### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 49871

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Respondent,

v. PURCELL DEVOIR TOSTON, JR., UNPUBLISHED OPINION

Appellant.

S UTTON J.

— Purcell D. Toston , Jr. appeals his conviction for second degree assault . He argues that the trial court erred by instructing the jury as to the common , dictionary definition of fracture and erred b y refusing to instruct the jury on the lesser included offense of fourth degree assault

. A nd he argues that there was insufficient evidence to support the jury’s verdict. Finally,
Toston argues that th e trial court imposed a n unconstitutionally vague community custody condition requiring that he comply with additional conditions imposed by the Department of Corrections through his community corrections officer (CCO) , a nd Toston argues that the trial
court erred by imposing discretionary l egal f inancial o bligations (LFOs) without adequately inquiring into his ability to pay. The trial court did not err by giving an instruction on the common, dictionary definition of fracture or by refusing to give the lesser included offense instruction, and there was sufficient evidence to support the jury’s verdict. And we decline to address Toston’s vagueness challenge because it is not ripe . But the trial court erred by imposing discretion ary LFOs without conducting Filed Washington State Court of Appeals Division Two July 31, 2018No. 49871

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an adequate inquiry into Toston’s ability to pay. Accordingly, we affirm Toston’s conviction , but

we reverse the trial court’s imposition of the discretionary LFO’s and we remand for the trial court to make an adequate inquiry before imposing discretionary LFOs.
FACTS The State charged Toston with one count of second degree assault against Geovanny Blanco. Toston’s jury trial was held on October 31, 2016.
Blanco testified that he and Toston were both patient s at America n Behavioral Health Systems . On September 3, 2016, Toston punched Blanco in the face. Blanco suffered a chipped tooth. Toston proposed jury instruction s for the lesser included offense of fourth degree assault. The State objected and argued that ther e was no evidence that Toston committed only fourth degree assault. In response, the following exchange took place: [COURT]: The question is, even though whe ther there was a fracture or not is a jury question, where is the evidence to support that only assault in the fourth degree was committed? In other words, where is the evidence that this was not a fracture or this was not a bodily part, whichever way you choose to argue it? [DEFENSE CO UNSEL]: I’d concede, Your Honor, there is none. Verbatim Report of Proceedings (V RP ) at 144

- 45. The State also proposed a jury instruction defining “fracture” for the purposes of substantial bodily harm. The instruction stated, Fracture means: the ac t or process of breaking or the state of being broken; the breaking of hard tissue; the rupture (as by tearing) of soft tissue. Clerk’s Papers ( CP ) at 40. Toston objected to the instruction. The trial court ruled,

I know this is different, but the patt ern instructions do not say, okay, you can use these and only these. So the question is , then, is it a correct definitionNo. 49871

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legally, and it looks like it; and (2) is it factually supported. And then I guess the third is would it be helpful to the jury? An d I think I’d answer all three of those questions “yes.”
V RP at 139. The trial court gave the State’s proposed definition of fracture. The jury found Toston guilty of second degree assault. The trial court imposed a standard range sentence. The tri al court also imposed mandatory and discretionary LFOs. Before imposing discretionary LFOs, the trial court questioned the defendant about his ability to pay: [COURT]: That actually wasn’t my question. My question is whether you have the ability to pay t his, or is there something about you physically, mentally, emotionally or financially or anything else. [TOSTON]: All of it, no.
V RP at 184. The trial court also imposed “ [ o ] ther conditions : as ordered by CCO.” CP at 56. Toston appeals.
ANALYSI S
I. J URY I NSTRUCTIONS Toston argues that the jury instruction defining fracture was an impermissible judicial comment on the evidence. And Toston argues that the trial court erred by refusing to give his proposed instructions on the lesser included off ense of fourth degree assault. We disagree.
A D EFINITION OF F RACTURE We review constitutional issues de novo. State v. Vance , 168 Wn.2d 754, 759, 230 P.3d 1055 (2010). Article IV, section 16 of the Washington State Constitution prohibits trial judges from commenting on the evidence presented at trial. State v. Deal , 128 Wn.2d 693, 703, 911 P.2d 996 (1996). An impermissible comment on the evidence is one that conveys th e judge’s attitude on the merits of the case or permits the jury to infer whether the judge believed or disbelievedNo. 49871

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certain testimony. Deal , 128 Wn.2d at 703. But a jury instruction that does no more than accurately state the law is not an impermissible comment on the evidence. State v. Woods , 143 Wn.2d 561, 591, 23 P.3d 1046 (2001). The trial court does not err by giving an instruction that is accurate and merely supplements and clarifies statutory language. State v. Atkinson , 113 Wn. App. 661, 667

- 68, 54 P.3d 702 (2002) ( the trial court did not err by instructing the jury on the dictionary definition of disfigurement). Here, the trial court used the dictionary definition of “fracture” for the jury instruction. CP at 40;;
W EBSTER ’ S T HIRD N EW I NTERN ATIONAL D ICTIONARY 901 (3rd ed. 2002) . Therefore, whether the trial court properly gave the instruction depends on whether the legislature intended the term fracture to be given its common, dictionary definition. We review questions of statutory interpre tation de novo. State v. Landsiedel , 165 Wn. App. 886, 890 , 269 P.3d 347 (2012). Our primary duty in statutory interpretation is to ascertain and carry out legislative intent. Landsiedel , 165 Wn. App. at 890. “ Statutory interpretation begins with the s tatute’s plain meaning. ” Landsiedel , 165 Wn. App. at 890. When the plain language of the statute is unambiguous, the legislative intent is apparent and we will not construe the statute otherwise. Landsiedel , 165 Wn. App. at 890. When a term used in a statute is not defined, we may rely on the ordinary meaning of the term from the dictionary. State v. Edwards , 84 Wn. App. 5, 10, 924 P.2d 397 (1996). However, “[w]hen a technical term is used in its technical field, the term should be given its technical meaning by using a technical rather than a general purpose dictionary to resolve the term’s definition.” State v. Torres , 198 Wn. App. 864, 884, 397 P.3d 900 , review denied , 189 Wn.2d
1022 (2017).No. 49871

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To prove second degree assault, the State must prove that a person assaulted another and recklessly inflicted substantial bodily harm. RCW 9A.36.021. “ ‘ Substantial bodily harm ’ ” includes bodily injury “which causes a fracture of any bodily part.” RCW 9A.04.110(4)( b ). The Washington Criminal Code does not define the term fracture. Toston argues that because the term fracture has a technical, medical definition that the
term should have been given its technical, rather than its dictionary definition. However, in the Washington C rimin al C ode, fracture is not being used in the technical field. Toston relies on Gorre v. City of Tacoma , 184 Wn.2d 30, 357 P.3d 625 (2015) , b ut Gorre interpreted medical terms based on the medical definition within the context of the Industrial Insurance Act (IIA) 1 . 184 Wn.2d at
37

- 38. The IIA is a technical statutory scheme providing comprehensive benefits for workplace related injuries. Ch. 51.32 RCW. Therefore, the IIA applies within the technical field of medicine. Similarly, in State v. Torres , Divi sion Three of this court applied a technical railway definition of operating mechanism to chapter 81.60 RCW regarding Railroad Police and Regulation s. 198 Wn. App. at 884. There, the term was being used specifically in the technical field of railroad
reg ulation.
S ince at least 1984, it has been established that when terms are undefined in the criminal code , juries will rely on their common sense and common experience to interpret and apply those
terms. State v. Welker , 37 Wn. App. 628, 638 n.2, 683 P.2d 1110 (1984). We presume that the legislature is familiar with judicial interpretations of statutes. State v. Ervin , 169 Wn.2d 815, 825, 239 P.3d 354 (2010). Therefore, if the legislature had intended a specific, technical interpretation

1 Title 51 RCW.No. 49871

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of a term in th e criminal code, rather than a common sense definition, it could have specifically included that definition. Because the legislature chose not to do so, we apply the common, dictionary definition of fracture as an expression of legislative intent. Because the common, dictionary definition of fracture is the appropriate expression of legislative intent, the trial court’s instruction defining fracture was accurate. And because the jury instruction did no more than provide the jury with an accurate de finition of a term to supplement and clarify the statutory language, the jury instruction was not an improper judicial comment on the evidence. Accordingly, the jury instruction was proper and the trial court did not err by giving it.
B

. L ESSER I NCLUDED O FFENSE A party is entitled to a jury instruction on a lesser included offense if (1) the elements of the lesser included offense are a necessary element of the charged crime and (2) the evidence supports an inference that the lesser included offense was committed. State v. Workman , 90 Wn.2d 443, 447

- 48, 584 P.2d 382 (1978). Here, the first prong of the Workman test , the legal prong, is satisfied because the elements of fourth degree assault are necessary elements of second degree assault

. RCW 9A.36.041 ; RCW 9A.36.021. Accordingly, the issue is whether the evidence supported giving instructions for fourth degree assault under the second , factual , prong. See State

v. Warden , 133 Wn.2d 559, 563 , 947 P.2d 708 (1997)

. We review the trial court’s decision on the second prong of the Workman test for an abuse of discretion. State v. Chambers , 197 Wn. App. 96, 120, 387 P.3d 1108 (2016). Under the second
prong,No. 49871

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t he court asks whether the evidence presented in the case supports an inference that only the lesse r offense was committed, to the exclusion of the greater, charged offense. The evidence must affirmatively establish the commission of the lesser offense; it is not enough that the jury might disbelieve the evidence pointing to guilt. If a jury could rat ionally find a defendant guilty of the lesser offense and not the greater offense, the jury must be instructed on the lesser offense. In determining whether the evidence supports an inference that the lesser crime was committed, we review the evidence in the light most favorable to the party requesting the instruction. Chambers , 197 Wn. App. at 120 (citations omitted) (internal quotation marks omitted). A person is guilty of fourth degree assault if he or she assaults another under circumstances not amounting to first, second, or third degree assault or custodial assault . RCW 9A.36.041. As explained above, the trial court properly defined “ [ f ] ractu re ” as “the act or process of breaking or the state of being broken; the breaking of hard tissue ; the rupture (as by tearing) of soft tissue.” CP at 40. And it is undisputed that Toston broke Blanco’s tooth when he punched Blanco in the face. Therefore, there is no evide nce that fourth degree assault

— an assault that does not

res ult in substantial bodily harm

— was committed. Because there is no evidence that only fourth degree assault was committed, Toston was not entitled to jury instruction s on the less er included offense of fourth degree assault as a lesser included offense. Accordingly, the trial court did not err by refusing to instruct the jury on the lesser included offense of fourth degree asssault

. II. S UFFICIENCY OF THE E VIDENCE Toston argues that the evidence was insufficient to support the jury’s verdict because the State failed to present sufficient evidence of substantial bodily harm. We disagree. Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the State, any rational trier of fact can find the essential elements of the crime beyond a reasonable doubt. State v. Salinas , 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonableNo. 49871

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inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. Salinas , 119 Wn.2d at 201. A claim of insufficiency of the evidence “admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas , 119 Wn.2d at 20 1. A person is guilty of second degree assault if he or she intentionally assaults another and recklessly inflicts substantial bodily harm. RCW 9A.36.021. “ ‘ Substantial bodily harm ’ ” means (1) bodily injury which involves a temporary but substantial dis figurement, (2) bodily injury which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or (3) bodily injury which causes a fracture of any bodily part. RCW 9A.04.110(4)(b). As explained above, the trial cou rt properly defined “ [ f ] racture ” as “the act or process of breaking or the state of being broken; the breaking of hard tissue ; the rupture (as by tearing) of soft tissue.”
CP at 40. And instructed that an “ assault ” is an “ intentional touching or striking of another person that is harmful or offensive. ” CP at 38. Here, the State presented sufficient evidence to prove Blanco suffered a fracture because Blanco testified that Toston’s punch broke his tooth. And the State presented sufficient evidence
of assault because Toston’s punch was an intentional striking of Blanco that caused him substantial bodily harm. Therefore, the State presented sufficient evidence to support the jury’s verdict finding Toston guilty of second degree assault.
III. C OMMUNIT Y C USTODY C ONDITION Toston argues that the community custody condition requiring compliance with additional conditions imposed by the Department of Corrections through his CCO is unconstitutionallyNo. 49871

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vague. The State argues that Toston’s pre

- enforcement ch allenge to a community custody condition is not ripe for review. We decline to review Toston’s challenge because it is not ripe. A pre

- enforcement challenge to a community custody provision must be ripe for review.
State v. Cates , 183 Wn.2d 531, 534, 354 P.3d 832 (2015). The challenge is ripe “‘if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.’” Cates , 183 Wn.2d at 534 (internal quotation marks omitted) (quoting State v. Sanchez Valencia , 169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). In addition, we consider the hardship to the appellant if we refuse to review the challenge on direct appeal. Cates , 183 Wn.2d at 534. Here, the issue raised by Toston is primarily legal because we re view constitutional vagueness challenges de novo. See Vance , 168 Wn.2d at 759. The challenged action also does not require additional factual development because Toston is arguing that the provision is void for vagueness on its face. And, the challenged action is final. However, there is no hardship to the appellant if we refuse to review the challenge on direct appeal. Toston is not under any restraint from the current community custody condition. Conditions that impose hardship on appellants “‘immediately restrict the petitioner [ ’s ] conduct upon their release from prison.’” Cates , 183 Wn.2d at 53 6 (quoting Sanchez Valencia , 169 Wn.2d
at 7 91 ). Here, there is no restriction on Toston’s conduct unless or until his CCO imposes additional conditions upon him. And Toston will not even have an assigned CCO until after his release from prison. Therefore, the challenged condition does not impose any hardship on Toston.
We decline to review Toston’s pre

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10 IV. D ISCRETIONARY LFO S Toston argues that the trial court erred by failing to conduct an adequate inquiry into his ability to pay the discretionary LFOs. The State concedes that the trial court’s inquiry was
inad equa te. We accept the State’s concession

. Therefore, we reverse the trial court’s imposition of the discretionary LFOs, and we remand to the trial court for an adequate inquiry into Toston’s ability to pay discretionary LFOs

. RCW 10.01.160(3) and State v. B lazina , 182 Wn.2d 827, 837

- 38, 344 P.3d 680 (2015), require that the trial court engage in an individualized inquiry into a defendant’s ability to pay before imposing discretionary LFOs. The trial court’s inquiry should consider “important factors”
such a s the defendant’s incarceration and the defendant’s other debts. Blazina , 182 Wn.2d at 838. Here, the trial court did nothing more than ask Toston if there was any reason he would not be able to make a $25 monthly payment. Blazina requires more . T heref ore, the State’s concession is
proper. W e reverse the trial court’s imposition of the discretionary LFOs, and we remand for the trial court to make an adequate inquiry into Toston’s ability to pay before imposing discretionary
LFOs.No. 49871

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We affirm Toston’s conviction for second degree assault

. B ut we reverse the trial court’s imposition of the discretionary LFOs, and we remand to the trial court to make a proper inquiry into Toston’s ability to pay before imposing discretionary LFOs. A majority of the pa nel 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.

S UTTON , J. We concur:

B JORGEN , P.J.

H AAN , J.P.T.