                                                                            FILED
                                                                        OCTOBER 8, 2019
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 35807-1-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
TALON CUTLER-FLINN,                            )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, J. —Talon Cutler-Flinn was sentenced to 491 months of total

confinement following convictions for 11 crimes. All were crimes committed against his

fiancée and eight were committed on three days. He challenges whether the State’s

evidence supports the premeditation required for his attempted murder conviction,

contends that his conviction of multiple assaults occurring on the same day violate double

jeopardy, and challenges no-contact orders entered and legal financial obligations

imposed by the court.

       We hold that one of the fourth degree assault convictions constitutes double

jeopardy and vacate it, but otherwise affirm the convictions. We vacate a lifetime no-

contact order as it relates to Mr. Cutler-Flinn’s daughter and direct the trial court to
No. 35807-1-III
State v. Cutler-Flinn


reconsider its parameters. Finally, we order certain legal financial obligations to be

struck.

                         FACTS AND PROCEDURAL BACKGROUND

          Talon Cutler-Flinn was living with his fiancée, S.M.,1 when, in November 2016,

he assaulted her for the first time. It was not the last time. He assaulted her again in

December 2016. On New Year’s Day 2017, he so terrorized and brutalized her that she

finally disclosed his actions to her mother and reported them to police. In committing the

November and New Year’s Day assaults, Mr. Cutler-Flinn knew that S.M. was pregnant

and he directed some of his blows to her stomach, telling her he wanted their babies to

die.

          On January 3, 2017, the State charged Mr. Cutler-Flinn with the following crimes,

based on the following conduct, which it alleged took taken place on the following days:

              Count    Charge                          Conduct alleged
              On a date between November 7 and 23, 2016:
              Count 1 Fourth degree assault (DV)       Intentionally striking
              Count 2 Second degree assault (DV)       Strangulation or suffocation
              On a date between December 15 and 24, 2016:
              Count 3 Fourth degree assault (DV)       Intentionally striking
              Count 4 Second degree assault (DV)       Strangulation or suffocation

         Initials are used to protect the victim’s identity, consistent with a general order of
          1

this court. See General Order of Division III, In re the Use of Initials or Pseudonyms for
Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012) available at http://
www.courts.wa.gov/appellate_trial_courts/?fa =atc.genorders_orddisp & ordnumber=017
& div=III.

                                               2
No. 35807-1-III
State v. Cutler-Flinn


        On January 1, 2017:
        Count 5   Fourth degree assault (DV)          Intentionally striking
        Count 6   Second degree assault (DV)          Strangulation or suffocation
        Count 7   First degree kidnapping             Intentional abduction
        Count 8   Attempted first degree murder       Beat, strangled [S.M.], bound
                  (DV)                                and gagged her, drove her to a
                                                      remote location
Clerk’s Papers (CP) at 1-8.

       Within weeks after being charged, Mr. Cutler-Flinn mailed two letters to S.M.’s

home, addressed to her two-year old daughter, professing his love for “you girls,”

suggesting that his actions were the result of mental illness, and that he had been told that

with treatment he had a 96 or 97 percent chance of being cured of his mental disorders

and “living a normal life.” CP at 26. Based on a court order that Mr. Cutler-Flinn have

no contact with S.M., the State amended the information to add two counts of violation of

the order. When a third letter from Mr. Cutler-Flinn was found by S.M. outside her

home—again apologizing, claiming mental illness, and telling her how much he loved

and needed her—the State amended the information a second time, to charge a further

violation of the protection order.

       Mr. Cutler-Flinn waived trial by jury and proceeded to a bench trial in late 2017.

At the outset of trial, Mr. Cutler-Flinn’s lawyer announced that his client conceded

committing the protection order violations and that he was guilty of the first degree

kidnapping charge.




                                              3
No. 35807-1-III
State v. Cutler-Flinn


       The State’s witnesses at trial included S.M., her mother, two of her coworkers, and

several law enforcement officers. Because Mr. Cutler-Flinn’s claim to be mentally ill

was in evidence as a result of his protection order violations, the State called a

psychologist who had been court-ordered to evaluate Mr. Cutler-Flinn’s competency to

stand trial. The psychologist testified that in evaluating Mr. Cutler-Flinn, he had found

no psychotic disorder or mental disease.

       At the conclusion of trial, defense counsel’s principal argument was that Mr.

Cutler-Flinn had been overcharged for his conduct on New Year’s Day. He argued that

all of Mr. Cutler-Flinn’s actions on that day fell within the ambit of first degree

kidnapping by means of “intentionally abduct[ing] another” with “[the] intent [t]o inflict

extreme mental distress on . . . her,” as prohibited by RCW 9A.40.020(1)(d). The trial

court rejected the argument and found Mr. Cutler-Flinn guilty on all counts.

       At the time set for sentencing, the trial court entered written findings presented by

the State, which included findings that Mr. Cutler-Flinn’s acts of strangling S.M. were

“separate and distinct” assaults from the blows he delivered on the same day. CP at 157-

58. This was over the objection of Mr. Cutler-Flinn, whose lawyer argued that the

assaults committed on a single date involved the same victim, same time, and same place.

       The trial court sentenced Mr. Cutler-Flinn to 491 months of total confinement. Its

judgment ordered that Mr. Cutler-Flinn not have contact “for life” with “the victim & her

family.” CP at 163. Among the persons protected by a domestic violence protection

                                              4
No. 35807-1-III
State v. Cutler-Flinn


order filed with the judgment and sentence was S.M.’s baby daughter C.A.M., born four

months before the sentencing, who was Mr. Cutler-Flinn’s biological child. Mr. Cutler-

Flinn appeals.

                                        ANALYSIS

       Mr. Cutler Flinn raises four issues on appeal. He challenges (1) whether separate

acts occurring during what he characterizes as “the same physical altercation” constitute

separate crimes, (2) the protection orders entered by the sentencing court, (3) whether the

trial court conducted an adequate Blazina2 inquiry, and (4) the sufficiency of the evidence

to support a premeditated attempt to kill S.M. We address the issues in the order raised.

I.     ONE OF THE FOURTH DEGREE ASSAULT CHARGES VIOLATES CONSTITUTIONAL
       PROTECTIONS AGAINST DOUBLE JEOPARDY

       On each of the three days that Mr. Cutler-Flinn was charged with assaulting S.M.,

he both struck her and strangled her. The State charged his acts of striking her on the

three days as three counts of fourth degree assault. It charged his acts of strangling her

on the three days as three counts of second degree assault.

       Mr. Cutler-Flinn contends that the three fourth degree assault convictions violate

constitutional protections against double jeopardy because his assaultive conduct was

punished by the second degree assault convictions. He argues that striking and strangling

S.M. were, in each case, one course of conduct.


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

                                             5
No. 35807-1-III
State v. Cutler-Flinn


       The double jeopardy clause of the Fifth Amendment to the United States

Constitution and the state constitutional protection against double jeopardy protect

against a second prosecution for the same offense after acquittal, against a second

prosecution for the same offense after conviction, and against multiple punishments for

the same offense. State v. Reeder, 184 Wn.2d 805, 825, 365 P.3d 1243 (2015). At issue

here is the third protection, against multiple punishments for the same offense. Claims of

double jeopardy present an issue of law that we review de novo. State v. Hughes, 166

Wn.2d 675, 681, 212 P.3d 558 (2009).

       The analysis of whether multiple punishments violate double jeopardy differs

depending on whether the convictions are imposed under a single statute or under

different statutes. In the latter case, the court usually applies the “Blockburger”3 analysis,

determining whether the convictions were “the same in law and in fact.” In State v.

Villanueva-Gonzalez, however, our Supreme Court recognized that while convictions for

different degrees of assault are technically imposed under different statutes, the overlap

between the elements of fourth degree assault and those of second degree assault makes

the Blockburger analysis unhelpful. 180 Wn.2d 975, 981-82 & n.3, 329 P.3d 78 (2014).

It therefore applied a “unit of prosecution” analysis of assault. Id. at 982. A unit of



       3
         E.g., State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995) (citing
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306
(1932)).

                                              6
No. 35807-1-III
State v. Cutler-Flinn


prosecution analysis “asks ‘what act or course of conduct has the Legislature defined as

the punishable act.’” Id. at 980-81 (quoting State v. Adel, 136 Wn.2d 629, 634, 965 P.2d

1072 (1998)).

       Villanueva-Gonzalez identified the unit of prosecution for assault and is

controlling. Because Washington statutes do not define assault and the common law

definition does not make clear whether assault is a course of conduct or a separate act

offense, the Supreme Court looked to case law in other jurisdictions and ultimately

applied the rule of lenity. It held that “assault should be treated as a course of conduct

crime until and unless the legislature indicates otherwise.” Id. at 984. It recognized at

the same time that “[t]here is no bright-line rule for when multiple assaultive acts

constitute one course of conduct.” Id. at 985.

       While holding that any analysis of when multiple assaultive acts constitute one

course of conduct “is highly dependent on the facts,” the Court identified the following as

“useful” factors that “courts in other jurisdictions generally take . . . into account”:

           — The length of time over which the assaultive acts took place,
           — Whether the assaultive acts took place in the same location,
           — The defendant’s intent or motivation for the different
             assaultive acts,
           — Whether the acts were uninterrupted or whether there were
             any intervening acts or events, and
           — Whether there was an opportunity for the defendant to
             reconsider his or her actions.




                                               7
No. 35807-1-III
State v. Cutler-Flinn


Id. It added that “no one factor is dispositive, and the ultimate determination

should depend on the totality of the circumstances, not a mechanical balancing of

the various factors.” Id.

       In framing the charges against Mr. Cutler-Flinn, the State separately charged acts

of strangling S.M. and acts of striking her, and it has defended that distinction in the trial

court and on appeal by citing this court’s decision in State v. Gatlin, 158 Wn. App. 126,

135, 241 P.3d 443 (2010). In Gatlin, this court held that two convictions for second

degree assault did not constitute double jeopardy because one was for blows to the victim

and the other was for acting as an accomplice to strangulation. But in the more recent

and controlling decision in Villanueva-Gonzalez, the Supreme Court did not attach

significance to the different manners in which harm was inflicted. The jury had found

Mr. Villanueva-Gonzalez guilty of second degree assault for head-butting his girlfriend,

and fourth degree assault for grabbing her neck, making it hard for her to breathe. 180

Wn.2d at 978-79. The Supreme Court found that his actions constituted one course of

conduct because they took place in the same location, over a short time period with no

interruptions or intervening events, and with no evidence suggesting a different

motivation, intent, or opportunity to reconsider his actions. Id. at 985-86.

       To evaluate the separateness or continuing character of Mr. Cutler-Flinn’s actions

under the factors identified in Villanueva-Gonzalez, we provide additional details from

the State’s evidence at trial.

                                              8
No. 35807-1-III
State v. Cutler-Flinn


       November 2016 Incident

       S.M. testified that the first assault occurred when she and Mr. Cutler-Flinn were

arguing in the kitchen and he got “really mad.” Report of Proceedings (RP) at 41. He

grabbed her, pulled her into the living room and pinned her to the ground. Knowing that

S.M. was pregnant with his child, he hit her in the stomach, telling her he wanted her and

“the baby to die.” RP at 41-42. Asked by the prosecutor whether Mr. Cutler-Flinn

strangled her during the November incident, she answered that he “choked me” on the

throat and “cut off my breathing for a little while.” RP at 43. The assault ended after he

slapped her hard on the side of her face, causing her eye to quickly swell and bruise, after

which he stopped.

       S.M. had a miscarriage a few weeks after the assault. She suspected it was caused

by the assault, testifying, “if not the attack itself, but the stress caused it.” RP at 45.

       While the difference between strangling and striking does not support treating Mr.

Cutler-Flinn’s actions as separate assaults, the fact that his blows were intended to cause

S.M. to miscarry demonstrates a different intent or motivation for those assaultive acts.

While it might not have been the State’s reason for charging the blows and the

strangulation separately, it is a sufficient basis for finding separate crimes.

       December 2016 Incident

       S.M. testified that the December incident was triggered by Mr. Cutler-Flinn’s

belief that she had flirted with another man at a bar. As they drove home, Mr. Cutler-

                                                9
No. 35807-1-III
State v. Cutler-Flinn


Flinn called her a “slut.” RP at 47. As they pulled up to their garage, S.M. said

something about her alleged flirtation that made Mr. Cutler-Flinn angry. He slammed on

the brakes, put the car in park, and climbed over and got on top of her, hitting her face

and ribs with closed fists. He also put his hands around S.M.’s throat and choked her,

telling her she was going to die.

       The State’s count 3 charged the blows as fourth degree assault and count 4

charged strangulation as second degree assault. Since the acts took place in the same

location, at the same time, to the same victim, and with the same intent, they qualify as a

single course of conduct under the factors identified in Villanueva-Gonzalez.

       For the first time on appeal, and having to respond to Villanueva-Gonzalez, the

State points out S.M. testified that after pulling into the garage, Mr. Cutler-Flinn resumed

hitting her. It now characterizes pulling into the garage as an interruption and an

opportunity for Mr. Cutler-Flinn to reconsider his actions. But that was not a basis on

which the trial court distinguished counts 3 and 4, and moving the car from immediately

outside the garage door to immediately inside the garage door is too tiny a spatial and

temporal interruption to justify multiple convictions. In the case of the convictions for

the December assault, double jeopardy is shown. The remedy is to vacate the lesser

conviction for count 3. In re Pers. Restraint of Strandy, 171 Wn.2d 817, 820, 256 P.3d

1159 (2011).



                                             10
No. 35807-1-III
State v. Cutler-Flinn


       While a gross misdemeanor, the conviction for count 3 was counted toward the

offender score for the felony convictions as a “repetitive domestic violence offense.” See

RCW 9.94A.030(42). Subtracting it from Mr. Cutler-Flinn’s offender score would still

leave him with an offender score of 11 for the attempted murder and kidnapping

convictions that dictate his period of total confinement, however, so resentencing will not

be required.

       January 1, 2017 Incident

       The events of New Year’s Day were triggered after S.M. forgot to set an alarm,

causing Mr. Cutler-Flinn to be late on the first day he had taken on a paper route.

Although S.M. had agreed to set the alarm and testified she felt bad about forgetting, she

responded to Mr. Cutler-Flinn’s upset by telling him he should have been responsible and

set his own alarm. She testified, “[T]hat made him really angry.” RP at 53.

       The assaultive conduct, which continued for hours, began with Mr. Cutler-Flinn

grabbing S.M. by the legs, pulling her from the bed, and hitting and choking her. She had

told Mr. Cutler-Flinn the day before that she was once again pregnant, and as he beat her

he told her again, as he had in November, that “he wanted the baby to die.” RP at 54.

       At one point, S.M. broke free from Mr. Cutler-Flinn and tried to get up, but as she

described it, “he put his arm around my neck and drug me to the other side of the

bedroom and then he asked how long I could go without breathing and he started

counting.” RP at 55. He counted slowly, up to about 13. She said it was the longest he

                                            11
No. 35807-1-III
State v. Cutler-Flinn


had ever strangled her, she almost blacked out, and she urinated in her shorts. He told

her, “[T]hat’s what real fear is.” RP at 56.

         Mr. Cutler-Flinn then tied her hands behind her back, tied her feet together, and

put a gag in her mouth. Telling her she was “gonna die for real,” Mr. Cutler-Flinn took

her out of the house and put on the floor behind the driver’s seat of her mother’s car. RP

at 59.

         As Mr. Cutler-Flinn drove her to an unknown location, S.M. managed to spit out

the gag and begged him to stop and let her go. When he realized she was squirming in an

effort to get free, he moved the driver’s seat back to restrict her movement. She managed

at one point to grab the side of the car seat and reach her tied hands around Mr. Cutler-

Flinn’s neck, but he responded by stopping the car, getting into the back seat, and again

hitting and strangling her. This time, he strangled her long enough that she passed out,

again losing control of her bladder.

         When she regained consciousness, she was on the seat and did not immediately

remember what had happened or where she was. Mr. Cutler-Flinn told her she had

turned blue “and if I wouldn’t have let go you would’ve turned purple and died.” RP at

69. He retied her hands and kept driving, eventually stopping and carrying her over his

shoulder to a snowy field, where he threw her into the snow by an abandoned shed. He

walked away, but soon returned and took the engagement ring off her finger. After he



                                               12
No. 35807-1-III
State v. Cutler-Flinn


left again and S.M. could not get her hands or feet loose, she started yelling for help. Mr.

Cutler-Flinn came back and carried her back to the car.

       Although S.M. testified that Mr. Cutler-Flinn then told her that they had “just got

started,” she was never going to see her daughter again, and she “was gonna meet God

soon,” he did not assault her again. RP at 69, 137. As they drove home, S.M. told him

that she had never called the police before and would not call them now, and while their

relationship was crazy, it was fine and they were going to get through it.

       For the remainder of the day, S.M. stayed at home, trying to figure out how she

was going to escape. S.M.’s daughter was staying with S.M.’s mother, and S.M.

eventually persuaded Mr. Cutler-Flinn that she needed to go to her mother’s briefly to

kiss her daughter goodnight. Upon arriving at her mother’s house, she told her mother

briefly about what had happened and the two of them then contacted and met with police.

       Given the long duration and changing locations, there are several bases on which

Mr. Cutler-Flinn’s conduct on New Year’s Day could be charged as more than one count

of assault. As with the November incident, the State’s strangulation/striking distinction

caused it to separately charge blows intended to cause S.M. to miscarry from the

strangulation intended to cause her other pain and injury. It is a sufficient basis for

finding separate crimes.4


       4
        Mr. Cutler-Flinn’s opening brief included a separate assignment of error to the
multiple convictions for assault based on the doctrine of merger. The argument portion

                                             13
No. 35807-1-III
State v. Cutler-Flinn


II.       RECONSIDERATION IS REQUIRED AS TO ONLY ONE ASPECT OF THE RESTRICTIONS ON
          MR. CUTLER-FLINN’S CONTACT WITH S.M., HER CHILDREN, AND HER MOTHER

          Mr. Cutler-Flinn’s judgment and sentence included the following restriction on

further contact with S.M.’s family:




CP at 163. Two no-contact orders were filed with the judgment and sentence: a lifetime

domestic violence no-contact order prohibiting contact with S.M. and her two daughters

and a lifetime harassment no-contact order prohibiting Mr. Cutler-Flinn from contact

with S.M.’s mother. Mr. Cutler-Flinn challenges (1) the order protecting S.M.’s mother

as not crime-related, (2) the no-contact language in the judgment and sentence as

unconstitutionally vague, and (3) the restriction on contact with his daughter as

unsupported by a necessary finding that it is reasonably necessary for his daughter’s

safety.

          Restriction on contact with S.M.’s mother.

          We begin with the challenge that the lifetime restriction on contact with S.M.’s

mother is not crime related.




of his brief offers no distinguishable argument based on merger, however.

                                               14
No. 35807-1-III
State v. Cutler-Flinn


       The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, authorizes trial

courts to impose and enforce crime-related prohibitions and affirmative conditions “as

provided in this chapter.” RCW 9.94A.505(9). “Crime-related prohibitions” are orders

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

offender has been convicted.” RCW 9.94A.030(10). We review a trial court’s

imposition of a crime-related prohibition for abuse of discretion. State v. Armendariz,

160 Wn.2d 106, 110, 156 P.3d 201 (2007).

       In Armendariz, our Supreme Court held that RCW 9.94A.505(9)5 constitutes an

independent grant of authority that need not be based on a more specific provision of the

SRA. Id. at 112-13. The court also held that orders imposing crime-related prohibitions

“reasonably include no-contact orders regarding witnesses.” Id. at 113. Finally, the

Court held that a crime-related prohibition may be effective for the statutory maximum

term of the defendant’s crime. Id. at 119-20.

       S.M.’s mother testified at trial, providing evidence that confirmed several aspects

of S.M.’s testimony. The mother also testified to reasons why she suspected Mr. Cutler-

Flinn of domestic violence against S.M. even before S.M. admitted what was going on.

Life imprisonment is the statutory maximum for kidnapping in the first degree and

attempted murder in the first degree. RCW 9A.40.020(2), 9A.28.020(3)(a) (classifying


       5
           At the time of the decision, the provision appeared at former RCW 9.94A.505(8)
(2006).

                                             15
No. 35807-1-III
State v. Cutler-Flinn


crimes as class A felonies); RCW 9A.20.021(1)(a) (maximum penalty for class A

felonies). Mr. Cutler-Flinn does not demonstrate an abuse of discretion by the trial court

in ordering that he have no contact with S.M.’s mother for life.

       Vagueness challenge to “the victim & her family”

       Mr. Cutler-Flinn next contends that the reference in paragraph 4.3 of the judgment

and sentence to “not hav[ing] contact with the victim & her family” is unconstitutionally

vague. CP at 163.

       The due process vagueness doctrine under the Fourteenth Amendment to the

United States Constitution and article I, section 3 of the Washington Constitution requires

that citizens have fair warning of proscribed conduct. State v. Bahl, 164 Wn.2d 739, 752,

193 P.3d 678 (2008). The same vagueness doctrine that applies to statutes applies to

protection or no-contact orders whose violation could result in criminal penalties. E.g.,

City of Seattle v. May, 171 Wn.2d 847, 855-56, 256 P.3d 1161 (2011). Such an order is

unconstitutionally vague if it is either insufficiently definite such that ordinary people

cannot understand what conduct is proscribed, or if it does not provide ascertainable

standards of guilt to protect against arbitrary enforcement. Bahl, 164 Wn.2d at 752-53.

       The judgment and sentence form completed for Mr. Cutler-Flinn is designed to

identify protected persons by name and date of birth. See CP at 163. It is not clear

whether “family” as used in the court’s identification of “the victim & her family” is

intended to have a broad meaning or a narrow one. CP at 163. But immediately

                                              16
No. 35807-1-III
State v. Cutler-Flinn


following the imprecise identification of the protected persons, the judgment and

sentence form is marked by the trial court to indicate that a separate domestic violence

protection order was filed. The domestic violence no-contact order filed with the

judgment and sentence identifies the protected persons as S.M., by name, and her two

daughters by initials and dates of birth.

       “In deciding whether a term is unconstitutionally vague, the terms are not

considered in a ‘vacuum,’ rather, they are considered in the context in which they are

used.” Bahl, 164 Wn.2d at 754. Where multiple orders were entered and the domestic

violence protection order was explicitly referenced, the protection provision of the

judgment and sentence is not unconstitutionally vague.

       Lifetime no-contact with C.A.M.

       Mr. Cutler-Flinn argues that the lifetime prohibition on contact with his daughter

is unconstitutional and not crime related. Given Mr. Cutler-Flinn’s stated intent to cause

S.M. to miscarry when he struck her on New Year’s Day—when she was pregnant with

C.A.M.—the prohibition is crime-related.

       Because Mr. Cutler-Flinn has a fundamental constitutional right to parent,

however, the sentencing court’s authority to impose conditions that interfere with that

right is subject to limits. “‘Conditions that interfere with fundamental rights’ must be

‘sensitively imposed’ so that they are ‘reasonably necessary to accomplish the essential

needs of the State and public order.’” In re Pers. Restraint of Rainey, 168 Wn.2d 367,

                                            17
No. 35807-1-III
State v. Cutler-Flinn


377, 229 P.3d 686 (2010) (quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940

(2008)). Moreover, the sentencing court’s obligation to sensitively impose a restriction

on a fundamental right “is not satisfied merely because, at some point and for some

duration, the restriction is reasonably necessary to serve the State’s interests. The

restriction’s length must also be reasonably necessary.” Id. at 381.

       When given the opportunity to allocute, Mr. Cutler-Flinn stated that while he did

not want to be a part of S.M.’s life, he did want to be a part of his daughter’s life, stating,

“I can be something. I can be there for my daughter.” RP at 333. The requirements of

Rainey and related cases were not brought to the court’s attention and there is no

indication in the record that the court recognized the limits on its authority and the need

to apply the “reasonably necessary” standard. As the Supreme Court did in Rainey, we

strike the no-contact order as to C.A.M. and remand with directions to reconsider the

parameters of the no-contact order under the “reasonably necessary” standard.

III.   IN LIGHT OF INTERVENING LEGISLATION AND CASE LAW, DISCRETIONARY COSTS
       AND THE CRIMINAL FILING FEE IMPOSED BY THE JUDGMENT AND SENTENCE SHALL
       BE STRUCK

       Mr. Cutler-Flinn next assigns error to the trial court’s failure to conduct an

adequate inquiry into his ability to pay discretionary legal financial obligations (LFOs).

Under RAP 2.5(a), a defendant must object to a trial court’s finding that she or he has the

present and future ability to pay in order to preserve a claim of error. Blazina, 182 Wn.2d

at 830 (“[A] defendant has the obligation to properly preserve a claim of error.”).

                                              18
No. 35807-1-III
State v. Cutler-Flinn


Following the filing of the opening brief, Mr. Cutler-Flinn moved the court to strike the

criminal filing fee imposed at sentencing. He cited amendments to several Washington

statutes dealing with LFOs and State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

       In its later-filed brief, the State concedes that the law has changed since the time of

Mr. Cutler-Flinn’s sentencing and “an order which reflects the current law regarding

financial obligations should be entered.” Br. of Resp’t at 24.

       Statutory amendments dealing with LFOs that were made by Engrossed Second

Substitute House Bill 1783, 65th Leg., Reg. Sess. (Wash. 2018), effective June 7, 2018,

apply prospectively to criminal cases on direct appeal. Ramirez, 191 Wn.2d at 749.

Among those changes were an amendment to former RCW 10.01.160(3) (2015) to

prohibit the imposition of discretionary costs on defendants who are indigent as defined

in RCW 10.101.010(3)(a) through (c), and an amendment to former RCW

36.18.020(2)(h) (2015) that prohibits the imposition of the $200 criminal filing fee on

such defendants.

       Mr. Cutler-Flinn was found to be indigent for appeal purposes, and his declaration

in support of his request for an order of indigency discloses that he has no income, a basis

for indigency under RCW 10.101.010(3)(c). On remand, the discretionary costs and the

criminal filing fee imposed by the judgment and sentence shall be struck.




                                             19
No. 35807-1-III
State v. Cutler-Flinn


IV.    THE EVIDENCE OF PREMEDITATION OFFERED IN SUPPORT OF THE ATTEMPTED FIRST
       DEGREE MURDER CONVICTION WAS SUFFICIENT

       Finally, Mr. Cutler-Flinn contends that in light of the fact that he repeatedly

stopped short of killing S.M., the evidence was sufficient to prove that he terrorized her,

but it was insufficient to prove a premeditated intent to kill her.

       “A claim of insufficiency admits the truth of the State’s evidence and all

inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). Substantial evidence means evidence in the record of a

sufficient quantity to persuade a fair-minded, rational person of the truth of the finding.

State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

       In announcing its verdict, the trial court observed that defense counsel had focused

on whether it was proved that Mr. Cutler-Flinn abducted S.M. with the intent to kill her.

As trier of fact, the court answered the question:

       Of course you did. How do we know that? Because you said so, Mr. Flinn.
       This time, is what you told her. This time you’re gonna die for real. That’s
       a pretty clear statement of intent. The other times were just varying degrees
       of assaultive behavior, but not this time. This one was different. This was
       final. This time you strangled her until you choked her out and she was
       blue and she soiled herself. And I believe at that moment that you thought
       you had killed her. . . .

                It really was, in a true sense of the word, a game of cat and mouse in
       my opinion. . . . Cat pounces on its prey and terrorizes it for awhile before
       it kills it. In this sense, it was a true game of cat and mouse. Sometimes
       the mouse escapes, sometimes the cat gets tired of the game and gets up
       and moves on. But, his intent at the start of the game was nonetheless to
       kill the mouse, as was yours at the start of this abduction.


                                              20
No. 35807-1-111
State v. Cutler-Flinn


RP at 287. This explanation of the court's verdict identifies evidence that was sufficient.

       We vacate the conviction for count 3, otherwise affirm the convictions, strike the

no-contact order as to C.A.M., and remand with directions ( 1) to strike the discretionary

costs and criminal filing fee imposed by the judgment and sentence, and (2) reconsider

the parameters of any no-contact order protecting C.A.M. under the ''reasonably

necessary" standard.

       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.




WE CONCUR:




                                            21
