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                                                                                               2013 DEC 10
                                                                                                           A             9: 53
     IN THE COURT OF APPEALS OF THE STATE OF W
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                                                                                                                         KF0N
                                                 DIVISION II                                   BY
                                                                                                     0nN T
STATE OF WASHINGTON,                                                        No. 42786 -9 -II


                                   Respondent,


        V.




KEVAN M. VANSYCKLE,                                                UNPUBLISHED OPINION


                                   Appellant.


        PENOYAR, J. —       Kevan M. Vansyckle appeals his conviction of three counts of first degree

child molestation, arguing that the trial court erred by imposing a community custody condition

that restricts his computer use and internet access and by finding that he has the ability to pay the

legal financial   obligations (   LFO'    s)   imposed in his judgment   and   sentence.   Vansyckle raises


additional claims of error     in his   statement of additional grounds (   SAG). Because the Department


of   Corrections ( DOC)       recommended the community custody condition at issue to reduce

Vansyckle' s risk to the community, and because he did not object to the court' s finding that he

has the ability to pay his LFO' s, we reject these claims of error as well as Vansyckle' s SAG
claims. We affirm his convictions.


                                                      FACTS


        M.D.    met   Vansyckle in 2007        when she was seven or eight years old.      At the time, M.D.


was living with her mother and her mother' s boyfriend, who was Vansyckle' s father. Vansyckle

recently had been released from a juvenile detention center following his conviction of two
counts of    first degree   child molestation and one count of   indecent    exposure.
42786 -9 -II



           On the evening that M.D. met Vansyckle, they stayed up in the living room after her

parents went     to bed.      Vansyckle asked M.D. to come over and sit on the arm of the chair while


he   was   using the    computer.      After M.D. complied, Vansyckle unzipped her pants and touched


her sexually.     Vansyckle         said   he   would    stop if M.D.   said " no,"   which she   did.    2 Report of


Proceedings ( RP)       at   203.   M.D.    and    Vansyckle then    played a   board   game.   During the game, he

again had sexual contact with M.D. when she stretched to move her board piece.

           A second incident occurred when Vansyckle visited M.D.' s home with his 16- year -old

girl   friend.   M.D. was playing chase with Vansyckle when he pulled her into her bedroom.

Vansyckle had sexual contact with M.D. and forced her to have sexual contact with him. A third

incident of sexual touching occurred when Vansyckle came into M.D.' s bedroom while she was

doing homework.

           M.D. eventually told her             mother   that Vansyckle had been        touching her in    the " wrong



places."       2 RP at 186.           The next day, M.D. wrote a note to her school counselor about

Vansyckle.        When the          counselor      met   with   M.D., she described Vansyckle' s inappropriate

contact.    The counselor reported the conversation to the sheriff, and M.D. subsequently repeated

her allegations to a forensic interviewer and a mental health therapist.

           The State charged Vansyckle by amended information with three counts of first degree

child molestation and one count of first degree child rape or, in the alternative, first degree child

molestation.      After Vansyckle waived his right to a jury, the trial court ruled that his prior

convictions      were    admissible        under   former RCW 10. 58. 090 ( 2008)         and   under    ER 404( b)   as




evidence of a common scheme or plan.




                                                                1)
42786 -9 -II



         M.D. testified about her allegations, as did her mother, two therapists, her counselor, and

a nurse practitioner.       The tape of M.D.' s forensic interview was published in open court as well.


The trial court ruled that the child hearsay evidence was admissible.

         In    addition,    several     witnesses    testified     about    Vansyckle'    s   prior   offenses.    The


psychologist who treated Vansyckle following his release from juvenile detention then testified

that his treatment rules prohibited contact with minors that was not approved in advance and

required   Vansyckle to       report    any incidental     contact.      The psychologist testified that he never


gave permission for Vansyckle to have contact with M.D. with or without his girl friend' s

supervision,      and   that Vansyckle        never reported      such   contact.    Vansyckle' s parole counselors


added that they never gave Vansyckle permission to travel outside the county to see his father or

to have contact with a minor, as his parole conditions also required, and that Vansyckle never

reported      his travel   or contact.       A polygraph examiner testified that Vansyckle reported twice


engaging in sexual contact with his 17- year -old stepsister while he was on parole.
          Several witnesses testified in Vansyckle' s defense, but the trial court found him guilty of

three,   counts    of   first degree     child   molestation.      The    presentence    investigation ( PSI)     report




revealed that during a prior evaluation, Vansyckle had disclosed 16 -18 possible victims.

Another former evaluator believed that Vansyckle met the statutory requirements for a civil

commitment referral.          The PSI. report also revealed that Vansyckle had failed 4 of 5 polygraphs

that   addressed unsupervised and sexual contact with minors.                   The PSI report recommended that


the trial court impose        all of   the   conditions   listed in the   attached   Appendix H: " Recommended


 conditions in Appendix H will enable [ DOC] to effectively monitor and supervise Mr. Vansyckle

 in the community.         Intervention applied to these areas [ will] assist in reducing potential risk to



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42786 -9 -II




community safety."           Clerk'   s   Papers ( CP)       at   86.   One of these conditions prohibited internet or


computer access without court approval.



         During sentencing, the prosecutor asked the trial court to impose all of the conditions in
Appendix H,          which     he described      as "    standard required conditions for this type of offense


                                                                                            8 RP   at   1293.   The prosecutor
including      geographical restrictions,        associational          restrictions."




stated that the treatment providers and probation officers who testified had shown that Vansyckle

could not      be   monitored    in the community. "[              H] e will not comply with probation conditions; he

will not comply with supervision; he will not admit the types of behaviors he needs to admit in
order   that   people   in the community         can    be   safe."     8 RP at 1298.


         Vansyckle' s attorney then complained that the community corrections officer who wrote

the PSI report had interviewed Vansyckle in his absence even though he had told the court he

wanted    to be     present.    Defense counsel asked the court to delete all of Vansyckle' s statements


from the PSI report, but the court declined, stating twice that its sentencing decision would be

based solely on the evidence introduced at trial.

          After the defense accepted the amount of restitution the State requested, the trial court

imposed        other    legal financial      obligations (          LFO'    s)   without   objection.     Finding 2. 5 in the

judgment and sentence included boilerplate language stating that the defendant had the ability to

pay the LFO' s imposed. The judgment and sentence also included Appendix H and its condition
                                and   internet    access          without    court   approval.     The trial court sentenced
prohibiting" computer


Vansyckle to        concurrent sentences of        198       months     to life,   with   lifetime community custody.
42786 -9 -II



                                                          ANALYSIS


I.           COMMUNITY CUSTODY CONDITION


             A trial    court   may   only impose     a   sentence   authorized   by   statute.   In re Postsentence


Review of Leach, 161 Wn.2d 180, 184, 163 P. 3d 782 ( 2007).                       An erroneous sentence may be

challenged for the first time on appeal, and a defendant has standing to challenge allegedly

erroneous sentencing conditions even though he has not yet been charged with violating them.

State   v.   Bahl, 164 Wn. 2d 739, 744, 193 P. 3d 678 ( 2008);            State v. Riles, 86 Wn. App. 10, 14 -15,

936 P. 2d 11 ( 1997),           affirmed,   135 Wn.2d 326, 957 P. 2d 655 ( 1998).          We review conditions of



community placement to determine whether their imposition is manifestly unreasonable or based
on untenable           grounds.    See State   v.   Vant, 145 Wn.     App.   592, 602 -03,    186 P. 3d 1149 ( 2008)


 condition may be manifestly unreasonable if trial court lacked authority to impose it).
             The statutes in effect when Vansyckle committed his offenses required the trial court to


impose the following conditions unless it waived them:

              a)   The offender shall report to and be available for contact with the assigned
             community corrections officer as directed;
              b)   The offender shall work at department- approved education, employment, or
             community restitution, or any combination thereof,
              c)    The offender shall not possess or consume controlled substances except

             pursuant to lawfully issued prescriptions;
              d)   The offender shall pay supervision fees as directed by the department; and
              e)   The residence location and living arrangements shall be subject to the prior
             approval of the department during the period of community placement.

 Former RCW 9. 94A. 700( 4) ( 2003);                see RCW 9. 94A.345 ( sentence imposed under Sentencing

 Reform Act shall be determined in accordance with law in effect when offense was committed).




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42786 -9 -II




          In addition, former RCW 9. 94A.700( 5) permitted a sentencing court to impose any or all

of the following conditions of community custody:

          a)   The offender shall remain within, or outside of, a specified geographical

          boundary;
          b)   The offender shall not have direct or indirect contact with the victim of the
          crime or a specified class of individuals;
          c)      The offender shall participate in crime -related treatment or counseling
          services;

          d) The offender shall not consume alcohol; or
          e)   The offender shall comply with any crime -
                                                        related prohibitions.

A trial court also could order a defendant to participate in rehabilitative programs or to otherwise

perform     affirmative     conduct     reasonably     related   to    the   circumstances   of    the   offense,   the


offender' s risk of     reoffending,   or   the safety of the community.        Former RCW 9. 94A.712( 6)( a)( i)


 2006).


          Vansyckle argues that the condition restricting his computer use and internet access was

permissible only if it constituted a crime -related prohibition under former RCW 9.94A.700( 5)( e).

Crime -related prohibitions allow the sentencing court to prohibit conduct that relates directly to

the circumstances of the        crime   for   which   the   offender   has been   convicted.      State v. Berg, 147

Wn.    App.    923, 942, 198 P. 3d 529 ( 2008), abrogated on other grounds, State v. Mutch, 171


Wn.2d 646, 254 P. 3d 803 ( 2011).              No causal link need be established between the condition


imposed and the crime committed, so long as the condition relates to the circumstances of the

crime.    State   v.   Llamas -Villa, 67 Wn.    App.   448, 456, 836 P. 2d 239 ( 1992).        Vansyckle contends


that the condition at issue must be stricken because it is in no way related to the circumstances of

his   offenses.     See State   v.   O' Cain, 144 Wn.       App.   772, 775,     184 P. 3d 1262 ( 2008) ( striking


internet access condition because there was no evidence that it was crime related).




                                                            Ce
42786 -9 -II



        The State acknowledges that the condition restricting computer use and internet access is

not   crime    related.            It    argues,      however,       that this    condition is authorized under RCW


9. 94A. 704( 2)(    a),   which provides that DOC shall assess an offender' s risk of reoffense and may

                                                                                                                                     1
establish   additional conditions                of   community custody based            on   the   risk   to community safety.



The trial court must order the offender to comply with any conditions imposed by DOC under

RCW 9. 94A.704.             RCW 9. 94A. 703( 1)( b); see also 13B SETH A. FINE, WASHINGTON PRACTICE:


CRIMINAL LAW, § 3607,                   at   183 -84 ( 2012 -13) (   DOC- imposed community custody conditions are

mandatory).


        In the PSI report, DOC recommended imposing the restriction on Vansyckle' s computer

use and internet access so that it could effectively monitor him and reduce his potential risk to

the community.            During sentencing, the State asked the court to impose the DOC- recommended

conditions     so    that Vansyckle              could   be   more    effectively   monitored        in the community.          After



asserting that its role was to protect the community, the trial court imposed the recommended

conditions, including the restriction on Vansyckle' s computer use and internet access. Under the
circumstances,        this   condition was not           manifestly        unreasonable.      We affirm the imposition of this


community custody condition.


II.      LEGAL FINANCIAL OBLIGATIONS


         Vansyckle argues next that the trial court erred by finding that he had the ability to pay

the LFO' s imposed without conducting any inquiry into his financial circumstances.




 1 Although RCW 9. 94A.704 was enacted after Vansyckle' s offense range of June 15, 2007
through June 3, 2009, the legislature intended it to apply to all sentences imposed after August 1,
2009, for any             crimes    committed          before August 1,          2009.   LAWS       OF     2008,   ch.   231 § § 6 -58.
Vansyckle was sentenced on November 8, 2011.
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42786 -9 -II



          The     court    imposed $ 2, 000 in           court- appointed     attorney fees         and   defense   costs,   a $   500


victim    penalty       assessment, $ 484. 41       in   restitution, a $   200   filing   fee,   and a $   100 DNA testing fee.

Except for the attorney fees               and    the    amount of restitution,       these       fees   were   mandatory.    RCW


7. 68. 035( 1)(   a);    RCW 43. 43. 7541;          RCW 36. 18. 020( 2)( h).           Vansyckle agreed to the State' s


restitution request and did not object to the court' s imposition of $2, 000 in attorney fees and

costs. Nor did he object to the written finding regarding his ability to pay. Consequently, he has

waived his challenge to the court' s finding regarding his ability to pay the LFO' s imposed in his
judgment     and sentence.             RAP 2. 5(   a);   State v. Snapp, 119 Wn. App. 614, 626 n. 8, 82 P. 3d 252

 2004).


III.       SAG ISSUES


          Vansyckle'        s   SAG     raises    four issues.     He argues first that he was unable to properly

defend himself against the charges because his private investigator could not be located on the

day of trial and because the court refused to grant a continuance until the investigator could be
found. There is no reference in the record to any private investigator or to any related request for

a continuance. Furthermore, Vansyckle does not describe any evidence or defense theory that an

investigator might have produced if located. We decline to discuss this claim of error further.

           Vansyckle        next contends         that the   evidence of     his   criminal       history   was prejudicial.       The


trial    court    admitted      this   evidence     under     former RCW 10. 58. 090                and   ER 404( b).     Although


former RCW 10. 58. 090 has since been declared unconstitutional, the court' s admission of this

evidence     to   prove a common scheme or plan under                   ER 404( b)         remains valid.        State v. Gresham,


 173 Wn.2d 405, 423, 432, 269 P. 3d 207 ( 2012). Evidence that falls within this rule is admissible


if its   probative value exceeds            its   prejudicial effect.       State v. Kennealy, 151 Wn. App. 861, 886,

214 P. 3d 200 ( 2009),            review    denied, 168 Wn.2d 1012 ( 2010).                   The fact that       prior   conviction
42786 -9 -II



evidence    is       prejudicial   does    not   bar its    admission under        ER 404( b), and we see no error in this


regard.




          Vansyckle also argues that the trial court and the prosecuting attorney would not allow

the defense to test the credibility              of   any   witnesses.      The record does not support this claim, as it


shows that defense counsel subjected several of the prosecution witnesses to rigorous cross


examination in an effort to undermine their credibility.

          Finally, Vansyckle contends that his Sixth Amendment right to counsel' was violated

when   his attorney            was   not   present       during his       presentence        interview.       The right to counsel


attaches    when         the    State initiates       adversarial     proceedings            against    the   defendant.    State v.


Everybodytalksabout, 161 Wn.2d 702, 707, 166 P. 3d 693 ( 2007) ( citing                                  Brewer v. Williams, 430

U. S. 387, 401, 97 S. Ct. 1232, 51 L. Ed. 2d 424 ( 1977)).                          This right applies to every critical stage

of the proceedings. Everybodytalksabout, 161 Wn.2d at 708.

          A presentence interview is a noncritical stage of the proceedings if the information

obtained        is   used   only for sentencing       purposes.      United States v. Jackson, 886 F.2d 838, 844 ( 7th


Cir.   1989);           Baumann       v.    United         States,   692       F. 2d   565,      578 (    9th    Cir.   1982).     In


Everybodytalksabout,               however,        the      State used evidence obtained during a presentence

investigation from             an unrepresented          defendant in      a   later trial    against   the   same   defendant.   161


Wn.2d      at    706 -07.      Because the statements the defendant made during the presentence interview

were used for the adversarial purpose of convicting him in a subsequent trial, the interview was a

critical stage of the proceeding to which the right to counsel applied. Everybodytalksabout, 161

Wn.2d at 712.




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42786 -9 -II



        The State did not use Vansyckle' s disclosures during the presentence interview for

purposes    of   a   later   prosecution,   and the trial court did not consider those disclosures in


sentencing him. Accordingly, the presentence interview did not constitute a critical phase of the

proceeding, and the absence of defense counsel during that interview did not violate Vansyckle' s

rights under the Sixth Amendment.


        Affirmed.


        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:




                             1'
         Ma a, J.




         Verellen J




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