                                                                                                                                      FILED
                                                                                                                           COURT OF APPEALS
                                                                                                                                DIVISION 11
                                                     2015 JUN 23                                                                              All 8: 30
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
                                                                                                                                       WM ,       GI0
                                                           DIVISION II


    STATE OF WASHINGTON,                                                                         No. 45498 -0 -II


                                              Respondent,


            v.



    LANCE LARSON,                                                                      UNPUBLISHED OPINION


                                              Appellant.




          SUTTON, J. -             Lance Larson appeals his conviction for possession of a controlled

                                                     2
substance,'       bail   jumping       conviction,       and   his   concurrent sentences of          12   months and      1   day.   He


argues    that ( 1)      there is insufficient       evidence        to    support   the   possession      conviction, (   2) the bail


jumping charge did not adequately notify him of the essential elements of the charge and the jury

instruction       on   bail   jumping    is   erroneous, (     3) he received ineffective assistance of counsel, and ( 4)


the trial   court erred
                               by imposing       legal financial          obligations (    LFOs). The State concedes that the


jury   demand fee         was excessive and              that the    expert witness        fee   should   be   stricken.   We affirm


Larson' s convictions, but because the trial court did not consider Larson' s financial circumstances


and his ability to pay the discretionary LFOs, we remand for a new sentencing hearing to reassess

Larson'     s   financial     circumstances and          his ability to pay     discretionary LFOs;         we also strike     the $ 100



expert witness fee.




    RCW 69. 50. 4013.

2
    RCW 9A. 76. 170( 3)(         c).
No. 45498 -0 -II



                                                               FACTS


         On January 7, 2013, detectives from the Kitsap County Sheriff' s Office served a search

warrant on a property in Poulsbo, Washington. They detained several people, including Larson,

and placed        him in   a patrol vehicle at         the   scene.       After advising him of his rights, the detectives

asked Larson where he lived; he stated that he lived with his girlfriend in the trailer at the front of

the property.          They asked Larson when he last used methamphetamine, he said that he last used

methamphetamine on New Year' s Eve; he also told the detectives that he was on Department of

Corrections ( DOC) supervision and that he recently went to jail for several days after a positive

urinalysis for methamphetamine. Larson also said that there might be a methamphetamine pipe in

his bedroom.


         A detective           entered   Larson' s bedroom         and      located    a "   glass methamphetamine smoking


pipe"   in   a   box   next    to Larson' s   bed. Verbatim Report              of   Proceedings ( VRP)   at   140 -41.   The box


also contained pay stubs, social security stubs, and other personal documents belonging to Larson.

A Washington State Patrol Crime Lab analysis of the smoking pipe found it contained

methamphetamine residue.




         The State charged Larson with possession of a controlled substance ( methamphetamine).


At his March 26, 2013 arraignment, at which Larson was present, the trial court scheduled a


hearing for May           14.    The trial court advised Larson that his " next mandatory court appearance

 was]
        May       14,"   and   Larson    responded, "    Okay.     Thank      you."     VRP at 304. Larson failed to appear

on   May     14   and    the trial court      issued   a warrant      for his   arrest.      The State then amended Larson' s


charges to add one count of felony bail jumping, RCW 9A.76. 170( 3)( c).




                                                                      2
No. 45498 -0 -II




          Larson testified at trial and explained that, in December 2012 and January 2013, DOC

supervised      him    and     subjected   him to    random      urinalysis    tests.     He testified that he smoked


methamphetamine on New Year' s Eve of 2012 and that on January 4, 2013 his urinalysis tested

positive for methamphetamine.


          After the defense rested, defense counsel moved to suppress Larson' s admission that he


had smoked methamphetamine on New Year' s Eve and possessed methamphetamine up to his

arrest on January 7, arguing that no other corroborating evidence existed to prove the corpus

delicti- possession      of a controlled substance.        The trial court disagreed and explained that Larson


testified that he had used methamphetamine on New Year' s Eve and that, even without this in-

court    testimony,     circumstantial      evidence,     such as the positive urinalysis test, independently

corroborated the State' s controlled possession charge.

          Larson' s counsel asked the trial court to define the two instances of possession in the jury

instruction for ( 1) the New Year' s Eve incident, and ( 2) the methamphetamine pipe that officers


found    on   January    7.    The trial court agreed and included jury instruction 9, which provided that

the     State   must     prove "     one     particular    act       of   Possession      of   a   Controlled   Substance


Methamphetamine ...             beyond a reasonable doubt, and [ that the jury] must unanimously agree as

to which      act   has been   proved,"    but that the jury need not agree that Larson committed all the acts

of possession. VRP at 410; Suppl. Clerk' s Papers ( Suppl. CP) at 50. Larson did not object to the

trial court' s jury instructions 12 and 13, which provided the definition of bail jumping and the " to

convict" instruction for bail jumping, respectively. Suppl. CP at 53 -54.

          The   jury    convicted   Larson     of   both the   possession and      bail   jumping    charges.   By special

verdict, jurors did not unanimously agree that Larson possessed the methamphetamine pipe and



                                                                 3
No. 45498 -0 -II




residual methamphetamine found in his home but did unanimously agree that he possessed

methamphetamine on or between December 31, 2012 and January 1, 2013.

       The trial court sentenced Larson to standard range sentences of 12 months and 1 day of

confinement for count I and count II, to be served concurrently. Over Larson' s objection, the trial

court ordered Larson to pay a " jury demand fee" of $1, 439. 74. VRP at 514, 526. In its judgment

and sentence,   the trial court also imposed $ 1,   135. 00 in attorney fees, a $ 100. 00 contribution to the

Kitsap County      Expert Witness Fund,   and a $    500. 00 contribution to the Kitsap County Sheriff' s

Office. The trial court entered a finding that Larson had the present or future ability to pay these

LFOs. Larson did not object to this finding or present evidence regarding his financial condition.

Larson appeals.


                                               ANALYSIS


                                    I. SUFFICIENCY OF THE EVIDENCE


        Larson argues ( 1) that his admission that he smoked methamphetamine on New Year' s Eve


is not sufficient evidence, without corroboration, to prove the possession charge beyond a

reasonable doubt, and ( 2) that, even if the fact finder relied on his admission and positive urinalysis


as circumstantial evidence that he physically held the methamphetamine pipe at a party on New

Year' s Eve, that evidence is insufficient to convict him because his possession was merely

 momentary, passing      control of a controlled substance."     Br. of Appellant at 10. We disagree and


hold that sufficient evidence supports Larson' s possession conviction.


        A challenge to the sufficiency of the evidence admits the truth of the State' s evidence, and

we   draw   all reasonable   inferences from the    evidence   in favor   of   the State.   State v. Harrington,


181 Wn.     App.   805, 816, 333 P. 3d 410,   review   denied, 337 P. 3d 326 ( 2014); State v. Wentz, 149




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No. 45498 -0 -II




Wn. 2d 342, 347, 68 P. 3d 282 ( 2003).                Circumstantial evidence and direct evidence are considered


equally reliable when weighing the sufficiency of the evidence. State v. Thomas, 150 Wn.2d 821,

874, 83 P. 3d 970 ( 2004); State            v.   A. T.P. -R, 132 Wn.         App.   181, 184 -85, 130 P. 3d 877 ( 2006). We


leave credibility determinations for the trier                   of   fact   and   do   not review   them   on appeal.     State v.


Lawson, 185 Wn.           App.   349, 354, 340 P. 3d 979 ( 2014).             The relevant inquiry, therefore, is whether,

after "`   viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could      have found the        essential       elements   of   the      crime    beyond   a reasonable     doubt. '      State v.


Vasquez, 178 Wn.2d 1, 6, 309 P. 3d 318 ( 2013) (                      quoting State v. Bencivenga, 137 Wn.2d 703, 706,

974 P. 2d 832 ( 1999)).          The jury did not find Larson guilty of possessing the methamphetamine in

his bedroom on January 7 at the time of his arrest, but convicted him of possession on New Year' s

Eve.


           To determine if Larson possessed the methamphetamine, we look at the totality of the

circumstances to determine whether it supports a reasonable inference that he had dominion and


control over      the items. State     v.   George, 146 Wn.            App.   906, 920, 193 P. 3d 693 ( 2008). Possession


and control need not be exclusive nor of great duration, and the quantity that he possessed is not

relevant.     George, 146 Wn. App. at 920; State v. Chavez, 138 Wn. App. 29, 34, 156 P. 3d 246

 2007).


           Neither ingestion of nor the presence of a controlled substance in a person' s body alone is

sufficient to prove possession of the substance, A. T.P. -R, 132 Wn. App. at 185, nor is momentary

handling     or   passing   control of a controlled substance sufficient                    to   establish possession. ,   George,


146 Wn.       App.   at   920.    And. Washington courts have held that either admitting to ingesting a

controlled substance, or having a positive urinalysis, independently may not be sufficient to sustain



                                                                      5
No. 45498 -0 -II




a possession conviction;          but "[ w] hen    combined with other      corroborating   evidence, ...    assimilation




of [a controlled substance] can           be   sufficient   to   prove possession."   A. T.P. -R, 132 Wn. App. at 185

possession of alcohol) ( citing           State   v.   Dalton, 72 Wn.   App. 674,   676, 865 P. 2d 575 ( 1994)). Thus,


a positive urinalysis test can be considered circumstantial evidence of possession of a controlled


substance. Dalton, 72 Wn. App. at 676.

        Here, on January 7, Larson told the arresting officer that he ingested methamphetamine, he

testified       in     court    that    he     ingested      methamphetamine,         his   urinalysis      test   showed




methamphetamines, and officers found a methamphetamine pipe next to Larson' s bed, in a box

with Larson' s possessions. Because we draw all reasonable inferences from the evidence in favor

of the State, we hold that sufficient evidence supports Larson' s conviction for possession of


methamphetamine. Harrington, 181 Wn. App. at 816.

                                        II. EFFECTIVE ASSISTANCE OF COUNSEL


        Larson argues that he received ineffective assistance of counsel because, under the corpus


delicti rule, counsel failed to move pretrial to suppress Larson' s inculpatory statement that he

possessed methamphetamine on                 December 31.         We disagree.


         Ineffective assistance of counsel is an issue of constitutional magnitude that an appellant


can raise   for the first time         on appeal.      State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009);


RAP 2. 5(   a).      To establish ineffective assistance of counsel, the defendant must establish that his


attorney'   s   deficient      performance      prejudiced       the defendant.. Kyllo,     166 Wn.2d at 862 ( citing

Strickland      v.    Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v.


Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996)).                    Counsel' s performance is deficient if,


based   on all       the   circumstances,    it falls "' below    an objective standard of reasonableness "' and      if it
No. 45498 -0 -II



cannot "      be   characterized     as   legitimate trial strategy       or   tactics."    Kyllo, 166 Wn.2d at 862 -63


 quoting State        v.    McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995));                         U. S. CONST.


amend.       VI.   To show prejudice, the defendant must " prove that there is a reasonable probability

that, but for counsel' s deficient performance, the outcome of the proceedings would have been

different." Kyllo, 166 Wn.2d at 862.


             Larson argues that his counsel failed to move to suppress Larson' s admission that he

possessed methamphetamine                 on   December 31        under   the corpus delicti       rule. "'   Corpus delicti'


means ` body of the crime' and [ the rule] prevents convictions for crimes that never occurred."

State   v.   Dow, 168 Wn.2d 243, 247             n.   1, 227 P. 3d 1278 ( 2010) (       quoting State v. Aten, 130 Wn.2d

640, 655, 927 P. 2d 210 ( 1996)).              The "` purpose of the corpus delicti rule is to protect a defendant


from    an unjust conviction          based    on a    false   confession alone.'          State v. Hendrickson, 140 Wn.


App.    913, 921, 168 P. 3d 421 ( 2007) (             quoting State v. Rooks, 130 Wn. App. 787, 802, 125 P. 3d

192 ( 2005)); see also Dow, 168 Wn.2d at 249.


             The corpus delicti rule requires suppression of an inculpatory statement to the police if it

is not corroborated by independent evidence. See State v. Whalen, 131 Wn. App. 58, 62, 126 P. 3d

55 ( 2005).        But the rule only applies to extrajudicial statements, such as Larson' s statements to

arresting detectives that he used methamphetamine on New Year' s Eve, not to his in -court

testimony of the same. See State v. C.M.C., 110 Wn. App. 285, 288, 40 P. 3d 690 ( 2002).

             Because the trial court did not err in denying Larson' s corpus delicti argument, and because

evidence in addition to Larson' s testimony corroborated his statements to police, counsel' s failure

to   raise   the   losing   motion pretrial     did   not   fall "' below an objective standard of reasonableness. '


Kyllo, 166 Wn.2d            at   862 ( quoting McFarland, 127 Wn.2d             at   334 -35).   And because the trial   court
No. 45498 -0 -II




stated that the positive urinalysis test was corroborating evidence, the timing of counsel' s corpus

delicti argument was unlikely to have any effect on the trial court' s ruling. Because Larson fails

to show prejudice, or that a pretrial motion to suppress would have affected the trial' s outcome,


we reject his ineffective assistance argument.


                                           III. BAIL JUMPING


          Larson argues that his bail jumping conviction violated due process because the trial court' s

    to convict" jury instruction 133 relieved the State of its burden to prove each element of the

charged offense beyond a reasonable doubt, and the information violated his right to adequate


notice as to the bail jumping charge. Because the court' s instructions included all elements of the

offense, we reject his argument.




3
    Jury instruction 13 read as follows:
                   To convict the defendant of the crime of Bail Jumping as charged in Count
          II, each of the following elements of the crime must be proved beyond a reasonable
          doubt—
           1)   That on or about May 14, 2013, the defendant failed to appear before a court;
           2)   That the defendant was charged with a class B or class C felony;
           3)   That the defendant had been released by court order with knowledge of the
          requirement of a subsequent personal appearance before that court; and
           4) That the acts occurred in the State of Washington..
                   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.
                On the other hand, .if, after weighing all of the evidence, you have a
          reasonable doubt as to any one of these elements, then it will be your duty to return
          a verdict of not guilty.
Suppl. CP at 54.

          Jury Instruction 12 read as follows:
                 A person commits the crime of Bail Jumping when he or she fails to appear
          as required after having been released by court order with knowledge of the
          requirement of a subsequent personal appearance before a court in which the person
          was charged with a class B or class C felony.
Suppl. CP at 53.




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No. 45498 -0 -II



                                                      A. " To Convict" Instruction


            We        review alleged constitutional violations                     de   novo.    State v. Zillyette, 178 Wn.2d 153,


158, 307 P. 3d 712 ( 2013).                   An appellant may raise for the first time on review a manifest error

affecting        a    constitutional         right.       RAP 2. 5(   a)(   3).    We also review jury instructions de novo.

Anfinson         v.   FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P. 3d 289( 2012).


             A trial court' s failure to instruct the jury as to every element of the crime charged violates

due     process."            State    v.   Hassan, 184 Wn.            App.        140, 148, 336 P. 3d 99 ( 2014); U. S. CONST.

                                                                                                                                               4
amend.       XIV. A "` to             convict [    jury]    instruction      must contain all of          the elements of the      crime, "'




and '    must make            the    relevant     legal   standard   manifestly         apparent   to the   average   juror.'     Kyllo, 166


Wn.2d at 864 ( quoting State v. Walden, 131 Wn.2d 469, 473, 932 P. 2d 1237 ( 1997)).
                                                                      5
            To       convict a person         for bail     jumping,       the State     must prove    that the     person "`(    1) was held


for,   charged with, or convicted of a particular crime, (                              2) was released by court order or admitted

to   bail   with       the   requirement of a subsequent personal appearance, and, (                              3) knowingly failed to

appear as required.                  State   v.   Williams, 162 Wn.2d 177, 183 - 84, 170 P. 3d 30 ( 2007) ( quoting                    State

v.   Pope, 100 Wn.              App.       624, 627, 999 P. 2d 51 ( 2000)).                Larson argues that jury instruction 13

relieved the State of its burden to prove the element that Larson failed to appear at the hearing " as

required."            Br. of Appellant at 17.


            But instruction 13, which mirrors the " to convict" instruction in 11A Washington Practice:


Washington Pattern                  Jury   Instructions:       Criminal 120. 41,          at   177 ( 3d   ed.   2008) ( WPIC), states that




4
    State   v.   Johnson, 180 Wn.2d 295, 306, 325 P. 3d 135 ( 2014) ( alteration in                               original) (   quoting State
v. Sibert, 168 Wn.2d 306, 311, 230 P. 3d 142 ( 2010)).


5 RCW 9A.76. 170.


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No. 45498 -0 -II




the State must prove that Larson failed to appear and that he " had been released by court order

with   knowledge of the     requirement of a subsequent personal appearance                             before that    court."   Suppl.


CP   at   54 (   emphasis added).            And instruction 12, which mirrors the definition of bail jumping in

WPIC 120. 40, states that a person commits the crime of bail jumping only when he or she " fails

to appear as required after having been released by court order with knowledge of the requirement

of a subsequent personal appearance."                      Suppl. CP     at   53 (   emphasis        added).   Both instructions 12


and 13 include language requiring the defendant to appear; accordingly, we reject Larson' s

arguments and hold that the court' s instructions were sufficient to adequately inform the jury of

the elements of bail jumping.

                                                      B.   Charging Document

           Larson argues, for the first time on appeal, that his charging document failed to provide

him with adequate notice of the bail jumping charge against him and violated the United States

Constitution       amendment     VI          and   Washington Constitution            article   I,   section   22.   We hold that the


charging documents included all of the essential elements of the offense.

           We     review a challenge          to the sufficiency       of a   charging document de             novo.    Williams, 162


Wn.2d      at    182. A charging document              must allege "` [ a] l1 essential elements of a crime, "'              statutory


or otherwise, to provide a defendant with sufficient notice of the nature and cause of the accusation


against him. Zillyette, 178 Wn.2d at 158 ( quoting State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P. 2d

86 ( 1991); U. S. CONST.         amend.            VI; WASH. CONST.       art.   I, § 22).      To satisfy this requirement, the

information        must allege (      1) "    every element       of   the    charged offense"           and (   2) " particular facts


supporting them."        State   v.   Nonog, 169           Wn.2d 220, 226, 237 P. 3d 250 ( 2010); see State v. Simms,


171 Wn.2d 244, 250, 250 P. 3d 107 ( 2011).                      When a defendant challenges a charging document' s



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No. 45498 -0 -II




sufficiency for the first time on appeal, we construe the document liberally in favor of validity.

Zillyette, 178 Wn.2d at 161.


             Larson argues that the charging document omitted the essential element that he had failed

to   appear " as required."           Br.     of   Appellant       at   19.    The charging document included the following

language: "           On   or about   May       14, 2013 ...            Defendant, having been released by court order or

admitted to bail with knowledge of the requirement of a subsequent personal appearance before a

court of       this   state ...     did fail to      appear."           CP     at   2.   And the   phrase "   with knowledge of the


requirement of a subsequent personal appearance" provided Larson with adequate notice that he

was required          to personally      appear.         CP   at   2.   This language not only matches the language in the

bail   jumping         offense    statute,     RCW 9A. 76. 170( 1),                 but also matches the language in other bail


jumping convictions where the statutory language adequately provided the elements of the crime.

See,   e.
            g., State   v.   Fredrick, 123 Wn.           App.      347, 352, 97 P. 3d 47 ( 2004);        see also State v. Downing,

122 Wn.        App.        185, 192 -93, 93 P. 3d 900 ( 2004).                      And because we must construe the document


liberally in favor of validity, we reject Larson' s challenge to the validity of his bail jumping

conviction. Zillyette; 178 Wn.2d at 161.


                                              IV. LEGAL FINANCIAL OBLIGATIONS


             Larson     argues    that the trial     court erred        in ordering Larson to pay        various   LFOs. He argues


that ( 1) these fees are not authorized under RCW 9. 94A.760 and RCW 10. 01. 160, and cannot be


imposed without a court first determining whether he had the " ability or likely future ability" to

pay them, Br.           of   Appellant   at   26, ( 2)   imposing the cost of his court- appointed attorney violates the

United States Constitution,                 amendments             VI   and     XIV, (3)    the jury demand fee exceeds what is

authorized       in RCW 36. 18. 016( 3)( b),             and ( 4) a $         100 expert witness fee is not appropriate when the




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No. 45498 -0 -II




State did not call an expert at trial. The State argues that he waived these issues by not objecting

at trial. But the State concedes that the jury demand fee is limited to $250 in RCW 36. 18. 016, and

concedes    that we should        strike   the $       100 expert witness fee imposed on Larson because the State


did not have to pay for an expert to appear at trial. Because the trial court did not consider Larson' s

financial circumstances and his ability to pay discretionary LFOs, we remand for a new sentencing

hearing in order for the court to conduct an individualized inquiry to determine Larson' s ability to

pay LFOs,     and we strike       the $   100 expert witness fee.


          If the trial court enters a finding in the judgment and sentence, we review it under the

clearly   erroneous standard.            State   v.    Lundy,   176 Wn.       App.     96, 105, 308 P. 3d 755 ( 2013).          Clear


error exists when review of the record leads to a definite conclusion that a mistake was committed.


Lundy, 176 Wn. App. at 105.

          Larson'   s   LFOs     consisted of $1,         135. 00 in attorney fees,           a $   1, 439. 74 jury demand fee, a

 100. 00   expert witness        fund fee,       a $   100. 00 deoxyribonucleic acid ( DNA) testing fee, a $ 200. 00

court   filing   fee,    a $   500. 00    crime       victim    assessment      fee,    a $   1, 000.00 drug crime fee under

RCW       69. 50. 430,     and    a $    500. 00 fee paid to the Kitsap County Sheriff' s Office under

RCW 9. 94A.760.           Crime victim assessments, DNA fees, drug crime fees, and criminal filing fees

are mandatory LFOs and the court lacks discretion to consider a defendant' s ability to pay when

imposing    them.       Lundy,    176 Wn.        App.    at   102; RCW 69. 50. 430. To the extent that the trial court


imposed mandatory LFOs, we find no error in Larson' s sentence.

          This leaves the $ 1, 135. 00 in attorney fees,                a $   1, 439. 74   jury demand     fee,   a $   100. 00 expert


witness fee, and a $ 500. 00 fee paid to the Kitsap County Sheriffs Office. These are discretionary




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No. 45498 -0 -II



LFOs that may be unposed              by    a court.   See State v. Curry, 118 Wn.2d 911, 916, 829 P. 2d 166

 1992).


          Larson did    not object *below         to the trial   court' s   imposition   of   discretionary   LFOs. "   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.

          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


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."   Lundy, 176 Wn. App. at 102.

          But as to the discretionary LFOs, 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.




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No. 45498 -0 -II




        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   839.   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 the     inquiry. 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
                 such as incarceration and a defendant' s other debts, including restitution,
        factors ...
        when determining a defendant' s ability to pay.

Blazina, 182 Wn.2d at 838.


        And     although    the   State   concedes   that the    jury demand fee is limited          to $ 250     in


RCW 36. 18. 016, this is also a discretionary fee that "may be imposed" upon a criminal defendant.

RCW 36. 18. 016( 3)( b).     Accordingly,     the attorney fees, the      jury   demand fee,   and $   500 Kitsap

County Sheriff' s Office fee are discretionary LFOs for which the sentencing court was required to

consider Larson' s financial circumstances and his ability to pay. We agree with the State that we

should strike   the $   100 expert witness fee because the State did not have to pay for an expert to

appear at trial.


        Larson fails to show that ( 1) the State presented insufficient evidence to convict him of

possession of a controlled substance, (      2) he   received   ineffective    assistance of counsel, (   3) his bail


jumping conviction violated his constitutional rights, and ( 4) the trial court erred in imposing




                                                        14
No. 45498 -0 -II




mandatory LFOs. We affirm Larson' s convictions, but because the trial court did not consider

Larson' s financial circumstances, we remand for a new sentencing hearing to reassess Larson' s

financial   circumstances and   his ability to pay   discretionary LFOs   and we strike   the $ 100 expert


witness fee.


        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.




 We concur:




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