### FILED SEPTEMBER28,2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III


### IN THE COURT OF APPEALS OF THE STATE OF WASHING TON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. TAMMYLYNNDA VIS, Appellant. ) 

### ) ) ) ) ) 

### ) ) ) 

### No. 34766-4-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, 

### J. -Ajury found Tammy LynnDavis guilty ofunlawful possession ofa controlled substance-methamphetamine. She argues the trial court erred in ordering a 12-monthcommunity custody term, in ordering various community custody conditions, and in orderingherto pay discretionary legal financial obligations (LFOs). We affirm the term ofher community custody, reverse some community custody conditions, and orderthe trial courtto strike discretionary LFOs. FACTS OnDecember23, 2015, Tammy LynnDaviswas shopping at a Wahnart store in Chelan County. Ms. Davis wenttothe self-checkout standto complete herpurchase. As she withdrew money from herbackpocket, a small "baggie" fell out ofherpocket andNo. 34766-4-III 

### State v. Davis

onto the floor. An employee later found the baggie. A security camera showed thatthe baggie, later determinedto contain methamphetamine, fell out ofMs. Davis'spocket. The State charged Ms. Davis with unlawfulpossession ofa controlled substancemethamphetamine. At trial, Ms. Davis presented a theory ofunwitting possession and testified on behalfofher defense. Thejuryrejected her defense and found her guilty. At sentencing, the State recommended a first time offenderwaiver and sentence of 30 days' confinement. Ms. Davis countered and asked for work crew instead oftotal confinement. Her counsel argued: Sentence her because ofwho she is and whatthe crime she was convicted of. And who she is is a law-abiding woman who's been on Social Security, SSI [Social Security Income], thatprobably won'tbe able to return to active gainful employment, although as long as it's not too hot, she can clean up trash alongside the highway withwork crew. I see cases like this. This is a possession case, right, and so is this woman an addict? That's what we should find out first. And ifshe's an addict, then she needs treatment for that addiction, butjail isn't goingto change that addiction ifthat's the problem, because that's what she was convicted ofwas possessing somethingthat she shouldn'thave held, not something that belonged to somebody else butpossessing something she shouldn'thave held. And so we're going to sentence this woman. Shouldn't we try to do something to make sure this doesn'thappen again? She's a 56-year-oldwoman. Report ofProceedings (RP) at 163. The trial court asked whather disability was, and she replied arthritis.

2No. 34766-4-III 

### State v. Davis
The trial court, persuadedby counsel's argument, imposed a 30-day sentence and permitted 27 ofthose days to be served by work crew. The trial court also imposed $1,650 ofLFOs, plus a witness fee to be determined later. The LFOs were comprised of mandatory and discretionary LFOs. The mandatory LFOs were: a $500 victim assessment, a $200 criminal filing fee, and a $100 deoxyribonucleic collection fee. The discretionary LFOs were: a $250jury demand fee, a $500 fee for court-appointed attorney, and a $100 crime laboratory fee. The trial court asked Ms. Davis how much she couldpay permonth and set the monthlypayment at $25. The trial court entered a finding on thejudgment and sentence that Ms. Davis had
a chemical dependency that contributed to the offense. The court ordered a chemical dependency evaluation within 60 days, and that she successfully complete any recommended treatment/counseling program. In addition to other conditions ofcommunity custody, the trial court ordered Ms. Davis notto frequent places whoseprincipal source ofincome is the sale ofalcoholic beverages, and, at her own expense, to submitto random urinalysis, blood alcohol content (BAC), or othertests. The trial court held a hearing one month later to address witness fees and also Ms. Davis's inability to meet the physical demands ofwork crew. Ms. Davis requested
3No. 34766-4-III 

### State v. Davis community service and a reduction ofLFOs. The State addressed the LFOs by saying, "Butthere is recent case law on SSI and discretionary LFOs that may have an impact on that." RP at 174. The State was referring to 

### City of Richlandv. Wakefield, 186 Wn.2d 596, 380 P.3d 459 (2016), which had been decided in the interim since the first sentencing hearing. Ms. Davis did not mention or cite the case, but explainedthat since she lived on $960 per month from disability income and her federal housing aid had been lost because ofher recent felony conviction, she could not afford to pay LFOs. The trial court converted Ms. Davis's remaining sentence to community service, struck only the witness fee, and reduced herLFO payments to $15 permonth. This appeal followed. ANALYSIS A. COMMUNITY CUSTODY TERM AND CONDITIONS For the first time on appeal, Ms. Davis challenges the term and several conditions ofher community custody. The State asserts thatMs. Davis's failure to objectbelow precludes her from raising these errors now. We disagree. Defendants may generally challenge community custody conditions that are contrary to statutory authority for the first time on appeal. 

### State v. Bahl, 164 Wn.2d 739, 745, 193 P.3d 678 (2008).

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### No. 34766-4-III 

### State v. Davis
Ms. Davis argues the trial court erred in (1) entering a finding that she had a chemical dependency that contributed to the offense and requiring herto successfully complete any recommended treatmentprogram, (2) ordering a 12-monthterm for community custody, (3) precluding her from frequenting places whose primary source of income is the sale ofalcoholic beverages, and (4) submittingto random urinalysis, BAC,
or other tests at the direction ofher community custody officer. 

### 1. Chemical dependencyfinding andcompletion of recommended treatmentprogram Ms. Davis contends the trial court erred in enteringthe chemical dependency finding because there was insufficient evidence that she suffered from any chemical dependency. We conclude the invited error doctrine prohibits her from raising this argument. The invited error doctrine prohibits a party from setting up an error and then complaining ofiton appeal. 

### State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting 

### State v. Pam, 101 Wn.2d 507,511,680 P.2d 762 (1984)). The invited
error doctrine applies only where the defendant engaged in some affirmative action by which she knowingly and voluntarily set up the error. 

### In re Pers. Restraint of Call, 144 Wn.2d 315, 326-28, 28 P.3d 709 (2001). This court applies the invited error doctrine as a



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### No. 34766-4-III 

### State v. Davis
"strictrule" to situations where the defendant's actions at least in part caused the error. 

### State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999). During sentencing, Ms. Davis's counsel persuaded the trial court to impose work release in lieu of30 days'jail, and argued the court's focus should be on whether Ms. Davis was an addict in need oftreatment. To give effect to her request, RCW 9.94A.607(1) required the trial court to enter a finding that Ms. Davis suffered from
a chemical dependency that contributed to her offense. 

### State v. Warnock, 174 Wn. App. 608, 612, 299 P.3d 1173 (2013). Ms. Davis may not now claim the trial court erred when it was her request at sentencing that necessitated the finding. 

### 2. Community custody term Ms. Davis argues the trial court erred when it imposed 12 months ofcommunity custody. We disagree. RCW 9.94A.650(3) authorizes up to 12 months ofcommunity custody whenthe sentence includes treatment. Because Ms. Davis's sentence included the possibility of treatment, the trial court did not err. 

### 3. Frequentingplaces such as taverns andcocktail lounges

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### State v. Davis
Ms. Davis argues the trial court erred when it ordered hernotto frequent places whose principal source ofincome is the sale ofalcohol beverages, such as taverns and cocktail lounges. We agree. This court reviews community custody conditions for an abuse ofdiscretion. 

### State
v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). As part ofany term of community custody, the court may impose and enforce crime-related prohibitions. RCW 9.94A.505(9); RCW 9.94A.703(3)(f). A crime-related community custody conditionprohibits conductthat "directlyrelates to the circumstances ofthe crime for which the offender has been convicted." RCW 9.94A.030(10). "'Directlyrelated' includes conditions that are 'reasonablyrelated' to the crime." 

### Irwin, 191 Wn. App. at 656 (quoting 

### State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014)). The record reflects the trial court was concerned thatMs. Davis might enter a tavern and trade alcohol for methamphetamine. This is a tenuous linkto the committed offense. A person couldpotentially use anything as a bartering chip for methamphetamine. No evidence suggests Ms. Davis used alcohol or any other substance to acquire methamphetamine in this case. Therefore, this condition is not crimerelated, and the trial court abused its discretion in ordering this prohibition.

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### State v. Davis
4. Submitting to random drug andalcohol tests Ms. Davis asserts the trial court erred in requiring herto submit to random urinalysis, BAC, or othertests. The State asserts that suchrandom tests are permitted under RCW 9.94A.607(1) (chemical dependency finding and treatment) and RCW 9.94A.703(3) (community custody conditions). We disagree in partbut affirmthe requirement on a supplemental basis. Under RCW 9.94A.607(1) and RCW 9.94A.703(3), a trial courthas authority to require the offenderto perform affirmative conductreasonably related to the circumstances ofthe crime, provided the requirement is beneficial to the offender orthe community. Ordering an offenderto cooperate with random drugtests to ensure compliance with a community custody condition is beneficial to the offender and is therefore valid. Here, the circumstance ofthe crime involvedpossession ofmethamphetamine, not alcohol. However, a trial courtmay always order a prohibition onpossessing or consuming alcohol. RCW 9.94A.703(3)(e). A trial court also has the authority to enforce conditions that it imposes. 

### State v. Vant, 145 Wn. App. 592, 603-04, 186 P.3d 1149 (2008) (discussing former statute). Requiring Ms. Davis to submitto random alcohol testing ensures compliance with the condition it imposed onherprohibiting her from
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### State v. Davis possessing or consuming alcohol. 

### B. LEGAL FINANCIAL OBLIGATIONS Ms. Davis argues the trial court erred because it did not sufficiently considerher present or future ability to pay before imposing discretionary LFOs. She further argues that the unrebutted evidence was that she was physically disabled because ofarthritis and supporting herselfand her grandson on a fixed monthly disability benefit. The State first argues that Ms. Davis failed to preserve this issue for review. We disagree. Ms. Davis argued, especially at the second hearing, that she could not afford to pay the legal financial obligations. She emphasizedthat her conviction caused herto lose herhousing subsidy, that she was on a fixed disability income, andthat she was supporting herselfand hergrandson. In response, the trial court did not impose discretionary witness fees, and reduced the required monthlypaymentto $15. In doing so, the trial court did not explicitly find thatMs. Davis could eitherpay $15 permonth or that she could eventuallypay the totaljudgmentincluding interest. 

### In Wakefield, our Supreme Court emphasized thattrial courts should "'seriously question'" whether a person, indigent for purposes ofGR 34, has the ability to payLFOs.

186 Wn.2d at 607 (quoting 

### State v. Blazina, 182 Wn.2d 827,839,344 P.3d 680 (2015)).

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### No. 34766-4-III State v. Davis
The Wakefieldcourt further admonished courts against imposing miniscule monthly payments that will not even pay thejudgmentprincipal. Id. 

### Here, the trial court found that Ms. Davis was indigent for purposes ofGR 34. Ms. Davis's totaljudgment is $1,650. At 12 percent interestperyear, such ajudgment
accrues monthly interest of$16.50. Even ifMs. Davis couldpay $15 permonth, a finding that the trial court did not make, that amount would be insufficientto pay the interest on thejudgment. We conclude the trial court erred in ordering Ms. Davis to pay discretionary LFOs. In conclusion, we remand for the trial court to strike (1) the prohibition against frequenting places whose primary source ofincome is the sale ofalcoholic beverages and (2) discretionary LFOs. Affirmed in part and remanded. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

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