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                                                                          FILED
                                                                        May 26, 2016
                                                                In the Office of the Clerk of Court
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 l                                                            WA State Court of Appeals, Division Ill
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i                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE
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      STATE OF WASHINGTON,

                           Respondent,
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                                                              No. 33044-3-111


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 !           V.                                     )         UNPUBLISHED OPINION
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 I    TERRAL RAY ANTHONY LEWIS,
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                           Appellant.
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             PENNELL, J. -Terral Lewis appeals his conviction and sentence for two counts of
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I{    first degree robbery and one count of possession of methamphetamine. Save for the

      gang-related community custody conditions, which the State concedes was imposed in
 l    error, we affirm.

                                                FACTS

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             Early in the morning on April 29, 2014, Mr. Lewis robbed a coffee shop in

      Spokane. The shop employees believed Mr. Lewis had a gun in his sweatshirt pocket.

l     Mr. Lewis took a roll of quarters and some change from the cash register, an employee's
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      driver's license, and the coffee shop's iPod and scanner used for credit card payments.

      When police apprehended Mr. Lewis a few blocks away from the coffee shop, they found

      a bag of methamphetamine on his person.

             At trial the State withdrew, without objection, its proposed instruction on the lesser
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      included offense of second degree robbery. While deliberating, the jury asked the court



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No. 33044-3-III
State v. Lewis


whether it could render a verdict on two counts and remain undecided on one count.

After initially telling the jury to reread the final instruction, the trial court later proposed a

supplemental instruction. The jury found Mr. Lewis guilty of two counts of first degree

robbery and one count of possession of a controlled substance.

       At sentencing, the court found Mr. Lewis's chemical dependency contributed to

his offense. Boilerplate language in the judgment and sentence shows the court ordered

Mr. Lewis to "not consume controlled substances except pursuant to lawfully issued

prescriptions" and to "not unlawfully possess controlled substances while on community

custody." Clerk's Papers (CP) at 111. The court noted this included marijuana as it is

illegal under federal law. Accordingly, a blanket requirement that Mr. Lewis not use or

possess marijuana or products containing tetrahydrocannabinol (THC) was included

among the conditions of his sentence. Additionally, the court ordered Mr. Lewis not to

associate with gang members, wear clothing indicative of gang lifestyle, or obtain tattoos

indicative of gang lifestyle. The court then imposed a $100 deoxyribonucleic acid (DNA)

collection fee as part of Mr. Lewis's legal financial obligations (LFOs). Mr. Lewis

appealed.




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     No. 33044-3-III
t    State v. Lewis


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                                            ANALYSIS

     DNA Collection Challenges

            Mr. Lewis challenges the imposition of a mandatory $100 DNA collection fee

     under RCW 43.43.7541. No objection was raised in the trial court. On appeal, Mr. Lewis

     makes two arguments. First, he asserts that imposition of the DNA fee without inquiry

     into ability to pay violates his substantive due process rights. Second, he argues the

     mandatory DNA fee violates his equal protection rights by requiring first-time felony

     offenders to pay the fee once while requiring repeat felony offenders to pay the fee

l    multiple times. A successful challenge under either of these claims would require

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     reviewing facts outside the record. Generally, constitutional challenges to the imposition

     of LFOs turns on a defendant's financial circumstances at the time of recoupment. See

     State v. Blank, 131 Wn.2d 230,242, 90 P.2d 1213 (1997). Because recoupment has not

     begun, we cannot yet assess those circumstances. Additionally, standing to make an

     equal protection claim requires proof that an individual was negatively impacted by a

     classification scheme. See State v. Handley, 115 Wn.2d 275, 290-91, 796 P.2d 1266

     (1990). No such proof is in the record. Accordingly, we decline to review Mr. Lewis's

     arguments for the first time on direct appeal under RAP 2.5(a). State v. Stoddard, 192

     Wn. App. 222, 226, 366 P.3d 474 (2016).


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No. 33044-3-111
State v. Lewis


       Mr. Lewis also contends the trial court erred by ordering him to submit to a DNA

collection under RCW 43.43.754 when he has already done so previously. We find no

error. Mr. Lewis's judgment and sentence form specified a DNA sample need not be

collected if the Washington State Patrol was already in possession of a sample. This is

consistent with Washington law. See RCW 43.43.754(l)(a), (2). The trial court did not

breach the statute, particularly given that Mr. Lewis supplies no evidence for his

contention he already submitted to a DNA collection. See State v. Thornton, 188 Wn.

App. 371, 373-74, 353 P.3d 642 (2015).

Community Custody Conditions

       Mr. Lewis challenges community custody conditions pertaining to marijuana and

gang activities. The claimed errors were not raised in the trial court. However, an

erroneously imposed or illegal sentence may be challenged for the first time on appeal.

State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). Trial courts "may impose only

sentences that statutes authorize." State v. Albright, 144 Wn. App. 566, 568, 183 P.3d

1094 (2008). This court reviews a trial court's statutory authority to impose a particular

condition de novo but reviews a crime-related community custody condition for abuse of

discretion. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

      Mr. Lewis makes two arguments regarding the marijuana conditions. First, he


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!    No. 33044-3-111
I    State v. Lewis
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i    contends the condition containing a blanket prohibition proscribing him from using or



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     possessing marijuana and/or products containing THC exceeds the trial court's authority

     because it does not contain the exception for prescription use. See RCW 9.94A.703(2)(c)

     (stating the court shall order an offender to "[r]efrain from possessing or consuming

I    controlled substances except pursuant to lawfully issued prescriptions ... "). Second, he

     argues this absolute prohibition conflicts with the boilerplate language purporting to

     recognize the prescription exception.

            We disagree with Mr. Lewis's contentions. Marijuana qualifies as a controlled

     substance. See 21 U.S.C. § 812; RCW 69.50.lOl(e). While state law allows for use of

     controlled substances by individuals under community custody pursuant to a prescription,

     see RCW 9.94A.703(2)(c), this provision does not help Mr. Lewis because one can never

     obtain a prescription for marijuana use. See RCW 69.50.308. Even in the context of

     medical marijuana, the user obtains an "authorization," not a prescription, from a health

     care provider. RCW 69.51A.030(2)(a). Given these circumstances, the restriction on

II   marijuana use was proper, and the language used in the judgment and sentence form was


 l   not contradictory.



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            Mr. Lewis fares much better in his challenge to the gang-related community

     custody conditions. The State properly concedes these conditions should be stricken as
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        No. 33044-3-III
        State v. Lewis

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 '      they are not crime-related. See RCW 9.94A.030(10) (defining "crime-related

Ij      prohibition" as "an order of a court prohibiting conduct that directly relates to the



I       circumstances of the crime for which the offender has been convicted ... "). On remand,

        the trial court is instructed to strike the gang-related community custody conditions from

        Mr. Lewis's judgment and sentence form.

        Ineffective Assistance of Counsel

               In his statement of additional grounds for review, Mr. Lewis makes three claims

        that he was denied effective assistance of counsel: (1) counsel was deficient in not calling

        certain witnesses, (2) counsel failed to object to the credibility of a witness, and (3)

        counsel erred by not objecting when the State opted not to instruct on second degree

\       robbery.
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lI             When reviewing a claim of ineffective assistance of counsel on direct appeal, we

        are limited to the trial record. State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251
I       (1995). There is a strong presumption that trial counsel's representation was effective.
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!       Id. To show ineffective assistance, Mr. Lewis must show: (1) defense counsel's
!       representation was deficient, i.e., it fell below an objective standard of reasonableness

        under the circumstances, and (2) the deficient representation prejudiced him, i.e., a

        reasonable probability exists the outcome would have been different without the deficient


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     No. 33044-3-111
     State v. Lewis


     representation. Id. at 334-35. Failure to meet either prong of this test is dispositive of an

     ineffective assistance claim. State v. Berg, 147 Wn. App. 923, 937, 198 P.3d 529 (2008).

            First, Mr. Lewis argues defense counsel did not call certain witnesses. The

1    testimony of Mr. Lewis's proposed witnesses is not in the record. Thus, we cannot


j    resolve Mr. Lewis's claims on direct appeal.

!;          Second, Mr. Lewis contends defense counsel did not object to the credibility of a
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I    witness. The witness he refers to is one of the two coffee shop employees present during

     the robbery. But defense counsel did raise the issue of the employee's credibility. On

     cross-examination, defense counsel asked the employee about statements she made to a


I    responding officer. When the officer testified, defense counsel again highlighted the

     inconsistencies in the employee's testimony. Defense counsel's performance was not

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     deficient.

            Finally, Mr. Lewis argues defense counsel's performance was deficient because he

     failed to object when the State opted not to instruct on second degree robbery. A person

     is guilty of second degree robbery if they commit robbery; the crime is elevated to first

     degree robbery if the person is armed with or displays what appears to be a deadly

     weapon. RCW 9A.56.210(1), .200(1)(a). While second degree robbery is a lesser

     included offense of first degree robbery, the instruction is proper only if it is supported by



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No. 33044-3-III
State v. Lewis


the record. State v. Wheeler, 22 Wn. App. 792, 797, 593 P.2d 550 (1979). A jury may

disbelieve any portion of any witness's testimony-thus finding the robber was

unarmed-but some evidence must be affirmatively presented to establish only "unarmed

robbery." Id. Here, all of the witnesses agreed Mr. Lewis appeared to be armed when he

committed the robbery. At trial, Mr. Lewis's theory was not that he committed only

unarmed robbery but that he did not commit robbery at all. He presented no evidence

showing only a second degree robbery occurred. In failing to object, defense counsel's

performance was not deficient.

Supplemental Jury Instruction

       In addition to his ineffective assistance of counsel claims, Mr. Lewis's statement

of additional grounds also claims the trial court issued an erroneous instruction after the

jury asked whether it could remain undecided on one of the pending counts. "[A] trial

judge has discretion whether to give further instructions to the jury after deliberations

have started." State v. Ransom, 56 Wn. App. 712, 714, 785 P.2d 469 (1990). But

"supplemental instructions should not go beyond matters that either had been, or could

have been, argued to the jury." Id. This court reviews whether a supplemental instruction

is proper for abuse of discretion. State v. Becklin, 163 Wn.2d 519,529, 182 P.3d 944

(2008).


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    No. 33044-3-III
    State v. Lewis


           The supplemental instruction here was proper. When the jury asked the court if it

    could remain undecided on one count, the trial court initially instructed the jury to refer to

    instruction 17. This instruction discussed the deliberation process and how to fill out the

    verdict forms. The following day, the trial court found a supplemental instruction that

    squarely addressed the jury's question. It stated: "A separate crime is charged in each

    count. You must decide each count separately. Your verdict on one count should not

    control your verdict on any other count." CP at 71. This instruction was purely

    procedural and did not go beyond matters that had been or could have been argued to the

    Jury. Thus, we find no error.

           Based on the foregoing, we affirm Mr. Lewis's conviction but remand to the trial

    court to strike the gang-related conditions of community custody.

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

    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.


                                               Pennell, J.

    WE CONCUR:



    Lawrence-Berrey, A.CJ.
                                                      {t/dbw ~,~
                                                      oway,J.

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