* State Of Washington, Respondent V. Billy Clyde Miller, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
BILLY CLYDE MILLER,
Appellant.
No. 84870-4-I
DIVISION ONE
OPINION PUBLISHED IN PART
HAZELRIGG, A.C.J. — Billy Clyde Miller appeals from his conviction on four
counts of rape of a child in the first degree after a joint jury trial with co-defendant
Naomi Marie Elaster. Miller avers that his right to a fair trial was violated when the
trial court did not excuse a juror who came forward with information about a witness
the juror had obtained outside the courtroom and the judge erred on a number of
evidentiary rulings. 	He further challenges certain community custody conditions
imposed at sentencing. 	The State concedes that the victim penalty assessment
and the DNA collection fee should be stricken from Miller’s judgment and sentence
based on his indigency. 	We remand to strike the legal financial obligations, but
otherwise affirm.
FACTS
Billy Miller and Naomi Elaster were accused of sexual assault by Elaster’s
daughter, A.M.O., in June 2019. 	In August of that year, Miller and Elaster were
charged as co-defendants based on those allegations. 	The State presented two
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counts of rape of a child in the first degree (ROC1) against Miller, one of which
carried a special allegation of domestic violence (DV), and two counts of ROC1
against Elaster, both with DV allegations. Nearly two years later, the State filed a
first amended information that accused both Miller and Elaster of four counts of
ROC1, removed the DV allegation against Miller and added it to each of the counts
as to Elaster. 	In August 2022, shortly before trial, the State filed a second
amended information that separately charged Miller with four counts of ROC1 and
Elaster with one count of child molestation in the first degree and three counts of
ROC1. All of Elaster’s charges carried DV allegations.
Miller and Elaster were tried jointly and engaged in extensive pretrial
litigation on the admissibility of certain evidence. The jury convicted them both as
charged. Miller was sentenced to an indeterminate sentence of 276 months to life
in prison, followed by community custody.
Miller timely appealed.
ANALYSIS
Miller’s co-defendant, Elaster, also appealed her convictions, No. 84970-1-
I, and the two appeals were administratively linked at this court. 	This opinion
adopts the reasoning and outcome set out in the opinion from Elaster’s case for
certain shared assignments of error in the unpublished portion of this opinion.
I. 	Admission of Multiple Acts of Abuse
Miller assigns error to the admission of what he characterizes as uncharged
acts of abuse he was alleged to have committed, along with his co-defendant
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Elaster, that purportedly occurred within the charging period. He contends the acts
amount to propensity evidence under ER 404(b).
We review the evidentiary decisions of the trial court for abuse of discretion.
State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). The State offered
the challenged evidence under ER 401, 403, and 404(b). 	Miller asserts the trial
court admitted it under ER 404(b) and solely challenges the admissibility ruling on
that basis. ER 404(b) governs the admission of evidence of other acts and reads
as follows:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Courts must engage in a four-step analysis when considering the admission of
other act evidence; the judge must
(1) find by a preponderance of the evidence that the misconduct
occurred; (2) identify, as a matter of law, the purpose of the evidence;
(3) conclude that the evidence is relevant to prove an element of the
crime charged; and . . . (4) weigh the probative value against the
prejudicial effect.
State v. Williams, 156 Wn. App. 482, 490, 234 P.3d 1174 (2010). The trial court’s
analysis must be conducted on the record. 	State v. Sublett, 156 Wn. App. 160,
195, 231 P.3d 231 (2010), aff’d, 176 Wn.2d 58, 292 P.3d 715 (2012).
Miller challenges the admission of three categories of evidence. He points
to testimonial evidence that
Elaster “molested and raped” A.M.O. several times before involving
Mr. Miller; Ms. Elaster invited strangers into the home who would
molest A.M.O.; and Ms. Elaster and Mr. Miller would abuse A.M.O.
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No. 84870-4-I/4
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together, involving her in sexual acts, making her watch them engage
in sexual acts, and raping and molesting her together.
He then asserts that admission of each of these three classes of evidence “was
error because the majority of this evidence was not related to the crimes charged.”
Thus, according to Miller, the evidence must satisfy ER 404(b) analysis.
Two of the three categories of testimonial evidence to which Miller assigns
error “because the majority of this evidence was not related to the crimes charged”
were not admitted for use against him, but rather as evidence of the charged
crimes against his co-defendant, Elaster. 	Evidence that Elaster molested and
raped A.M.O. several times before involving Miller and had invited others to
participate in the abuse of A.M.O. was evidence that the State used to prove the
charges against Elaster. He points to nothing in the record that suggests the trial
court admitted it for use against him, under ER 404(b) or any other basis. A.M.O.
expressly testified that her mother abused her before Miller became involved and
allowed other men to abuse her on various occasions. 	While those accusations
may not have been admissible for use against him, they were certainly relevant to
the allegations against his co-defendant, Elaster. 	Admission of this particular
evidence was the consequence of a joint trial with his co-defendant and Miller does
not assign error to that aspect of trial.
Even so, the court took care to instruct the jurors that they had to “separately
decide each count charged against each defendant” and each charged act needed
to be grounded in a separate incident. It also instructed the jury that its verdict “on
one count as to one defendant should not control [its] verdict on any other count
or as to the other defendant.” (Emphasis added.) In closing argument, the State
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No. 84870-4-I/5
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recounted the first time Elaster brought another man into her bedroom in order to
participate in the abuse of A.M.O., presenting it to the jury as one of the three
incidents that would support the charge of child molestation against Elaster. The
State was careful to ask the jury to link specific acts to which A.M.O. had testified
to the specific charges of each defendant. There is simply nothing in the record to
suggest that the State improperly attempted to use the evidence of Elaster’s crimes
to secure a conviction against Miller.
The final category of evidence Miller challenges on this basis includes
evidence Elaster and Miller “would abuse A.M.O. together, involving her in sexual
acts, making her watch them engage in sexual acts, and raping and molesting her
together.” A.M.O.’s testimony regarding the acts by Elaster and Miller is the heart
of the State’s case against Miller and her description of the abuse was highly
relevant.
But testimony about these acts was not admitted as evidence of “other
crimes, wrongs, or acts.” 	Instead, they were acts within the charging period that
could support any of the four charged counts of rape of a child in the first degree.1
Accordingly, the trial court did not err in failing to conduct ER 404(b) analysis on
the record. Notably, Miller fails to explain how the trial court could have conducted
the four-step ER 404(b) analysis, given the factual context here, as the first step is
for the proponent to prove by a preponderance of the evidence that the act
occurred. See Williams, 156 Wn. App. at 490. The entire purpose of the trial was
for the State to prove, by more than a mere preponderance, that Miller committed
1 Consistent with State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), the trial court
instructed the jury that they must “unanimously agree as to which act has been proved.”
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No. 84870-4-I/6
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four distinct acts of ROC1 within the charging period. More critically, the State only
used the evidence of various acts of abuse by Miller to satisfy its burden to prove
the elements of the charged crimes beyond a reasonable doubt and not for any
other improper purpose.
At oral argument, Miller averred that ER 404(b) must apply here to prevent
the State from using broad charging periods to circumvent the rule. According to
Miller, the State could strategically include other acts within a charging period to
avoid application of an ER 404(b) analysis. 	But in briefing, Miller describes
A.M.O.’s allegations as claims that he “raped her with his mouth, hands, tongue,
and penis on many occasions.” 	His own characterization of the evidence he
deems “uncharged acts” acknowledges that it consisted of conduct that could
satisfy the elements of the charged crimes, both because of the nature of the acts
and fact that they occurred within the charging period.2
Critically, Miller’s “policy” argument ignores the potential consequences of
his proffered interpretation of the rule. If the State were to individually charge each
incident in a pattern of sexual assaults, rather than selecting only those incidents
for which it has the best evidence and is most likely to secure a conviction, the
accused would face new obstacles at various stage of the proceedings. 	For
example, a pretrial release determination based on an information containing
seventeen counts of child molestation as opposed to three, even where evidence
2 We acknowledge that our analysis would necessarily be different if A.M.O.’s testimony
included other acts of sexual abuse that could not constitute the charged crimes. For example, if
the court had permitted her to testify about conduct by Miller that could only amount to child
molestation, but not rape of a child. Because we are tasked with deciding the assignment of error
as framed in briefing based on the record from the trial court, we decline to provide an advisory
holding about other possible scenarios not presently before us.
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No. 84870-4-I/7
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of the larger number was weaker, could reasonably result in outright denial of
release on personal recognizance, a higher bail amount, or more restrictive and
costly pretrial release conditions. Similarly, exposure at sentencing would increase
significantly as offender scores could be dramatically impacted by such a charging
practice should the State prevail on more counts. 	Further, the risk at trial could
shift as juries may struggle to uphold the presumption of innocence when tasked
with deciding a case with more counts.
The trial court did not err in its ruling to admit evidence of acts committed
during the charging period that a jury could conclude satisfied the elements of the
charged crimes.
The panel has determined that the remainder of this opinion has no
precedential value. Therefore, it will be filed for public record in accordance with
the rules governing unpublished opinions. See RCW 2.06.040.
II. 	Claim of Juror Bias
For this assignment of error, we expressly adopt and incorporate herein the
reasoning and conclusion set out in Part I of the linked case, State v. Elaster, No.
84970-1-I.
III. 	Right To Present a Defense
Miller’s co-defendant, Elaster, presented a nearly identical assignment of
error; the only distinction was slightly different framing of the importance of the
excluded evidence. 	The defense sought to introduce evidence that A.M.O. had
made allegations against other people in addition to Miller and Elaster and that
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No. 84870-4-I/8
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other children with whom A.M.O. resided also made allegations of abuse against
others. Miller specifically avers that it was essential to the shared defense theory
that Sharon Spears, who resided with and cared for A.M.O. for several years
before and after the abuse occurred, “was unusually preoccupied with potential
sexual abuse” and the truth or falsity of allegations made by A.M.O. “was not
particularly important” to Spears.
With this particular presentation of the issue in mind, for this assignment of
error, we expressly adopt and incorporate herein the reasoning and conclusion set
out in Part II of the linked case, State v. Elaster, No. 84970-1-I.
IV. 	Community Custody Conditions
Miller, like his co-defendant, challenges two community custody conditions
imposed by the trial court and set out in appendix H to his judgment and sentence
(J&S) as one of several “special conditions” for sex offenses: condition 5, which
restricts dating relationships and requires him to disclose his status as a sex
offender to potential intimate partners, and condition 8, which requires he consent
to random searches by the Department of Corrections (DOC). 	Miller also
separately challenges condition 10, which requires him to submit to urinalysis and
breath analysis upon the request of the DOC community corrections officer (CCO)
and/or chemical dependency provider, as improper because it is not crime related.
The State responds that condition 5 is crime-related and not unconstitutional,
condition 8 is not yet ripe for review, and condition 10 was within the court
discretion and did not need to be crime related.
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No. 84870-4-I/9
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A. 	Condition 5
Miller presents the same challenges to condition 5 as his co-defendant, that
it is not crime-related and violates his right to free speech, but also separately
contends that this condition is an unconstitutional restriction on his right to marry
and to engage in intimate relations. The right to marry and the right to engage in
intimate relations are fundamental constitutional rights and state interference is
subject to strict scrutiny. State v. Warren, 165 Wn.2d 17, 34, 195 P.3d 940 (2008);
Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). When
a community custody condition burdens a fundamental right, we consider whether
the condition is “reasonably necessary to accomplish the essential needs of the
State and public order . . . conditions that interfere with fundamental rights must
be sensitively imposed.” 	Warren, 165 Wn.2d at 32 (citation omitted). 	The State
has a compelling interest in the protection of minors. State v. Geyer, 19 Wn. App.
2d 321, 328, 496 P.3d 322 (2021).
In 	making 	this 	determination, 	courts 	have 	used 	a 	crime-relatedness
analysis combined with an assessment of the state’s interest to determine the
validity of similar custody conditions. See, e.g., State v. Kinzle, 181 Wn. App. 774,
785, 326 P.3d 870 (2014); State v. Peters, 10 Wn. App. 2d 574, 591, 455 P.3d 141
(2021). In Kinzle, the court upheld the imposition of a similar community custody
condition, reasoning that “[b]ecause Kinzle’s crime involved children with whom he
came into contact through a social relationship with their parents, condition 10 is
reasonably crime-related and necessary to protect the public.” 	Id. at 785. 	By
considering the relatedness of the crime to the condition, together with the State’s
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No. 84870-4-I/10
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interest in protecting children, we conclude that this condition is necessary
because Miller’s potential future partners may have children of their own, be in a
position of authority over children, or unknowingly enable Miller’s access to
children in the absence of a condition that compels Miller to divulge information
regarding his offense.
As to the first part of Miller’s challenge to this community custody condition,
we expressly adopt and incorporate the reasoning and conclusion expressed in
Part IV, Section A of the linked case, State v. Elaster, No. 84970-1-I. We further
follow the established precedent analyzed herein and reject Miller’s additional
challenge to condition 5.
B. 	Condition 8
For this assignment of error, we expressly adopt and incorporate herein the
reasoning and conclusion set out in Part IV, Section B of the linked case, State v.
Elaster, No. 84970-1-I.
C. 	Condition 10
Miller challenges the trial court’s imposition of community custody condition
10 and expressly cites RCW 9.94A.703 and .704. Condition 10 reads, “Defendant
shall . . . [b]e available for and submit to urinalysis and/or breathanalysis upon
request of the CCO and/or chemical dependency treatment provider.” In briefing,
Miller avers that this condition is not crime-related as required by the governing
statute and the court erred when it imposed it, therefore, it must be stricken.
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Under RCW 9.94A.703(3)(f), “the court may order an offender to . . .
[c]omply with any crime-related prohibitions.” A crime-related prohibition is a court
ordered prohibition “that directly relates to the crime for which the offender has
been convicted.” RCW 9.94A.030(10). However, RCW 9.94A.703(2)(c) expressly
dictates that “[u]nless waived by the court, as part of any term of community
custody, the court shall order an offender to . . . [r]efrain from possessing or
consuming 	controlled 	substances 	except 	pursuant 	to 	lawfully 	issued
prescriptions.” 	The plain language of the statute indicates that the condition will
be imposed unless the trial court specifically declines to do so, without requiring a
nexus to the crime of conviction. 	RCW 9.94A.703(2)(c). 	Because this condition
of community custody is expressly authorized by statute, its imposition was not an
abuse of discretion. 	DOC must be empowered to monitor this condition once
imposed; requiring compliance with requests for urinalysis or breath testing is the
most logical means of doing so. 	Further, subsection (4) of RCW 9.94A.704, one
of the statute sections cited on appendix H of Miller’s J&S, expressly states that
once a person is placed under DOC supervision, it “may require the offender to
participate in rehabilitative programs, or otherwise perform affirmative conduct,
and to obey all laws.” The trial court did not abuse its discretion when it imposed
conditions authorized by statute.
V. 	Legal Financial Obligations
Pursuant to amendments to RCW 7.68.035 that became effective in 2023,
the court will not impose the victim penalty assessment or DNA collection fee,
which were previously mandatory, where it has found that the defendant is
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indigent. The State properly concedes that in light of the court’s indigency finding
at sentencing, this court should remand for the trial court to strike these legal
financial obligations from Miller’s J&S.
Affirmed in part, reversed in part, and remanded for the trial court to strike
the legal financial obligations.
WE CONCUR:
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