were asserted, butthe Court is finding pursuantto statute thatthe Court ultimately concludes in looking atthe totality ofthese circumstances that the offender is failing to make satisfactory progress in treatment. Further, thejudgment and sentence unambiguously informed Dewitt that if“[a]t anytime during the period ofcommunity custody” he violates the conditions ofthe suspended sentence orthe courtfinds” he “is failing to make satisfactory progress in treatment,”the court “may revoke the suspended sentence and orderexecution ofthe sentence, with creditforany confinement served during the period ofcommunity custody. ROW 9.94A.670.” The notice ofviolation adequately informed Dewittthat he was not making satisfactory progress in treatment. “Sexually Exjlicit Conduct” Condition The courtfound Dewittviolated the community custody condition that prohibits him from possessing orviewing “sexually explicit conduct as defined in ROW 9.68A.01 1 .“ Dewitt claims the court abused its discretion in revoking his SSOSAfor violating the sexually explicit conduct condition because the condition is unconstitutionallyvague. We review a court’s decision to revoke a SSOSA suspended sentenceforabuse ofdiscretion. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992). ‘Atrial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds.” State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007). A

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court exceeds its authoritywhen it sanctions a defendantforthe violation ofa condition not imposed. State v. Johnson, 184 Wn. App. 777, 779, 340 P.3d 230 (2014). We reviewthe trial court’sfindings offactforsubstantial evidence. Miller, 180 Wn. App. at 425. Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth ofthe asserted premise. Miller, 180 Wn. App. at425. We treat unchallenged findings as verities on appeal. Cowiche Canyon Conservancyv. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). “The Fourteenth Amendmentto the United States Constitution along with article I, section 3 ofthe Washington State Constitution require that citizens be afforded fair warning of proscribed conduct.” State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (201 8). A community custody condition is unconstitutionallyvague if (1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement. State v. BahI, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). When determining whether challenged language is sufficiently definite to provide fairwarning, the court must read the language in context and give it a “sensible, meaningful, and practical interpretation.” City of Spokane v. Douglass, 115 Wn.2d 171, 180, 795 P.2d 693 (1990). “‘[Al community custody condition is not unconstitutionally vague merely because a person cannot predictwith complete certaintythe exact point atwhich his actions would be classified as prohibited conduct.’

“ State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)~ (quoting State v. Sanchez Valencia, 148 Wn.App. 302, 321, 198 P.3d 1065 (2009), rev’d by 169 Wn.2d 782). “Internal quotation marks omitted. 10No. 78532-0-I/li

“‘[l]mpossible standards ofspecificity’ or ‘mathematical certainty’ are not required” to avoid a finding of unconstitutional vagueness “because some degree ofvagueness is inherent in the use of language.” State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270 (1993) (citing City of Seattle v. Eze, 111 Wn.2d 22, 26-27, 759 P.2d 366 (1988); Haley
v. Med. Disciplinary Bd., 117 Wn.2d 720, 740, 818 P.2d 1062 (1991)). We presume a statute is constitutional, and Dewitt bears the heavy burden of proving unconstitutionality beyond a reasonable doubt. State v. Myles, 127 Wn.2d 807, 812, 903 P.2d 979 (1995). A community custody condition that implicates material protected underthe FirstAmendment to the United States Constitution is held to a stricterstandard ofdefiniteness to avoid a “chilling effect” on the exercise of First Amendment rights. BahI, 164 Wn.2d at 753. Here, the community custody condition prohibiting Dewittfrom possessing or viewing, in particular, simulated sexually explicit conduct as defined in RCW 9.68A.01 1(4) is not unconstitutionally vague. The condition is narrowly defined by citing
a specific statute that notifies an ordinary person ofwhat behavior is proscribed. RCW 9.68A.01 1(4) defines actual orsimulated “sexually explicit conduct”: “Sexually explicit conduct” means actual orsimulated: (a) Sexual intercourse, including genital-genital, oral-genital, analgenital, ororal-anal, whether between persons ofthe same oropposite sex or between humans and animals; (b) Penetration ofthe vagina or rectum by any object; (c) Masturbation; (d) Sadomasochistic abuse; (e) Defecation or urination forthe purpose ofsexual stimulation of the viewer; (f) Depiction ofthe genitals or unclothed pubic or rectal areas of any minor, orthe unclothed breast ofa female minor, forthe purpose of sexual stimulation ofthe viewer. Forthe purposes ofthis subsection (4)(f), it is not necessary thatthe minor knowthat he orshe is participating in the described conduct, or any aspect of it; and

11No. 78532-0-1/12 (g) Touching ofa person’s clothed or unclothed genitals, pubic area, buttocks, or breast area forthe purpose ofsexual stimulation ofthe viewer. The statutory definition ofsimulated “sexually explicit conduct” provides substantial direction as to whatfalls within the condition’s scope, such as certain qualifying behaviors, and therefore the condition is not unconstitutionally vague. The case Dewitt cites, State v. Padilla, 190 Wn.2d 672, 416 P.3d 712 (2018), is distinguishable. In Padilla, the condition prohibiting access and possession of pornographic materials “include[dj a definition ofthe term ‘pornographic materials’ as ‘images ofsexual intercourse, simulated or real, masturbation, orthe display of intimate body parts.’” Padilla, 190 Wn.2d at 678-79. The Washington Supreme Court agreed thatthe prohibition against viewing depictions of“simulated” sexual intercourse as defined in “pornographic materials” would unnecessarily encompass movies and television shows not created forthe sole purpose ofsexual gratification, “such as Game ofThrones.” Padilla, 190 Wn.2d at 679, 681. Unlike in Padilla, RCW 9.68A.01 1(4) is a narrow and more precise definition that eliminates the concerns expressed bythe court in Padilla. See ~dso State v. Alcocer, 2 Wn. App. 2d 918, 922, 413 P.3d 1033 (2018) (“remand forthe courtto change the restriction to limit use or possession of materials depicting ‘sexually explicit conduct’ as defined in RCW9.68A.011(4)”), review denied, 192 Wn.2d 1017, 433 P.3d 814 (2019), abrogated on other grounds by State v. Johnson, 4 Wn. App. 2d 352, 421 P.3d 969, review denied, 192 Wn.2d 1003, 430 P.3d 260 (2018).~

~We also note the record shows Dewittwas able to identify what qualified as simulated” sexually explicitconduct. 12No. 78532-0.1/13

RCW 9.68A.01 1(4) is not unconstitutionallyvague and provides substantial guidance aboutwhatfalls within its scope. The court did not abuse its discretion in finding Dewittviolated the condition that prohibits him from possessing orviewing simulated sexually explicit conduct as defined by RCW 9.68A.01 1(4). Treatment Conditions Dewitt challenges the court’s finding that he “[f]ail[edj to complywith sexual deviancytreatment by accessing the [l]nternetwithout the approval ofthe treatment provideror Community Corrections Officer’s permission in violation of his treatment contract since on orabout March 28, 2018.” Dewitt asserts thejudgment and sentence does not require compliance with SOTP conditions. Thejudgment and sentence does not support his assertion. Thejudgment and sentence states Dewitt shall “complywith all rules, regulations and requirements of DOC and shall perform affirmative acts as required by DOC to confirm compliancewith the orders ofthe court.” The treatment contractforbids Dewitt from viewing or possessing pornography or erotic material, including “sexually explicit computeror Internet images.” The treatment contract requires “[a]dherence to additional rules [that] may be required bytreatment provideror community corrections officer as determined necessary for communitysafety.” The notice ofviolation alleged Dewittfailed “to complywith sexual deviancy treatment by accessing the [l]nternetwithoutthe approval ofthe treatment provideror Community Corrections Officer’s permission in violation of his treatment contract since
on orabout 3/28/201 8.” There is no dispute Dewittwatched the anime with nudity movie on his cell phone. Dewitt admitted the movie had nudity. The uncontroverted

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record establishes Dewitt did notfollowthe CCO directive on March 28, 2018 notto
access the Internet in violation ofthejudgment and sentence and the treatment contract conditions. We affirm the decision to revoke the SSOSAsuspended sentence.



# ~ WE CONCUR:

14