                                                                   FILED 

                                                                AUGUST 15, 2013 

                                                           In the Office of the Clerk of Court 

                                                         W A State Court of Appeals, Division 1II 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                            )         No. 30378-1-111
                                                )
                     Respondent,                )
                                                )
              v.                                )         OPINION PUBLISHED
                                                )         IN PART
PATRICK GALE WILSON,                            )

                                                )

                     Appellant.                 )


       KULIK, J. -   Patrick Gale Wilson was found guilty of first degree child rape. On

appeal, he contends that his constitutional right to a jury trial was violated by the trial

court's instruction that the jury had a duty to return a guilty verdict if each of the elements

of the crime had been proved beyond a reasonable doubt. We agree with the opinions of

Divisions One and Two that uphold the instruction. Mr. Wilson also challenges the

repayment of his legal financial obligations (LFOs) and the imposition of community

custody conditions on the possession ofpornography and alcohol.
No.30378-1-III
State v. Wilson


                                          FACTS

       Patrick Wilson was charged with first degree child rape of his daughter, D.M.S.

(D.O.B. March 13,2002). At trial, the court gave the standard to convict instruction for

the crime as presented by the State. The instruction included, "If you find from the

evidence that each of these elements has been proved beyond a reasonable doubt, then it

will be your duty to return a verdict of guilty." Clerk's Papers (CP) at 299.

Consequently, the court rejected Mr. Wilson's proposed instruction that stated, "In order

to return a verdict of guilty, you must unanimously find from the evidence that each of

these elements has been proved beyond a reasonable doubt." CP at 284. Mr. Wilson

maintained that this jury instruction was more appropriate because the constitution did not

impose a duty on the jury to convict, even if it found proof of the elements beyond a

reasonable doubt.

       Ajury convicted Mr. Wilson of rape ofa child in the first degree. Mr. Wilson was

sentenced to a minimum of 136 months to life.

       The court ordered Mr. Wilson to pay over $15,000 in LFOs. Mr. Wilson's

judgment and sentence contained section 2.5, which stated, "The court has considered the

total amount owing, the defendant's past, present and future ability to pay legal financial

obligations, including the defendant's financial resources and the likelihood that the


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No.30378-1-III
State v. Wilson


defendant's status will change." CP at 325. However, the trial court did not indicate on

the judgment and sentence that it found that Mr. Wilson had the ability or future ability to

pay the LFOs.

       Section 4.1 of the judgment and sentence ordered that "[t ]he defendant shall pay

up to $50.00 per month to be taken from any income the defendant earns while in the

custody of the Department of Corrections. This money is to be applied towards legal

financial obligations." CP at 326.

       Additionally, the trial court imposed conditions on Mr. Wilson's term of

community custody. The trial court ordered that Mr. Wilson not possess or pursue

pornographic materials. The court also ordered that Mr. Wilson not purchase, possess, or

use alcohol, that Mr. Wilson submit to testing and searching by the community

corrections officer to monitor compliance with the alcohol conditions, that Mr. Wilson

not enter a business where alcohol is the primary commodity for sale, and that Mr. Wilson

undergo alcohol evaluation and follow recommended treatment.

       Mr. Wilson appeals. He contends that the to convict jury instruction violated his

constitutional right to a jury trial, that the trial court erroneously ordered him to pay his

LFOs without finding that he has the ability to pay, and that the trial court exceeded its

authority by ordering community custody conditions on pornography and alcohoL



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No. 30378-1-111
State v. Wilson


                                         ANALYSIS

       "Jury instructions are sufficient if they are not misleading, permit the parties to

argue their cases, and properly inform the jury of the applicable law when read as a

whole." State v. Meggyesy, 90 Wn. App. 693, 698, 958 P.2d 319 (1998), abrogated on

other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005).

       Mr. Wilson assigns error to the trial court's instruction to the jury that "[i]fyou

find from the evidence that each of these elements has been proved beyond a reasonable

doubt, then it will be your duty to return a verdict of guilty." CP at 299. The language of

this instruction is from 11 Washington Practice: Washington Pattern Jury Instructions:

Criminal 44.11 (3d ed. 2008). Mr. Wilson argues that, under Washington law, juries

never have a duty to return a verdict of guilty and that the instruction violates article I,

sections 21 and 22 of the Washington Constitution. The rationale that underlies Mr.

Wilson's challenge has been rejected in cases arising from Division One and Division

Two of this court. Meggyesy, 90 Wn. App. 693; State v. Brown, 130 Wn. App. 767, 124

P.3d 663 (2005).

       In Meggyesy, the defendants challenged the same jury instruction as Mr. Wilson.

Meggyesy, 90 Wn. App. at 697. The defendants opposed the instruction that required the

jury to return a guilty verdict upon finding proof of each element beyond a reasonable


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No.30378-1-II1
State v. Wilson


doubt and, instead, asserted that a proper instruction should have infonned the jury that it

"may" convict upon a finding of proof beyond a reasonable doubt. Id. Division One

upheld the language in the challenged jury instruction. Id. at 698. The court concluded

that the instruction did not implicate the federal constitutional right to a jury trial or

misstate the law. Id. at 701. The court detennined defendants essentially proposed a jury

nullification instruction, and that the defendants were not entitled to an instruction that

pennitted the jury to acquit against the evidence. Id. at 699-700.

       The court also conducted a six-step Gunwall l analysis and concluded that there

was "no independent state constitutional basis to invalidate the challenged instructions."

Id. at 704. Of particular importance, the court reviewed state constitutional history and

pre-existing state law and determined that the Washington Constitution does not provide a

broader right to a jury trial with respect to the chaUengedjury instructions. Id. at 702-03.

       Brown also challenged the jury instruction, claiming that the "to convict" language

affinnatively misled the jury about its power to acquit, and that the word "duty" conveyed

to the jury that it could not acquit if the elements had been established. Brown, 130 Wn.

App. at 771. Division Two concluded that Mr. Brown raised the same issues that were

addressed in Meggyesy, and then rejected Mr. Brown's argument based on Meggyesy. Id.


       1 State   v. Gunwall, 106 Wn.2d 54, 720 P .2d 808 (1986).

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No. 30378-1-111
State v. Wilson


Further, the court held that the purpose of the instruction is to provide the jury with the

law applicable to each particular case, and that jury nullification is not a law to be applied

to Mr. Brown's charged crime. Id.

       Here, Mr. Wilson requests that we reconsider this issue. He raises the same

challenge as in Brown and uses the same constitutional arguments set forth in Meggyesy.

Despite Mr. Wilson's request, we agree with the reasoning in the aforementioned cases

and hold that "such an instruction is equivalent to notifYing the jury of its power to acquit

against the evidence and that a defendant is not entitled to a jury nullification instruction."

State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998) (citing Meggyesy, 90 Wn.

App. at 700). We hold that Mr. Wilson's constitutional right to a jury trial was not

violated by the "to convict" jury instruction.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opinions.

       LFo. Under RCW 10.01.160, a court "may [order] a [criminal] defendant to pay

costs ... incurred by the [S]tate in prosecuting the defendant." RCW 10.01.160(1), (2).

"Inquiry into the defendant's ability to pay is appropriate only when the State enforces

collection under the judgment or imposes sanctions for nonpayment; a defendant's



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No. 30378-1-III
State v. Wilson


indigent status at the time of sentencing does not bar an award of costs." State v. Crook,

146 Wn. App. 24, 27, 189 P.3d 811 (2008). A trial court's consideration of a defendant's

ability to pay applies to the setting of the minimum monthly payment; it does not apply to

the setting of the total amount of financial obligations owed. State v. We, 138 Wn. App.

716, 728, 158 P.3d 1238 (2007); RCW 9.94A.753(1).

       Funds earned by a convicted person during custody are under the charge of the

Secretary of the Department of Corrections. RCW 72.11.020. The secretary has the

authority to disburse money from the inmate's personal account for the purpose of

satisfYing a court-ordered LFO. ld. LFO deductions shall be made as stated in

RCW 72.09.111(1) and RCW 72.65.050. RCW 72.11.020. The withdrawal of funds for

the payment ofLFOs shall not reduce the inmate's account to less than the level of

indigency as defined by the department. ld. "Further, unless specifically altered herein,

court-ordered legal financial obligations shall be paid." ld.

       RCW 72.09.111 mandates the minimum deductions from wages received by

prisoners. The statute sets forth "specific formulas allowing for fluctuating amounts to be

withheld, based on designated percentages and inmate account balances, assuring inmate

accounts are not reduced below indigency levels." Crook, 146 Wn. App. at 28 (citing

RCW 72.09.111(1)). This includes a minimum 20 percent deduction for payment of



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No. 30378-1-111
State v. Wilson


LFOs for all inmates who have LFOs owing in any Washington superior court. RCW

72.09.111(1)(a)(iv).

       "Mandatory Department of Corrections deductions from inmate wages for

repayment of legal financial obligations are not collection actions by the State requiring

inquiry into a defendant's financial status." Crook, 146 Wn. App. at 27-28.

       Mr. Wilson contends that the trial court made an implied finding that he had the

current or future ability to pay his LFOs when it ordered him to pay $50 per month from

his Department of Corrections account. He contends that the finding is not supported by

the record and must be stricken.

       However, the trial court did not make an implied finding regarding Mr. Wilson's

ability to pay. Instead, the court limited the amount of inmate wages to be applied to Mr.

Wilson's LFOs. The Department of Corrections has the statutory authority to deduct a

portion of his inmate wages for this purpose. RCW 72.11.020.

       Furthermore, the trial court was not required to address Mr. Wilson's ability to

pay. The deduction from Mr. Wilson's inmate wages while in custody of the Department

of Corrections was not a collection action by the State. Statutory guidelines are in place

to assure inmate accounts are not reduced below indigency levels. RCW 72.11.020. Mr.

Wilson's ability to pay was not at issue.


                                             8

No.30378-1-II1
State v. Wilson


       The judgment and sentence does not contain an unsupported finding that Mr.

Wilson has the ability to pay LFOs.

       Sentencing Conditions. This court reviews crime-related prohibitions or

conditions imposed by the trial court for an abuse of discretion. State v. Riley, 121 Wn.2d

22,37,846 P.2d 1365 (1993). To be reversed, the sentence must be manifestly

unreasonable so that'" no reasonable man would take the view adopted by the trial

court.'" ld. (quoting State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977».

Unauthorized conditions of a sentence may be challenged for the first time on appeal.

State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).

       As a part of any term of community custody, the court has the discretion to order

an offender to comply with any crime-related prohibition. RCW 9.94A.703(3)(f). A

"crime-related prohibition" is defined, in relevant part, as '" [a]n order of a court

prohibiting conduct that directly relates to the circumstances of the crime for which the

offender has been convicted.'" State v. Letourneau, 100 Wn. App. 424,431,997 P.2d

436 (2000) (quoting former RCW 9.94A.030(12) (1999». "Although the conduct

prohibited during community custody must be directly related to the crime, it need not be

causally related to the crime." ld. at 432.




                                              9

No. 30378-I-III
State v. Wilson


       Sentencing courts may impose sentences only if the legislature had authorized the

sentence by statute. State v. Phelps, 113 Wn. App. 347, 354-55, 57 P.3d 624 (2002)

(quoting State v. Theroff, 33 Wn. App. 741, 744, 657 P.2d 800 (1983)). Whenever a

sentencing court exceeds its statutory authority, its action is void. Id. (quoting Theroff, 33

Wn. App. at 744).

       Mr. Wilson challenges the condition that prohibits him from possessing or

pursuing any pornographic materials, including those found on the Internet. He contends

that the condition is unconstitutionally vague.

       "A statute is unconstitutionally vague if it '( I) ... does not define the criminal

offense with sufficient definiteness that ordinary people can understand what conduct is

proscribed, or (2) ... does not provide ascertainable standards of guilt to protect against

arbitrary enforcement.'" State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008)

(alterations in original) (quoting City o/Spokane v. Douglass, 115 Wn.2d 171, 178, 795

P.2d 693 (1990)). A general restriction on accessing or possessing pornographic

materials is unconstitutionally vague. Bahl, 164 Wn.2d at 758.

       As recognized in Bahl, the condition generally. prohibiting Mr. Wilson from

possessing or pursuing pornography is unconstitutionally vague. We remand to the trial

court to narrowly tailor the condition. At resentencing, the State may recommend that the


                                              10 

No.30378-I-III
State v. Wilson


court revise the condition to prohibit Mr. Wilson from possessing any depictions of

sexually explicit conduct as defined in former RCW 9.68A.OII(3) (2002).

       Mr. Wilson also challenges the conditions related to alcohol, specifically the

conditions that (l) prohibited Mr. Wilson from purchasing, possessing, or using alcohol

and ordered Mr. Wilson to consent to searches to monitor compliance, (2) prohibited Mr.

Wilson from entering a business where alcohol is the primary commodity for sale, and

(3) ordered Mr. Wilson to undergo alcohol evaluation and follow recommended

treatment. Except for the condition that prohibits Mr. Wilson from consuming alcohol,

Mr. Wilson contends that the court exceeded its statutory authority in imposing the

remaining conditions because they are not crime related.

       There is no dispute that the trial court had the statutory authority under

RCW 9.94A.703(3)(e) to prohibit Mr. Wilson from consuming alcohol. This condition

stands. For the remaining conditions, the State concedes that the conditions are not

proper because there is no evidence that alcohol was involved in the commission of Mr.

Wilson's crime. Thus, on remand, the remaining conditions regarding alcohol are to be

stricken.




                                             11 

No.30378-1-III
State v. Wilson


      We affirm the conviction for first degree child rape. We affirm the condition

regarding the consumption of alcohol. We'remand for clarification of the condition on

pornography and to strike the remaining conditions regarding alcohol.




                                                  Kulik, J.

WE CONCUR:




                                                  Siddlz1ho ,6=. 





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