                                                                                PLED
                                                                                 t ' PEALS
    IN THE COURT OF APPEALS OF THE STATE                                O .,                    ET ON
                                            DIVISION II
                                                                        2015 MAY 27.           M 9 30
 STATE OF WASHINGTON,                                                  No.    17-3
                                                                                             I I M NGTON
                                                                                  WAS5   -




                                                                        STATE OF

                                  Respondent,
                                                                        BY
                                                                                0 Pl1TY
        v.




 BARON DELL ASHLEY JR.,                                  ORDER ON MOTION TO RECONSIDER,
                                                         WITHDRAWING OPINION AND FILING
                                                            NEW PART PUBLISHED OPINION


                                  Appellant.


       The part published opinion in this case was filed on February 18, 2015. The appellant filed

a motion   for   reconsideration on   March 11, 2015.   At our request, the respondent filed an answer


to this motion on March 30, 2015.


       Upon reconsideration, the court has decided to withdraw the part published opinion filed


on February 18, 2015. It is, therefore,

       ORDERED:


       The part-published opinion filed in this case on February 18, 2015 is hereby withdrawn

and the new part- published opinion is attached to this order.


       DATED this             day of                                2015.


                                               0

 We concur:




 MAXA,




SUTTON, J.
                                                                                         FILED
                                                                                 COURT <OFAPPEALS
                                                                                    DIVISION II

                                                                                2015 MAY 27 AM 9 31

                                                                                STATE OF WASHINGTON
                                                                                BY
                                                                                        DEP




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

    STATE OF WASHINGTON,                                                     No. 45173 -5 -II


                                       Respondent,


             v.



    BARON DELL ASHLEY JR.,                                           PART PUBLISHED OPINION


                                       Appellant.


             JOHANSON, C. J. —       Baron Dell Ashley Jr. appeals his jury trial conviction for unlawful

imprisonment ( domestic violence), 1 his offender score calculation, and the imposition of legal

financial     obligations ( LFOs).   He argues that the trial court erred when it included a prior attempted


second degree assault juvenile adjudication as one point in his offender score because it did not


qualify      as a violent offense under   RCW 9. 94A.030( 54). In the published portion of this opinion,


we hold that the trial court did not err in counting the prior attempted second degree assault juvenile

adjudication as one point and adopt the reasoning set forth in Division One of this court' s opinion

State   v.   Becker, 59 Wn.   App.   848, 801 P. 2d 1015 ( 1990).   Ashley further argues that the trial court




1
    RCW 9A.40. 040( 1);     RCW 10. 99. 020( 5).
No. 45173 -5 -II



erred   in ( 1)    admitting evidence of prior acts of domestic violence under ER 404(b) and ( 2)

imposing     LFOs.       In the unpublished portion of this opinion, we hold that the trial court did not


abuse its discretion in admitting the prior bad acts evidence and that the trial court erred in

imposing     LFOs      without     inquiring   about    Ashley' s future   ability to pay.     Accordingly, we affirm

Ashley' s conviction and the calculation of his offender score, but we reverse the LFOs and remand

for a new LFO hearing.

                                                           FACTS


         A jury found Ashley guilty ofunlawful imprisonment (domestic violence).2 The trial court

calculated Ashley' s sentence with a seven -point offender score, which included one point for

Ashley' s    1999     attempted      second    degree    assault   juvenile    adjudication.    Ashley challenges his

offender score calculation.



                                                         ANALYSIS


         Ashley argues that the trial court erred in scoring his 1999 attempted second degree assault

juvenile    adjudication as one point          in his    offender score.      He contends that because this was an


attempt offense, it did not qualify as a violent offense under RCW 9. 94A.030( 54) and it should

have counted only as one -half a point. We disagree.

          RCW 9. 94A. 525           establishes   how to      calculate    a   defendant' s    offender   score.   RCW


9. 94A. 525( 7)     provides, "    If the present conviction is for a nonviolent offense and not covered by

subsection (      11), ( 12),   or ( 13) of this section, count one point for each adult prior felony conviction

and one pointfor each juvenile prior violentfelony conviction and 1/ 2 point for each juvenile prior


2 We describe the background facts and procedure in more detail in the unpublished portion of this
opinion.




                                                               2
No. 45173 -5 -II



nonviolent        felony     conviction." (    Emphasis       added.)       RCW 9. 94A.030( 54) defines             a " violent



offense"     as    including,    among   other offenses, "[        a] ny felony defined under any law as a class A

felony      or    an   attempt    to   commit     a   class    A       felony"    and    second   degree      assault.      RCW


9. 94A. 030( 54)( a)( i), (viii). It does not include attempted second degree assault in this definition.


Ashley argues that because attempted second degree assault does not fall under RCW

9. 94A.030( 54)' s violent offense definition, the trial court erred when it assigned one point to his


offender score for that offense rather than one -half a point.


            But RCW 9. 94A.525( 4)            requires   the sentencing          court   to "[ s] core prior convictions for



felony anticipatory offenses ( attempts, criminal solicitations, and criminal conspiracies) the same

as   if   they   were convictions ,for completed offenses."                Thus,   under    RCW 9. 94A. 525( 4),         Ashley' s

prior attempted second degree assault would be treated as a completed second degree assault for


purposes of        calculating his     offender score.        Because second degree assault is a violent offense


under RCW 9. 94A.030( 54)( a)( viii), RCW 9. 94A.525( 4) provides that the resulting offender score

for that offense would be one point. As a result, it could be argued that RCW 9. 94A.030( 54) and


RCW 9. 94A.525( 4) conflict.


            Division One of this court addressed a substantially similar issue in Becker, 59 Wn. App.

848. In Becker, the sentencing court counted a prior attempted second degree robbery conviction

as two points under former subsection ( 9) of the former offender score statute, RCW 9. 94A.360


 1990),      which     is   now codified as     RCW 9. 94A. 525( 8).             59 Wn.    App.   at   851.   Similar to RCW


9. 94A. 525( 7), the         provision   at   issue here, former RCW 9. 94A. 360( 9) provided for a higher


offender score for prior violent felony convictions:

            If the present conviction is for a violent offense and not covered in subsection ( 10),
             11), ( 12), or ( 13) of this section, count two pointsfor each prior adult andjuvenile


                                                                   3
No. 45173 -5 -II



           violent felony conviction, one point for each prior adult nonviolent felony
           conviction, and 1/ 2 point for each prior juvenile nonviolent felony conviction.

 Emphasis added.)


           On appeal, Becker argued that his prior attempted robbery conviction did not count as two

points in his offender score because it was not defined as a " violent offense" under the general


definitional    statute,   former RCW 9. 94A.030( 29) ( 1988) (                now    RCW 9. 94A.030( 54)).          Becker, 59


Wn. App. at 850 -51. Noting an " apparent" conflict between the former definitional statute and the

former offender score statute, Division One held that the plain language of the statutes did not

conflict and, instead, could be harmonized:


           The apparent conflict in the sections is based on the assumption that the attempted
           robbery   can   only   receive   two   points   if it is   a " violent offense ".   Contrary to Becker' s
           contention, the offense does not receive two points because it is a violent offense,
           but rather, it receives two points because the completed crime of robbery in the
           second degree would receive two points and the attempted robbery is to be treated
           as a completed crime.       According to the plain language of [ former] RCW
           9. 94A.360( 5) the attempt must be treated the same as the completed crime. Such a
           reading of the two sections gives effect to each section and does not distort the
           language of the sections.


Becker, 59 Wn. App. at 852. Division One subsequently followed Becker in State v. Howell, 102

Wn.   App.    288, 292 -95, 6 P. 3d 1201 ( 2000), and Division Three has followed Becker in State v.


Knight, 134 Wn.       App.    103, 138 P. 3d 1114 ( 2006),               aff'd,-162 Wn.2d 806, 174 P. 3d 1167 ( 2008).

The same reasoning applies here.

           Ashley    argues   that Becker and Knight were wrongly decided                             because they " did not


adequately take into account the fact that, where the definitional section of the [ Sentencing Reform

Act   of   1981], [ RCW 9. 94A]. 030, provides that certain offenses are violent offenses, non -listed


offenses are     definitionally     not violent offenses."             Reply   Br.   of   Appellant   at   5.   He contends that


definitional    statutes are "    integral to the statutory           scheme and must       be   given effect."     Reply Br. of

                                                                  4
No. 45173 -5 -II


Appellant   at   5.   We disagree that Becker and Knight did not give effect to the definitional statute;


they did so by harmonizing the definitional statute with the offender score statute.

         Ashley also argues that any ambiguity must be resolved in his favor under the rule of lenity.

But because the approach in Becker harmonizes the plain language of the statutes, there is no


ambiguity and the rule of lenity does not apply. We also note that the legislature' s failure to amend

the statutes in the 24 years since Becker was issued reflects its acquiescence to the court' s


conclusions      in that   case.    See State   v.   Berlin, 133 Wn.2d 541, 558, 947 P. 2d 700 ( 1997) ( " The


failure of the Legislature to amend a statute to change the statute' s judicial construction is


reflective of legislative acquiescence in the Court' s interpretation. ").


         For the reasons stated in Becker, and by harmonizing the definitional and offender score

statutes, we conclude that the trial court did not err in treating the attempted second degree assault

the same as the completed crime and including this prior offense as one point in Ashley' s offender

score.




          We affirm Ashley' s conviction and his offender score calculation.

          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public


record in accordance with RCW 2. 06. 040, it is so ordered.


          Ashley further      argues    that the trial    court erred   in ( 1)   admitting prior bad acts evidence

under    ER 404( b)    and ( 2)    imposing   the LFOs. These     arguments also       fail.
No. 45173 -5 -II



                                              ADDITIONAL FACTS


                                                    I. BACKGROUND


          On May 27, 2013, officers from the Vancouver Police Department arrived at Ashley' s

sister' s apartment   to    arrest   Ashley   and   his   sister on   outstanding   arrest warrants.   The officers


knocked repeatedly         on   the door.     Although the officers had initially heard voices inside the

apartment, no one responded.



          About 45 minutes later, the officers obtained a key from the apartment manager and

announced that they had a key and were opening the door. When they opened the door, the officers

called out to anyone inside the apartment, explained they were the police and were not going away,

and asked    the   people   inside to   come out.     Makayla Gamble, Ashley' s former girlfriend, and her

children met the officers in the downstairs living area.

          Once Gamble was outside, the officers asked Gamble if Ashley was inside, and she told

them that he was upstairs. She also told the officers that Ashley had detained her in the bathroom.

                                                    II. PROCEDURE


                             A. MOTION To ADMIT PRIOR BAD ACTS EVIDENCE


          The State charged Ashley by amended information with unlawful imprisonment (domestic

violence).   Before trial, the State moved to introduce evidence of Ashley' s prior domestic violence

against   Gamble.     The State argued that this evidence was to show why Ashley was able to keep

Gamble in the bathroom without her consent despite the lack of any explicit threat.

          At the motion hearing, Gamble testified that she had been in a relationship with Ashley

from 2000 to 2005, and that he was the father of two of her children. She testified that she and her


children were visiting Gamble' s sister when the police arrived and that Ashley had put her and her


                                                             6
No. 45173 -5 -II



infant in   an upstairs      bathroom     so   the   police would not   hear them. She remained in the bathroom


for 40 to 50 minutes despite her telling Ashley several times that she wanted to leave. She further

testified that   she   did   not   feel free to leave —in   part because prior domestic abuse by Ashley caused

her to fear     Ashley. She stated that if it had not been for her history with Ashley, she would have

gone downstairs rather than stay in the upstairs bathroom.

          Gamble also testified about several past domestic violence incidents that happened between


2000   and    2008.    Gamble stated that she had reported only one incident, a 2004 incident, to the

police,   but   she   then " dropped it."        lA Report    of   Proceedings ( RP)   at   78.   In addition, Gamble


testified that she still feared.Ashley and that she felt unsafe when she was in the bathroom because

of his assaultive history. But she admitted that Ashley did not expressly threaten her when he told

her to go in the bathroom and be quiet.


          The State argued that Ashley' s prior violence against Gamble explained the dynamics of

their relationship and would help the jury understand why Ashley was able to control Gamble' s

behavior without any express threats and why Gamble initially complied with Ashley' s directions

and did not yell for help. The State further argued that although the past acts of violence occurred

several years earlier, these acts were still relevant because Gamble was aware that Ashley was

capable of violence against her. Ashley argued that the trial court should not admit this evidence

because the State was not using it to establish an element of the offense, it was not relevant to

Gamble' s credibility because she was not recanting her earlier statements, Gamble' s testimony

and the single police report from 2004 were not sufficient to establish the prior acts by a

preponderance of the evidence, and the passage of time had made the incidents less probative.




                                                               7
No. 45173 -5 -II



             The trial court found that ( 1) Gamble' s testimony established the prior acts of violence by

a preponderance of            the   evidence, (     2) the purpose of the evidence was to show the restraint was


without her consent because of her ongoing fear based on this history, and ( 3) the probative value

of   the    prior acts evidence outweighed              the    possible prejudice.     The trial court admitted the prior


domestic violence evidence and invited the parties to submit limiting instructions related to this

evidence.




                                                                B. TRIAL


             At trial, Gamble testified that when the police arrived on May 27, Ashley forced her to

remain in an upstairs bathroom. Gamble told Ashley twice that she wanted to leave the bathroom

and    to   go home; Ashley did          not respond.          She also tried to open the door three or four times, but


Ashley       would close       it   again.    Once when she opened the door, Ashley was in the hallway, and

when        he   saw   her   open   the door, "     his face   was   different,"   and "   he looked   pissed off."   1B RP at


195.


             Gamble also testified about four instances of past physical abuse that occurred from 2000


to 2005.         She testified that she had only called the police after the 2004 incident and that she later

recanted her allegations because she loved Ashley. In addition, Gamble testified that she had only

seen Ashley three or four times since 2008.

             On cross -examination, Gamble admitted that Ashley did not yell at her, threaten her, or

physically force her into the bathroom. And she agreed that she " remained in the bathroom under

 her]      own power."        1B RP     at   203.    But on redirect, Gamble reiterated that Ashley did not have to

threaten to harm her to keep her in the bathroom because she was still afraid of him given their




                                                                     8
No. 45173 -5 -II



past history and because all he had to do was to look at her a certain way and she would comply.

Ashley did not call any witnesses.

          The    jury found Ashley            guilty    of unlawful      imprisonment ( domestic               violence).       Ashley

argued at sentencing that he did not have the current or future ability to pay LFOs, noting that he

was currently indigent, that he already owed over $ 6, 000 in child support or outstanding LFOs

from previous convictions, that he had four children, and that he was being incarcerated for up to

33   months.         The trial court responded that it was imposing LFOs because Ashley had not made a

 showing that he is          unable   to   work and     has future     inability to   pay."     1B RP    at   321. The trial court


imposed $3, 420 in LFOs: ( 1) a $ 500 victim assessment, ( 2) a $ 100 domestic violence assessment,


 3) $ 520 in     court costs, ( 4)    $ 1, 700 fees for     court- appointed     attorney       and   trial   per   diem, ( 5) a $ 500


fine,   and (   6)   a $   100 deoxyribonucleic         acid collection    fee. It also noted that restitution and costs


for any    court- appointed, defense experts or other                defense    costs were      to be   set at a     later date. The


judgment and sentence does not, however, contain any findings regarding Ashley' s ability to pay

LFOs.


                                                ADDITIONAL ANALYSIS


                                                   I. ER 404( B) EVIDENCE


          Ashley argues that the trial court erred in admitting the prior bad acts evidence under ER

404( b) because ( 1) the State failed to                                                                                  evidence, ( 2)
                                                    prove    the   prior acts   by    a preponderance of            the


the     evidence      was    not   relevant   to   an   element    of   the   crime,    and (   3) the evidence was overly

prejudicial because the prior acts were too remote in time to be probative. We disagree.




                                                                   9
No. 45173 -5 -II



                              A. STANDARD OF REVIEW AND ER 404( B) ANALYSIS


             We   review a   trial   court' s    evidentiary     rulings   for   abuse of   discretion. State v. Finch, 137


Wn.2d 792, 810, 975 P. 2d 967 ( 1999).                     A trial court abuses its discretion when its evidentiary

ruling is "'   manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'

State   v.   Downing,     151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004) (                   quoting State ex rel. Carroll v.

Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)).                        It is the appellant' s burden to prove abuse of


discretion. State v. Wade, 138 Wn.2d 460, 464, 979 P. 2d 850 ( 1999).


             ER 404( b)   prohibits       the   admission of evidence of other crimes, wrongs, or acts "`          to prove


the    character of a person         in   order   to    show action     in conformity therewith.'       State v. Foxhoven,


161 Wn.2d 168, 174 -75, 163 P. 3d 786 ( 2007) ( quoting ER 404( b)).                            Before admitting prior bad

acts    evidence,     the trial      court      must "(    1)   find by a preponderance of the evidence that the

misconduct occurred, (         2) identify the purpose for which the evidence is sought to be introduced,

 3) determine whether the evidence is relevant to prove an element of the crime charged, and ( 4)


weigh    the   probative value against            the   prejudicial effect. '      Foxhoven, 161 Wn.2d at 175 ( quoting

State   v.   Thang,   145 Wn.2d 630, 642, 41 P. 3d 1159 ( 2002)). " Preponderance of the evidence means


that considering all the evidence, the proposition asserted must be more probably true than not."

State v. Ginn, 128 Wn. App. 872, 878, 117 P. 3d 1155 ( 2005).

                                                 B. PROOF OF PRIOR BAD ACTS


             Ashley argues that the evidence did not establish the prior bad acts by a preponderance

because Gamble did not provide any police or medical documentation of the incidents and because

Gamble admitted that she called the police to report only one of the incidents and then recanted

her allegations. We disagree.



                                                                   10
No. 45173 -5 -II



           At the motion hearing, Gamble testified about each of the incidents she later described to

the jury, that testimony was not disputed, and the trial court apparently found Gamble' s testimony

credible. Ashley cites to no authority establishing that a witness' s testimony alone cannot establish

a   fact   by   a preponderance of     the   evidence.   Furthermore, to the extent the trial court' s decision


rested on it finding Gamble' s testimony credible, we do not review a trial court' s credibility

determinations.       State   v.   Camarillo,. 115 Wn. 2d 60, 71, 794 P. 2d 850 ( 1990).     Accordingly, this

argument fails.


                                                   C. RELEVANCE


           Ashley next argues that the evidence was not relevant to an element of the crime. Again,

we disagree.


           A    person commits unlawful         imprisonment if he "   knowingly restrains another person."

RCW 9A.40. 040( 1).         RCW 9A.40. 010( 6) provides,


             Restrain" means to restrict a person' s movements without consent and without
           legal authority in a manner which interferes substantially with his or her liberty.
           Restraint is " without consent" if it is accomplished by ( a) physical force,
            intimidation, or deception.


 Emphasis        added.)   The trial court expressly found that the purpose of the evidence was to show

that the restraint was without Gamble' s consent because of her ongoing fear based on Ashley' s

history of violence with her. Essentially, the trial court found that the domestic violence evidence

was material and relevant to both Gamble' s lack of consent and to whether Ashley accomplished

the restraint by intimidation. We agree that personal history with a violent person can certainly be




                                                            11
No. 45173 -5 -II



relevant to whether a particular action or behavior amounts to intimidation from the victim' s

               3
perspective.       Accordingly, this argument fails.

                                    D. PROBATIVE VS. PREJUDICIAL VALUE


         Ashley next argues that because the domestic violence incidents occurred several years

before this incident, they were too remote to be probative, and, thus, the trial court erred when it

determined that their prejudicial value did not outweigh any probative value. Again, we disagree.

         Although the evidence of the prior domestic violence incidents is potentially highly

prejudicial, that evidence was also highly probative in this instance because the State claimed that

Ashley had restrained Gamble through the use of a subtle form of intimidation that the jury could

fully understand if it was aware only of the violent nature of Gamble and Ashley' s relationship.

Although the prior incidents had taken place several years earlier, this history was still highly

relevant to how Gamble perceived the situation, and Gamble' s testimony about her relative lack

of contact with Ashley in recent years explained why these incidents were so dated. Accordingly,

this argument fails.


          The trial court conducted the proper ER 404(b) analysis, and Ashley does not show that its

findings   were    improper.     Thus, we hold that the trial court did not abuse its discretion when it


admitted this evidence.




3
    Citing State   v.   Magers, 164 Wn. 2d 174, 189 P. 3d 126 ( 2008),          and State v. Baker, 162 Wn. App.
468, 475, 259 P. 3d 270 ( 2011),   Ashley             also   argues   that "   this sort of prior act evidence is
appropriate in cases where the alleged victim recants, to show why she .might do so out of fear,
which was not       the   circumstance   here."   Br. of Appellant at 6. Although these cases state that prior
domestic violence evidence is admissible " to assist the jury in judging the credibility of a recanting
victim," these cases do not establish that this is the only purpose for which the trial court can admit

such evidence. Magers, 164 Wn.2d at 186; see also Baker, 162 Wn. App. at 474 -75.


                                                             12
No. 45173 -5 -II



                                                          II. LFOs


          Finally, Ashley challenges his LFOs, arguing that ( 1) the trial court erred in requiring him

to prove his future inability to pay LFOs, and ( 2) the trial court' s finding of no showing of future

inability to pay was not supported by any evidence. Based on our Supreme Court' s recent decision

in State     v.   Blazina,       Wn.2d ,         344 P. 3d 680 ( 2015), we agree that the trial court failed to

                                                                                                   4
make an adequate           individualized    inquiry   into   Ashley' s future   ability to pay.


          As a preliminary matter, the State argues that Ashley did not preserve this issue for review
                                                                                   5
and   that    it is   within   our   discretion to decline to        consider    it.   But Ashley clearly argued at

sentencing that he did not have the current or future ability to pay LFOs. Thus, we cannot decline

to consider this issue under RAP 2. 5( a).


           Our Supreme Court recently held that the " trial court has a statutory obligation to make an

individualized inquiry into a defendant' s current and future ability to pay before the court imposes

LFOs."       Blazina, 344 P. 3d       at   681, 685.   Although Ashley presented information relevant to his

current ability to pay and his ability to pay during his incarceration, he did not present any

information about his work experience, education, work skills, or potential employment prospects


upon release        from   prison.   Even though the trial court recognized that Ashley had not presented

any evidence demonstrating he would be unable to pay LFOs after his release, it did not inquire

further into any factors that would have been relevant to its decision to impose LFOs. Blazina has


4 The parties have addressed Blazina in a motion for reconsideration and an answer to the motion
for reconsideration.


5 The State also argues that this issue is not ripe for review because the State has not attempted to
collect    the LFOs.Our Supreme Court recently rejected the State' s ripeness argument in Blazina,
344 P. 3d 680 n. 1. Accordingly, the fact that the State may not yet be attempting to collect Ashley' s
LFOs does not preclude our review of this issue. .

                                                                13
No. 45173 -5 - II



clarified that it is the trial court' s statutory obligation to make an " individualized inquiry" into

such matters.   344 P. 3d   at   685. The trial   court   failed to do so here. Accordingly, we reverse the


LFOs and remand for a new LFO hearing.

        We affirm Ashley' s conviction and offender score, but we reverse the LFOs and remand

for a new LFO hearing.




 We concur:




 MAXA, J.




SUTTON, J.




                                                          14
