State of Washington v. Stephen Wayne Miller, 33252-7

Background

Victim S.L., age 15 in mid-2011, had repeated overnight contact with the Miller family; Stephen Miller (appellant) engaged in multiple sexual acts with her (kissing, breast touching, digital and penile penetration, and oral sex) during the charged period (Feb 22, 2011–Feb 21, 2012).
State charged Miller with two counts of third-degree rape of a child and one count of third-degree child molestation; jury convicted on one rape count and one molestation count; the second rape count was deadlocked.
Trial court did not instruct the jury that each conviction must be based on a separate and distinct act; Miller did not object at trial to that omission.
Court sentenced Miller to 30 months confinement plus 36 months community custody (concurrent sentences) and imposed $1,487.66 in LFOs; judgment included a Brooks notation regarding combined term limits.
The court imposed multiple community custody conditions restricting contact/residence with minors and prohibiting possession/perusal of pornographic materials; it allowed contact with Miller’s biological children and stepchildren but left ambiguity on some conditions.
On appeal Miller raised double jeopardy (failure-to-instruct separate-act), excess sentence beyond statutory maximum, vagueness and parental/marital rights issues from custody conditions, and lack of inquiry into ability to pay LFOs.

Issues

Issue	State's Argument	Miller's Argument	Held
Whether omission of a separate-and-distinct-act instruction violated double jeopardy	The record (victim testimony, prosecutor’s election, separate to-convict instructions) made clear different acts supported each count	Jury could have convicted rape and molestation based on same act (oral sex), violating double jeopardy	No double jeopardy violation: record showed State sought separate acts for each conviction; upheld convictions on this ground
Whether the combined confinement and community custody exceeded statutory maximum	Sentence complied because Brooks notation preserved the limit	Combined term (30 + 36 = 66 months) exceeded 60-month statutory maximum for class C felony	Agreed with Miller: sentence exceeded statutory maximum; remanded for resentencing to ensure combined term ≤ statutory max (may use variable community custody)
Whether community custody conditions (places where minors congregate; pornographic materials; limits on authority/relationships) are unconstitutionally vague or infringe parental/marital rights	Some conditions are crime-related and justified; supervision and prior approvals mitigate overbreadth	Conditions are vague (no definitions/illustrations), and some may unduly burden fundamental parental/marital rights	Court struck/ordered revision of vague conditions (places where minors congregate; porn possession) and remanded to clarify conditions affecting parental/relationship rights (conditions 17 & 18)
Whether court erred by imposing discretionary LFOs without inquiring into ability to pay	No preserved objection at trial but State concedes error on appeal	Trial court failed to make individualized ability-to-pay inquiry as required	Court accepted State’s concession and remanded for individualized inquiry into Miller’s ability to pay discretionary LFOs

Key Cases Cited

State v. Mutch, 171 Wn.2d 646 (double jeopardy review standard and when appellate relief is available)
State v. Land, 172 Wn. App. 593 (analysis whether convictions for rape and molestation can be based on same acts and when record avoids double jeopardy)
State v. Boyd, 174 Wn.2d 470 (Brooks notation obsolete; combined confinement + community custody cannot exceed statutory maximum)
State v. Bruch, 182 Wn.2d 854 (statutory interpretation on sentencing and variable community custody options)
State v. Bahl, 164 Wn.2d 739 (pornography prohibition as unconstitutionally vague; guidance on curing vagueness)
State v. Irwin, 191 Wn. App. 644 (places-where-children-congregate condition held vague; two-prong vagueness analysis)
State v. Kier, 164 Wn.2d 798 (limitations of prosecutorial election in curing double jeopardy problems)