                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           July 31, 2018


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49871-5-II

                         Respondent,

         v.

 PURCELL DEVOIR TOSTON, JR.,                                  UNPUBLISHED OPINION

                         Appellant.


        SUTTON J. — Purcell D. Toston, Jr. appeals his conviction for second degree assault. He

argues that the trial court erred by instructing the jury as to the common, dictionary definition of

fracture and erred by refusing to instruct the jury on the lesser included offense of fourth degree

assault. And he argues that there was insufficient evidence to support the jury’s verdict. Finally,

Toston argues that the trial court imposed an unconstitutionally vague community custody

condition requiring that he comply with additional conditions imposed by the Department of

Corrections through his community corrections officer (CCO), and Toston argues that the trial

court erred by imposing discretionary legal financial obligations (LFOs) without adequately

inquiring into his ability to pay.

        The trial court did not err by giving an instruction on the common, dictionary definition of

fracture or by refusing to give the lesser included offense instruction, and there was sufficient

evidence to support the jury’s verdict. And we decline to address Toston’s vagueness challenge

because it is not ripe. But the trial court erred by imposing discretionary LFOs without conducting
No. 49871-5-II


an adequate inquiry into Toston’s ability to pay. Accordingly, we affirm Toston’s conviction, but

we reverse the trial court’s imposition of the discretionary LFO’s and we remand for the trial court

to make an adequate inquiry before imposing discretionary LFOs.

                                                FACTS

         The State charged Toston with one count of second degree assault against Geovanny

Blanco. Toston’s jury trial was held on October 31, 2016.

         Blanco testified that he and Toston were both patients at American Behavioral Health

Systems. On September 3, 2016, Toston punched Blanco in the face. Blanco suffered a chipped

tooth.

         Toston proposed jury instructions for the lesser included offense of fourth degree assault.

The State objected and argued that there was no evidence that Toston committed only fourth degree

assault. In response, the following exchange took place:

         [COURT]: The question is, even though whether there was a fracture or not is a
         jury question, where is the evidence to support that only assault in the fourth degree
         was committed? In other words, where is the evidence that this was not a fracture
         or this was not a bodily part, whichever way you choose to argue it?
         [DEFENSE COUNSEL]: I’d concede, Your Honor, there is none.

Verbatim Report of Proceedings (VRP) at 144-45.

         The State also proposed a jury instruction defining “fracture” for the purposes of substantial

bodily harm. The instruction stated,

         Fracture means: the act or process of breaking or the state of being broken; the
         breaking of hard tissue; the rupture (as by tearing) of soft tissue.

Clerk’s Papers (CP) at 40. Toston objected to the instruction. The trial court ruled,

                I know this is different, but the pattern instructions do not say, okay, you
         can use these and only these. So the question is, then, is it a correct definition


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No. 49871-5-II


       legally, and it looks like it; and (2) is it factually supported. And then I guess the
       third is would it be helpful to the jury? And I think I’d answer all three of those
       questions “yes.”

VRP at 139. The trial court gave the State’s proposed definition of fracture.

       The jury found Toston guilty of second degree assault. The trial court imposed a standard

range sentence. The trial court also imposed mandatory and discretionary LFOs. Before imposing

discretionary LFOs, the trial court questioned the defendant about his ability to pay:

       [COURT]: That actually wasn’t my question. My question is whether you have the
       ability to pay this, or is there something about you physically, mentally, emotionally
       or financially or anything else.
       [TOSTON]: All of it, no.

VRP at 184. The trial court also imposed “[o]ther conditions: as ordered by CCO.” CP at 56.

Toston appeals.

                                           ANALYSIS

                                      I. JURY INSTRUCTIONS

       Toston argues that the jury instruction defining fracture was an impermissible judicial

comment on the evidence. And Toston argues that the trial court erred by refusing to give his

proposed instructions on the lesser included offense of fourth degree assault. We disagree.

A DEFINITION OF FRACTURE

       We review constitutional issues de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P.3d

1055 (2010). Article IV, section 16 of the Washington State Constitution prohibits trial judges

from commenting on the evidence presented at trial. State v. Deal, 128 Wn.2d 693, 703, 911 P.2d

996 (1996). An impermissible comment on the evidence is one that conveys the judge’s attitude

on the merits of the case or permits the jury to infer whether the judge believed or disbelieved



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No. 49871-5-II


certain testimony. Deal, 128 Wn.2d at 703. But a jury instruction that does no more than

accurately state the law is not an impermissible comment on the evidence. State v. Woods, 143

Wn.2d 561, 591, 23 P.3d 1046 (2001).

       The trial court does not err by giving an instruction that is accurate and merely supplements

and clarifies statutory language. State v. Atkinson, 113 Wn. App. 661, 667-68, 54 P.3d 702 (2002)

(the trial court did not err by instructing the jury on the dictionary definition of disfigurement).

Here, the trial court used the dictionary definition of “fracture” for the jury instruction. CP at 40;;

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 901 (3rd ed. 2002). Therefore, whether the

trial court properly gave the instruction depends on whether the legislature intended the term

fracture to be given its common, dictionary definition.

       We review questions of statutory interpretation de novo. State v. Landsiedel, 165 Wn.

App. 886, 890, 269 P.3d 347 (2012). Our primary duty in statutory interpretation is to ascertain

and carry out legislative intent. Landsiedel, 165 Wn. App. at 890. “Statutory interpretation begins

with the statute’s plain meaning.” Landsiedel, 165 Wn. App. at 890. When the plain language of

the statute is unambiguous, the legislative intent is apparent and we will not construe the statute

otherwise. Landsiedel, 165 Wn. App. at 890.

       When a term used in a statute is not defined, we may rely on the ordinary meaning of the

term from the dictionary. State v. Edwards, 84 Wn. App. 5, 10, 924 P.2d 397 (1996). However,

“[w]hen a technical term is used in its technical field, the term should be given its technical

meaning by using a technical rather than a general purpose dictionary to resolve the term’s

definition.” State v. Torres, 198 Wn. App. 864, 884, 397 P.3d 900, review denied, 189 Wn.2d

1022 (2017).



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No. 49871-5-II


         To prove second degree assault, the State must prove that a person assaulted another and

recklessly inflicted substantial bodily harm. RCW 9A.36.021. “‘Substantial bodily harm’”

includes bodily injury “which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b). The

Washington Criminal Code does not define the term fracture.

         Toston argues that because the term fracture has a technical, medical definition that the

term should have been given its technical, rather than its dictionary definition. However, in the

Washington Criminal Code, fracture is not being used in the technical field. Toston relies on Gorre

v. City of Tacoma, 184 Wn.2d 30, 357 P.3d 625 (2015), but Gorre interpreted medical terms based

on the medical definition within the context of the Industrial Insurance Act (IIA)1. 184 Wn.2d at

37-38. The IIA is a technical statutory scheme providing comprehensive benefits for workplace

related injuries. Ch. 51.32 RCW. Therefore, the IIA applies within the technical field of medicine.

Similarly, in State v. Torres, Division Three of this court applied a technical railway definition of

operating mechanism to chapter 81.60 RCW regarding Railroad Police and Regulations. 198 Wn.

App. at 884. There, the term was being used specifically in the technical field of railroad

regulation.

         Since at least 1984, it has been established that when terms are undefined in the criminal

code, juries will rely on their common sense and common experience to interpret and apply those

terms. State v. Welker, 37 Wn. App. 628, 638 n.2, 683 P.2d 1110 (1984). We presume that the

legislature is familiar with judicial interpretations of statutes. State v. Ervin, 169 Wn.2d 815, 825,

239 P.3d 354 (2010). Therefore, if the legislature had intended a specific, technical interpretation




1
    Title 51 RCW.


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No. 49871-5-II


of a term in the criminal code, rather than a common sense definition, it could have specifically

included that definition. Because the legislature chose not to do so, we apply the common,

dictionary definition of fracture as an expression of legislative intent.

         Because the common, dictionary definition of fracture is the appropriate expression of

legislative intent, the trial court’s instruction defining fracture was accurate. And because the jury

instruction did no more than provide the jury with an accurate definition of a term to supplement

and clarify the statutory language, the jury instruction was not an improper judicial comment on

the evidence. Accordingly, the jury instruction was proper and the trial court did not err by giving

it.

B. LESSER INCLUDED OFFENSE

         A party is entitled to a jury instruction on a lesser included offense if (1) the elements of

the lesser included offense are a necessary element of the charged crime and (2) the evidence

supports an inference that the lesser included offense was committed. State v. Workman, 90 Wn.2d

443, 447-48, 584 P.2d 382 (1978). Here, the first prong of the Workman test, the legal prong, is

satisfied because the elements of fourth degree assault are necessary elements of second degree

assault. RCW 9A.36.041; RCW 9A.36.021. Accordingly, the issue is whether the evidence

supported giving instructions for fourth degree assault under the second, factual, prong. See State

v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997).

         We review the trial court’s decision on the second prong of the Workman test for an abuse

of discretion. State v. Chambers, 197 Wn. App. 96, 120, 387 P.3d 1108 (2016). Under the second

prong,




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No. 49871-5-II


       the court asks whether the evidence presented in the case supports an inference that
       only the lesser offense was committed, to the exclusion of the greater, charged
       offense. The evidence must affirmatively establish the commission of the lesser
       offense; it is not enough that the jury might disbelieve the evidence pointing to
       guilt. If a jury could rationally find a defendant guilty of the lesser offense and not
       the greater offense, the jury must be instructed on the lesser offense. In determining
       whether the evidence supports an inference that the lesser crime was committed,
       we review the evidence in the light most favorable to the party requesting the
       instruction.

Chambers, 197 Wn. App. at 120 (citations omitted) (internal quotation marks omitted). A person

is guilty of fourth degree assault if he or she assaults another under circumstances not amounting

to first, second, or third degree assault or custodial assault. RCW 9A.36.041.

       As explained above, the trial court properly defined “[f]racture” as “the act or process of

breaking or the state of being broken; the breaking of hard tissue; the rupture (as by tearing) of soft

tissue.” CP at 40. And it is undisputed that Toston broke Blanco’s tooth when he punched Blanco

in the face. Therefore, there is no evidence that fourth degree assault—an assault that does not

result in substantial bodily harm—was committed. Because there is no evidence that only fourth

degree assault was committed, Toston was not entitled to jury instructions on the lesser included

offense of fourth degree assault as a lesser included offense. Accordingly, the trial court did not

err by refusing to instruct the jury on the lesser included offense of fourth degree asssault.

                                 II. SUFFICIENCY OF THE EVIDENCE

       Toston argues that the evidence was insufficient to support the jury’s verdict because the

State failed to present sufficient evidence of substantial bodily harm. We disagree.

       Evidence is sufficient to support a conviction if, viewing the evidence in the light most

favorable to the State, any rational trier of fact can find the essential elements of the crime beyond

a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable



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No. 49871-5-II


inferences from the evidence are drawn in favor of the State and interpreted most strongly against

the defendant. Salinas, 119 Wn.2d at 201. A claim of insufficiency of the evidence “admits the

truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas,

119 Wn.2d at 201.

       A person is guilty of second degree assault if he or she intentionally assaults another and

recklessly inflicts substantial bodily harm. RCW 9A.36.021. “‘Substantial bodily harm’” means

(1) bodily injury which involves a temporary but substantial disfigurement, (2) bodily injury which

causes a temporary but substantial loss or impairment of the function of any bodily part or organ,

or (3) bodily injury which causes a fracture of any bodily part. RCW 9A.04.110(4)(b). As

explained above, the trial court properly defined “[f]racture” as “the act or process of breaking or

the state of being broken; the breaking of hard tissue; the rupture (as by tearing) of soft tissue.”

CP at 40. And instructed that an “assault” is an “intentional touching or striking of another person

that is harmful or offensive.” CP at 38.

       Here, the State presented sufficient evidence to prove Blanco suffered a fracture because

Blanco testified that Toston’s punch broke his tooth. And the State presented sufficient evidence

of assault because Toston’s punch was an intentional striking of Blanco that caused him substantial

bodily harm. Therefore, the State presented sufficient evidence to support the jury’s verdict

finding Toston guilty of second degree assault.

                              III. COMMUNITY CUSTODY CONDITION

       Toston argues that the community custody condition requiring compliance with additional

conditions imposed by the Department of Corrections through his CCO is unconstitutionally




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No. 49871-5-II


vague. The State argues that Toston’s pre-enforcement challenge to a community custody

condition is not ripe for review. We decline to review Toston’s challenge because it is not ripe.

       A pre-enforcement challenge to a community custody provision must be ripe for review.

State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015). The challenge is ripe “‘if the issues

raised are primarily legal, do not require further factual development, and the challenged action is

final.’” Cates, 183 Wn.2d at 534 (internal quotation marks omitted) (quoting State v. Sanchez

Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). In addition, we consider the hardship to

the appellant if we refuse to review the challenge on direct appeal. Cates, 183 Wn.2d at 534.

       Here, the issue raised by Toston is primarily legal because we review constitutional

vagueness challenges de novo. See Vance, 168 Wn.2d at 759. The challenged action also does

not require additional factual development because Toston is arguing that the provision is void for

vagueness on its face. And, the challenged action is final. However, there is no hardship to the

appellant if we refuse to review the challenge on direct appeal.

       Toston is not under any restraint from the current community custody condition.

Conditions that impose hardship on appellants “‘immediately restrict the petitioner[’s] conduct

upon their release from prison.’” Cates, 183 Wn.2d at 536 (quoting Sanchez Valencia, 169 Wn.2d

at 791). Here, there is no restriction on Toston’s conduct unless or until his CCO imposes

additional conditions upon him. And Toston will not even have an assigned CCO until after his

release from prison. Therefore, the challenged condition does not impose any hardship on Toston.

We decline to review Toston’s pre-enforcement challenge to the community custody condition.




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No. 49871-5-II


                                     IV. DISCRETIONARY LFOS

        Toston argues that the trial court erred by failing to conduct an adequate inquiry into his

ability to pay the discretionary LFOs. The State concedes that the trial court’s inquiry was

inadequate. We accept the State’s concession. Therefore, we reverse the trial court’s imposition

of the discretionary LFOs, and we remand to the trial court for an adequate inquiry into Toston’s

ability to pay discretionary LFOs.

        RCW 10.01.160(3) and State v. Blazina, 182 Wn.2d 827, 837-38, 344 P.3d 680 (2015),

require that the trial court engage in an individualized inquiry into a defendant’s ability to pay

before imposing discretionary LFOs. The trial court’s inquiry should consider “important factors”

such as the defendant’s incarceration and the defendant’s other debts. Blazina, 182 Wn.2d at 838.

Here, the trial court did nothing more than ask Toston if there was any reason he would not be able

to make a $25 monthly payment. Blazina requires more. Therefore, the State’s concession is

proper. We reverse the trial court’s imposition of the discretionary LFOs, and we remand for the

trial court to make an adequate inquiry into Toston’s ability to pay before imposing discretionary

LFOs.




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No. 49871-5-II


        We affirm Toston’s conviction for second degree assault. But we reverse the trial court’s

imposition of the discretionary LFOs, and we remand to the trial court to make a proper inquiry

into Toston’s ability to pay before imposing discretionary LFOs.

        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.



                                                    SUTTON, J.
 We concur:



 BJORGEN, P.J.




 HAAN, J.P.T.




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