Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 61118-0-II Respondent, v. UNPUBLISHED OPINION TOMMY RAY STEPHENS, Appellant. VELJACIC, C.J. — Tommy Stephens appeals his convictions for rape of a child in the first degree (count 1), attempted indecent liberties by forcible compulsion (count 2), and two counts of child molestation in the first degree (counts 3 and 4). Stephens argues insufficient evidence supports three of his convictions and that his right to a unanimous jury verdict was violated. He argues the trial court erred in calculating his offender score because three of the offenses constituted the same criminal conduct and that he had the right to a jury determination that these offenses were not the same criminal conduct. Stephens also alleges that several of his community custody conditions are unlawful. Lastly, in a statement of additional grounds for review (SAG), Stephens claims he received ineffective assistance of counsel. We accept the State’s concessions and reverse and remand for the trial court to modify or strike nine of the community custody conditions. We otherwise affirm. 61118-0-II FACTS I. BACKGROUND Stephens was engaged to Jordan Stanton, who had a daughter, OM. Stephens moved in with Stanton and OM, and they lived together for about four years. On the evening of January 15, 2024, when OM was eight years old, Stephens went upstairs to try to help OM fall asleep. The next day, OM told her best friend at school that Stephens had touched her inappropriately the day before. When OM returned home, she told Kenzie Neet, Stanton’s best friend, that Stephens had touched her inappropriately. Neet said that [OM] let [her] know that upstairs [Stephens] had exposed himself and told [OM] to suck it. It’s a lollipop. And then [OM] also proceeded to tell [her] that when they were upstairs in [OM’s] bed, that [Stephens] was also touching her she would say ‘down there.’ [OM] said [Stephens] touched her butt as well. 4 Rep. of Proc. (RP) at 678. Neet said that OM gestured toward her vagina and butt when referring to “down there.” 4 RP at 678. Neet also said OM told her that Stephens had “put the massage gun down there as well.” 4 RP at 679. Neet told Stanton, who was outside smoking, what OM had disclosed to her. Stanton confronted Stephens who was in the garage, and Stanton, Neet, and OM left the house. That night, Stanton called the police. The next day, OM underwent a forensic interview with Sue Villa. During the interview, OM told Villa that on January 15, when she was lying in her bed trying to fall asleep, Stephens pulled down her pants and underwear and touched the part of her body she used to pee, as well as her butt using his hand. OM pinky-promised Villa that she was telling the truth. OM said that Stephens rubbed the part of her body she used to pee and then went inside of her with his hand. OM said Stephens then got up and walked in front of her with his pants down and said, “suck on 2 61118-0-II it” and that it was a “lollipop.” Ex. 29 (recording), 11 min. 47 sec., to 11 min. 50 sec.; 25 min. 24 sec., to 25 min. 26 sec. OM said Stephens got back into bed and pulled her hand toward the part of his body he used to pee, and she kept pushing him away. OM also said this was not the first time this happened and that the first time was “like a week ago.” Ex. 29 (recording), 18 min. 5 sec., to 18 min. 6 sec. OM said that Stephens laid in the bed with her five times and that he touched her all five times in the same way. OM then said she “pinky-promise[d] [she] [was] not lying.” Ex. 29 (recording), 19 min. 48 sec., to 19 min. 51 sec. OM said that Stephens told her not to tell. She also told Villa that “in the afternoon” in Stanton’s bedroom, Stephens put a massager over her clothes on the part of her body she used to pee. Ex. 29 (recording) 26 min., to 26 min. 1 sec. The State ultimately charged Stephens with rape of a child in the first degree, attempted indecent liberties by forcible compulsion, and two counts of child molestation in the first degree. II. TRIAL At trial, OM’s forensic interview was admitted into evidence. OM also testified at trial that “[i]n the middle” of January she asked Stephens to lay with her in her bed at night, and he made her “[u]ncomfortable.” 4 RP at 607-08, 645. She stated that, using his hand, Stephens rubbed the outside and inside of her “private part” that she used to “pee.” 4 RP at 607-08. OM said Stephens rubbed both over and under her clothes. OM testified that Stephens then got up, pulled his pants down, and “put his private part in front of [her]” and told her to “[s]uck it.” 4 RP at 609-10. OM stated that Stephens got back in bed and pulled her wrist toward him. OM testified that it hurt her wrist when he pulled her and that as she was trying to pull away, she hit her head on the headboard of the bed. 3 61118-0-II OM also testified that “one [or two] week[s]”1 before the rubbing incident, she and Stephens were taking a nap in Stanton’s bedroom and Stephens put a massager on her “private part” that she “use[d] . . . to pee.” 4 RP at 616, 618, 633. OM testified that those were the only two times Stephens touched her inappropriately. When defense counsel asked OM why she said in the forensic interview that Stephens had touched her five times, she said, “I did pinky swear, but it didn’t happen. [Stephens] didn’t touch me all five times.” 4 RP at 642. Neet also testified at trial consistent with the above factual account to the disclosures OM made to her. Defense counsel asked forensic DNA analyst, Jennifer Johnston, to confirm that swabs taken of OM as part of a forensic examination did not test positive for any male DNA, and Johnston responded, “correct.” 5 RP at 795. Stephens also testified at trial. He denied ever inappropriately touching OM. III. JURY INSTRUCTIONS For the second count of child molestation in the first degree, the trial court instructed the jury that to convict Stephens it had to be proven beyond a reasonable doubt: (1) That on or about or between January 1, 2023, through January 15, 2024, in an incident separate and distinct from any other counts, [Stephens] had sexual contact with [OM]; (2) That [OM] was less than twelve years old at the time of the sexual contact and was not married to [Stephens]; (3) That [OM] was at least thirty-six months younger than [Stephens]; and (4) That this act occurred in the State of Washington. Clerk’s Papers (CP) at 134. 1 In a pretrial hearing, OM stated that she was “pretty sure” the massager occurrence happened in “August.” RP (July 29, 2024) at 139. 4 61118-0-II The separate to-convict instructions for all the other counts included the same language of, “in an incident separate and distinct from any other counts.” CP at 122, 131, 133. The trial court also instructed the jury that, In alleging that the defendant committed Child Molestation in the First Degree, the State relies upon evidence regarding a single act constituting each count of the alleged crime. To convict the defendant on any count, you must unanimously agree that this specific act was proved. CP at 135. IV. CLOSING ARGUMENT During closing argument, the State used a PowerPoint presentation, and the slide addressing count 4, stated: • Touching of the sexual or intimate part: . . . Stephens put activated massager on [OM’s] vagina • Done for the purpose of sexual gratification: No legitimate reason for him to be touching her in that way • Later that night, . . . Stephens exposed his penis to [OM] and told her to touch it with her hand & “suck it” like a lollipop CP at 95. The State verbally told the jury that: For Count 4, the sexual contact at issue is when he put the activated massager on [OM’s] vagina. And you may notice, going back to the timeline in this case, [OM], close in time to the offense, reported that it was in the same day as the touching in Count 3. However, as you saw, she got confused with the timeline. She said she thought it was October, November, December, potentially, 2023. The State’s argument is that it did happen on the same day and the passage of time just meant that she couldn’t remember exactly when it happened. But if you have doubts about maybe it didn’t happen the same day, maybe it happened the week before or couple months before, that is covered in this language because this extends back to January 1st, 2023. So done for the purpose of sexual gratification. Again, there is no legitimate reason for him to be touching her with a massager and putting it on her vagina. And, again, in context, later that night, he then tries to get her to suck his penis and to touch his penis with her hand, which indicates, in context overall, the reason why he would do that is for his sexual gratification. 7 RP at 967-68. 5 61118-0-II V. VERDICT AND SENTENCE The jury found Stephens guilty on all counts. At the sentencing hearing, Stephens argued that counts 1-3 constituted the same criminal conduct and, therefore, his offender score should be 3. The trial court determined that Stephens’s offenses were separate and distinct and calculated Stephens’s offender score to be 9. The court sentenced Stephens to a total confinement of 279 months to life and imposed numerous community custody conditions, including the following: Remain within, or outside of, a specified geographical boundary, to wit: do not loiter or frequent any locations where minors congregate, including schools, daycares, parks, video arcades, campgrounds, and/or shopping malls.[2] .... (8) Remain within geographic boundary, as set forth in writing by the Community Corrections Officer. .... (11) Must consent to [Department of Corrections] DOC home visits to monitor compliance with supervision. Home visits include access for purposes o[f] visual inspection of all areas of the residence, in which offender lives or has exclusive/joint access. (12) Do not possess or consume alcohol. (13) Do not possess or consume marijuana. (14) Do not possess drug paraphernalia. (15) Submit to urinalysis and breathalyzer testing as directed by your assigned Community Corrections Officer. (16) Have no contact with known drug users[] or sellers outside of a treatment environment. (17) Submit to searches of your person, residence and vehicle at the request of your supervising Community Corrections Officer. (18) Comply with GPS monitoring per Community Corrections Officer. (19) Do not enter into bars, taverns, liquor stores, or any establishment where the primary source of revenue comes from alcohol sales. .... (26) Must not own or possess any sharp bladed instrument, such as a pocket knife, sword or edged weapon o[r] any weapon otherwise deemed by the Community Corrections Officer to be a weapon. 2 This community custody condition appears in the judgment and sentence and is not numbered as the other conditions are. 6 61118-0-II CP at 179, 190-91. Stephens appeals. ANALYSIS I. SUFFICIENCY OF THE EVIDENCE3 Stephens concedes that the “evidence proved beyond a reasonable doubt that counts 1, 2, and 3 were committed in [OM’s] bedroom at night on January 15, 2025.” Br. of Appellant at 20. But he argues the State failed to prove that each offense was “in an incident separate and distinct from the other counts.” Br. of Appellant at 20 (emphasis added). Essentially, Stephens argues that the term “incident” required the State to prove something much broader than that each offense occurred in a separate “act.” We disagree.4 A. Legal Principles We review challenges to the sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014). “Evidence is sufficient to support a conviction when, viewed in the light most favorable to the State, any rational trier of fact could find the essential elements of 3 The State asks us to consider Stephens’s argument as a double jeopardy challenge instead of a sufficiency challenge. Because we adhere to the rule of party presentation, we decline to do so. “The scope of a given appeal is determined by the notice of appeal, the assignments of error, and the substantive argumentation of the parties.” Clark County v. W. Wash. Growth Mgmt. Hr'gs Review Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013). We address Stephens’s argument as presented. We do, however, acknowledge that the purpose of the “separate and distinct” language is to protect against double jeopardy violations. See State v. Borsheim, 140 Wn. App. 357, 366, n.2, 165 P.3d 417 (2007). But Stephens does not present any arguments regarding double jeopardy. 4 Because Stephens concedes that the “evidence proved beyond a reasonable doubt that counts 1, 2, and 3 were committed in [OM’s] bedroom at night on January 15, 2025,” we do not address the elements for each offense. Br. of Appellant at 20. Instead, we address only his argument regarding the term “incident.” 7 61118-0-II the crime beyond a reasonable doubt.” State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006). “A sufficiency challenge admits the truth of the State’s evidence and accepts the reasonable inferences to be made from it.” State v. O'Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007). Accordingly, we must draw “all reasonable inferences from the evidence in favor of the State and against the defendant.” In re Pers. Restraint of Arntsen, 2 Wn.3d 716, 724, 543 P.3d 821 (2024). We “defer to the jury on questions of witness credibility, persuasiveness of the evidence, and conflicting testimony.” State v. Blackburn, 36 Wn. App. 2d 787, 822, 588 P.3d 393, review denied, 597 P.3d 214 (2026). Further, we presume “that the jury understands words in their ordinary meaning.” Strandberg v. N. Pac. Ry. Co., 59 Wn.2d 259, 263, 367 P.2d 137 (1961). “Trial courts must define technical words and expressions used in jury instructions[] but need not define words and expressions that are of ordinary understanding or self-explanatory.” State v. Brown, 132 Wn.2d 529, 611-12, 940 P.2d 546 (1997). B. Analysis The court’s use of “incident” as opposed to “act” in the jury instructions did not change the State’s burden. We presume the jury would understand the term “incident” in its ordinary meaning, and that term is defined as “an occurrence of an action or situation felt as a separate unit of experience.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/incident, (last visited Oct. 28, 2026); Strandberg, 59 Wn.2d at 263. The rubbing of OM, the penetration, and the pulling of OM’s hand to try to get her to touch Stephens’s penis would therefore, all be separate “incidents” as they were all occurrences of actions that were separate units of experience, even if they occurred in close proximity to one another. 8 61118-0-II Stephens points to no case holding that in a to-convict instruction, the term “incident” means something much broader than the term “act.”5 See DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.”). Indeed, many cases use the terms interchangeably. See State v. Jones, 71 Wn. App. 798, 821, 863 P.2d 85 (1993) (“[T]he State must either elect one incident to rely on for a conviction or the jury must be instructed that it must unanimously agree on a specific criminal act.” (Emphasis added.)); State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988) (“[T]he jury must be unanimous as to which act or incident constitutes the crime. . . . The error stems from the possibility that some jurors may have relied on one act or incident and some another.” (Emphasis added.)). Given the ordinary meaning of “incident,” the jurors would not understand “incident” to mean something different than “act.” Drawing all inferences in the State’s favor, we conclude sufficient evidence supported Stephens’s convictions on all three counts. Based on OM’s testimony at trial and her statements in the forensic interview, a rational trier of fact could find that Stephens committed each offense in an “incident” separate and distinct from any other count. 5 Stephens relies on State v. Lee to illustrate that “a single criminal incident or episode” can contain multiple “acts.” Br. of Appellant at 18 (quoting 132 Wn.2d 498, 503-04, 939 P.2d 1223 (1997)). But the Lee court discussed what constitutes “same conduct” for determining whether offenses are related for mandatory joinder purposes. Id. at 503. The mandatory joinder rule requires that “two or more offenses must be joined if they are related. Offenses are related if they are within the jurisdiction and venue of the same court and are based on the same conduct.” State v. Watson, 146 Wn.2d 947, 957, 51 P.3d 66 (2002). Regarding mandatory joinder, the Lee court stated that conduct underlying offenses subject to mandatory joinder was that “involving a single criminal incident or episode.” 132 Wn.2d at 503. The court continued that this “same conduct” could include “for example, offenses based upon the same physical act or omission or same series of physical acts.” Id. We are not persuaded that the court’s statement that a “criminal incident” might encompass more than one physical act in the specific context of mandatory joinder changes the ordinary meaning of the term “incident.” Accordingly, Lee is unhelpful here. 9 61118-0-II Accordingly, the State presented sufficient evidence that Stephens committed rape of a child in the first degree, attempted indecent liberties by forcible compulsion, and child molestation in the first degree. II. JURY UNANIMITY Stephens argues his right to a unanimous jury verdict was violated because the prosecutor did not make an election and the trial court did not give a Petrich6 instruction regarding the second count of child molestation in the first degree. He argues jurors could have relied on different acts to convict him based on testimony and the prosecutor’s statements. We disagree. A. Legal Principles The federal and Washington State constitutions guarantee criminal defendants the right to a unanimous jury verdict. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. In cases where the State presents evidence of multiple criminal acts within a single count and any one of the acts could constitute the crime charged, the jury must unanimously agree on the same act that constitutes the crime in order to convict the defendant. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403) (“When the evidence indicates that several distinct criminal acts have been committed, but [the] defendant is charged with only one count of criminal conduct, jury unanimity must be protected.”). To ensure jury unanimity, the State has to either “elect the particular criminal act upon which it will rely for conviction, or . . . the trial court [must] instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” Kitchen, 6 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). 10 61118-0-II 110 Wn.2d at 411.7 Failure to do so violates the defendant’s “state constitutional right to a unanimous jury verdict.” Id. at 409. “[A]n election can be made by the prosecuting attorney in a verbal statement to the jury as long as the prosecution ‘clearly identifie[s] the act upon which’ the charge in question is based.” State v. Carson, 184 Wn.2d 207, 227, 357 P.3d 1064 (2015) (quoting State v. Thompson, 169 Wn. App. 436, 474-75, 290 P.3d 996 (2012)). B. Analysis Stephens appears to argue that his right to a unanimous jury verdict was violated because the prosecutor did not make an election and the trial court did not give a Petrich instruction regarding the act underlying the second count of child molestation in the first degree because the prosecutor told the jury it could speculate as to the date the massager incident occurred. But this argument is misguided. An election or Petrich instruction is required when there are multiple acts that the jury could rely on to convict the defendant on one charge. Petrich, 101 Wn.2d at 572. Here, the trial court instructed the jury that “the State relies upon evidence regarding a single act constituting each count of [child molestation in the first degree].” CP at 135. In closing, the prosecutor stated that “[f]or Count 4, the sexual contact at issue is when [Stephens] put the activated massager on [OM’s] vagina.” 7 RP at 967. The State went on to argue that OM got confused about exactly when this incident occurred and told the jurors, But if you have doubts about maybe it didn’t happen the same day, maybe it happened the week before or couple months before, that is covered in this language [in the to-convict instruction] because this extends back to January 1st, 2023. 7 To be clear, neither is required where the State files a single charge “based on ‘a continuous course of conduct.’” State v. Shoop, 22 Wn. App. 2d 242, 254, 510 P.3d 1042 (2022) (quoting Petrich, 101 Wn.2d at 571) , aff'd, 1 Wn.3d 532, 528 P.3d 363 (2023). 11 61118-0-II 7 RP at 968. Despite the prosecutor stating that the date the single massager incident occurred was unclear, this did not imply that there were then multiple massager incidents and that the jury could rely on any one of those multiple incidents to convict Stephens on count 4. The State only alleged one massager incident. Accordingly, there was no need for a Petrich instruction or election on count 4. To the extent Stephens argues that the jury could have relied on either the massager incident or the incidents underlying his other charges to convict Stephens, the State made an election in closing as to the act constituting this charge. In closing, the State’s PowerPoint presentation specified that count 4 was based on the massager incident and the prosecutor told the jury that the sexual contact for count 4 was “when [Stephens] put the activated massager on [OM’s] vagina.” 7 RP at 967. This was sufficient to constitute an election that clearly identified the act underlying count 4 for the jury. Therefore, Stephens’s right to a unanimous jury verdict was not violated. III. SAME CRIMINAL CONDUCT Stephens argues the trial court erred in concluding that rape of a child in the first degree, attempted indecent liberties by forcible compulsion, and the first count of child molestation in the first degree did not constitute the same criminal conduct. We disagree. A. Legal Principles “When a person is convicted and sentenced for multiple offenses, current offenses are generally counted separately toward the offender score.” State v. Lee, 5 Wn.3d 734, 743, 582 P.3d 271 (2026). But pursuant to RCW 9.94A.589(1)(a), “current offenses that ‘encompass the same criminal conduct’ are counted as one crime at sentencing.” Id. The defendant bears the burden of showing that offenses are the same criminal conduct, and we review a trial court’s determinations 12 61118-0-II on same criminal conduct for abuse of discretion or misapplication of the law. State v. Graciano, 176 Wn.2d 531, 535, 539, 295 P.3d 219, 222 (2013). For offenses to be the same criminal conduct, they must have “‘the same criminal intent, [be] committed at the same time and place, and involve the same victim.’” Id. at 536 (quoting RCW 9.94A.589(1)(a)). To determine if crimes have the same criminal intent, instead of “speculating about the defendant’s [] subjective purpose,” we look at the objective intent8 of the crimes by examining the statutory intent articulated in the statutory definitions of the crimes. State v. Westwood, 2 Wn.3d 157, 168, 534 P.3d 1162 (2023). “If the objective intent for the offenses were the same or similar, [we] can then look at whether the crimes furthered each other and were part of the same scheme or plan.” Id. In this second step of the analysis, “[i]f the actions occurred in close proximity, and the nature of the crime did not change significantly throughout, the offenses may be considered the same criminal conduct for sentencing purposes.” Id. For example, in State v. Chenoweth, the Washington Supreme Court considered whether the crimes of rape of a child and incest based on a single act constituted the same criminal conduct. 185 Wn.2d 218, 223, 370 P.3d 6 (2016). The court ascertained the statutory intent of the two crimes by examining their statutory definitions. Id. The court concluded that the statutory intents of the crimes were different because “[t]he intent to have sex with someone related to you differs from the intent to have sex with a child.” Id. Therefore, the offenses were not the same criminal conduct. Id. 8 The Washington Supreme Court appears to use the terms “objective intent” and “statutory intent” to denote distinct concepts. Westwood explains that “[t]he statutory intent is relevant in determining whether the objective intent prong is satisfied.” 2 Wn.3d at 167. Similarly, in Lee, the court states that “[t]o ascertain whether crimes ‘require the same criminal intent’ . . . courts must first look to the statutory intent of the crimes and ‘[i]f the objective intent for the offenses were the same or similar, courts can then look at whether the crimes furthered each other and were part of the same scheme or plan.’” 5 Wn.3d at 743 (quoting Westwood, 2 Wn.3d at 162-68). 13 61118-0-II Similarly, in Westwood, the court examined the statutes defining attempted rape in the first degree, assault in the first degree, and burglary in the first degree to determine if they had the same statutory intent. 2 Wn.3d at 167-68. The court concluded that all three offenses required different objective intents. Id. at 168-69. B. Analysis Here, Stephens was convicted of rape of a child in the first degree, attempted indecent liberties by forcible compulsion, and child molestation in the first degree. To determine if these offenses have the same objective criminal intent, we examine the statutory definitions of each crime.9 A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and the perpetrator is at least twenty-four months older than the victim. RCW 9A.44.073(1). A person commits child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and the perpetrator is at least thirty-six months older than the victim. RCW 9A.44.083(1). And a person commits attempted indecent liberties by forcible compulsion when they take a “substantial step toward the commission of that crime.” RCW 9A.28.020(1). A person commits indecent liberties by forcible compulsion when (1) . . . he or she knowingly causes another person to have sexual contact with him or her or another: (a) By forcible compulsion 9 We do not address count 4 because Stephens argues that only counts 1-3 constituted the same criminal conduct. 14 61118-0-II RCW 9A.44.100. “Sexual contact” is defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(13). Rape of a child in the first degree does not require a specific intent. See RCW 9A.44.073(1). To commit this crime, a person must have sexual intercourse with a child less than twelve years old. Id. In contrast, child molestation requires a specific intent: the intent to have sexual contact with a child less than twelve years old for the purpose of gratifying sexual desire. RCW 9A.44.083(1); RCW 9A.44.010(13). Similar to child molestation, attempted indecent liberties by forcible compulsion is also a specific intent crime, however, the specific intent required is to intend to commit indecent liberties by forcible compulsion. RCW 9A.28.020(1). And indecent liberties by forcible compulsion requires the intent to have sexual contact for the purpose of gratifying sexual desire. RCW 9A.44.100(1)(a); RCW 9A.44.010(13). Because rape of a child requires no specific intent, it cannot have the same objective intent as child molestation or indecent liberties, which require that sexual contact occur for the purpose of gratifying sexual desire. Further, child molestation and attempted indecent liberties by forcible compulsion also have different statutory intents. Despite the fact that both statutes require sexual contact for the purpose of gratifying sexual desire, following the reasoning in Chenoweth, the intent to have sexual contact with a child under the age of 12 is different than the intent to have sexual contact with a person of any age by forcible compulsion. See 185 Wn.2d at 223. Accordingly, child 15 61118-0-II molestation in the first degree and attempted indecent liberties by forcible compulsion have different statutory intents and, therefore, different objective intents. Because rape of a child in the first degree, child molestation in the third degree, and attempted indecent liberties by forcible compulsion all have different objective intents, 10 the trial court did not abuse its discretion in concluding these crimes were not the same criminal conduct. IV. JURY DETERMINATION OF SAME CRIMINAL CONDUCT Stephens argues that under Erlinger v. United States, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024), he had a right to a jury determination that three of his current offenses did not encompass the same criminal conduct. We disagree. In Erlinger,11 the United States Supreme Court held that “Erlinger was entitled to have a jury resolve [the Armed Career Criminal Act’s] occasions inquiry unanimously and beyond a reasonable doubt.” 602 U.S. at 822. Generally, “[a]ny fact that, by law, increases the penalty for a crime” must be found beyond a reasonable doubt by a jury. Alleyne v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (emphasis added). But as the Washington Supreme Court has explained, a trial court’s “‘same criminal conduct’ finding is an exception to the default rule that all convictions 10 Because we conclude the offenses did not have the same objective intent, we need not reach the next step of the analysis examining whether the crimes furthered each other or were part of the same scheme or plan. See Westwood, 2 Wn.3d at 168. 11 “Under the ACCA, a defendant can receive a greatly increased prison term if it is determined that they had three prior convictions for violent felonies or serious drug offenses that were ‘committed on occasions different from one another’ (this determination is called an ‘occasions inquiry’).” State v. Frieday, 33 Wn. App. 2d 719, 745, 565 P.3d 139 (quoting Erlinger, 602 U.S. at 825)), review denied, 5 Wn.3d 1006 (2025). Erlinger argued that the burglaries he committed constituted a single criminal episode and did not occur on different occasions and that a jury, as opposed to a judge, should make this determination. Erlinger, 602 U.S. at 827. 16 61118-0-II must count separately. Such a finding can operate only to decrease the otherwise applicable sentencing range.” In re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005). Accordingly, the reasoning in Erlinger is inapplicable here because the inquiry made by the Erlinger trial court served only to increase the defendant’s punishment. See State v. Frieday, 33 Wn. App. 2d 719, 745, 565 P.3d 139, review denied, 5 Wn.3d 1006 (2025). But the same criminal conduct inquiry here serves only to decrease Stephens’s punishment. Accordingly, the determination of same criminal conduct need not be made by a jury. Therefore, Stephens was not entitled to a jury determination that his current offenses encompassed the same criminal conduct. V. COMMUNITY CUSTODY CONDITIONS Stephens argues that community custody conditions 12-16, 19, and 26 imposing drug and alcohol related restrictions and prohibiting possession of a sharp-bladed instrument are unlawful and should be stricken. Stephens argues that community custody conditions 11 and 17 requiring compliance with home visits and personal searches are unlawful and should be amended to add limiting language. The State concedes that conditions 12-16, 19, and 26 should be stricken. The State also concedes to remanding conditions 11 and 17 to have limiting language added “indicating that a request to search must be based on a reasonable suspicion of a probation violation and there must be a nexus between the suspected violation and the place to be searched.” Br. of Resp’t at 67. We accept the State’s concessions regarding these conditions.12 12 The trial court appeared to think it could not impose drug and alcohol restrictions if they were not crime related. This was apparently conceded by the State at sentencing, even though generally speaking, drug and alcohol related conditions need not be crime related to be imposed under State v. Nelson, 4 Wn.3d 482, 565 P.3d 906 (2025). The trial court erred in thinking it lacked discretion to impose such conditions if they were not crime related. But because there is no cross-appeal, we accept the concession. 17 61118-0-II Stephens also argues that community custody condition 18 requiring compliance with GPS monitoring is overbroad because the Department only needs to know “that . . . Stephens is staying within any geographic confined area. It does not need to know where within the confines of that geography he goes, such as places he frequents therein.” Reply Br. at 21. We disagree. A. Legal Principles We review the imposition of community custody conditions for an abuse of discretion. State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). “A trial court abuses its discretion if it imposes an unconstitutional condition.” Id. “[W]e review constitutional questions de novo.” State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). “An overbreadth challenge ‘goes to the question of whether state action is couched in terms so broad that it may not only prohibit unprotected behavior but may also prohibit constitutionally protected activity as well.’” State v. J.H.-M., 28 Wn. App. 2d 757, 764, 538 P.3d 644 (2023) (quoting In re Pers. Restraint of Sickels, 14 Wn. App. 2d 51, 67, 469 P.3d 322 (2020)); see State v. J.H.-M., 4 Wn.3d 648, 566 P.3d 847 (affirming J.H.-M. and abrogating Sickles on other grounds). But “limitations on fundamental rights are permissible if they are sensitively imposed and narrowly tailored.” J.H.-M., 28 Wn. App. 2d at 764. Further, “[a] community custody condition is not impermissibly overbroad if it is crime related.” State v. Lee, 12 Wn. App. 2d 378, 401, 460 P.3d 701 (2020). “A crime-related prohibition must relate ‘to the circumstances of the crime for which the offender has been convicted.’” Id. (quoting RCW 9.94A.030(10)). “[A]ffirmative acts necessary to monitor compliance with the order of a court may be required by the department.” RCW 9.94A.030(10)). 18 61118-0-II B. Analysis A community custody condition requiring GPS monitoring is authorized by RCW 9.94A.7049(5)(b) and, as Stephens points out, is connected to the crime-related condition requiring Stephens to remain within the geographic boundary DOC set. See RCW 9.94A.704(3)(b) (requiring DOC to impose geographic restrictions). However, GPS monitoring within that geographic boundary is also connected to the crime-related prohibition requiring Stephens to “not loiter or frequent any locations where minors congregate, including schools, daycares, parks, video arcades, campgrounds, and/or shopping malls.” CP at 179. Accordingly, this condition is not overbroad. VI. SAG CLAIMS In a SAG, Stephens alleges he received ineffective assistance of counsel because his counsel did not conduct sufficient discovery and false testimony was presented. He also argues he received ineffective assistance of counsel, because he was unable to present a defense due to his counsel not seeking a polygraph test. We disagree. A. Legal Principles We review ineffective assistance of counsel claims de nov