State Of Washington v. Hai Minh Nguyen, 74358-9

Background

Nguyen, a tenant in the victim T.P.’s home, was convicted of: one count first-degree rape of a child, one count second-degree rape of a child, one count first-degree child molestation, and one count second-degree child molestation based on repeated sexual acts over several years beginning when the victim was a child.
Jury received separate to-convict instructions for each count and was told it must unanimously agree which act supported each count, but instructions did not state convictions must be based on acts "separate and distinct" from other counts.
The State’s closing argument explicitly elected which specific acts supported each count and divided the offenses into two charging periods (before and after the victim turned 12).
Sentencing included multiple community custody conditions: a ban on possessing/viewing sexually explicit or erotic material (with statutory definitions cited), a curfew (special condition 7), and a prohibition on entering parks/playgrounds/schools or "any places where minors congregate" (prohibition 18).
Nguyen appealed, arguing (1) jury instructions allowed multiple punishments for the same act (double jeopardy), and (2) certain community custody conditions were unconstitutionally vague or not crime-related.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nguyen)	Held
Whether jury instructions violated Double Jeopardy by permitting multiple punishments for the same act	The State argued convictions were based on separate acts and closing argument made clear elections; multiple punishments were not sought for the same act	Nguyen argued instructions lacked requirement that each conviction be based on a separate and distinct act, risking multiple punishments for the same conduct	Court held no double jeopardy violation: considering evidence, separate instructions, and the State’s clear election in closing, it was manifestly apparent jury avoided multiple punishment for the same act
Whether special condition prohibiting possession/access/viewing of sexually explicit or erotic material is unconstitutionally vague	Condition cites statutory definitions; therefore reasonably definite and crime-related	Nguyen argued the prohibition was overbroad, vague, and not tied to his crimes	Court held condition constitutional: not unconstitutionally vague and reasonably related to sex-offense history
Whether special condition 7 (curfew) is crime-related and permissible	State conceded curfew was not crime-related	Nguyen argued curfew should be stricken	Court accepted State’s concession and ordered special condition 7 stricken
Whether crime-related prohibition 18 (areas where minors congregate) is sufficiently definite	State conceded the phrase "any places where minors congregate" is vague but argued parks/playgrounds/schools are definite	Nguyen argued the phrase is vague and allows arbitrary enforcement	Court struck the vague phrase but upheld prohibition against parks, playgrounds, and schools where children congregate; remanded to remove vague language

Key Cases Cited

State v. Land, 172 Wn. App. 593 (recognizes when oral-genital contact may be both rape and molestation and the need for separate-act instructions in identical-count scenarios)
State v. Pena Fuentes, 179 Wn.2d 808 (prosecutor’s clear election in closing can make it manifestly apparent convictions are based on separate acts)
State v. Mutch, 171 Wn.2d 646 (unanimity and jury-instruction principles relevant to double jeopardy review)
State v. Borsheim, 140 Wn. App. 357 (unanimity instruction does not cure double jeopardy when a single to-convict instruction covers multiple identical counts)
State v. Bahl, 164 Wn.2d 739 (vagueness analysis for community custody condition that delegated definition to supervision officer)
State v. Irwin, 191 Wn. App. 644 (standards for vagueness and crime-relatedness review of community custody conditions)