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                                                                                                        21015 JUL - 7        Ali 8: 43
                                                                                                         S' R      0r NASH1P#G T 0 P

    IN THE COURT OF APPEALS OF THE STATE OF WASHING T"
                                                                                                                   C.           Y

                                                DIVISION II
STATE OF WASHINGTON,
                                                                                        No. 45568 -4 -II


                                       Respondent,


         V.




 OSCAR RAUL MORENO VARGAS.                                   I               UNPUBLISHED OPINION


                                       Appellant.




        SUTTON, J. —           Oscar Moreno Vargas appeals his conviction for voyeurism and the

imposition    of   legal financial     obligations (   LFOs)     as   part   of   his   sentence.      He   argues      that ( 1)



insufficient evidence supported his conviction, and ( 2) the trial court failed to comply with the

statutory requirements for imposing LFOs because it did not first inquire into his present or future

ability to pay.    We hold that ( 1) sufficient evidence supported the voyeurism conviction, and ( 2)

the trial court did     not commit clear error      in   imposing $ 1, 500        in   discretionary    LFOs.     We affirm


Vargas' s conviction and sentence.


                                                         FACTS


         Melissa Geffre was using the women' s bathroom at a grocery store when she noticed two

shoes   in the neighboring      stall move    toward the     partition   that     separated   the   stalls.     The feet then


moved    toward the back       of   the stall, and Geffre   heard     heavy breathing        and a     rubbing    noise.     She


looked through a gap between the partition and the wall and saw Vargas watching her from the

neighboring    stall.    She   yelled at   him, jumped up,        and ran out. of         the stall.    Vargas     exited       the
No. 45568 -4 -II




neighboring   stall   in   a state of partial undress and ran   from the bathroom. Geffre pursued Vargas


to the grocery store exit then stopped as Vargas fled to a nearby restaurant.

         Another customer at the grocery store who witnessed Vargas' s flight went into the

restaurant to find him. He did not see Vargas but suspected he had locked himself in a stall in the


restaurant' s bathroom. He notified the police, who eventually were able to coax Vargas out of the

stall.   Geffre identified Vargas as the man who had been watching her in the grocery .store

bathroom, and the other customer verified that Vargas was the man he had seen flee into the


restaurant. Police then arrested Vargas.


         The State    charged    Vargas   with voyeurism.'   The jury found Vargas guilty. At sentencing,

the trial court   imposed mandatory LFOs amounting to $ 800,            as well as $   1, 500 in discretionary

LFOs for the cost of Vargas' s assigned counsel. Vargas appeals his conviction and his sentence.

                                                  ANALYSIS


         Vargas argues that the evidence against him was insufficient and that the sentencing court

violated RCW 10. 01. 160( 3) by failing to make an individualized inquiry into his current and future

ability to pay before imposing the discretionary LFOs. We reject Vargas' s challenges and affirm

his conviction and sentence.




   The State also charged Vargas with second degree malicious mischief, but the trial court
dismissed the charge.




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No. 45568 -4 -II




                                I. CONVICTION= SUFFICIENCY OF THE EVIDENCE


          Vargas argues that the State failed to offer evidence sufficient to support his conviction for


voyeurism. We disagree and hold that sufficient evidence supported his conviction.

          The due process guarantee in our state and federal constitutions allow us to uphold a


criminal conviction only if the State has proved each element of the charged offense beyond a

reasonable    doubt. State          v.       O' Hara, 167 Wn.2d 91, 105, 217 P. 3d 756 ( 2009). When a criminal


defendant claims that the evidence against him was insufficient to support his conviction, we


review whether a rational trier of fact could find the elements of the charged crime beyond a

reasonable      doubt   on   the basis          of   the State' s admitted       evidence.      State v. Kintz, 169 Wn.2d 537,


551, 238 P. 3d 470 ( 2010).              By challenging the sufficiency of the evidence against him, a defendant

admits the truth of the State' s evidence and all inferences that may reasonably be drawn therefrom.

Kintz, 169 Wn.2d        at   551.        We view the evidence in the light most favorable to the State and draw


all   inferences in the State'           s   favor. State    v.   Rose, 175 Wn.2d 10, 14, 282 P. 3d 1087 ( 2012).                We


also defer to the jury' s credibility determinations and resolution of conflicting testimony. State v.

McCreven, 170 Wn.            App.        444, 477, 284 P. 3d 793 ( 2012), review denied, 176 Wn.2d 1015 ( 2013).


          The   crime of voyeurism consists of (1)                   intentionally       and    knowingly, (2) viewing another

person or    that   person' s   intimate areas for                more    than   a   brief   period of   time, (   3) for purposes of


sexual gratification, (      4) without that person' s knowledge and consent, and ( 5) in a place or under

circumstances where          the    person        has   a reasonable expectation of            privacy. RCW 9A.44. 115; State


v. Fleming, 137 Wn. App. 645, 647, 154 P. 3d 304 ( 2007).

          Vargas argues that the evidence before the jury was insufficient to support a finding that

he had viewed Geffre for more than a brief period of time. Although RCW 9A.44. 115, the statute



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No. 45568 -4 -II



criminalizing voyeurism, does not specify how long such a viewing must be, a jury may find the

viewing to be more than brief if the victim testifies that they -discovered the defendant' s gaze,

yelled at   the defendant, then     fled before the defendant         stopped   looking   at   them.   See Fleming,

137 Wn. App. at 648.

       In Fleming, Division One of our court affirmed a voyeurism conviction where the evidence

showed that the victim discovered the defendant peering over a bathroom stall at her and she yelled

at him to stop. Id. at 647. The defendant in that case stuck his tongue out in response, after which

the victim fled the stall and ran out of the bathroom while the defendant remained watching from

over the stall. Id. at 647. Vargas attempts to distinguish his conduct from that of the defendant in


Fleming. We are not persuaded.

        In her testimony, Geffre described a scenario similar to that in Fleming. She said she saw

shoes in the neighboring stall move toward the partition between the stalls, feet move toward the

back of the stall and a shadow at the back of the stall, and she heard a heavy breathing and rubbing

sound. Upon looking closer, she saw Vargas peering at her through the crack between the stalls,

yelled at   him, then left the   stall   in   a   hurry. Once she exited the stall, Vargas left the neighboring

stall and ran from the bathroom. This testimony, and all reasonable inferences from the testimony,

was sufficient for the jury to find that Vargas had watched Geffre in the stall for more than a brief

period of time and supports a finding that Vargas had engaged in voyeurism rather than casual or

cursory viewing.


        Vargas argues that his testimony showed he took a cursory glance into the next stall to

determine whether he was in the women' s or men' s bathroom, and that Geffre just happened to

look at him at that moment. Clearly, the jury made a credibility determination between Vargas' s



                                                             M
No. 45568 -4 -II




testimony    and     Geffre'   s    testimony.       We will not disturb the jury' s credibility determination.

McCreven, 170 Wn.            App.     at   477.      We hold that sufficient evidence supported the voyeurism


conviction.



                              II. SENTENCE— INQUIRY INTO ABILITY TO PAY LFOs


        Vargas argues that the trial court erred by imposing discretionary LFOs against him without

first inquiring into his present or future ability to pay. We disagree.

        At sentencing, the trial court imposed $800 in mandatory LFOs and $ 1, 500 in discretionary

LFOs for the       cost of    Vargas'      s assigned counsel.           Vargas objected at sentencing to the amount

imposed by the sentencing court, but not its validity; he now challenges its validity for the first

time on appeal.2

        In   general, we      may     refuse   to   review   any issue    not raised   below; "[ a] defendant who makes


no objection to the imposition of discretionary LFOs at sentencing is not automatically entitled to

review," and an "`      appellate court may refuse to review any claim of error which was not raised in

the trial court."'    State    v.   Blazina, 182 Wn.2d 827, 832, 344 P. 3d 680 ( 2015) (              quoting RAP 2. 5( a)).

But RAP 2. 5( a) grants us discretion to review issues raised for the first time on appeal and thus we


may consider unpreserved challenges to findings on a defendant' s ability to pay discretionary

LFOs; we exercise it here. Blazina, 182 Wn.2d at 833; RAP 2. 5( a).


         For mandatory LFOs, " the legislature has divested courts of the discretion to consider a


defendant'    s   ability to pay        when        imposing     these    obligations.      For victim restitution, victim.




2
    Vargas   objected    to the sentencing            court' s   imposition    of   the $   1, 500 LFO for the costs of his
assigned     counsel.     But he objected on grounds that the amount was inappropriate under the
circumstances.        He did not raise any issues of statutory law or argue that the sentencing court
should inquire into his ability to pay.


                                                                   5
No. 45568 -4 -II




assessments, DNA fees, and criminal filing fees, the legislature has directed expressly that a

defendant'     s   ability to pay    should not   be taken into      account."    State v. Lundy, 176 Wn. App. 96,

102, 308 P. 3d 755 ( 2013).


        But as to the $ 1, 500 discretionary LFO, RCW 10. 01. 160( 3) provides that a sentencing court

 shall not order a          defendant to pay    costs unless   the   defendant is    or will   be   able   to pay.them. In



determining the amount and method of payment of costs, the court shall take account of the

financial resources of the defendant and the nature of the burden that payment of costs will

impose."


         In Blazina, the court held that this language obligates sentencing courts to inquire into a

criminal defendant' s financial circumstances and ability to pay before imposing discretionary

LFOs    as     sentencing      conditions.   Blazina, 182 Wn.2d          at   837.   Moreover, a cursory inquiry is

insufficient:


           T] he court must do more than sign a judgment and sentence with boilerplate
         language stating that it         engaged    in theinquiry. The record must reflect
                                                              required

         that the trial court made an individualized inquiry into the defendant' s current and
         future ability to pay.         Within this inquiry, the court must also consider important
         factors ...
                  such as incarceration and a defendant' s other debts, including restitution,
         when determining a defendant' s ability to pay.

Id. at 83 8.


         We review a sentencing court' s imposition of discretionary LFOs under a clearly erroneous

standard.      State   v.   Bertrand, 165 Wn.      App.    393, 404, 267 P. 3d 511 ( 2011); State v. Baldwin, 63


Wn.   App.     303, 312, 818 P. 2d 1116, 837 P. 2d 646 ( 1991).               A sentencing court' s decision is clearly

erroneous and must be reversed when review of all the evidence leaves the reviewing court with

the "` definite      and    firm   conviction   that a   mistake   has been     committed."'        Lundy, 176 Wn. App.




                                                               0
No. 45568 -4 -II



at   105 ( quoting Schryvers               v.    Coulee    Cmty. Hosp., 138 Wn. App. 648, 654, 158 P. 3d 113 ( 2007)).

 The inquiry is whether the court' s determination [ that the defendant is or will be able to pay the

LFOs] is      supported         by   the    record."       Baldwin, 63 Wn.     App.   at   312   n. 27.   Although Baldwin does


not require formal findings of fact about a defendant' s current or future ability to pay LFOs, the

record must be sufficient for us to review whether the trial court made an individualized review as


required by Blazina, 182 Wn.2d at 83 8.

             The   State   argues          that "[     t] he Pre -Sentence Investigation ( PSI) established an adequate


factual basis       of   defendant'         s    future ability to pay."      Br. of Resp' t at 16; see also Supplemental

Clerk'   s   Papers ( Suppl. CP)                at   89. "` [ W] hen the presentence report establishes a factual basis for


the defendant' s future ability to pay and the defendant does not object, the requirement of inquiry

into the ability to pay is            satisfied."'         Lundy, 176 Wn. App. at 106 ( quoting Baldwin, 63 Wn. App.

at   311);   see   State   v.   Bergen, 186 Wn.              App.    21, 30, 344 P. 3d 1251 ( 2015) (       holding that the State

has a low evidentiary burden for establishing a defendant' s present or likely future ability to pay).

             Here, the judge          received and reviewed             the PSI before the sentencing          hearing.   The PSI


included one section discussing Vargas' education and employment history and another section

discussing his financial resources. The PSI established that Vargas was not working at the time of

his arrest because he recently left a previous job to begin a. new job. The PSI also showed that he

was able to hold jobs, including construction and landscaping jobs, and was physically able to

work. Although he had no property, he had three bank accounts with undisclosed balances.

             Accordingly, the record shows that the PSI provided the judge with a sufficient factual

basis to      conduct an         individualized            inquiry   into Vargas'   s present or     future ability to pay.   And


Vargas did not object to the validity of the discretionary LFO at the sentencing hearing. We hold


                                                                         7
No. 45568 -4 -II



that the sentencing court made an individualized inquiry into Vargas' s present or future ability to

pay and the court did not commit clear error in imposing $ 1, 500 in discretionary LFOs as part of

Vargas' s sentence. We affirm Vargas' s conviction and sentence.


        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.




                                                     SUTTON, J.
 We concur:




 B. ; RCT NT, A. C. J.




 LL'E, J.




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