A Pierce County Superior Court judge was wrong to prohibit a child molester from using social media, sexually explicit materials and sexually oriented 900 numbers, an appeals court decided.
Those conditions of the man’s sentence were among those reversed Tuesday when Division II of the Washington State Court of Appeals ruled they weren’t directly related to the crime.
A jury convicted 23-year-old Derek John Dossantos of first-degree child molestation and indecent liberties, for inappropriately touching a girl in the pool of a Tacoma apartment complex in 2013. She was 8 at the time, and he was 18.
Superior Court Judge John Hickman sentenced Dossantos to five years, eight months in jail in 2015 as part of a Special Sex Offender Sentencing Alternative, which also required him to undergo sex offender treatment.
The alternative lets sex offenders who don’t have prior felony sex offense convictions (among other conditions) serve at least part of their sentences in the community while in treatment.
In Dossantos’ case, he was to serve a year behind bars, and the rest of his time was to be suspended as long as he finishes the alternative sentencing program.
Hickman included other conditions, including that Dossantos:
▪ Couldn’t have “sexually explicit materials in any medium.”
▪ Was prohibited from using social media sites such as Facebook, calling “sexually oriented 900 numbers” or using Skype.
▪ Was required to get a chemical dependency evaluation and treatment, as recommended.
▪ Could not go places where children congregate unless the court approved.
The unanimous Division II decision overturns all but the last of those conditions, and sends Dossantos’ case back to Superior Court for the sentence to be amended.
“Nothing in the trial record indicates that Dossantos was using social media, Skype, or calling 900 numbers at the time he molested” the girl, Justice Thomas Bjorgen wrote in the opinion.
A psychosexual evaluation showed Dossantos had used pornography previously, and the evaluator recommended he be prohibited from using pornography, but did not specifically suggest prohibiting sexually explicit materials.
“The treatment recommendation is specifically tailored toward ‘pornography,’ not sexually explicit materials,” Bjorgen wrote. “Further, there is no evidence that Dossantos’ use of ‘sexually explicit materials’ somehow contributed to his offenses.”
So Hickman had the authority to prohibit “pornography” but not “sexually explicit materials,” the appellate court said. And in another condition, the judge did specifically bar Dossantos from “possessing or perusing pornography.”
Dossantos argued that condition was unconstitutionally vague, and the state and Division II agreed, which makes it void.
However, the appellate court said Hickman was sufficiently clear in prohibiting Dossantos from visiting places where children are likely to be present.
“If Dossantos cannot predict with certainty whether visiting a certain type of locale would violate the condition, he may seek court approval,” Bjorgen wrote.
As for the chemical dependency condition, state law says a judge can impose that if the court specifically finds the offender has a chemical dependency that contributed to the crime.
According to the appellate opinion, Hickman said at sentencing: “I will order that if it’s deemed advisable by his treatment provider.”
The appellate judges said that’s not the same, and therefore Hickman didn’t have the authority to impose the evaluation and treatment.
The appellate court rejected Dossantos’ other arguments: that he was the victim of prosecutorial and juror misconduct, that his two convictions amounted to double jeopardy, that his attorney was ineffective, that there wasn’t enough evidence to support his conviction and that having a comfort dog in the courtroom was prejudicial.
“We are pleased that the defendant’s conviction and sentence were affirmed,” Michelle Hyer, the Appellate Division chief of the Prosecutor’s Office, said in a statement. “There will be a future hearing to address the conditions of community custody and treatment and we expect to request conditions similar to those imposed in the original sentence.”
Dossantos’ attorney did not return a News Tribune message Wednesday.
Asked how the decision could affect other cases, Prosecutor Mark Lindquist said in a statement: “This is more a question of form than substance. We can still accomplish our goal of imposing conditions to protect the community. Our language must be sufficiently specific and the conditions must be related to the crime or to the treatment.”