     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 78316-5-I
                     Respondent,
      v.                                        DIVISION ONE

ADRIAN LAWRENCE VANWYCK,                        UNPUBLISHED OPINION

                    Appellant.                  FILED: November 12, 2019


      LEACH, J.   —   Adrian VanWyck appeals the judgment and sentence

imposed for his violation of a no-contact order and challenges three legal

financial obligations (LFO5). He claims that the trial court abused its discretion

when it rejected his necessity defense and his request for an exceptional

sentence below the standard range.

      VanWyck fails to show that no reasonable fact finder could find the

evidence insufficient to establish a necessity defense. Because the trial court

considered and rejected his request for a deviation from a standard range

sentence and imposed a standard range sentence, he cannot appeal his

sentence.   So we affirm in part.        Based on his indigency, VanWyck has

established his right to relief from the challenged LFO5.
No.78316-5-1/2


                                    BACKGROUND

       Adrian VanWyck is Thomas VanWyck’s son.1           Thomas has three other

children, two live in Washington state and one lives in Arizona. In 2014, Adrian

sustained head injuries and still suffers from them. That same year, Thomas had

the first of several strokes. The strokes rendered Thomas physically fragile and

unable to work.

       According to Thomas, Adrian helped him “all the time” with car repairs,

housecleaning, laundry, and cooking. He did not “feel an obligation to take care

of Adrian” but worried that he would not have a place to stay if he did not stay at

Thomas’s apartment.

       In January 2015, Thomas reported Adrian to the police after Adrian hit him

on the head with a baseball cap and threw pills at him. He told the responding

officers that he was “so scared of Adrian that he sleeps with a kitchen knife in his

bedroom.”     The court convicted Adrian of fourth degree assault, domestic

violence.    It imposed several conditions, including an alcohol and drug

assessment and a domestic violence assessment. It issued a postconviction no-

contact order on April 8, 2015, that prohibited Adrian from coming within 150 feet

of his father for five years from this date.

       Between March 2015 and October 2016, Adrian was convicted of violating

the no-contact order six times.2 In January 2017, the State charged Adrian with


       For the purposes of clarity, we refer to Adrian VanWyck as “Adrian” and
       1
Thomas VanWyck as “Thomas.”
     2 Adrian stipulated to these convictions before the trial we are reviewing.



                                           -2-
No. 78316-5-I / 3


a felony violation of the no-contact order, domestic violence, based on evidence

gathered after officers responded to three separate 911 calls made by Thomas’s

sister Rae Kordes and his neighbor Michael Hatch between the end of December

2016 and January 2017. Hatch called 911 after he checked on Thomas in his

apartment because he had not left for work and discovered Adrian drinking beer

in the kitchen while Thomas lay in bed “having vomited and urinated on himself.”

Kordes called twice in response to Adrian’s presence at the home when she was

caring for Thomas after he had left the hospital.

      Adrian was convicted as charged. At sentencing on June 21, 2017, the

State recommended a standard range sentence of 51 months, but the court

imposed a first-time offender waiver with 90 days of jail time and 12 months of

community custody.     It ordered him to participate in a chemical dependency

evaluation and “abide by all no-contact orders.”

      The following events led to the charges in this case. On November 2,

2017, Everett police responded to a 911 call from Thomas, who reported that

Adrian was at his home and had an outstanding Department of Corrections

warrant for his arrest. Officers contacted Thomas at his neighbor’s. Thomas

gave them access to his apartment, told them that Adrian was inside, and said

that the interior doors should all be unlocked. Thomas told the police an incident

had occurred that evening that caused him to ask Adrian to leave.          Adrian

refused. Thomas was afraid of Adrian.




                                        -3-
No. 78316-5-1/4


       Police found Adrian in Thomas’s home behind a locked door and

intoxicated. They arrested Adrian on the DOC warrant.3

      Adrian elected to have his case tried to a judge. Adrian provided this

explanation for his presence in his father’s home. At the end of October 2017,

Thomas called him, speaking incoherently. Adrian went to Thomas’s home and

found him in bed and extremely debilitated.       Adrian stayed with Thomas for

several days. During this time, he cared for his father and cleaned up the house.

He said he had some knowledge of what to look for and observed his father

“progressively getting better over the couple of days.”

      Adrian did not call an ambulance for Thomas “because of the restraining

order” and because he “was waiting to see what would happen.” He knew that if

he called an ambulance, Thomas “would be angry” because “he doesn’t like

doctors or hospitals.” After a couple of days, Thomas was more mobile and

could communicate but still struggled to speak. Because of this, Adrian tried to

obtain the phone number of Thomas’s doctor.           As he searched, his father

“started getting aggravated” and “storm[ed] over to the neighbor[’]s.”    Adrian

agreed that Thomas called 911 because Adrian refused to leave after Thomas

asked him to.

      At trial, Adrian admitted that he knew a no-contact order prohibited him

from any contact with Thomas. He said that despite this knowledge, he went to



     ~ The warrant was in place because Adrian failed to comply with the
Washington State Department of Corrections requirements.

                                        -4-
No. 783 16-5-I /5


his father’s house because he was “worried about [his] father’s safety and his

well-being, his health, knowing his health conditions with the strokes, and

knowing that there is pretty much no one else to take care of him.” He claimed

that “after I got that last phone call, then I knew something was really bad

happening.”

       After the parties presented their cases, the court asked defense counsel

what part of what they presented “rises to a defense.” Defense counsel said,

“[T]he Court heard the testimony. I’m leaving it up to the Court to decide. I

understand where the Court is coming from.”4

The court said,

              I think that [given] the factual scenario that was testified to by
       the defense, the closest doctrine that it gets to is necessity. I think
       the State is right about that.

              And in order to avail one’s self on the defense of necessity,
       you have to establish by a preponderance of the evidence that you
       reasonably believed the commission of the crime was necessary to
       avoid or minimize the harm, that the harm sought to be avoided
       was greater than the harm that resulted in violation of the law, and
       that no legal alternative existed.

             In this case I am going to find as a matter of law that the
       defense of necessity was not met.
       At sentencing, the defense asked for an exceptional sentence below the

standard range based on what it identified as mitigating factors, emotional duress

and Thomas’s willing participation. The State disagree about both mitigating

factors.

      ~ Earlier, the State characterized defense arguments as possibly
“necessity or something akin to that.”

                                         -5-
No. 78316-5-lI 6


      After hearing from the parties, the court said that it did not find Adrian’s

story credible and that it considered him the primary problem. It also noted that

the previous court’s leniency had not changed Adrian’s illegal conduct. It denied

Adrian’s request and imposed a standard sentence. It ordered him to pay legal

financial obligations, including a $200 filing fee, a $100 DNA collection fee, and a

$100 domestic violence penalty fee. It noted that the Washington State Patrol

Crime Laboratory already had a DNA sample from Adrian.

                                    ANALYSIS

      Adrian raises three issues in this case. First, he claims that no reasonable

judge could find that he did not prove the defense of necessity.        Second, he

asserts that the trial court did not consider his claim that a mitigating factor

warranted a sentence below the standard range. Finally, he asks that certain

LFOs imposed by the trial court be stricken because he is indigent. Only the last

issue has merit.

Defense of Necessity

       For purposes of this opinion, we assume, without deciding, that Adrian can

raise and did raise necessity as a defense to violation of a court order.5 To prove

necessity, the defendant must establish, by a preponderance of the evidence,

‘that (1) he or she reasonably believed the commission of the crime was

necessary to avoid or minimize a harm, (2) the harm sought to be avoided was


       ~ The Washington Supreme Court has not addressed whether necessity is
available as a defense to violation of a no-contact order. See State v. Yelovich,
191 Wn.2d 774, 780 n.1, 426 P.3d 723 (2018).

                                        -6-
No. 78316-5-I /7


greater than the harm resulting from a violation of the law, and (3) no legal

alternative existed.”6

          Defendants must prove affirmative defenses like necessity by a

preponderance of the evidence.7           When this court reviews a trial court’s

conclusion that the defendant failed to prove this defense, we ask “whether,

considering the evidence in the light most favorable to the State, a rational trier of

fact could have found that the defendant failed to prove the defense by a

preponderance of the evidence.”8

          We begin our analysis by noting that Adrian’s argument depends to a

large degree upon this court accepting Adrian’s testimony as true. But the trial

court did not find him credible. This court defers to a trial court’s decisions about

credibility.

          Even accepting Adrian’s testimony as true, he did not provide evidence

that requires a finding of necessity.      Adrian stayed at his father’s home for

several days after any emergency had resolved. During this time he drank to the

point of intoxication. This conduct does not rise to a legal necessity as a matter

of law.

          Adrian also did not establish the absence of reasonable, legal alternatives

to his violation of the court order. As the trial court noted, if Thomas needed



         State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994) (citing
          6
State v. Diana, 24 Wn. App. 908, 916, 604 P.2d 1312 (1979)).
       ~ State v. Riker, 123 Wn.2d 351, 366, 869 P.2d 43 (1994).
       8 State v. Lively, 130 Wn.2d 1, 17, 921 P.2d 1035 (1996).



                                          -7-
No. 78316-5-1/8


help, Adrian could have called 911 or Adult Protective Services and waited more

than 150 feet from Thomas’s home until help arrived. The record contains no

credible evidence that these alternatives were not available in this case. Indeed,

he admitted that he did not call a doctor or an ambulance at least in part

“because of the restraining order.”

       Given these facts, Adrian fails to establish that no rational court could find

that he did not establish the three prongs of the necessity defense. The trial

court did not err.

Denial of Exceptional Sentence

       Adrian contends that the trial court abused its discretion by failing to

consider his request for an exceptional downward sentence because Thomas

acted as a “willing participant.” We conclude he cannot appeal his standard

range sentence because the trial court did consider his request.

       When a defendant has requested an exceptional sentence below the

standard range, “review is limited to circumstances where the court has refused

to exercise discretion at all or has relied on an impermissible basis for refusing to

impose an exceptional sentence below the standard range.”9                “While no

defendant is entitled to an exceptional sentence below the standard range, every

defendant is entitled to ask the trial court to consider such a sentence and to

have the alternative actually considered.”1° Thus, “[t]he failure to consider an



       ~ State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
       10 State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).



                                         -8-
No. 78316-5-I /9


exceptional sentence is reversible error.”11        Similarly, we review a trial court’s

mistaken belief that it lacks the discretion to depart downward from the standard

sentence.12

      The trial court reviewed the sentencing memos and statements during the

sentencing hearing, including the defense’s assertion that the court should

impose an exceptional downward sentence because Thomas was a willing

participant. At sentencing, the trial court directed some observations to Adrian:

      [l]n looking at the material that’s been presented by both sides and
      listening to what transpired at trial, I [wonder] if you knew that you
      were violating the no contact order, why didn’t you just work around
      it.

            And you just said, you know, that you feel compelled to
      disobey the law.



             And I am not so sure I understand that kind of thinking, and I
      don’t think it’s correct. And what it does suggest to me is that it’s
      not so much that you choose to disobey the law, it’s just that you
      choose to do what you want.

              One thing that sort of stands out for me very powerful[ly], is
      Judge Fair gave you a first time offender waiver when she didn’t
      really have to do that, and .   that leniency just had no significance
                                      .   .


      on you at all, whatsoever.

            And I don’t have anything direct, with regard to this
      statement, but it seems to me that maybe your siblings don’t see
      your dad because of you, that that’s really the problem. There [are]
      a couple of things that I read which indicated that, that they don’t
      approve of the relationship that you have or that you established
      with your dad and so they either don’t intervene when you are
      around or they are afraid to intervene when you are around.


      ~ Grayson, 154 Wn.2d at 342.
      12 Grayson, 154 Wn.2d at 342.



                                              -9-
No. 78316-5-I /10


The court did not find Adrian’s story credible. It did not believe Adrian’s claims

that he was “in this tangled web,” that he was ‘a victim,” that it was not his fault,

and that it was “just all these things are happening that sort of compel things to

transpire a certain way” did not “wash.”

       It concluded by saying,

       People who take responsibility have a tendency to create order
       even in a bad situation, so that if there is a no contact order a
       responsible person can work with that and still create a situation
       where everything needs to get done. But for you, it’s an excuse.

              So I am not going to bless that. I am not going to continue to
       keep continuing to grant you leniency so you can just keep doing
       this over and over and over again. I’m sorry to your dad that this is
       going to happen, that he feels that he needs you.

               But in this situation from sort of an objective outside
       observer, I think you are the problem. I don’t think you are the
       solution. And that message needs to be delivered, because
       apparently a lenient sentence doesn’t do it, because you got that
       already, and it didn’t work.
       The trial court was aware of its discretion to impose a sentence below the

standard range.     And it reviewed the materials submitted by the parties that

included the memoranda discussing the defense theory that Thomas was a

willing participant. The court made clear that it viewed Adrian’s behavior solely to

be the product of his own choices, indicating that it did not consider Thomas to

be driving his son’s violation of the no-contact order, as a willing participant or

otherwise. Adrian has not established that the trial court refused to exercise its

discretion.13 He cannot appeal his standard range sentence.


      13   Garcia-Martinez, 88 Wn. App. at 330.


                                        -10-
No. 78316-5-I/Il


Legal Financial Obligations

             Finally, Adrian challenges the $200 filing fee, the $100 DNA fee, and the

$100 domestic violence penalty because the legislature’s 2018 modifications to

LEO statutes apply to him. We agree.

             In 2015, the Washington Supreme Court held that RCW 10.01.160(3)

requires sentencing judges to “make an individualized inquiry into the

defendant’s current and future ability to pay before the court imposes LFOs.”14

Later, in 2018, the legislature passed House Bill 1783 that amended statutes

governing the imposition of discretionary LFOs. This law, effective June 7, 2018,

amended former RCW 36.18.020(2)(h) (2015) to prohibit trial courts from

imposing the $200 court filing fee on indigent defendants.15 It also eliminated the

mandatory $100 DNA collection fee where “the state has previously collected the

offender’s DNA as a result of a prior conviction.”16

             The legislature did not amend RCW 10.99.080(1) which states that a court

“may impose a penalty assessment not to exceed one hundred dollars on

an   .   .   offender convicted of a crime involving domestic violence.”        But it

amended RCW 10.01.160(3) to prohibit sentencing courts from imposing

discretionary costs on indigent defendants.17 RCW 10.99.080 is discretionary

and provides that when deciding whether to impose the penalty, “judges are



             14   State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 (2015).
             15   LAWS OF 2018, ch. 269, § 6(3).
             16   RCW43.43.7541.
             17   LAWS OF 2018, ch. 269, § (6)(3).


                                              —11—
No. 78316-5-I / 12


encouraged to solicit input from the victim or representatives for the victim in

assessing the ability of the convicted offender to pay the penalty, including

information regarding current financial obligations, family circumstances, and

ongoing restitution.”18

       Under State v. Ramirez,19 these amendments apply to Adrian because his

direct appeal was pending on June 7, 2018, the amendment’s effective date.2°

He was indigent at the time of sentencing. And the judgment and sentence in

this case states that the court did not require DNA testing because the

Washington State Patrol Crime Laboratory already had a sample. Because of

this, the State concedes that the $200 filing fee and the $100 DNA collection fee

should be stricken.21 We agree and remand for that purpose.

       But the State does not concede that the domestic violence penalty should

be stricken. It claims that the domestic violence penalty is not a “cost” and so

RCW 10.01.160(3) does not apply. It asks this court to view costs as described

in RCW 10.01.160(2): ‘expenses specifically incurred by the state in prosecuting

the defendant or in administrating the deferred prosecution program         .   .   .   or

pretrial supervision.” We decline to take such a narrow view of the term “costs.”

Because the domestic violence penalty fee is discretionary and the 2018

amendment to RCW 10.01.160(3) prohibits sentencing courts from imposing

       18RCW 10.99.080(5).
       19191 Wn.2d 732, 747, 426 P.3d 714 (2018).
      20 Ramirez, 191 Wn.2d at 747.
      21 It also states that this court should order the lower court to strike the
domestic violence penalty fee but, on the same page, asserts that this court
should not order the lower court to strike the fee.

                                       -12-
No. 78316-5-I I 13


discretionary costs on indigent defendants, we remand for the superior court to

strike the $100 domestic violence penalty.

                                 CONCLUSION

      We remand for the superior court to strike the criminal filing fee, the DNA

collection fee, and the domestic violence penalty fee from the judgment and

sentence. We otherwise affirm.




WE CONCUR:



~jii4w4/\      -                                             •~   ••       /




                                       -13-
