State Of Washington, Respondent V. Darren Patrick Barker, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DARREN PATRICK BARKER,
Appellant.
No. 69326-3-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 28, 2014
Appelwick, J. — Barker appeals his conviction for second degree child
molestation, arguing that the introduction of pornography evidence deprived him
of a 	fair trial. 	Because he fails to establish 	reversible error, we affirm the
conviction. 	Because the trial court erroneously imposed a community custody
condition prohibiting conduct not directly related to Barker's crime, we remand to
the trial court to strike the challenged condition.
FACTS
Michelle Hutcheson married Darren Barker when C, her daughter from a
previous marriage, was four years old. 	Hutcheson and Barker had three children
together. 	In March 2007, Hutcheson took their youngest child to Texas for a
week, leaving Barker at their home in Darrington, Washington, to care for the
other children, 	including 	C, who was then 	13 years old. 	One night, when
Hutcheson called home, no one answered. 	After she had called several times,
Barker finally answered. 	He told Hutcheson that he had been talking to C. about
sex and had had her take off her clothes and look at her private parts with a hand
mirror. Hutcheson was angry and insisted on speaking to C, who did not provide
any additional details of the incident.

No. 69326-3-1/2
In April 2007, Barker was fired from his job in information technology at a
hospital for viewing pornography on his work computer. 	His employer referred
the 	matter to Child Protective Services (CPS), 	alleging that 	he viewed child
pornography. 	An investigation by Edmonds police revealed that the pornography
at issue involved only adults. 	But, the resulting CPS investigation into the family
led to Barker moving out of the house as part of a safety plan. 	Barker moved
back in six months later.
In December 2009, Hutcheson received a disturbing anonymous e-mail
referring to sexual matters about C. 	Hutcheson searched the computer she
shared with Barker and 	learned that 	he 	had 	recently created a 	new 	e-mail
account with the same service from which the anonymous message originated.
When Hutcheson confronted C. about the e-mail, C. told her mother for the first
time that Barker had touched her private parts during the March 2007 incident.
Hutcheson made Barker move out of the house and called the police. 	The State
charged Barker with second degree child molestation. 	Prior to trial, the trial court
granted Barker's motion to exclude any references to the fact that Barker had
been fired from his job for accessing pornography on his work computer.
At trial, C. testified that in March 2007, Barker made her try on clothes in
front of him. 	When she tried to keep herself covered, Barker told her that she
was too self-conscious about her body and took her into his bedroom and locked
the door. 	Barker told her he wanted to talk to her about sex and told her to take
off her shirt and bra. 	When she refused, he "forcefully" took off her shirt and bra.
C. testified, "[S]o I was covering myself, and he made me touch my breasts, and

No. 69326-3-1/3
then he touched my breasts." 	While C. cried loudly, Barker "forcefully" took off
her jeans and pulled her underwear down to her ankles. 	He positioned her on
the bed with her knees apart and gave her a mirror to hold between her legs so
she could see while "he would touch a part, and explain what it was and what it
was for." As C. continued crying, Barker touched her vaginal area in "about five"
places for "five to fifteen seconds" while he explained each part. 	C. testified that
the telephone was ringing repeatedly throughout these events until Barker told
her to get dressed and he answered the telephone.
C. testified that she did not initially report the touching because she was
afraid of Barker. 	C. explained that she decided to tell her mother the details in
December 2009 because she was having nightmares that it would happen again,
Barker was giving her gifts and making "weird" comments, and she was worried
for her safety and that of her siblings. 	She also testified that when she was
discussing underwear with her mother, Barker "came out of his room to listen and
got an erection while we were having this conversation."
Hutcheson 	testified 	that 	Barker 	admitted 	to 	her 	over 	the 	phone
immediately after the March 2007 incident that "he had screwed up" and had
"gone overboard." 	Hutcheson described her efforts to speak with C. about the
incident and testified that C. "said everything was fine," "but she seemed very
scared." 	Hutcheson also testified that shortly before December 2009, she was
telling C. that "thong underwear" was not "appropriate attire for a young lady,"
when Barker came into the room with an erection and appeared to be listening to
their conversation. 	Hutcheson also testified that Barker's behavior toward C.

No. 69326-3-1/4
changed in 2009 in that he started to secretly buy her gifts and spoke of C. as
"attractive" in a way that Hutcheson said, "[J]ust made me sick to my stomach."
Hutcheson also testified that she found C.'s underwear, with white residue that
she believed to be semen, in Barker's drawer and in the bathroom, leading her to
believe that Barker "was masturbating into my daughter's underwear."
Before 	presenting 	the 	testimony 	of 	Detective 	Ben 	Hagglund, 	who
interviewed Barker in April 2007, the prosecutor advised the court and Barker
that she intended to present evidence that Barker admitted to viewing incest-
related pornography. 	The prosecutor argued that the evidence was relevant to
prove Barker touched C. for the purpose of sexual gratification. 	She argued,
"And he 	is 	in a 	father 	role, 	basically, 	engaging 	in incest, 	and 	when 	he 	is
combining incest pornography with that, it's relevant to show sexual gratification.
He is interested in incest, and he's carrying it out." 	The trial court determined
that the 	probative value outweighed 	the 	prejudice, 	stating, 	"In this 	case it's
relevant. 	We're talking about incest sites visited on a computer, and the nature
of the charge involves an allegation of an attempted incestual relationship, so it's
relevant there."
Detective Hagglund testified that Barker admitted that he had C. take off
her clothes and examine herself but denied touching her. 	According to Detective
Hagglund, 	Barker 	admitted 	that 	he 	was 	"mad" when 	C. was 	uncomfortable
changing in front of her siblings, but that he made "a mistake" and was "naive."
The prosecutor then asked the detective whether he had "a conversation with
[Barker] regarding incest-related pornography." 	The trial court overruled Barker's

No. 69326-3-1/5
objection and Detective Hagglund answered, "He explained that he had viewed
incest-related pornography, but he wasn't certain that it was incest-related, that
was just what the information was" on the website.
The jury found Barker guilty of second degree child molestation and bail
jumping. 	The trial court imposed a standard range sentence.
Barker appeals.
DISCUSSION
Barker contends the trial court erroneously admitted Detective Hagglund's
testimony regarding incest-related pornography in violation of ER 404(b). 	The
State argues the evidence was relevant to 	prove 	intent, that is, that Barker
touched C. for the purpose of sexual gratification, an element required to prove
the charge of second degree child molestation. 	See State v. Stevens, 	158
Wn.2d 304, 309-10, 143 P.3d 817 (2006).
Evidence of other crimes, wrongs, or acts is inadmissible to "prove the
character of a person in order to show action in conformity therewith." 	ER 404(b).
Such evidence may, however, be admissible to prove intent. 	ER 404(b). 	But,
"evidence 	should 	not 	be 	admitted 	to 	show 	intent 	... 	if 	intent 	is 	of 	no
consequence to the outcome of the action." 	State v. Saltarelli, 98 Wn.2d 358,
362-63, 655 P.2d 697 (1982). 	And, 	use of prior acts to demonstrate intent
requires "a logical theory, other than propensity, demonstrating how the prior acts
connect to the intent required to commit the charged offense." State v. Wade, 98
Wn. 	App. 	328, 	334, 	989 	P.2d 	576 	(1999). 	"A 	careful 	and 	methodical
consideration of relevance, 	and 	an 	intelligent weighing 	of potential prejudice

No. 69326-3-1/6
against probative value is particularly important in sex cases, where the prejudice
potential of prior acts is at its highest." Saltarelli, 98 Wn.2d at 363.
An error which is not of constitutional magnitude, such as the erroneous
admission 	of ER 404(b) evidence, 	requires 	reversal only 	if the error, 	within
reasonable probability, 	materially affected the outcome of the trial. 	State v.
Stenson. 132 Wn.2d 668, 709, 940 P.2d 1239 (1997). 	Improper admission of
evidence constitutes harmless error if the evidence is of minor significance when
compared with the evidence as a whole. 	State v. Neal. 144 Wn.2d 600, 611, 30
P.3d 1255 (2001). 	The inquiry is whether the outcome of the trial would have
been different if the error had not occurred. 	State v. Jackson. 102 Wn.2d 689,
695, 689 P.2d 76 (1984).
Barker claims that the pornography evidence was highly inflammatory and
probably changed the outcome of the trial. 	He notes that C.'s trial testimony
contradicted several of her earlier statements. 	He asserts C. had a 	motive to
fabricate the allegations after Barker made her uncomfortable and disciplined her
harshly. 	Assuming that the admission of the pornography evidence was error,
Barker nonetheless fails to establish the error was not harmless.
Barker's defense was a 	general denial of any touching, 	but the State
presented a strong case that the touching actually occurred. 	C, who was 18
years old at the time of trial, testified in a clear and detailed manner about the
incident and acknowledged that she had not originally reported the touching.
She articulated her reasons for her delay and her ultimate decision to report the
touching consistently throughout an exhaustive cross-examination. 	Hutcheson's

No. 69326-3-1/7
testimony about C.'s behavior shortly after the incident and her own increasing
concern 	over Barker's escalating 	inappropriate behavior towards C. 	in 2009
supported C.'s explanation for her delay in reporting.
If the jury believed that the touching occurred, other evidence supported
an inference that Barker's purpose was his own sexual gratification. 	Hutcheson
testified that she and Barker had agreed previously that she would be the one to
educate C. about sex. 	And, the State presented the following significant detailed
evidence suggesting Barker had a particular sexual interest in C: 	he ordered her
to leave the bathroom door open; he interrupted C. when she was naked in the
shower; he had an erection when C. and Hutcheson discussed C.'s underwear;
Hutcheson found C.'s underwear, stained with what appeared to be semen, in his
drawer and bathroom; he rubbed up against C.'s body with his privates; he spoke
of C. 	in a 	sexually suggestive 	manner that 	made 	Hutcheson 	"sick to 	[her]
stomach"; he secretly gave C. expensive gifts; and he arranged to spend time
alone with C, 	helping her get a job at his workplace and driving her to work and
to school.
On the other hand, Detective Hagglund's reference to Barker's admission
to viewing incest-related pornography was brief and limited. 	No party mentioned
pornography again during 	the trial. 	Under these circumstances, there is no
reasonable probability that the verdict would have been different had the jury not
heard the reference to incest-related pornography.
Barker also challenges a community custody condition limiting his access
to the Internet, social media, and cell phones or other electronic devices without

No. 69326-3-1/8
permission of his community corrections officer. 	He argues that the evidence
before the sentencing court did not show that such conduct was directly related
to his crime.
The 	court 	has 	discretion 	to 	impose 	"crime-related 	prohibitions" 	as
conditions of community custody. 	Former RCW 9.94A.700(5)(e) (2003) (Laws of
2003, ch. 379 § 4), recodified as RCW 9.94A.703(3)(f). 	Specifically, the court
may prohibit "conduct that directly relates to the circumstances of the crime for
which the offender has been convicted." 	Former RCW 9.94A.030(12) (2006)
(Laws of 2006, ch. 139 § 5). 	Although the existence of a relationship between
the 	prohibited 	conduct and 	the 	circumstances of the 	crime 	"'will always 	be
subjective,'" the requirement of a direct relationship limits such prohibitions to "'a
relatively narrow range of conduct.'" State v. Barclay. 51 Wn. App. 404, 407, 753
P.2d 1015 (1988) 	(emphasis omitted) (quoting 	David Boerner, 	Sentencing in
Washington § 4.4 (1985)). 	We review the trial court's determination that a
condition of community custody is crime-related for abuse of discretion. 	State v.
Riley. 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).
A court may not impose Internet restrictions where there is no evidence
that the Internet contributed to the crime. 	State v. O'Cain. 144 Wn. App. 772,
775, 184 P.3d 1262 (2008). 	In O'Cain. the defendant was convicted of second
degree rape, 	but there was "no evidence that O'Cain accessed the Internet
before the rape or that Internet use contributed in any way to the crime." 	Id. at
774-75. 	This court struck the condition, distinguishing other cases involving a
8

No. 69326-3-1/9
crime "where a defendant used the Internet to contact and lure a victim into an
illegal sexual encounter." ]&. at 775.
At sentencing, the 	trial court 	mentioned the O'Cain opinion, and 	then
found "a computer nexus here," observing that "in this case there were computer
elements throughout the course of the case." 	The State contends that the trial
court properly relied on Barker's admission to viewing incest-related pornography
in April 2007 and Hutcheson's suspicions regarding Barker's involvement in the
anonymous e-mail message in December 2009. We disagree.
The circumstances of Barker's crime of second degree child molestation
were limited to the following events occurring in March 2007: 	he directed C. to
change her clothes in his presence; he took C. into his bedroom and locked the
door; he forcibly removed C's clothing; he touched her breasts with his hands;
and he gave her a mirror or held a mirror for her to watch while he repeatedly
touched her vaginal area with his finger.
There was no evidence that Barker accessed the Internet, social media,
cell phones, or other electronic devices before or during the 	incident and 	no
evidence that any of those items contributed to or furthered his criminal conduct.
Nothing in the record indicates that Barker used any of these means or devices
to view or access illegal materials involving minors or to contact, groom, or lure
any minor or other victim into any illegal activity. 	There was evidence presented
at trial that Barker accessed incest-related pornography on his work computer in
the 	month 	after 	the 	crime, 	but 	the 	State 	acknowledges 	that 	the 	police
investigation revealed 	that 	the 	pornography 	featured 	only adults. 	And, the

No. 69326-3-1/10
certification 	for 	probable 	cause 	indicates only 	that 	Hutcheson 	believed 	that
Barker sent her a disturbing e-mail about C. in December 2009. 	Under these
circumstances, we conclude that the prohibited conduct is not directly related to
Barker's 	crime, 	and 	the 	trial 	court 	abused 	its 	discretion 	by 	imposing 	the
condition.1
We affirm Barker's conviction, but remand to the trial court to strike the
challenged community custody condition.
WE CONCUR:
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1 Because we agree with Barker that the condition must be stricken, we
need 	not address his additional claim that the condition is 	unconstitutionally
overbroad.
10