Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, No. 86058-5-I Respondent/Cross Appellant, ORDER DENYING MOTION v. FOR RECONSIDERATION AND AMENDING MAJORITY MICHAEL WANDAKA KURIA, OPINION Appellant/Cross Respondent. Appellant Michael Kuria filed a motion for reconsideration of the opinion filed on September 28, 2026 in the above-entitled case. The panel has determined the motion should be denied but the majority opinion amended. Now, therefore, it is hereby ORDERED that the motion for reconsideration is denied. It is hereby further ORDERED that the majority opinion of this court filed on September 28, 2026 in the above-entitled case shall be amended as follows: 1. On Page 1, the last sentence of the first paragraph that states: We affirm Kuria’s conviction, reverse his exceptional sentence downward, and remand for the trial court to vacate his judgment and sentence and resentence Kuria within the standard range. shall be deleted and replaced with the following sentence: We affirm Kuria’s conviction, reverse his exceptional sentence downward, and remand for the trial court to vacate his judgment and sentence and resentence Kuria within the standard range or to a sentencing alternative authorized under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. No. 86058-5-I/2 2. On Pages 15 to 16, the last sentence of the last paragraph on page 15 that continues onto page 16 that states: But under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, a convicted person’s constitutional rights are subject to infringements during community placement. Id. shall be deleted and replaced with the following sentence: But under the SRA, a convicted person’s constitutional rights are subject to infringements during community placement. Id. 3. On Page 22, the last sentence of the first paragraph that states: But we reverse the trial court’s imposition of an exceptional sentence downward and remand for the court to vacate the judgment and sentence and resentence Kuria within the standard range. shall be deleted and replaced with the following sentence: But we reverse the trial court’s imposition of an exceptional sentence downward and remand for the court to vacate the judgment and sentence and resentence Kuria within the standard range or to a sentencing alternative authorized under the SRA. The remainder of the majority opinion and the dissent shall remain the same. 2 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, No. 86058-5-I Respondent/Cross Appellant, v. UNPUBLISHED OPINION MICHAEL WANDAKA KURIA, Appellant/Cross Respondent. BOWMAN, A.C.J. — A jury convicted Michael Wandaka Kuria of child molestation in the first degree. Kuria appealed, and the State cross appealed. Kuria challenges his conviction, claiming that the seating of a biased juror violated his right to a fair trial and that his counsel was ineffective by not asking the court to strike that juror. Kuria also asserts that a condition of community custody violates his constitutional rights and was not crime related. The State challenges Kuria’s sentence, claiming the court erred by imposing an exceptional sentence downward based on his youth. We affirm Kuria’s conviction, reverse his exceptional sentence downward, and remand for the trial court to vacate his judgment and sentence and resentence Kuria within the standard range. No. 86058-5-I/2 FACTS In August 2019, 17-year-old Kuria moved from Kenya to Washington. He moved into his aunt’s two-bedroom apartment in Kent, where she lived with her infant daughter. In December, Kuria’s 16-year-old sister also moved from Kenya to their aunt’s apartment in Kent. Then, in March 2020, Kuria’s aunt’s friend moved into the apartment with her 6-year-old son and 7-year-old daughter, Z.N.1 In April 2020, about six months after Kuria turned 18, his aunt, her friend, and Kuria’s sister left Kuria to supervise the three children in the apartment while they ran errands. Once they were alone, Kuria asked Z.N., “Do you want to do something fun,” which “confuse[d]” Z.N. because he was an “adult” and did not “play” with her. Still, when he asked her to go into one of the bedrooms with him, she agreed. Z.N.’s little brother wanted to come, too, but Kuria told him to “watch the baby,” so he stayed in the living room. After Kuria and Z.N. entered the bedroom, Kuria closed the door. Z.N. was “nervous,” so she found some Play-Doh and began talking to Kuria about “when I grow up” and “just telling him about my stuff.” Kuria then asked Z.N. to sit on the bed with him. When she moved toward him, Kuria persuaded Z.N. to lie down, then began kissing her neck and “tickling” her between her thighs. Z.N. described the kissing and tickling as “really uncomfortable.” Kuria then asked Z.N., “Do you want to do something beautiful,” and began touching her vagina with his index finger through a hole in her pajamas. Z.N. said it “started to hurt a little bit” and she told him to “stop.” Z.N. 1 The women and children shared the two bedrooms, and Kuria slept in the living room. 2 No. 86058-5-I/3 then heard her mother come home, and Kuria stopped. Kuria told Z.N. to “keep [what he did] a secret and don’t tell anyone.” He then took off his shirt and said he planned to take a shower. When Z.N.’s mom got home, she was surprised to see only her son and the baby, as she expected everyone would be “in the living room sitting together.” She then saw Kuria come out of the bedroom without a shirt on and walk into the bathroom. She also saw Z.N. come out of the bedroom with a “funny look in her eyes.” Z.N. appeared to be “uncomfor[t]able” and “uneasy,” and she “looked off.” Her mom asked Z.N. what she was doing in the bedroom with Kuria. Z.N. at first told her she was showing Kuria “some games,” which “didn’t make sense” to her mom that Z.N. would be playing games with “a big person like [Kuria].” Even though she “knew there was something wrong,” Z.N.’s mom did her best to stay “calm” and “didn’t . . . continue questioning her,” just “reassured” Z.N. that she “believe[d] her.” A few days later, Z.N. told her mom that Kuria had sexually assaulted her when they were alone in the bedroom. When Z.N.’s mom confronted Kuria about it, he at first insisted that “nothing happened.” But then he “admitted [it] and said that he did it.” When Z.N.’s mom asked why, Kuria said, “ ‘Oh, it’s because of [COVID-19], you know, [being] closed in.’ ” Kuria’s aunt was also present during the confrontation and heard him admit he touched Z.N. “because of . . . the [COVID-19] lockdown.” Z.N.’s mom called the police, who responded to the apartment and interviewed Kuria outside in the parking lot. Kuria denied touching Z.N. The 3 No. 86058-5-I/4 police did not arrest Kuria at that time but told him he could no longer stay in the same home. After Z.N. submitted to a forensic interview, the State charged Kuria with one count of child molestation in the first degree. In March 2023, the case proceeded to a jury trial.2 During jury selection, the State asked the venire whether anyone had concerns about their ability to be fair and impartial in a case involving charges of sexual behavior toward a young child. Several jurors raised their hands in response, including juror 79. She expressed some reservations about whether she could abide by the presumption of innocence because she had two daughters around the same age. She told the prosecutor: JUROR 79: I don’t have any experience with any of this, but I am a mom to six and eight year old little girls, so I would like to think I go into this open-minded, but then I think about my own girls and I don’t know if I could not stop thinking about my own children the whole time. [PROSECUTOR]: Okay. . . . [W]hat do you think your concern is going to be when you’re thinking about your children? JUROR 79: I would just think about someone doing that to them, and that scares me. Or something happening to my kids along those lines. [PROSECUTOR]: Do you think that you would be unable to listen to the evidence or be focused on the evidence if you were to be seated on a jury because you’d be too distracted by that or? JUROR 79: No. I think I could listen and focus, but I don’t know if I am going into this open-minded because I have little kids. . . . Two little girls. 2 At trial, the court admitted the video of Z.N.’s forensic interview and played it for the jury. It also provided the jury with a transcript of the interview. 4 No. 86058-5-I/5 [PROSECUTOR]: Okay. And kind of similar questions for you that I had for Juror No. 70.[3] . . . [Y]ou . . . heard me give Juror No. 70 a couple of instructions and some questions. Do you also feel like you’re unable to give Mr. Kuria the presumption of innocence at this point in time? JUROR 7[9]: I think so, only because I feel like it got to this point. I know it’s supposed to be innocent until proven guilty but at some point, something happened. So for me, that just, that scares me. . . . And I don’t know if I believe he’s innocent. . . . From the beginning. [PROSECUTOR]: And I suppose I’m hearing you say that you have questions about whether or not he’s innocent. Do you understand that like legally, if you were to be seated as a juror, you are to start from the premise that this man is innocent, it’s just a charge? JUROR 79: Correct. [PROSECUTOR]: And . . . it’s not until you go into the deliberation room and have heard all the evidence that you start to deliberate and you start to consider whether or not I have met my burden of proof. Do you think you’d be able to do that? JUROR 79: I can’t say 100 percent yes. Neither the parties nor the court questioned juror 79 further about her responses or moved to strike her for cause. Defense counsel also did not use any peremptory challenges to strike juror 79, and the court seated juror 79 for trial. The jury convicted Kuria as charged. On November 20, 2023, Kuria submitted a sentencing memorandum, urging the trial court to impose a special sex offender sentencing alternative (SSOSA) under RCW 9.94A.670(2). Kuria argued that he should be sentenced to treatment instead of prison because he had no prior convictions and would be 3 Juror 70 had also volunteered concern about their ability to be fair and impartial, stating that “the case has gone this far” and that “a child reported it.” When the State asked if they were going to presume Kuria guilty from the beginning, juror 70 answered, “I wouldn’t go that far, but I can say that we are not starting from neutral.” They added, “I’m just being honest. We’re starting in a hole.” When the State asked again, “Do you feel like today you’re giving Mr. Kuria the presumption of innocence,” they answered, “I would not say that, no.” The State then moved to excuse juror 70 for cause, which the court granted. 5 No. 86058-5-I/6 an appropriate candidate for treatment.4 Kuria pointed to the significant support he had from the “tight-knit” Kenyan community and the “significant amount of maturity” he had shown “for such a young man.” Kuria attached a psychosexual evaluation to his memorandum in support of his SSOSA request. The evaluation described Kuria’s childhood. It said that Kuria was born in the United States but raised in Kenya and that his parents separated when he was six or seven years old. Kuria lived most of his childhood with his maternal grandmother in Kenya and attended private and boarding schools until high school. After struggling in his sophomore and junior years, Kuria returned to the United States, moved in with his aunt in Kent, and finished high school in Covington. Kuria held a couple of jobs during high school and was working at Amazon at the time of his offense. After reviewing Kuria’s “sexual behaviors and relationship history,” as well as “clinical data and testing,” the evaluator determined that Kuria “displayed some thinking errors and personality traits similar to those of untreated sexual offenders.” The evaluator determined Kuria “appears amenable” to a SSOSA with only a “fair” prognosis, noting that Kuria “did not discuss the details of his alleged assault behaviors” at the advice of counsel. The evaluator recommended Kuria “attend[ ] a sex offender treatment program for 24 to 36 months, based on his presentation and progress in counseling.” 4 Defense counsel argued, “Although [Kuria] maintains his innocence and, at the advice of counsel, will not speak about the allegations he has been [found] guilty of, [he] acknowledges that he could gain a wealth of knowledge from the recommended treatment.” 6 No. 86058-5-I/7 On September 1, 2023, the trial court held a sentencing hearing. The State objected to Kuria’s request for a SSOSA and asked the court to impose a sentence at the low end of the standard range—51 months in custody. The court reviewed Kuria’s psychosexual evaluation, which it found to be “far from ideal,” as “it did not adhere to the very specific requirements of RCW 9.94A.670.” Specifically, the court questioned Kuria’s amenability to treatment because he continued to deny that he touched Z.N. and did not discuss the incident with the evaluator. It also noted that the evaluation did not include a “detailed treatment plan.” So, the court continued the sentencing hearing to permit Kuria to supplement the evaluation or make a different sentencing recommendation. In November 2023, Kuria filed a second sentencing memorandum. Kuria abandoned his request for a SSOSA and instead sought an exceptional sentence downward of 10 months in custody. Kuria argued that his youth was a mitigating factor justifying the exceptional sentence. He pointed out that he “was only 18 at the time of this offense” and that he had been in the United States for a “limited time.” He said he “infrequently had stable, adult support . . . throughout his upbringing” and “was living in a cramped apartment during an unprecedented time in modern history due to the COVID-19 pandemic.” And he argued that given his age, he “did not have the skills, guidance, and more importantly the neurological development to appreciate the wrongfulness of his actions,” so he was “susceptible to temptation.” The State opposed Kuria’s request for an exceptional sentence. It argued that no evidence showed that Kuria’s conduct reflected the hallmark qualities of 7 No. 86058-5-I/8 youth, such as immaturity, impulsivity, or the failure to “appreciate the wrongfulness of his conduct.” It pointed to the evidence that showed Kuria waited for the adults and his 17-year-old sister to leave the apartment, lured Z.N. into the bedroom to isolate her, and used his position of trust to manipulate her. The State again asked the court to impose a standard-range sentence. Following a second sentencing hearing, the trial court found that Kuria “experienced considerable instability throughout his childhood” and “struggled” with high school. And it concluded that his lack of “skills and guidance,” coupled with “the neurological development of youth,” showed he did not appreciate the wrongfulness of his actions. It also found that Kuria’s conduct was impulsive, as “he committed the crime at a time when [the other residents] could have returned home.” It reasoned that this showed “what appeared to be impetuosity and poorly considered consequences of his actions.” Finally, the court recognized that Kuria was “six months past his 18th birthday” when he committed the crime. So, if he had committed the offense several months earlier, the conviction would likely “have carried a range of 30 to 40 weeks of confinement.” The court then imposed an indeterminate exceptional sentence downward of 10 months to life in custody. It also imposed several conditions of community custody. And it filed findings of fact and conclusions of law in support of its exceptional sentence.5 Kuria appeals his conviction, and the State cross appeals the trial court’s imposition of an exceptional sentence downward. 5 The court entered the judgment and sentence on November 3, 2023. It entered an amended judgment and sentence on November 20 only to correct a clerical error. 8 No. 86058-5-I/9 ANALYSIS Kuria argues that the seating of a biased juror violated his right to a fair trial and that his counsel was ineffective by not asking the court to strike that juror. Kuria also asserts that a condition of community custody violates his constitutional rights and was not crime related. The State argues that the trial court erred by imposing an exceptional sentence downward. We address each argument in turn. 1. Juror Bias Kuria argues that the seating of juror 79 violated his right to fair trial because she showed actual bias. The State argues that Kuria waived this issue for appeal because he failed to object below and cannot show manifest constitutional error under RAP 2.5(a)(3). We agree with the State. Criminal defendants have a constitutional right to be tried by an impartial jury, and the seating of an actually biased juror violates that right. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Irby, 187 Wn. App. 183, 192-93, 347 P.3d 1103 (2015). “Actual bias” is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. RCW 4.44.170(2). But, even if it appears a juror has a preconceived opinion, “such opinion shall not of itself be sufficient to sustain the challenge.” RCW 4.44.190. Rather, [r]emoval of a potential juror for actual bias requires proof, based on the juror’s words, actions, or any other facts that (1) the juror 9 No. 86058-5-I/10 exhibits actual bias against a substantial right of either party and (2) the juror cannot put aside this bias and try the case impartially. State v. Smith, 3 Wn.3d 718, 720, 555 P.3d 850 (2024). “[E]quivocations suggesting a mere possibility of bias are not, on their own, sufficient to demonstrate a probability of actual bias.” Smith, 3 Wn.3d at 732. But “a juror’s equivocations during voir dire, when combined with objective factors, may support a finding of actual bias.” Id. at 727. The key question is not whether a juror has made equivocal comments, but “whether a juror with preconceived ideas can set them aside.” State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991); see also RCW 4.44.190 (“the court must be satisfied, from all the circumstances, that the juror cannot disregard [an apparent, preformed] opinion and try the issue impartially”). Under RAP 2.5(a), we may refuse to review any claim of error that the defendant did not raise in the trial court. But a party may raise an issue for the first time on appeal if the issue involves a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). “Application of RAP 2.5(a)(3) depends on the answers to two questions: ‘(1) Has the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest.’ ” State v. Grott, 195 Wn.2d 256, 267, 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015)). Generally, a constitutional error is “manifest” where a defendant makes “a plausible showing . . . that the asserted error had practical and identifiable consequences in the trial.” Irby, 187 Wn. App. at 193. If the defendant shows that the court seated a juror with actual bias, a new trial is required without any 10 No. 86058-5-I/11 separate showing of prejudice. Id. (“[t]he presence of a biased juror cannot be harmless”). On the other hand, if there is no showing of actual prejudice, then the error is not “manifest,” and our review under RAP 2.5 ends. Id. at 196 (finding that a juror’s statement that they would “ ‘try’ ” to “put[ ] personal connections aside and decid[e] the case only on the evidence” did not “demonstrate actual bias,” ending our analysis). Here, Kuria fails to show that juror 79’s comments amount to actual bias. Our decisions in City of Cheney v. Grunewald, 55 Wn. App. 807, 780 P.2d 1332 (1989), and Noltie are instructive. In Grunewald, Division Three determined the trial court erred by denying the defendant’s for-cause challenge to a juror in a DUI6 trial because (1) the juror was a member of Mothers Against Drunk Drivers, (2) his niece had been killed by a drunk driver, and (3) he did not think the defendant would get a fair trial from a jury who shared his same frame of mind. 55 Wn. App. at 808-10. In contrast, in Noltie, the court held that a juror’s comments did not show actual bias because her responses merely revealed “a degree of discomfort about listening to an alleged child victim of sexual abuse” and “a fear that it would be difficult for her to be impartial.” 116 Wn.2d at 838. Here, juror 79’s answers were more like the equivocal responses in Noltie than the actual bias expressed in Grunewald. Juror 79 told the prosecutor, “I don’t know if I could . . . stop thinking about my own children,” “I don’t know if I am going into this open-minded,” “I don’t know if I believe he’s innocent . . . [f]rom 6 Driving under the influence. 11 No. 86058-5-I/12 the beginning,” and “I can’t say 100 percent yes” that she could apply the presumption of innocence.7 Kuria tries to distinguish Noltie by arguing that unlike here, defense counsel and the court in Noltie established through “extensive questioning” that the juror could set aside her concerns and that her answers “ ‘merely reflected honest caution.’ ” See Noltie, 116 Wn.2d at 839-40. But Kuria does not address the State’s similar efforts to clarify juror 79’s position, nor does he explain how her responses were anything but “honest caution.” See, e.g., 116 Wn.2d at 836, 838 (juror’s repeated answers that she “might” struggle to be fair but “hoped” she would be fair could be explained as “honest caution,” not actual bias). Here, juror 79 said, “I would like to think I go into this open-minded,” stated that she “could listen and focus,” and affirmed that she understood the legal obligation to presume innocence. Still, citing Smith, Kuria argues that even if some of juror 79’s statements were equivocal, several “ ‘additional objective factors’ ” confirm that she held actual bias. See 3 Wn.3d at 730. Kuria refers to these other factors as juror 79’s uncertainty that he was innocent or that she could stop thinking about someone molesting her own children, and her concern that calling Z.N. to testify would traumatize Z.N. Smith does not support Kuria’s argument. In Smith, our Supreme Court recognized that even an equivocal statement may establish actual bias where additional objective factors—such as the juror’s own experience 7 Kuria appears to argue that actual bias is proven where a juror “never provided a specific confidence level” or “could not provide . . . unqualified certainty.” But he offers no authority to support that argument, so we do not address it. See RAP 10.3(6). 12 No. 86058-5-I/13 with identical or substantially similar crimes—together with equivocal answers to follow-up questions touching on these potential sources of implicit bias cumulatively establish a probability of actual bias. 3 Wn.3d at 730. But the court held that the defendant did not show actual bias because his claim was “based . . . not on the cumulative effect of multiple factors, but on [the juror’s] voir dire statements alone.” Id. at 730-31. The same is true here. The purported additional factors that Kuria identifies are not objective factors about juror 79 or her own experience “with identical or substantially similar crimes.” Smith, 3 Wn.3d at 730. Rather, the factors Kuria proffers are summaries of her concerns “based . . . on her voir dire statements alone.” Id. at 730-31. Because Kuria does not show that juror 79 was actually biased against him, he also fails to show manifest error under RAP 2.5(a)(3).8 As a result, we decline to review his assignment of error. 2. Ineffective Assistance of Counsel Kuria argues his attorney was ineffective for neither challenging juror 79 for cause nor choosing to use one of his available peremptory strikes to excuse her. We disagree. The Sixth Amendment and article I, section 22 guarantee the right to the effective assistance of defense counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). An appellant raising such a claim must first show that 8 Because we conclude the record does not show that juror 79 held actual bias, we also reject Kuria’s claim that the court erred by not striking her sua sponte. See Smith, 3 Wn.3d at 720 (a judge must remove a juror “on the court’s own motion” to safeguard the right to trial by an impartial jury in only “clear cases” of bias). 13 No. 86058-5-I/14 under all the circumstances, their counsel’s representation fell below an objective standard of reasonableness. Id. at 457-58. We presume effective representation, so the record must show “the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). A defendant must also show prejudice because of the deficient performance. State v. Vazquez, 198 Wn.2d 239, 247-48, 494 P.3d 424 (2021). If a defendant centers their claim of ineffective assistance on their attorney’s failure to object, then they must show that the court would likely have sustained the objection. Id. at 248. As to the failure to use a peremptory strike to remove juror 79, Kuria fails to overcome the “strong” presumption of effective performance we afford to counsel. State v. Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541 (2019). These other factors cannot show the absence of strategic or tactical reasons for choosing not to strike juror 79. Indeed, the record shows that juror 79 made statements that defense counsel could have considered as favorable to Kuria. She agreed with the possibility that a child could misperceive something, lie, or make up things and that some people are falsely accused. These statements could “conceivabl[y]” support a “legitimate tactic [that] explains counsel’s performance.” Id. at 509. Particularly when Kuria’s attorney chose to exercise peremptory challenges on other jurors who expressed reservations similar to juror 79’s. For example, Kuria challenged juror 29, who said, “I feel like I could have a bias,” and juror 87, who believed that something must have happened “to 14 No. 86058-5-I/15 get to this point.” Defense counsel’s choice to strike these jurors but not juror 79 shows the implementation of strategy. Kuria also fails to show prejudice due to his attorney’s choice not to challenge juror 79 for cause. As discussed above, Kuria fails to show that juror 79 expressed actual bias. As a result, he cannot show that the trial court would have granted a challenge for cause. We conclude Kuria does not carry his burden to show ineffective assistance of counsel. 3. Conditions of Community Custody Kuria next claims that special community custody condition 5 for sex offenses is “invalid” because it violates his constitutional freedom of speech and is not crime related. We disagree. Condition 5 provides: Inform the supervising [community corrections officer] and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such. The constitutional right to freedom of speech covers not only volitional speech but also protects against “compelled speech.” State v. K.H.-H., 185 Wn.2d 745, 748-49, 374 P.3d 1141 (2016). The right not to speak is protected by both the First Amendment to the United States Constitution and article I, section 5 of the Washington Constitution. State v. Lee, 12 Wn. App. 2d 378, 402, 460 P.3d 701 (2020). But under the Sentencing Reform Act of 1981 (SRA), 15 No. 86058-5-I/16 chapter 9.94A RCW, a convicted person’s constitutional rights are subject to infringements during community placement. Id. The SRA authorizes “crime-related prohibitions.” RCW 9.94A.505(9). A “crime-related prohibition” is a court order “prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted.” RCW 9.94A.030(10). As a result, we have rejected the argument that a community custody condition violates a person’s constitutional right not to speak when such a condition was crime related. See, e.g., Lee, 12 Wn. App. 2d at 402 (affirming as crime related and constitutional a community custody condition requiring the defendant to disclose his sex offense conviction to a person before having any sexual contact with that person). For example, in State v. Autrey, two defendants convicted of sex offenses involving children challenged a condition that prohibited them from having “ ‘sexual contact with anyone without prior approval’ ” from a treatment provider. 136 Wn. App. 460, 464-66, 150 P.3d 580 (2006). We reiterated that crime- related prohibitions on people convicted of sex offenses are permitted during community custody and held that a defendant’s “freedom of choosing even adult sexual partners is reasonably related to their crimes because potential romantic partners may be responsible for the safety of live-in or visiting minors.” Id. at 468; see also State v. Gantt, 29 Wn. App. 2d 427, 455-57, 540 P.3d 845 (2024) (rejecting challenge to a similar three-part condition that required the defendant to inform supervision officer of any dating relationships, disclose his offender status to a person before having any sexual contact with that person, and obtain 16 No. 86058-5-I/17 approval from a treatment provider before engaging in any sexual contact), review denied, 3 Wn.3d 1002, 549 P.3d 115 (2024). Kuria argues condition 5’s requirements are unrelated to his crime because they are not specific to child victims, and “there is nothing in the record indicating [h]e is a risk to other consenting adults.” In support, he relies solely on one unpublished case, State v. Mecham, No. 79008-1-I (Wash. Ct. App. Mar. 2, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/790081.pdf. We decline to follow this nonbinding authority. See GR 14.1(a). Second, Kuria asserts that we should not follow the holding of Lee because the appellant there was charged with rape of an adult, not a minor. See 12 Wn. App. 2d at 383-85. But he fails to address or distinguish other published cases that have rejected this argument. See RAP 10.3(a)(6). We conclude that special community custody condition 5 is constitutional and related to Kuria’s crime. 4. Exceptional Sentence Downward In its cross appeal, the State claims insufficient evidence supports the trial court’s reasons for imposing an exceptional sentence downward. We agree. Generally, a trial court must impose a sentence within the standard sentence range as established under the SRA. See RCW 9.94A.505(2)(a)(i). But a court may impose a sentence outside the standard range if, considering the 17 No. 86058-5-I/18 purposes of the SRA,9 it finds by a preponderance of the evidence that mitigating factors warrant “substantial and compelling reasons” to do so. RCW 9.94A.535, .535(1). RCW 9.94A.535(1) provides a nonexclusive list of mitigating circumstances that may amount to substantial and compelling reasons to depart from the standard sentencing range. One of those mitigating circumstances is where a “defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired.” RCW 9.94A.535(1)(e). In State v. O’Dell, our Supreme Court held that youth may relate to an offender’s capacity to appreciate the wrongfulness of their conduct or conform to the requirements of the law. 183 Wn.2d 680, 695-96, 358 P.3d 359 (2015). But “age is not a per se mitigating factor automatically entitling every youthful defendant to an exceptional sentence.” Id. at 695. Instead, a youthful offender must show that their youth is a factor that distinguishes their crime from other offenders committing the same crime. Id. at 690. They can do so by showing that mitigating qualities of youth impaired their ability to appreciate the wrongfulness of their conduct or adhere to the law. Id. at 694. While O’Dell did not specifically identify those mitigating qualities of “youth” that render the person less culpable, our Supreme Court has identified 9 The purpose of the SRA is to “make the criminal justice system accountable” through a system that structures but does not eliminate a sentencing court’s discretionary decisions, and to (1) ensure proportionate punishment, (2) provide just punishment to promote respect for the law, (3) impose commensurate punishment for similar offenses, (4) protect the public, (5) offer convicted people the opportunity to improve themselves, (6) conserve state resources, and (7) reduce recidivism. RCW 9.94A.010. 18 No. 86058-5-I/19 them in the context of “juvenile” offenders as “immaturity, impetuosity, or [a] failure to appreciate [the] risks and consequences” of their actions. State v. Anderson, 200 Wn.2d 266, 291-92, 516 P.3d 1213 (2022). A youthful offender need not provide expert testimony to satisfy their burden; lay testimony may be sufficient. O’Dell, 183 Wn.2d at 697. We review an exceptional sentence under a clearly erroneous standard and will reverse if there is insufficient evidence in the record to support the court’s reasons for imposing such a sentence. See State v. France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013) (citing RCW 9.94A.585(4)). A court’s findings are clearly erroneous “ ‘only if no substantial evidence supports its conclusion.’ ” State v. Ferguson, 142 Wn.2d 631, 647 n.76, 15 P.3d 1271 (2001)10 (quoting State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997)); see also State v. Fletcher, 20 Wn. App. 2d 476, 488-89, 500 P.3d 222 (2021). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of its truth. State v. Pratt, 11 Wn. App. 2d 450, 457, 454 P.3d 875 (2019), aff’d, 196 Wn.2d 849, 479 P.3d 680 (2021). Here, the sentencing court gave three reasons for imposing an exceptional sentence downward. But insufficient evidence supports its reasoning. First, the trial court concluded that Kuria’s lack of “skills and guidance,” coupled with “the neurological development of youth,” show that Kuria could not “truly appreciate the wrongfulness of his actions.” In support of that conclusion, 10 Internal quotation marks omitted. 19 No. 86058-5-I/20 the court found that Kuria was born in the United States but moved back to Kenya at a young age, where he lived with his grandmother instead of his parents. And Kuria “struggled during his high school years” and failed some classes. But the trial court did not explain how this evidence impaired Kuria’s ability to appreciate the wrongfulness of his conduct. It does not follow that living with extended family as a child and struggling in school impairs one’s ability to appreciate the wrongfulness of molesting a child, even when coupled with the “neurological development of youth.” In fact, the record shows that Kuria fully appreciated the wrongfulness of his conduct. For example, Kuria ensured that Z.N. was isolated in the bedroom before molesting her. He prevented her little brother from coming into the room with them. And he told her not to tell anybody about what he had done to her.11 The second reason identified by the court as a mitigating factor was Kuria’s impulsivity. In support of its conclusion, the court pointed to evidence that Kuria “committed the crime at a time when [the adults and his sister] could have returned home.” While the court did not support this conclusion with findings, the record shows that Kuria’s aunt testified she told Kuria that she “wanted to go grocery shopping,” and she agreed with defense counsel’s question on cross- examination that she was “going to be real quick,” “just popping over to the store and then coming back.” But again, the court does not explain how this evidence shows impulsivity. Indeed, the record shows that Kuria acted with thought and 11 We also note that in his first sentencing memorandum, defense counsel boasted Kuria’s “significant amount of maturity for such a young man.” 20 No. 86058-5-I/21 purpose. He waited for the adults and his sister to leave him alone with the children. Then, he lured Z.N. into the bedroom by promising they would do “something fun.” He isolated Z.N. by preventing her brother from coming with them and closing