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    IN THE COURT OF APPEALS OF THE STATE OF WASHING'IIO

                                              DIVISION II


STATE OF WASHINGTON,                                                       No. 43741 -4 -II


                                  Respondent,


       V.



ROBERT LEE SANDERS,                                                 UNPUBLISHED OPINION


                                  Appellant.


       WoRSWICK, C. J. — Robert Lee Sanders appeals his convictions and sentences for second


degree child rape and second degree child molestation. Sanders argues that ( 1) the State' s


charging document   insufficiently   charged    Sanders, (   2) the trial court exceeded its statutory

authority when imposing two community custody conditions, and ( 3) the trial court erred by

finding that Sanders was capable of paying his legal financial obligations. Because the charging

document was sufficient; we affirm Sanders' s convictions. We reverse one challenged


community custody condition, because the trial court exceeded its statutory authority. We do not

consider the trial court' s finding that Sanders was able to pay his legal financial obligations,

because Sanders did   not raise   the issue   below.
No. 43741 -4 -II



                                                         FACTS


A.           Background


             Robert Lee Sanders and his ex -
                                           wife R. S. lived with two children: their son C. S., and


R.S.'   s   daughter S. T.S.    1 Sanders alleged that the four -
                                                                member family practiced co- sleeping as a

type of alternative parenting. Co- sleeping is a practice in which all family members sleep in the

same bed.


             Sanders and R.S. separated and began divorce proceedings. During the divorce

proceedings and following the divorce, S. T.S. continued to regularly visit Sanders and stay at

Sanders' s house. Sanders continued to practice co- sleeping with both S. T.S. and C. S.

             S. T. S. told one of her friends from school that Sanders had committed sexual acts against

her. Soon thereafter, S. T. S. and her friend informed their school' s counselor, Regina Brown,

about S. T. S.' s allegations of Sanders' s sexual abuse.


             The State charged Sanders with four counts. For sex acts against S. T.S. before her 12th


birthday, the      State   charged   Sanders   with   first degree   child     and first degree child


molestation.      3 For sex acts against S. T.S. after her 12th birthday, but before her 14th birthday, the
                                                                                                                 5
State       charged   Sanders   with second    degree   child rape    and second   degree   child molestation.




1
    We use initials to protect the minor victim' s privacy. See General Order 2011 - 1 of Division II,
In re The Use ofInitials ofPseudonyms for Child Witnesses in Sex Crime Cases.

2 RCW 9A.44. 073.

3 RCW 9A.44. 083.

4
    RCW 9A.44. 076.


    RCW 9A.44. 086.


                                                             0)
No. 43741- 4- 11



B.            The Charging Document

              Sanders argues that the State' s charging document contained two germane errors. First,

the second degree child rape charge included a typographical error:


              COUNT III —RAPE OF A CHILD IN THE SECOND DEGREE, RCW
              9A.44. 076 — CLASS A FELONY:


              In that the defendant, ROBERT LEE SANDERS, in the State of Washington, on
              or between July 5, 2010 and March 13, 2011, on a separate and distinct date than
              alleged   in Counts I, II,       and   IV, did have   sexual   intercourse S. T.S.,   who was   at

              least twelve years old but less than fourteen years old, and was not married to the
              defendant, and the defendant was at least thirty - months older than S. T.S.
                                                               six

Clerk'    s   Papers ( CP)   at   2 -3 (   emphasis added).   The State failed to include the word " with"


between " sexual intercourse" and " S. T. S."


              Second, the second degree child molestation charge stated:


              COUNT IV —CHILD MOLESTATION IN THE SECOND DEGREE, RCW
              9A. 44. 086 —CLASS B FELONY:


              In that the defendant, ROBERT LEE SANDERS, in the State of Washington, on
              or between July 5, 2010 and March 13, 2011, on a separate and distinct date than
              alleged in Counts I, II and III, did engage in sexual contact with S. T. S., and was at
              least thirty - months older than a person who was at least twelve years of age
                           six
              but less than fourteen years of age and not married to the defendant.


CP   at   3(   emphasis added).            The age requirements refer to " a person" but do not refer specifically

to S. T. S.     Sanders did not challenge the charging document at trial.

C.            Conviction, Sentence, and Community Custody Conditions

              The jury convicted Sanders of second degree child rape and second degree child

molestation. The jury acquitted Sanders of first degree child rape and failed to return a verdict

on first degree child molestation. Both the second degree child rape and second degree child


molestation convictions were for acts occurring between July 5, 2010 and March 13, 2011.



                                                                3
No. 43741 -4 -II




            The trial court sentenced Sanders to a prison term and a term of community custody.

Among the community custody conditions imposed on Sanders, the trial court required Sanders

to ( 1)    avoid    using   controlled substances, (   2) submit to random urinalysis testing, and ( 3) avoid

entering bars, taverns,         or cocktail    lounges ( the bar   condition).   But the trial court did not prohibit


or regulate Sanders' s consumption of alcohol.


D.          Legal Financial Obligations


            The trial    court ordered      Sanders to pay legal financial   obligations ( LFOs):      a $ 500 victim


penalty assessment, a $ 100 DNA (deoxyribonucleic acid) collection fee, and a $ 200 criminal

filing fee. In its written order, the trial court found that Sanders had the ability to pay his LFOs:

            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 defendant'    s status will change.   The
            court finds that the defendant has the ability or likely future ability to pay the
            legal financial obligations imposed herein.


CP    at   6.    Sanders did not object to this finding below. Sanders appeals.

                                                        ANALYSIS


                                               I. THE CHARGING DOCUMENT


                Sanders argues that the charging document insufficiently charged him because it failed to

allege essential elements of second degree child rape and second degree child molestation. We


disagree.


                We review challenges to the sufficiency of a charging document de novo. State v.

Williams, 162 Wn.2d 177, 182, 170 P. 3d 30 ( 2007).                  But if, as here, the sufficiency of a charging

document is not challenged until after the verdict, we liberally construe the charging document in

favor      of    validity. State   v.   Kjorsvik, 117. Wn.2d 93, 102, 812 P. 2d 86 ( 1991).      All   essential
No. 43741 -4 -II




elements of an alleged crime must be included in the charging document to afford. defendants

notice of the allegations' nature so they can properly prepare their defense. Kjorsvik, 117 Wn.2d

at   101 -02. "` Words in     a   charging document    are read as a whole, [   are] construed according to

common sense,. and         include facts   which are   necessarily implied. "' Kjorsvik, 117 Wn.2d at 109


 quoting State v. NieblasDuarte, 55 Wn.App. 376, 380, 777 P. 2d 583 ( 1989)).

             When determining whether a charging document is sufficient, we consider two factors.

First, we consider whether the crimes' s necessary elements appear in any form, or can be found

by fair construction, in the charging document. Kjorsvik, 117 Wn.2d at 105 -06. It is not

necessary for the statute' s exact words to be included in a charging document, as long as the

charging document uses words conveying the same meaning and import. Kjorsvik, 117 Wn.2d at

108. "[      E] ven if there is an apparently missing element, it may be able to be fairly implied from

language       within   the charging   document." Kjorsvik, 117 Wn.2d at 104. The question is whether


the charging document would reasonably apprise the defendant of the crimes charged. Kjorsvik,

117 Wn.2d at 109.


             If we cannot find the crime' s necessary elements, we presume prejudice and reverse.

State   v.   McCarty,    140 Wn.2d 420, 425, 998 P. 2d 296 ( 2000).      But if we can find the necessary

elements, we consider the second factor: whether the defendant suffered actual prejudice, which


occurred if the inartful, vague, or ambiguous charging language deprived the defendant of notice

of the crimes the State charged him with. Kjorsvik, 117 Wn.2d at 105 -06. We hold that the State


sufficiently charged Sanders with second degree child rape and second degree child molestation.




                                                           R
No. 43741 -4 -II



A.        Elements of the Crimes

          1.   Second Degree Child Rape


          Sanders argues that the State insufficiently charged him with second degree child rape,

because the charging document failed to charge that the defendant must have sexual intercourse

with   S. T. S.,   by   stating "   sexual     intercourse S. T. S." rather than " sexual intercourse with S. T. S."


We disagree.


          The State charged Sanders with second degree child rape under RCW 9A.44. 076( 1),


which states in part:


          A person is guilty of rape of a child in the second degree when the person has
          sexual intercourse with another who is at least twelve years old but less than
          fourteen years old.


          Here, Sanders was charged with four separate sex offenses for the rape and /
                                                                                     or

molestation of          S. T. S.   Three of these four charges properly included the word " with" between the

alleged sexual act and "            S. T.S."    Thus, we hold that all of the elements of second degree rape can


be found by fair construction in the charging document, because the missing element ( that

Sanders had        sexual     intercourse      with   S. T.S.)   can be fairly implied from the charging document' s

language.


          2. Second Degree Child Molestation


           Sanders argues that the State insufficiently charged him with second degree child

molestation because the charge failed to include an element of the offense ( S. T. S.' s age relative

to the   perpetrator).         Sanders argues that the charging document failed to include this element by

using language that            created   ambiguity       as   to whether " a   person" referred   to S. T.S.   We disagree.




                                                                     G
No. 43741 -4 -II



           The State charged Sanders with second degree child molestation under RCW


9A.44. 086( 1),    which states in part:


           A person is guilty of child molestation in the second degree when the person has,
           or knowingly causes another person under the age of eighteen to have, sexual
           contact with another who is at least twelve years old but less than fourteen years
           old and not married to the perpetrator and the perpetrator is at least thirty -
                                                                                         six
           months older than the victim.


The charge against Sanders for second degree child molestation stated as follows:


           In that [ Sanders] ...        did   engage    in   sexual contact with   S. T.S., and was at least

           thirty -six months older than a person who was at least twelve years of age but less
           than fourteen years of age and not married to the defendant.

CP at 3 ( emphasis added).


           Here, three of the four charges against Sanders made clear that S. T.S.' s age was the


relative age at issue. Furthermore, the second degree child molestation charge discussed only

two   people,   Sanders       and   S. T.S. Thus the phrase " a person" must refer to either Sanders or S. T. S.


Because " a person" cannot refer to Sanders ( because as the defendant, his age is being compared

to " the   person ")   it   must refer   to S. T. S.   Thus, we hold that the elements of second degree child


molestation can be found by fair construction in the charging document, because the element of

S. T.S.' s relative age can be fairly implied from the language in the charging document.

B.         Prejudice


           Because all of the necessary elements to the charges can be found by fair construction in

the charging document, we consider the second factor: whether the defendant suffered actual

prejudice as a result of inartful, vague, or ambiguous charging language. Kjorsvik, 117 Wn.2d at

105 -06. No actual prejudice was present here because Sanders had full notice that he had to

defend himself against the charges of second degree rape and second degree child molestation.




                                                                 7
No. 43741- 4- 11



This is for three reasons. First, each of the four charges that the State filed against Sanders were


for   sexual acts against   S. T. S.    Second, three of the four charges properly included the word

 with"     between the   alleged sexual act and     S. T. S., and three of the four charges made clear that


S. T. S.' s relative age was at issue in the case. Third, each charge directed Sanders to the correct


statute.




           We hold that the charging document did not cause Sanders actual prejudice, because the

document put him on notice of the charges against which he had to defend himself. Thus, we


uphold the charging document, because it sufficiently charged Sanders with second degree child

rape and second degree child molestation.


                                       II. COMMUNITY CUSTODY CONDITIONS


           Sanders argues the trial court exceeded its statutory authority by imposing two

community custody conditions: the urinalysis condition and the bar condition. We affirm the

urinalysis condition, but reverse the bar condition.


           We generally review the trial court' s imposition of statutorily authorized community

custody conditions for abuse of discretion. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d

201 ( 2007).    And we review de novo whether the trial court had statutory authority to impose

specific community custody conditions. Armendariz, 160 Wn.2d at 110. Because Sanders

argues that the trial court exceeded its statutory authority, our review is de novo. In re

Postsentence Review of Wandell, 175 Wn.             App.   447, 451, 311 P. 3d 28 ( 2013), review denied,


179 Wn.2d 1009 ( 2014).
No. 43741 -4 -II




         The legislature is the only body with the authority to establish potential legal

punishments.       State   v.   Zimmer, 146 Wn.     App.    405, 412 -13, 190 P. 3.d 121 ( 2008). Former RCW


9. 94A.703 ( 2009) sets out mandatory, waivable, and discretionary community custody

conditions   that the trial      court    may impose. "   Mandatory" means that the trial court must impose

the   condition, "   waivable" means that the trial court is required to impose the condition unless the


trial court decides to waive it, and " discretionary" means that the trial court may choose whether

to impose the condition. See Former RCW 9. 94A.703.


         Any conditions not expressly authorized by statute must be crime -related. Former RCW

9. 94A.703( 3)( f); See State        v.   Jones, 118 Wn.   App.   199, 207 -08, 76 P. 3d 258 ( 2003).   Conditions


that do not reasonably relate to the crime' s circumstances, the risk of reoffending, or public

safety are unlawful unless explicitly permitted by statute. See Jones, 118 Wn. App. at 206 -08.

Former RCW 9. 94A. 030( 10) ( 2010) defines a " crime- related prohibition" as " an order of a court


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

has been   convicted."          We hold that the trial court '(1) had the statutory authority to impose the

urinalysis condition, but (2) exceeded its statutory authority by imposing the bar condition.

A.        Urinalysis Condition


          Sanders argues that the trial court exceeded its statutory authority by requiring him to

submit to urinalysis tests. We disagree.


          Former RCW 9. 94A.703( 2)( c) states that it is a waivable community custody condition

that the defendant "[      r] efrain from possessing or consuming controlled substances except

pursuant    to   lawfully issued      prescriptions."     Courts are permitted to require testing to determine




                                                              G
No. 43741 -4 -II




whether the defendant is meeting other statutorily authorized community custody conditions.

See State v. Acevedo, 159 Wn. App. 221, 234, 248 P. 3d 526 ( 2010).

       Here, the trial court was statutorily authorized to order that Sanders refrain from

consuming     controlled substances.      Former RCW 9. 94A.703( 2)(   c).   Urinalysis allows the State to


monitor Sanders' s compliance with the condition that he refrain from using controlled

substances.   See Former RCW 9. 94A. 662( 1)( d) ( 2009). Thus, we hold that the trial court had the


statutory authority to impose the urinalysis condition because it allows the State to monitor

Sanders' s compliance with another statutorily authorized community custody condition

 refraining from consuming         controlled substances).   Acevedo, 159 Wn. App. at 234.

B.      The Bar Condition


        Sanders argues that the trial court exceeded its statutory authority by imposing the bar

condition against Sanders. The State concedes that the trial court exceeded its statutory authority

by imposing the bar condition, and recommends reversal of this condition. We accept the State' s

concession.




        The trial court did not restrict Sanders from consuming alcohol, and thus the bar

condition has no connection to another statutorily authorized community custody condition

imposed against Sanders ( unlike the urinalysis condition).


        Because there is no explicit statutory authorization for the bar condition, it must be

crime -
      related   to be   valid..   Former RCW 9. 94A. 703( 3)( f). In most circumstances, children


cannot enter bars, taverns, or cocktail lounges. See RCW 66. 44. 310; WAC 314 -02 -037. Thus,

no connection exists between the child sex offenses that Sanders was convicted of and the act of




                                                       10
No. 43741 -4 -II




entering into bars, taverns, or cocktail lounges, and we remand for the trial court to strike the bar

condition.




                                     III. LEGAL FINANCIAL OBLIGATIONS


          Sanders argues that insufficient evidence supported the trial court' s finding that he had

the financial capacity to pay his LFOs, because his conviction and felony status will make it

difficult for him to pay these obligations. We refuse to decide this issue under RAP 2. 5, which

states that we may refuse to review any claim of error that was not raised at the trial court level.

          We voluntarily elected to review whether the record supported the trial court' s finding

that a. defendant who was disabled could pay her LFOs in State v. Bertrand, 165 Wn. App. 393,

403 -04, 267 P. 3d 511 ( 2011).       But we later rejected a similar request from another defendant in


State v. Blazina, 174 Wn. App. 906, 911 - 12, 301 P. 3d 492, review granted, 178 Wn.2d 1010

 2013).    In Blazina, we decided that under RAP 2. 5, we are not obligated to review a claim that


the trial court erred by making a finding that the defendant could pay his LFOs, where the

argument was not raised        below.   174 Wn. App. at 911 -12; See also State v. Snapp, 119 Wn. App.

614, 626    n. 8,   82 P. 3d 252 ( 2004) ( refusing   to consider the defendant' s argument challenging the

trial court' s finding that he had the ability to pay LFOs in part because he failed to raise the issue

below).


          We affirm the convictions and the urinalysis condition. We refuse to review the trial




                                                          11
No. 43741 -4 -II




court' s finding that Sanders can pay his LFOs. We reverse the bar condition.

          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




Lee, J.




                                                   12
