                                                                 FILED JUNE
                                                                   20, 2013
                                                         In the Office of the Clerk of Court
                                                       W A State Court of Appeals, Division III



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

STATE OF WASHINGTON,                           )         No. 30629-1-III
                                               )
                      Respondent,              )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
JUAN C. JUAREZ,                                )
                                               )
                      Appellant.               )

       KULIK, J.-Juan C. Juarez appeals his conviction for the crime of possession of

an unlawful firearm. Mr. Cruz contends that the State failed to prove all of the elements

included in the to convict jury instructions. He also contends that the trial court ordered

him to begin payment of his legal financial obligations (LFOs) without considering

whether he has the current or future ability to pay. Mr. Juarez's contentions are not

persuasive. We affirm.

                                           FACTS

       On November 25, 2011, Mr. Juarez was found with a short-barreled shotgun and

charged with possession of an unlawful firearm. At trial, the State called two witnesses to

testify. The first witness, former Sergeant Nels Larson, testified that he was on duty with
No. 30629-1-111
State v. Juarez


the Othello Police Department when he responded to a call for assistance at 2568 West

Bench Road. He was told that an uninvited person was at the residence with a shotgun,

but had since left in a vehicle. Sergeant Larson found the person in a clearing near Bench

Road, parked next to a mobile home. The person was sitting in the vehicle, holding a

shotgun in his lap. Sergeant Larson noticed that the barrel and the stock of the shotgun

were short. The man identified himself as Mr. Juarez.

       The second witness called by the State was Deputy Craig Frank. Deputy Frank

testified that on the date of the incident, he was on duty with the Adams County Sheriffs

Office, working in the Othello district. He responded to the call at 2568 West Bench

Road. The person making the complaint reported that the man with a shotgun had left the

residence in a vehicle. Deputy Frank called dispatch with the vehicle license plate

number. Dispatch told Deputy Frank that the registered owner lived on O'Brian Road in

Othello. With that information, Deputy Frank was able to locate the vehicle and the driver.

He arrived within 10 to 15 minutes after he first left to investigate the complaint. The

vehicle was found down an alley off Bench Road next to a trailer. Deputy Frank saw a

person slouched in the driver's seat, with a shotgun on his lap. After measuring the

shotgun, Deputy Frank determined that it was 161'2 inches and under the length allowed




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No. 30629-1-III
State v. Juarez


by state statute. Deputy Frank identified Mr. Juarez as the person he contacted the night

of the incident.

         The jury was instructed that to convict Mr. Juarez of possession of an unlawful

firearm, each of the following elements of the crime must be proved beyond a reasonable

doubt:

                (1) That on or about November 25, 2011, the defendant knowingly
         had a short-barreled shotgun in his possession or control;
                (2) The defendant knew of the characteristics making it a short­
         barreled shotgun; and
                (3) That this act occurred in the State of Washington, County of
         Adams.

Clerk's Papers (CP) at 44.

         The jury found Mr. Juarez guilty. Mr. Juarez was sentenced to three months of

confinement.

         The court imposed a total amount of $900 of LFOs, which included $500 for a

victim assessment, $300 for court costs, and $100 for a DNA 1 collection fee. The trial

court waived a total of $850 in other LFOs.




         1
             Deoxyribonucleic acid.

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No. 30629-1-III
State v. Juarez


       Section 2.5 of Mr. Juarez's judgment and sentence stated, "The court has

considered the total amount owing, the defendant's past, present, and future ability to pay

legal financial obligations, including the defendant's financial resources and the likelihood

that the defendant's status will change." CP at 51. The trial court did not indicate on the

judgment and sentence that it found that Mr. Juarez had the ability or future ability to pay

the LFOs.

       Section 4.3 of the judgment and sentence ordered that "[a]ll payments shall be

made in accordance with the policies of the clerk of the court and on a schedule

established by the [Department of Corrections] or the clerk of the court, commencing

immediately, unless the court specifically sets forth the rate here." CP at 54. The court

set forth the rate to be "Not less than $50 per month commencing 1 June 2012." CP at

54.

       Mr. Juarez appeals. He contends that the State failed to prove each element of his

crime as stated in the jury instructions, specifically the element that the act occurred in the

State of Washington, Adams County. He also contends that the trial court made an implied

finding that he had the current or future ability to pay his LFOs when it ordered him to pay

$50 per month, and that this finding is not supported by the record.




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No. 30629-1-III
State v. Juarez


                                         ANALYSIS

       County Where Crime Occurred. Due process requires the State to prove every

element of a crime charged beyond a reasonable doubt. State v. Baeza, 100 Wn.2d 487,

488, 670 P.2d 646 (1983). Thus, a challenge to the sufficiency of the evidence is a

question of constitutional magnitude. !d. Evidence is sufficient to prove each element it:

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. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980) (quoting Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). All reasonable

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

against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       Circumstantial evidence and direct evidence are equally reliable. State v.

Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). An appellate court 'must defer to

the trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness ofthe evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970

(2004).

       In a criminal case, if the State adds an unnecessary element in the to convict jury

instruction without objection, the added element becomes the law of the case and the



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No. 30629-1-III
State v. Juarez


State assumes the burden of proving it. State v. Hickman, 135 Wn.2d 97, 102,954 P.2d

900 (1998). A criminal defendant may challenge the sufficiency of the evidence to

support an added element. !d.

       Under RCW 9.41.190(1), it is unlawful for any person to own a short-barreled

shotgun. Venue is not an element of the offense of possession of an unlawful firearm.

See RCW 9.41.190. However, in Mr. Juarez's case, the to convict jury instructions added

the element that the act took place in Adams County, Washington. Therefore, the State

assumed the burden of proving this added element.

       The evidence is sufficient to prove this element. Reasonable inferences can be

drawn from the officers' testimony that the act took place in Adams County. First, the

officers testified that they were employed with either the Othello Police Department or

the Adams County Sheriffs Office when they responded to the call. One officer also

testified that he arrived in Mr. Juarez's area within 10 to 15 minutes after the call. A

reasonable juror could infer that the officers responded to a call within their jurisdiction,

especially given the fact that it only took the officer 10 to 15 minutes to reach Mr.

Juarez's location.

       Second, dispatch told Deputy Frank that the registered owner of the vehicle lived

in Othello, and Deputy Frank testified that he used this information to locate the vehicle


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No. 30629-1-III
State v. Juarez


and the driver. Again, a reasonable inference can be made that Mr. Juarez was found at the

address in Othello. Also, considering the trial took place in Adams County, it is reasonable

to infer that jurors understood Othello to be located in Adams County, in the State of

Washington. Thus, in viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found beyond a reasonable doubt that the act took

place in Adams County, Washington. Mr. Juarez's challenge to the sufficiency

of the evidence fails.

       The State presented sufficient evidence to prove that Mr. Juarez committed the act

of possessing an unlawful firearm in Adams County, Washington.

       Finding o{Ability to Pay LFOs. We review a trial court's determination on an

offender's financial resources and ability to pay under the clearly erroneous standard. State

v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). "A finding of fact is clearly

erroneous when, although there is some evidence to support it, review of all of the

evidence leads to a 'definite and firm conviction that a mistake has been committed.'"

Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113 (2007) (quoting

Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)).

       Under RCW 10.01.160, a court "may [order] a [criminal] defendant to pay costs

... incurred by the [S]tate in prosecuting the defendant." RCW 10.01.160(1), (2). In


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No. 30629-1-III
State v. Juarez


determining the amount and the method of payment of costs, the court shall take into

account the financial resources of the defendant and the nature of the burden that the

payment of costs will impose. RCW 10.01.160(3). "Inquiry into the defendant's ability

to pay is appropriate only when the State enforces collection under the judgment or

imposes sanctions for nonpayment; a defendant's indigent status at the time of sentencing

does not bar an award of costs." State v. Crook, 146 Wn. App. 24, 27, 189 P.3d 811

(2008).

       Here, the judgment and sentence ordered Mr. Juarez to pay $50 per month toward

his LFOs, with the first payment due in over three months. In ordering payment, the trial

court considered Mr. Juarez's ability to pay. The record shows that at the sentencing

hearing, Mr. Juarez's attorney informed the court that Mr. Juarez was found to be

indigent, that Mr. Juarez did not have means in Mexico besides subsistence living, that

Mr. Juarez came from an agricultural background, and that Mr. Juarez's mother was sick.

In response, the court waived the attorney fees and the fine, and imposed the remaining

$900 in fees for the victim assessment, court costs, and DNA collection fee. Thus, the

record shows that the trial court took into account the financial resources of Mr. Juarez

and the nature of the burden to pay when it waived part of the LFOs and ordered a low

monthly payment. The trial court did not err by ordering Mr. Juarez to pay his LFOs.



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No. 30629-1-III
State v. Juarez


        The trial court considered Mr. Juarez's ability to pay when it ordered him to begin

 making monthly payments toward his LFOs.

        We affirm the conviction and the LFOs.

        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.
                                                k/17.
                                           --. ---··---··- - tZ- ----
                                           Kulik, J.

 WE CONCUR:



                    c. J'
                                           Siddoway, J.




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