State Of Washington, Respondent V. Christopher Zumwalt, Appellant

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STATE OF V/AitiWGTC,
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CHRISTOPHER ALEX ZUMWALT,
Appellant.
No. 69898-2-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 29, 2013
Leach, 	C.J. 	— 	Christopher 	Zumwalt 	appeals 	his 	conviction 	for 	child
molestation in the first degree. 	He claims that the trial court erred when it denied
his motion to depose a witness under CrR 4.6(a). 	He also challenges three of
the community custody conditions that the court imposed as part of his sentence.
Because we accept the State's concession that the term "pornography" as used
in the judgment and sentence is unconstitutionally vague, we remand for the
limited purpose of striking that term. 	Because Zumwalt fails to show that the
witness was not willing to discuss the case with defense counsel and that the
other challenged community custody conditions were 	unlawful, we otherwise
affirm.

No. 69898-2-1 / 2
Background
The 	State 	charged 	Zumwalt 	with 	sexually 	assaulting 	B.J.S. 	in 	Port
Orchard on or between January 1, 1997, and December 15, 2002. 	At the time,
she was less than 12 years old.
After B.J.S. reported the incident, Detective Ray Stroble from the Kitsap
County Sheriff's Office spoke with Zumwalt about the allegations. 	The State then
charged Zumwalt with one count of child molestation in the first degree.
Before 	trial, 	Zumwalt 	moved 	to 	depose 	Stroble 	under 	CrR 	4.6(a).
Zumwalt indicated that Stroble would 	not agree to be interviewed by defense
counsel if the defense investigator, Jim Harris, attended the interview. 	Zumwalt
argued that by refusing to allow Harris to participate, Stroble effectively refused
to be interviewed.
In response, the 	State explained that Harris previously worked for the
Kitsap County Sheriffs Office and had been Stroble's supervisor. 	During that
time, the county disciplined Harris for mistreating Stroble. 	The State noted that
Stroble advised the prosecutor's office that he was willing to discuss the case
with 	defense 	counsel 	and 	any 	defense 	investigator 	other 	than 	Harris.
Additionally, Stroble indicated that he did not object to recording the interview.
At a hearing on the motion, Zumwalt told the court that 	he had other
investigators he could use. 	In denying Zumwalt's motion, the court stated, "[l]t's
hardly a refusal to be interviewed. 	He'll interview with anybody on the face of the
planet except Mr. Harris because of their personal history." The court also stated
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No. 69898-2-1 / 3
that 	it would 	"accept 	Detective 	Stroble's agreement that 	any 	interview with
anybody else of your choosing will be recorded."
A jury convicted Zumwalt as charged. 	The court imposed a standard
range sentence, including 17 community custody conditions. 	Zumwalt appeals.
Analysis
Zumwalt alleges that the trial court erred by denying his motion to depose
Detective 	Stroble. 	He 	also 	contends 	that three 	of the 	community custody
conditions the court imposed as part of his sentence were unlawful. 	We reject
these arguments.
Zumwalt claims that the trial court should have ordered a deposition under
CrR 4.6(a). 	He argues, "[T]he trial court interfered with the Sixth Amendment
right of the defendant to choose counsel of his own choice, the Due Process right
of the defense to control its own case preparation, and the Sixth Amendment
right to control witnesses and compel process."
We review de novo an interpretation of a court rule.1 	A criminal defendant
does not have a right to depose prospective witnesses before trial.2 	Under CrR
4.6(a), upon a party's motion, a court may order a deposition when "a witness
refuses to discuss the case with either counsel and the witness' testimony is
material and necessary."3 	Zumwalt describes the issue in this case as "whether
1 State v. Mankin, 158 Wn. App. 111, 121-22, 241 P.3d 421 (2010) (citing
State v. Robinson. 153 Wn.2d 689, 693, 107 P.3d 90 (2005K. review denied. 171
Wn.2d. 1003, 249 P.3d 182 (2011).
2 Mankin. 158 Wn. App. at 121-22 (citing State v. Gonzalez. 110 Wn.2d
738, 744, 757 P.2d 925 (1988)).
3CrR 4.6(a)(2).
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No. 69898-2-1/4
the 	refusal to discuss the 	case with 	Mr. 	Harris in the 	room falls within the
meaning of the rule's requirement that the witness refuse to discuss the case
with either counsel."
In State v. Mankin,4 the court concluded that the "plain language" of CrR
4.6(a) "does not address instances in which the witness will speak to counsel
only under certain circumstances." 	In Mankin, the witness was willing to discuss
the case with counsel but refused to allow counsel to record the interview.5 	The
court agreed with the defendant that "the ability of counsel to obtain evidence
and to impeach witnesses effectively is part of his right to a fair trial."6 	But, the
court explained, "[E]ven though the right to adequate trial preparation includes
the right to interview witnesses in advance of trial, 	'[t]he right to interview a
witness does not mean that there is a right to have a successful interview,'"7 and
"a witness may refuse to give an interview."8 	As such, the court held that "it is
logical to conclude that a witness may also choose under what conditions he or
she is willing to give an interview, including whether it should be recorded."9
Zumwalt acknowledges the court's holding in Mankin but argues, "The
time has come to reanalyze the doctrine of the 'right' of witnesses to refuse to be
4 158 Wn. App. 111, 123, 241 P.3d 421 (2010). review denied. 171 Wn.2d
1003, 249 P.3d 182 (2011).
5 Mankin. 158 Wn. App. at 115.
6 Mankin. 158 Wn. App. at 123.
7 Mankin. 158 Wn. App. at 123-24 (second alteration in original) (citations
omitted^ (quoting State v. Clark. 53 Wn. App. 120, 124, 765 P.2d 916 (1988)).
8 Mankin. 158 Wn. App. at 124 (citing State v. Hofstetter, 75 Wn. App.
390, 397, 402, 878 P.2d 474 (1994)).
9 Mankin. 158 Wn. App. at 124.
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No. 69898-2-1 / 5
interviewed. 	There is no legal justification for the doctrine and it interferes with
the right of the defendant to prepare his or her case." 	But the court in Mankin
rejected a 	similar argument, 	and 	Zumwalt 	offers no authority to support a
different result.10
Zumwalt further 	asserts, 	"It is not proper for the 	State or the 	State's
witnesses to dictate who the defense uses as its expert witnesses," and "[fjorcing
defense counsel to interview the detective without the assistance of its chosen
expert witness was error." 	Zumwalt offers no evidence that the State dictated
whom he used as an expert witness; rather, Stroble exerted his right to choose
the conditions under which he was willing to give an interview.
The court properly denied Zumwalt's motion because it lacked authority to
order a deposition under CrR 4.6(a). Stroble was willing to discuss the case with
defense counsel and with an alternate investigator and was willing to have the
interview recorded. 	Additionally, the record indicates that Zumwalt interviewed
Stroble on June 21, 2011, and that the interviewwas recorded and transcribed.
Zumwalt also challenges three community custody conditions that the
court imposed as part of his sentence. 	In Washington, a sentencing court must
impose certain community custody conditions in specified circumstances and
may impose others.11 	The discretionary conditions include requiring the offender
to 	"[participate 	in 	rehabilitative 	programs 	or otherwise 	perform 	affirmative
10 See Mankin. 158 Wn. App. at 123.
11 See RCW 9.94A.703; State v. Bahl. 164 Wn.2d 739, 744, 193 P.3d 678
(2008).
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No. 69898-2-1/6
conduct reasonably related to the circumstances of the offense, the offender's
risk of reoffending, or the safety of the community," and to "[c]omply with any
crime-related prohibitions."12
We 	review imposed 	community custody 	conditions 	for an 	abuse 	of
discretion.13 	A trial court abuses 	its discretion 	if its decision 	is "'manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.'"14
Imposing an unconstitutional condition is manifestly unreasonable.15 A party may
raise a challenge to community custody conditions for the first time on appeal.
Zumwalt alleges that the 	court erred 	by requiring 	him 	to "[sjubmit to
periodic 	polygraph 	examinations 	at 	own 	expense 	at 	the 	request 	of the
Community Corrections Officer or treatment provider." 	In State v. Riles.17 the
defendants contended that the trial court lacked authority to require polygraph
testing as a condition of community custody because the Sentencing Reform Act
of 1981, 	chapter 9.94A 	RCW, 	did 	not specifically authorize or require such
testing. 	Our Supreme Court agreed that no provision explicitly authorized or
required polygraph testing but concluded, "A trial court has authority to impose
monitoring 	conditions 	such as 	polygraph 	testing. 	Although 	the 	results 	of
12RCW9.94A.703(3)(d), (f).
13 State v.Sanchez Valencia. 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)
(citing Bahl, 164 Wn.2d at 753).
^Hii 	re 	Estate of Black. 153 Wn.2d 	152, 	172, 	102 	P.3d 	796 	(2004)
(internal quotation marks omitted) (quoting State v. Downing. 151 Wn.2d 265,
272, 87 P.3d 1169 (2004)).
15 Sanchez Valencia, 169 Wn.2d at 792 (citing BaM, 164 Wn.2d at 753).
16 Bahl, 164 Wn.2d at 744-45.
17 135 Wn.2d 326, 340, 957 P.2d 655 (1998), overruled in part on other
grounds by Sanchez Valencia. 169 Wn.2d at 792.
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No. 69898-2-1 / 7
polygraph 	tests 	are 	generally 	not 	admissible 	in 	a 	trial, 	this 	Court 	has
acknowledged their validity as an investigative tool."18 	Thus, polygraph testing is
lawful to monitor an offender's compliance with crime-related prohibitions.19
Zumwalt argues that our Supreme Court overruled Riles in In re Detention
of Hawkins20 and State v. Sanchez Valencia.21 	These cases, however, did not
address the court's holding in Riles that recognized polygraph testing as a valid
community custody condition. 	The issue in Hawkins, which did not discuss Riles,
was whether RCW 71.09.040(4) authorized the State to compel respondents in
sexually 	violent 	predator 	commitment 	proceedings 	to 	submit 	to 	polygraph
examinations as part of the pretrial evaluation.22 	The State does not allege that
Zumwalt is a sexually violent predator and is not searching for evidence to prove
such an allegation.
Sanchez Valencia argued that an imposed community custody condition
was unconstitutionally vague.23 	Sanchez Valencia discussed Riles only to clarify
18 Riles. 135 Wn.2d at 342 (citing State v. Sutherland. 94 Wn.2d 527, 528,
617 P.2d 1010 (1980)).
19 See Riles. 135 Wn.2d at 343 (legislative amendments suggest intent "to
confirm the 	practice of allowing testing, 	such 	as 	polygraphs, 	for monitoring
compliance with sentencing conditions").
20 169 Wn.2d 796, 238 P.3d 1175 (2010).
21 169 Wn.2d 782, 239 P.3d 1059 (2010).
22 Hawkins. 169 Wn.2d at 800-01.
23 Sanchez Valencia, 169 Wn.2d at 785. 	The challenged condition stated,
"'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.'"
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No. 69898-2-1 / 8
that the court will not presume community custody conditions are constitutional.24
That case did not concern polygraph examinations, and Zumwalt does not raise
a vagueness challenge to the polygraph examination condition. 	Because Riles
authorizes a court to order polygraph examinations as a condition of community
custody and Zumwalt points to no authority overruling this holding, we reject his
claim.
Zumwalt 	also 	asserts 	that 	two 	of 	the 	imposed 	community 	custody
conditions are 	unconstitutionally vague. 	The 	Fourteenth Amendment to 	the
United 	States Constitution 	and 	article 	I, 	section 	3 	of the Washington 	State
Constitution require that citizens have fair warning of proscribed conduct.25 	"A
statute is unconstitutionally vague if it '(1). . . does not define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is
proscribed, or (2). . . does not provide ascertainable standards of guilt to protect
against arbitrary enforcement.'"26 	A condition that fails to meet either of these
requirements is unconstitutionally vague.27
In determining whether a term is unconstitutionally vague, we consider the
term in the context in which it is used.28 When a statute does not define a term,
24 	Sanchez 	Valencia. 	169 	Wn.2d 	at 	792 	("While 	Riles 	indicated 	a
presumption in favor of the constitutionality of a community custody condition,
this was error.").
25 Bahl. 164 Wn.2d at 752 (citing City of Spokane v. Douglass, 115 Wn.2d
171,178, 795 P.2d 693 (1990)).
26 Bahl. 164 Wn.2d at 752-53 (alterations in original) (quoting Douglass.
115Wn.2dat178).
27 Bahl. 164Wn.2dat753.
28 Bahl. 164 Wn.2d at 754 (citing Douglass. 115 Wn.2d at 180).
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No. 69898-2-1 / 9
we may consider the plain 	and ordinary meaning as set forth 	in a standard
dictionary.29 A condition of community custody is sufficiently definite if persons of
ordinary intelligence can understand what it proscribes, "'notwithstanding some
possible areas of disagreement.'"30
Zumwalt contends that the court erred when it ordered him not to "loiter or
frequent places where children congregate, including but not limited to shopping
malls, 	schools, 	playground[s] 	or 	video 	arcades." 	He 	argues 	that the 	term
"shopping malls" is unconstitutionally vague.
RCW 	9.94A.703(3)(b) 	permits 	a 	court, 	as 	a 	condition 	of 	community
custody, to order an offender to "[rjefrain from direct or indirect contact with the
victim of the crime or a specified class of individuals." 	In Riles, the court rejected
a vagueness challenge to the imposed condition, "[Do] not frequent places where
minors 	are known 	to congregate."31 	The court reasoned that the condition
applied "to places where children commonly assemble or congregate."32
Here, within the context of the entire condition, the term "shopping malls"
is 	not 	unconstitutionally 	vague. 	Persons 	of 	common 	intelligence 	would
understand the condition to prohibit Zumwalt from going to places where children
commonly assemble, and the examples create a more precise prohibition than
29 Bahl, 164 Wn.2d at 754 (citing State v. Sullivan. 143 Wn.2d 162, 184-
85, 19 P.3d 1012 (2001)).
30 Bahl, 164 Wn.2d at 754 (quoting Douglass, 115 Wn.2d at 179).
31 Riles 135 Wn.2d at 349.
32 Riles 135 Wn.2d at 349 (citing former RCW 9.94A.120(9)(c)(ii) (1997),
the statute in effect at the time of the charging period).
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No. 69898-2-1/10
the prohibition upheld 	in Riles. 	Therefore, we hold 	that this condition is not
impermissibly vague.
Zumwalt also challenges the 	imposed 	condition ordering 	him "[n]ot to
possess or access any sexually explicit material or frequent adult bookstores,
arcades or places where sexual entertainment is provided and shall not access
pornography ... via the computer." 	He argues that our Supreme Court found the
term "sexually explicit material" unconstitutional in State v. Bahl.33
In Bahl. the defendant argued that the term "sexually explicit material" was
unconstitutional 	as 	used 	in 	the 	condition 	prohibiting 	him 	from 	frequenting
"'establishments whose primary business pertains to sexually explicit or erotic
material.'"34 	In fact, contrary to Zumwalt's assertion, the court held that the term
was 	"sufficiently 	clear."35 	The 	court 	stated, 	"Implementing 	the 	dictionary
definition, the phrase ... is 'clearly expressed sexual' materials or materials that
are 	unequivocally 	sexual 	in 	nature."36 	Additionally, 	the 	court 	noted 	that
"'[ijmpossible standards of specificity' are not required since language always
involves some degree of vagueness."37 	Based on this analysis, we hold that the
term "sexually explicit materials" is not unconstitutionally vague.
Although Zumwalt does not assign error to the term "pornography" as
used in this condition, the State concedes that the court in Bahl found this term
33 164 Wn.2d 739, 193 P.3d 678 (2008).
34 Bahl, 164 Wn.2d at 758-59.
35 Bahl. 164Wn.2dat759.
36 Bahl. 164Wn.2dat759.
37 Bahl. 	164 Wn.2d at 759 (internal quotation marks omitted) (quoting
State v.Halstien. 122 Wn.2d 109, 118, 857 P.2d 270 (1993)).
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No. 69898-2-1/11
unconstitutionally vague.38 	We grant the State's request to strike this term from
the judgment and sentence.
Conclusion
Because the witness was willing to discuss the case with defense counsel,
the trial court properly declined Zumwalt's motion to depose him. 	Although the
term "pornography" is unconstitutionally vague, the imposed community custody
conditions are otherwise lawful. 	For these reasons, we remand for the limited
purpose of striking the term "pornography" from the judgment and sentence and
otherwise affirm.
WE CONCUR:
-. 	o.
a
38 See 	Bahl. 164 Wn.2d 	at 758 	("We conclude that the 	restriction on
accessing or possessing pornographic materials is unconstitutionally vague.").
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