No. 54804-2-I.The Court of Appeals of Washington, Division One.
Filed: April 24, 2006.
UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Superior Court of King County. Docket No: 03-1-04177-3. Judgment or order under review. Date filed: 07/30/2004. Judge signing: Hon. Anthony P. Wartnik.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Reginald Malone/Info Only (Appearing Pro Se), 77 S. Washington, Seattle, WA 98104.
Counsel for Respondent(s), John Christopher Carver, Attorney at Law, 500 4th Ave Rm 840, Seattle, WA 98104-2371.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
PER CURIAM.
Reginald Malone was convicted of first degree theft and making a false claim for health care payment. He challenges two provisions of his sentence, contending that the no-contact order was not crime-related and violated his constitutional right of free association, and that the court’s restitution order violated his sixth amendment right to trial by jury. We disagree and affirm.
BACKGROUND
In 1999, Janice Lenertz met Reginald Malone over the Internet. He told her he was a Navy SEAL, and was receiving a Navy pension. They married in September 1999. By June 2000, Malone had charged thousands of dollars to their joint credit card accounts. Lenertz asked him to move out. She later discovered Malone had never been a Navy SEAL, did not have a Navy pension, and had been married twice before. She had the marriage annulled. In July 2002, Malone visited Valley Medical Center in Renton seeking treatment for abdominal pain, claiming he was in the military and was insured by the military’s insurer, Champus Tricare. Valley Medical Center billed Champus for his treatment, but was informed by Champus that Malone was ineligible for coverage.
Malone was charged with one count of first degree theft from Lenertz and one count of making a false claim for health care payment. The State sought to introduce testimony from three other women who had been involved in relationships with Malone: Deborah Tinnin, Barbara Gosselin and Samantha Day. The court admitted the evidence under ER 404(b) to prove a common scheme or plan and intent.[1]
At trial, Tinnin, Gosselin and Day each testified Malone made similar misrepresentations to them and that they had financially supported him.[2] Tinnin, who was present during Malone’s visit to Valley Medical Center, also testified regarding Malone’s false insurance claim. A United States Navy officer testified that Malone was discharged from the Navy in 1974, had never been Navy SEAL, and did not qualify for a Navy pension. A jury convicted Malone on both charges.
As a condition of his sentence, the court ordered that Malone have no contact with Lenertz, Day, Gosselin, Tinnin or their families for 10 years. At a restitution hearing, Malone was ordered to pay restitution of $6,400.56 to Lenertz.
ANALYSIS
No-Contact Provisions. Malone challenges the court’s imposition of the 10-year prohibition against contact with witnesses Day, Gosselin and Tinnin, arguing that this condition is not related to the crime of theft in the second degree. RCW 9.94A.505(8) provides that “[a]s part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter.” A crime-related prohibition is “an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted.” RCW 9.94A.030(12). We review the imposition of crime-related prohibitions for an abuse of discretion. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001).
The existence of a relationship between the crime and the condition “will always be subjective, and such issues have traditionally been left to the discretion of the sentencing judge.” State v. Parramore, 53 Wn. App. 527, 530, 768 P.2d 530 (1989); State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993). No causal link need be established between the condition imposed and the crime committed, so long as the condition relates to the circumstances of the crime. State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992). For example, in Parramore, the court affirmed a condition requiring urinalysis because the condition directly related to the defendant’s conviction for selling marijuana, despite the absence of evidence that the defendant actually used marijuana. Parramore, 53 Wn. App at 533.
Witnesses to a crime are “directly connected to the circumstances of the crime.” Ancira, 107 Wn. App. at 656. Here, the court ruled that the witnesses’ encounters with Malone were evidence of a common scheme or plan to commit theft. To establish a common scheme or plan, the related conduct must demonstrate common features such that the various acts are naturally explained as the result of a general plan, of which the charged crime and the other misconduct are the individual manifestations. State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995). Thus Day, Gosselin and Tinnin were witnesses to Malone’s plan to defraud women by entering into relationships based upon false representations, and then benefiting financially. This provides a sufficient nexus to establish a direct relationship to the circumstances of the charged crime, and supports the imposition of a no-contact order.[3] The trial court did not abuse its discretion in imposing the condition.
Malone also argues that the no-contact order violates his constitutional right to free association. We disagree. Limitations upon fundamental rights are permissible, provided they are narrowly drawn. Riley, 121 Wn.2d at 29. A reviewing court looks to whether the order prohibits “a real and substantial amount of protected conduct, in contrast to its legitimate sweep.” State v. Riles, 135 Wn.2d 326, 346-47, 957 P.2d 655 (1998). A convicted defendant’s freedom of association may be restricted only to the extent it is reasonably necessary to accomplish the essential needs of the state and public order. Id. at 347 (quoting Riley, 121 Wn.2d at 37-38).
Here, the order was carefully tailored to prohibit contact only with those who had been duped by Malone and had so testified, together with their families. This is not an unconstitutional restriction on Malone’s freedom of association.
Restitution Order. Malone argues that the court’s restitution order violated his sixth amendment right to trial by jury under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). We reject his arguments for the reasons set forth in State v. Kinneman, 155 Wn.2d 272, 282, 119 P.3d 350 (2005).
Affirmed.
ELLINGTON, SCHINDLER and COX, JJ.
As a part of any sentence, the court may impose and enforce an order that relates directly to the circumstances of the crime for which the offender has been convicted, prohibiting the offender from having any contact with other specified individuals or a specific class of individuals for a period not to exceed the maximum allowable sentence for the crime, regardless of the expiration of the offender’s term of community supervision or community placement.
Former RCW 9.94A.120(20) (2000), recodified as RCW 9.94A.505 (Laws of 2000, ch. 10, sec. 6) (emphasis added). A review of the legislative history behind the consolidation and recodification of former RCW 9.94A.120 indicates the legislature changed this section to reorganize the SRA, correct incorrect cross-references and simplify codifications, and that the legislature did not intend to alter the court’s power to impose and enforce no-contact orders beyond the limitations present in the pre-2001 SRA. See RCW 9.94A.015 (“The legislature does not intend . . . to make, and no provision of [this act] may be construed as making, a substantive change in the sentencing reform act.”).
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