IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 58055-1-II

Respondent, 

v.

LARRY GILBERT EYER, UNPUBLISHED OPINION

Appellant.

CRUSER, A.C.J. — Larry Eyer pleaded guilty to one count of communication with a minor 

for immoral purposes after exchanging messages online regarding a sexual encounter with 

someone he believed to be 11 years old but who was actually part of a sting operation. At 

sentencing, the superior court imposed a variety of community custody conditions. At issue in this 

appeal is condition 24, which initially prohibited “internet access or use, including email, without 

prior approval of the supervising [community custody officer (CCO)] and [t]reatment [p]rovider.” 

Clerk’s Papers (CP) at 43. Eyer objected to this condition, claiming that it was overbroad. 

Prompted by Eyer’s request to modify the condition, the superior court added a provision to the 

condition stating that “[i]nternet may be used with monitoring software prior to use. Install prior 

to use with prior approval by CCO and treatment provider.” Verbatim Rep. of Proc. (VRP) at 20.

Eyer actively participated in crafting the language of the condition he now challenges on appeal. 

As such, Eyer invited this error and we decline to consider it. 

Filed

Washington State

Court of Appeals

Division Two

March 26, 2024
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Eyer also argues that because the superior court found him to be indigent at the time of 

sentencing, we should remand to the superior court with instructions to strike the following legal 

financial obligations (LFOs): $500 victim penalty assessment (VPA) and $100 DNA collection 

fee. The State does not respond to this claim. Eyer is correct that he is entitled to have the VPA 

and the DNA collection fee stricken from his judgment and sentence. 

Accordingly, we affirm in part Eyer’s sentence but we remand to the superior court with 

instructions to strike the VPA and the DNA collection fee. 

FACTS

I. BACKGROUND

In January 2023, Larry Eyer was charged with one count of communication with a minor 

for immoral purposes after exchanging messages with someone on Instagram whom he believed 

to be an 11-year-old girl named “Emily.” CP at 6. Eyer attempted to meet Emily in person and 

traveled to a Safeway parking lot to do so. When Eyer arrived, he was confronted by three 

individuals who worked with a group called Predator Poachers, who informed him that he had 

been communicating online with someone from the group who was posing as the fictitious Emily. 

Police arrived on the scene shortly thereafter. 

After agreeing to waive his Fifth Amendment rights, Eyer admitted to the responding 

officer that he sent messages to Emily, telling her that he wanted her to touch his penis and saying 

that he wanted to touch “her breasts and vagina if she felt comfortable with that.” Id.

Eyer pleaded guilty to communication with a minor for immoral purposes. Eyer’s offender 

score was zero. Id. at 22. Pursuant to his plea agreement, Eyer and the State reached an agreed 
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sentencing recommendation which the State presented to the court. The parties’ agreement 

recommended one month of confinement followed by one year of community custody. 

II. COMMUNITY CUSTODY CONDITIONS

While Eyer asked the superior court to follow the joint recommendation, he also objected 

to six of the community custody conditions. In response to Eyer’s objections, the superior court 

struck two of the conditions, modified two conditions, and imposed the remaining two as proposed 

by the State. At issue before us are the interpretations and arguments surrounding condition 24. 

Condition 24 initially read: “No internet access or use, including email, without prior 

approval of the supervising CCO and Treatment Provider.” Id. at 43. At sentencing, defense 

counsel proposed that the court tailor this condition more narrowly “with appropriate filters and 

discussions with the CCO about what is appropriate internet use and what is not.” VRP at 16.

Counsel recommended the use of filters to “prohibit access to certain websites and filter search 

results.” Id.

The following exchange occurred between the parties and the superior court:

[DEFENSE COUNSEL]: . . . I submit that the Court could more narrowly 

tailor this condition with appropriate filters and discussions with the CCO about 

what is appropriate internet use and what is not. There are devices and apps that 

can be put on both computers and phones that would -- that would prohibit access 

to certain websites and filter search results that I think would be more narrowly 

tailored. You know, we live in a technological society, and not to have any access 

to online is, I think, beyond the scope of what's narrowly tailored to this particular 

offense.

. . . . 

THE COURT: The monitoring software, though, No. 26, I do agree, 26 

seems very overly broad, and so I would omit all but the last sentence, that the CCO 

is permitted to make random searches of who (unintelligible) phone, et cetera. So 

the last sentence would remain, but the rest of 26 I would omit. 
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And then -- I think that 24 can -- we can encompass 24 and 25. So I will 

omit 25. However, the no internet access or use, No. 24, including email, without 

prior approval of supervising CO and treatment provider, I think that should remain. 

And I know there are some monitoring software, something that you can install on 

your computer and on your phone. I would just like that included in 24, if that 

makes sense. 

So, essentially, it comes down to internet access -- email, phone, et cetera -

- is fine so long as you have your supervising CCO and treatment provider's 

approval, and there is some monitoring software installed prior to use, if that makes 

sense. And I think that was all of your concerns; right, Counsel?

[DEFENSE COUNSEL]: Yes, Your Honor. Thank you. 

The internet may be used with -- may be used with monitoring software 

prior to use with prior approval. Okay.

THE COURT: And the monitoring software.

[DEFENSE COUNSEL]: I don't know if this is more expensive, but I 

wanted to –

Your Honor, I was thinking -- I just want monitoring software to also be 

able to include filters. I don't know -- I mean, I don't know what specific technology, 

so would it be okay if we interlineate, "to be used with monitoring software or 

filters," "and/or filters, " or something to that effect? I think they would probably 

use -- I think the software would actually be a filter, but I'm not really sure how --

you know, what -- what their terms are for these things.

THE COURT: I don't know what you mean by "filters."

[DEFENSE COUNSEL]: Filters -- well, in the case law, it talks about the 

availability of filters. I think they're via -- I think they're imposed via apps. But 

basically they filter out search engine responses.

THE COURT: Okay. All right. For instance, if he's viewing something that 

he's not supposed to be viewing, it would --

[DEFENSE COUNSEL]: Blocks it.

THE COURT: send an alert or -- okay.

[DEFENSE COUNSEL]: Yeah.

THE COURT: That's fine.
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[PROSECUTOR]: Your Honor, here's the language I have. I can add -- I 

would have to draw another line in because I just don't have a lot of room, but 

"Internet may be used with monitoring software prior to use. Install prior to use 

with prior approval by CCO and treatment provider."

THE COURT: Yes. Yes. The prior approval is the (unintelligible). And you 

can attach the filters -- to include filters.

Id. at 16, 18-20.

At the end of this discussion, defense counsel did not express any disagreement with the 

language that the prosecutor crafted in response to defense counsel’s discussion with the superior 

court. The court adopted the modification to condition 24 outlined above. The condition states: 

“Internet may be used [with] monitoring software installed to include filters prior to use [and with] 

prior approval by CCO and [treatment] provider.” CP at 43.

III. LEGAL FINANCIAL OBLIGATIONS

The superior court found Eyer to be indigent under RCW 10.101.010(3)(c). The court 

imposed two LFOs: a VPA fee amounting to $500 and a $100 DNA collection fee. 

Eyer appeals, challenging community custody condition 24 and the imposed LFOs. 

ANALYSIS1

I. INVITED ERROR DOCTRINE

A. Legal Principles 

“ ‘Under the invited error doctrine, a party may not set up an error at trial and then complain 

of it on appeal.’ ” Casper v. Esteb Enters., Inc., 119 Wn. App. 759, 771, 82 P.3d 1223 (2004) 

(quoting Lavigne v. Chase, Haskell, Hayes & Kalamon, P.S., 112 Wn. App. 677, 681, 50 P.3d 306 

 

1 To the extent that Eyer’s challenge is rooted in grammatical misreading of the sentence added to 

condition 24, we reject this claim.
No. 58055-1-II

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(2002)). If “a party takes an affirmative and voluntary action that induces the trial court to take an 

action that a party later challenges on appeal,” the doctrine applies. Id. The doctrine effectively 

prevents a party from requesting a specific action or instruction below and then complaining about 

it on appeal. State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999).

B. Application 

At sentencing, in regard to the community custody conditions involving internet usage, 

Eyer asked the superior court to “more narrowly tailor [these] condition[s] with appropriate filters 

and discussions with the CCO about what is appropriate internet use and what is not.” VRP at 16.

Eyer himself suggested requiring the use of filtering software. In response to Eyer’s objection, the 

court omitted condition 25 as well as the majority of condition 26. 

Based on Eyer’s request and suggestions, the superior court modified condition 24. The 

court adopted Eyer’s recommendation for condition 24 to include the use of monitoring software. 

The court explained that Eyer was permitted to access the internet but monitoring software must 

be installed prior to use. The court then confirmed with defense counsel that it had adequately 

addressed all of Eyer’s concerns. Counsel replied: “Yes, Your Honor. Thank you. The internet 

may be used with -- may be used with monitoring software prior to use with prior approval.” Id.

at 18-19. Defense counsel then requested that condition 24 also include language regarding the use 

of filters. The parties and the court discussed the meaning and use of filters. 

Based on the colloquy between the parties and the court, the State proposed that the 

following language be added to condition 24: “ ‘Internet may be used with monitoring software 

prior to use. Install prior to use with prior approval by CCO and treatment provider,’ ” and with 

the installation of filters. Id. at 20. Defense counsel agreed with the proposed language and did not 
No. 58055-1-II

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raise additional concerns. The court accepted the proposed modification to community custody 

condition 24. 

This is a clear case of invited error. Eyer participated in crafting the language that he now 

complains is vague and overbroad. Studd, 137 Wn.2d at 546. As such, we reject Eyer’s claim of 

error as it relates to community custody condition 24. Id. at 547-48.

II. LEGAL FINANCIAL OBLIGATIONS

Effective July 1, 2023, courts may not impose the VPA or DNA collection fees on 

defendants who are indigent as defined by RCW 10.101.010(3)(a)-(c). RCW 10.01.160(3); RCW 

43.43.7541(2); see also LAWS OF 2023, ch. 449, § 4. This change in the law took effect after Eyer’s 

sentencing, so it applies to Eyer because this case is on direct appeal. See State v. Ramirez, 191 

Wn.2d 732, 748-49, 426 P.3d 714 (2018). Likewise, Eyer is entitled to the benefit of the statutory 

amendment eliminating DNA fees for the same reason. Id. at 747.

The superior court found that Eyer is indigent as defined in RCW 10.101.010(3)(c), 

because the court found that at the time of sentencing, Eyer “receiv[ed] an annual income, after 

taxes, of 125 percent or less of the current federal poverty level.” CP at 30. Because the trial court’s 

finding of indigency entitles Eyer to relief on this issue, we remand this matter to the superior court 

to strike the VPA and the DNA collection fee from Eyer’s judgment and sentence. 

CONCLUSION

We affirm the judgment in part and remand in part for the superior court to strike the $500 

VPA and the $100 DNA collection fee. 
No. 58055-1-II

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A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

CRUSER, A.C.J.

We concur:

LEE, J.

PRICE, J.