State Of Washington, V. David Ford
54086-0
| Wash. Ct. App. | Nov 2, 2021Background
- Ford had a brief sexual relationship with Christina Nieland while living in the same house; after she sought to end it and reconcile with her husband, Ford persistently called and messaged her and demanded sexually explicit photos and videos.
- Ford threatened to reveal the relationship to Nieland’s husband and then sent explicit images/videos to Nieland’s teenage stepdaughter when she reported him to police.
- The State charged Ford with one count of second-degree extortion (sexual motivation) and two counts of cyberstalking; the jury convicted on all counts.
- The trial court imposed an exceptional aggregate sentence (69 months) and 36 months’ community custody, including conditions restricting internet use and ordering a psychosexual evaluation and treatment.
- The State conceded, and the court agreed, that RCW 9.61.260(1)(b) (the cyberstalking prong criminalizing anonymous or repeated electronic communications) was unconstitutional in light of Rynearson, so the cyberstalking convictions were reversed and remanded for resentencing; the court upheld the internet restriction and psychosexual-evaluation conditions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ford) | Held |
|---|---|---|---|
| Constitutionality of RCW 9.61.260(1)(b) (cyberstalking: anonymous/repeated electronic communications) | Statute is constitutional as applied; not argued to be severable here (State ultimately conceded error). | (Ford) Statute is unconstitutionally overbroad under the First Amendment. | Court accepted State’s concession and held subsection (1)(b) unconstitutional under Rynearson and reversed cyberstalking convictions. |
| Prejudice/harmless error from inclusion of unconstitutional prong in jury instruction | State could not show beyond reasonable doubt the jury verdict was unaffected by the unconstitutional prong. | Ford argued inclusion of the invalid prong prejudiced his convictions. | Because the instruction allowed conviction on the unconstitutional ground and the verdict form was not specific, the court presumed prejudice and reversed. |
| Community-custody conditions restricting internet/telecommunications access (First Amendment challenge) | Limiting internet access here is a crime-related, narrowly tailored condition reasonably necessary to prevent reoffense given Ford’s internet-based sexual offenses. | Ford argued the restriction is overbroad and infringes First Amendment rights (citing Packingham). | Court upheld the limitations (not a total ban; access allowed for employment or with prior approval) as not unconstitutionally overbroad. |
| Court-ordered psychosexual evaluation and treatment as a community-custody condition | The psychosexual evaluation is crime-related treatment authorized under RCW 9.94A.703(3)(c). | Ford argued the evaluation is a mental-health order requiring statutory findings of mental illness, which were not made. | Court held the psychosexual evaluation is a sexual-deviancy (crime-related) evaluation, not a mental-health order, and therefore permissibly ordered. |
Key Cases Cited
- Rynearson v. Ferguson, 355 F. Supp. 3d 964 (W.D. Wash. 2019) (district court held RCW 9.61.260(1)(b) unconstitutional as overbroad)
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court cautioned against broad bans on sex offenders’ access to social media)
- United States v. Stevens, 559 U.S. 460 (2010) (facial overbreadth standards)
- State v. Johnson, 197 Wn.2d 740 (Wash. 2021) (upheld limited, supervised internet-access condition as not overbroad)
- United States v. Waggy, 936 F.3d 1014 (9th Cir. 2019) (telephone-harassment statutory framework treats harassment regulation as conduct-focused)
- State v. Williams, 144 Wn.2d 197 (Wash. 2001) (state must show harmlessness beyond a reasonable doubt when an unconstitutional jury instruction is given)