                                                                         FILED
                                                                      JUNE 15, 2017
                                                               In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                           )         No. 34176-3-111
                                               )
                     Respondent,               )
                                               )
               v.                              )         UNPUBLISHED OPINION
                                               )
RICHARD GARCIA,                                )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY,       J. - Richard Garcia appeals his convictions for second

degree assault, felony harassment, and second degree unlawful possession of a firearm.

He argues ( 1) defense counsel rendered ineffective assistance of counsel by failing to

object to a mid-trial recess, (2) the State's information was constitutionally defective

because it failed to allege essential elements of felony harassment and unlawful

possession of a firearm, (3) the trial court erred in imposing several community custody

conditions, (4) the trial court failed to enter written findings of fact and conclusions of

law setting forth its reasons for imposing a sentence above the standard range, and (5) the

judgment and sentence contains a scrivener's error relating to his felony harassment

sentence.
No. 34176-3-111
State v. Garcia


       We disagree with Mr. Garcia's argument that defense counsel rendered ineffective

assistance, and disagree that the count in the information charging him with unlawful

possession of a firearm was constitutionally deficient. We do agree the count charging

him with harassment was constitutionally deficient and with his remaining contentions.

       Accordingly, we affirm Mr. Garcia's convictions for second degree assault and

second degree unlawful possession of a firearm. We reverse his conviction for felony

harassment and dismiss this charge without prejudice to the right of the State to recharge.

We also remand for the trial court to enter written findings and conclusions supporting

the exceptional sentence and to strike some and amend one of the challenged community

custody conditions.

                                            FACTS

       Mr. Garcia and his wife, April, 1 lived together in Cle Elum, Washington. They

had three children together, ages seven, six, and two, and April also had three other

children from another marriage. In September 2015, April's mother was visiting the

family from out of town. On the night of September 21, April and her mother were

having dinner at a local restaurant. Mr. Garcia arrived at the restaurant and was upset at

April for having dinner without permission. April's mother asked him to leave so they

could spend time together.

       1
           We use April Garcia's first name for clarity.

                                               2
No. 34176-3-111
State v. Garcia


       The next day, April was home with their children. Mr. Garcia came home from

work and was upset at April for having gone to dinner the night before. He stated April

was an unfit parent and the two began arguing. As they argued, Mr. Garcia led their

children into the children's bedroom. Mr. Garcia and April went to their bedroom.

       Mr. Garcia then grabbed a pistol from a red backpack that was on a shelf in their

closet. Mr. Garcia pointed the pistol at April's head.

       He shouted that he would "blow [her] brains out," and that she would "never see

[her] kids again." Report of Proceedings (RP) at 365. He also shouted, "'You will die,

bitch.'" RP at 44 7. As this was happening, their seven-year-old daughter came around

the comer and saw Mr. Garcia pointing the gun at April's head. April took their daughter

back to the other room.

       April then went into a hall bathroom, turned on the shower so Mr. Garcia could

not hear her, and called her mother. April told her mother about the incident. Her mother

left work and went to a police station. While there, she approached Officer Jennifer

Rogers and told her what happened. The two then drove together to April and Mr.

Garcia's house.

       When they arrived, April was visibly shaken up and was crying hysterically. April

told Officer Rogers about the incident. April led Officer Rogers into the bedroom,

pointed to the closet where Mr. Garcia had gotten the pistol, and told Officer Rogers the

                                             3
No. 34176-3-111
State v. Garcia


pistol was in the red backpack. Officer Rogers took the pistol from the red backpack and

unloaded it. She took it with her to the police station, and it was later sent to the

Washington State Patrol Crime Laboratory for deoxyribonucleic acid (DNA) testing. A

forensic scientist determined Mr. Garcia's DNA was on the pistol.

       Shortly after the incident, April's mother helped April move to Oregon.

                                         PROCEDURE

       On September 25, 2015, the State charged Mr. Garcia with first degree assault,

felony harassment, and first degree unlawful possession of a firearm. The State included

special allegations that Mr. Garcia was armed with a firearm when he committed the

assault and that the assault constituted an aggravated domestic violence offense.

       Mr. Garcia was arraigned and appointed counsel. Trial was set for November 17

and then reset for December 1. On November 18, the State filed its amended witness list,

which listed April as a trial witness.

       Trial commenced as scheduled December 1. At the beginning of the proceedings,

the prosecutor informed the trial court that April was unavailable as a witness and the

State would not be calling her. The prosecutor stated he had attempted to secure her

presence but had reached a point where further efforts were futile. He informed the trial

court he would not seek a material witness warrant to avoid disrupting April's and the




                                              4
No. 34176-3-III
State v. Garcia


children's lives. Instead, he advised the State would prove its case through April's

mother, April's neighbor, Officer Rogers, and two forensic scientists.

       The State moved in limine to admit the statements April gave to Officer Rogers

immediately after Officer Rogers arrived at the house. The State argued these statements

were admissible under the excited utterance and state of mind hearsay exceptions. Over

Mr. Garcia's objection, the trial court admitted April's hearsay statements under the

excited utterance exception.

       The State then discussed how it would prove that Mr. Garcia had been convicted

of a "serious offense" for purposes of first degree unlawful possession of a firearm. The

State indicated that Mr. Garcia had an Oregon conviction for third degree robbery.

However, the trial court ruled Mr. Garcia's third degree robbery conviction was not

comparable to a "serious offense" in Washington.

       The State then indicated it would later amend the information to charge Mr. Garcia

with second degree unlawful possession of a firearm, instead of first degree unlawful

possession. The State further indicated the felony harassment charge would stay the

same, and that it would ultimately seek a lesser included instruction of second degree

assault. The jury was then seated and sworn. This first day of trial ended without any

witnesses being called.




                                            5
No. 34176-3-111
State v. Garcia


        At the beginning of the second day of trial, the trial court asked the State to

describe its efforts to secure April as a witness. The prosecutor stated that because April

was currently in an unknown out-of-state location, he had not attempted to subpoena her.

        The prosecutor then gave the following account to the trial court, explaining what

had happened: The victim coordinator had contacted April in the days following the

incident, but April then immediately moved out of her home in Cle Elum and went to

Oregon. After that, the State was unable to contact her-her voicemail was either not set

up, full, or she would not return the State's messages. In the weeks leading up to trial,

the prosecutor personally began reaching out to April. He obtained April's e-mail

address, and sent her at least three e-mails asking for her help. April responded to one of

these. April seemed "upbeat" and had a good conversation with the prosecutor. RP at

111. She did not specify where she was, but said she was in Oregon. She seemed

reluctant to appear as a witness and asked if the State could proceed without her, and the

prosecutor explained the ~tate needed her to prove its case. During this conversation, the

prosecutor explained that April would need to come up from Oregon the day before trial

and also explained someone would pick her up and arrange a hotel for her. April did not

indicate she would not appear. This all occurred before the original November 17 trial

date.




                                               6
No. 34176-3-III
State v. Garcia


       This was the last the prosecutor heard from April. After that, the prosecutor e-

mailed April to inform her the trial had been reset for December 1. April did not return

his e-mails, and her voicemail was either full or not set up. The prosecutor had Officer

Rogers call April as well, but this was also unsuccessful. The prosecutor then arranged

for an Oregon police officer to locate April. This officer was able to find one of April's

sons, but not her. The prosecutor, Officer Rogers, and the victim coordinator all called

April's mother, who lived in Arizona. They determined April would be more likely to

appear if her mother was also a witness. They booked an airplane ticket for April's

mother to fly up from Arizona. The day before trial, April's mother told the prosecutor

that April had not been responding to her phone calls, text messages, or voicemails. At

this point, the prosecutor determined the State would need to proceed without April.

Throughout the course of his attempt to secure April as a witness, the prosecutor stayed

in communication with defense counsel and provided updates as to his progress.

      The prosecutor then explained to the trial court why the State had not requested a

material witness warrant. He explained that because April moved to Oregon, the State

would need to request a warrant from a Washington court, have that warrant recognized

by an Oregon court, and then have an Oregon police officer arrest April and bring her to

the border. The prosecutor further explained that he did not want to further traumatize




                                             7
No. 34176-3-III
State v. Garcia


April and her children by putting them through this, so he decided to try the case without

their testimony.

       The trial court then revisited its prior ruling admitting April's hearsay statements

to Officer Rogers. The trial court found that the emergency was no longer ongoing when

April gave her statements to Officer Rogers at the house, that they therefore were not

excited utterances, and that introducing these statements would violate the confrontation

clause. The trial court then reversed its prior ruling and concluded that April's statements

to Officer Rogers were inadmissible.

       The prosecutor acknowledged that without these hearsay statements, the State

would be unable to prove first degree assault and felony harassment. Defense counsel

stated the defense's theory of the case was that April and her mother formulated a plan to

allow April to move to Oregon, and stated that he believed the case was highly

defensible.

       The trial court reiterated that April's statements to Officer Rogers were

inadmissible. However, the trial court indicated it would sign material witness warrants

for April and the children. The State indicated it would call the witnesses it had available

and then seek to continue the trial for good cause based on the warrants and its efforts to

obtain April as a witness.




                                             8
No. 34176-3-III
State v. Garcia


       The State then called Officer Rogers, April's mother, Mr. Garcia's neighbor, and

its two forensic scientists from the Washington State Patrol Crime Laboratory.

Following these testimonies, the State moved the court to issue material witness warrants

for April, her 7-year-old daughter, and her 16-year-old daughter from her prior marriage.

The State then moved for a two week recess in the trial to allow it to secure April and her

daughters.

       The trial court asked defense counsel if he had a position on this course of action,

and asked if it would prejudice the defense's case. Defense counsel stated:

       [F]rom my perspective I'm-I'm much more comfortable trying this case
       with her here. It's-that's just the legal position and the triability of-of
       the case-just makes it more preferable just for-that's just me.
              I'd agree with the judge's finding that you can't legally find Ms.
       Garcia unavailable. And I-I don't find any fault with [the prosecutor's]
       analysis.

RP at 297. The parties agreed to resume trial on December 15, 2015.

       The State then indicated it was amending the information. The amended

information added "some additional language" to the first degree assault charge. RP at

299. The State also amended the count charging first degree unlawful possession of a

firearm to charge second degree unlawful possession of a firearm. Mr. Garcia was

arraigned and waived formal reading of the amended information. The amended

information was never filed with the clerk and is, therefore, not part of the record.


                                              9
No. 34176-3-111
State v. Garcia


       The trial court then signed the orders directing the clerk to issue material witness

warrants for April, her 7-year-old daughter, and her 16-year-old daughter. Defense

counsel asked the court to allow him to interview April and her daughters sufficiently

before trial resumed, and the State agreed it would make the witnesses available.

       The State commenced the process to have the warrants executed in Oregon. April

and her daughters were eventually located in Oregon, and Officer Rogers accompanied

them back to Washington.

       Trial recommenced as scheduled on December 15. April testified that Mr. Garcia

held the pistol to her head and threatened to shoot her. The seven-year-old daughter

testified that she saw this occur.

       The next morning, the State indicated it needed to file a second amended

information. The prosecutor put a copy on the bench and provided a copy to defense

counsel. The prosecutor stated the changes were "not substantive," but rather "syntax

errors." RP at 537. The first amended information had referenced first degree unlawful

possession in the summary portion, so the prosecutor edited it to reflect that the State was

charging second degree unlawful possession. The prosecutor also inserted the word

"felony" before "harassment," to distinguish it from misdemeanor harassment. RP at

537-38. The prosecutor also deleted the reference to "Kittitas County" as the venue. RP

at 538. The defense agreed these were the only changes. Mr. Garcia was arraigned and

                                             10
No. 34176-3-111
State v. Garcia


waived formal reading of the second amended information. The second amended

information was never filed with the clerk and is not part of the record.

       The jury was unable to reach a verdict on first degree assault, but found Mr.

Garcia guilty of second degree assault. The jury also found Mr. Garcia guilty of felony

harassment and second degree unlawful possession of a firearm. The jury also returned

the special verdicts finding that Mr. Garcia was armed with a firearm when he committed

the assault and that the assault constituted an aggravated domestic violence offense.

       A community corrections officer completed a risk assessment report prior to

sentencing. The report documented Mr. Garcia's history with methamphetamine. It

stated Mr. Garcia had used methamphetamine twice a month between 2005 and 2012,

and then became sober. It stated Mr. Garcia began using again in 2015 three weekends

per month, but stopped one month prior to his arrest. The report also stated Mr. Garcia

abused alcohol as a teenager, but successfully completed treatment in 1999. Based on

this information, the community corrections officer recommended that Mr. Garcia

undergo a substance abuse evaluation.

      The trial court imposed 14 months' confinement for second degree assault. The

court also imposed 36 months' confinement on the firearm enhancement, and an

additional 10 months' confinement based on the jury's finding that the assault constituted




                                             11
No. 34176-3-III
State v. Garcia


an aggravated domestic violence offense. The court did not enter written findings of fact

and conclusions of law supporting the exceptional sentence.

       The court also imposed 12 months' confinement for both felony harassment and

second degree unlawful possession of a firearm. However, the judgment and sentence

indicated Mr. Garcia's sentence for the felony harassment conviction was 12 days.

       The court also imposed 18 months' community custody to follow Mr. Garcia's

term of confinement. The court imposed a number of community custody conditions,

including conditions requiring Mr. Garcia to undergo a substance abuse evaluation and

comply with treatment, prohibiting him from entering establishments that primarily sell

alcohol, and prohibiting him from going to areas where "dangerous drugs," narcotics, or

controlled substances are sold, possessed, or consumed. Clerk's Papers (CP) at 27.

       Mr. Garcia appeals.

                                       ANALYSIS

      A.      ALLEGED INEFFECTIVE ASSISTANCE FOR FAILURE TO OBJECT TO
              CONTINUANCE

      Mr. Garcia argues he received ineffective assistance because defense counsel

failed to object to the State's request for the two week recess. He argues this recess

allowed the State to secure April and her daughters as witnesses, without whom the State

could have never proved the assault or harassment charges. He argues that if counsel had


                                             12
No. 34176-3-111
State v. Garcia


objected, the trial would have continued without them and thus resulted in a dismissal of

these two counts.

       The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to effective assistance of counsel. Strickla11:d v. Washington, 466

U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant receives

ineffective assistance if the attorney's conduct (1) falls below a minimum objective

standard of reasonable attorney conduct, and (2) prejudices the defendant, i.e., there is a

reasonable probability the attorney's conduct affected the case's outcome. State v. Benn,

120 Wn.2d 631,663, 845 P.2d 289 (1993). Because ineffective assistance of counsel is

an issue of constitutional magnitude, it may be considered for the first time on appeal.

State v. Ky/lo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

      There is a strong presumption that counsel rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment. Benn, 120

Wn.2d at 665. Counsel also does not perform deficiently when he or she declines to raise

a nonmeritorious argument at trial, given the argument's likelihood of failure. See State

v. Williams, 152 Wn. App. 937, 944-45, 219 P.3d 978 (2009), rev'd on other grounds,

171 Wn.2d 474,251 P.3d 877 (2011). This court reviews ineffective assistance claims de

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).




                                             13
No. 34176-3-111
State v. Garcia


       A trial court has discretion in determining whether to grant a recess to allow a

party to secure or consult with additional witnesses. See State v. Edwards, 68 Wn.2d

246,255,412 P.2d 747 (1966); State v. Delarosa-Flores, 59 Wn. App. 514,516, 799

P .2d 736 ( 1990). "Good faith is, of course, an essential ingredient to any application for

a recess, postponement or continuance, and for the issuance of process." Edwards, 68

Wn.2d at 258. Factors to consider are whether the recess is designed to delay, harry, or

obstruct the orderly process of the trial, or to take the opposing party by surprise. Id. In

Edwards, our Supreme Court held the trial court abused its discretion by denying the

defendant's good faith request for a recess to enable him to compel witnesses he had

properly subpoenaed. Id.

       In light of the applicable law governing requests for trial recesses, Mr. Garcia

cannot establish defense counsel performed deficiently. As discussed in detail above, the

State made a good faith, diligent, and honest effort to secure April and her daughter as

witnesses in the weeks leading up to trial. The prosecutor communicated with defense

counsel and updated him regarding the State's progress. There is no evidence the

prosecutor attempted to delay, harry, obstruct the orderly process of the trial, or take Mr.

Garcia by surprise. Based on the applicable law governing recesses, defense counsel

likely knew that even if he had objected, the trial court would have granted the State's

request over his objection.

                                             14
No. 34176-3-III
State v. Garcia


       Nevertheless, Mr. Garcia argues defense counsel should have objected to the

recess because the State's request was based on the unavailability of witnesses it never

subpoenaed. In the speedy trial context, Washington courts have consistently held that

the failure to properly subpoena a witness constitutes a lack of due diligence. See State v.

Adamski, 111 Wn.2d 574, 578-79, 761 P .2d 621 (1988); City of Kirkland v. Ellis, 82 Wn.

App. 819, 830, 920 P.2d 206 (1996).

       Mr. Garcia argues the same due diligence analysis should apply here. But his

argument ignores the critical distinction between a pretrial continuance that results in a

trial starting after the CrR 3 .3 speedy trial deadline and a recess after trial has already

commenced. Where CrR 3.3 is violated, a defendant is not required to show prejudice to

obtain a dismissal. E.g., State v. Teems, 89 Wn. App. 385, 388, 948 P.2d 1336 (1997).

Conversely, a trial court's discretionary decision to grant a recess during a trial, which

does not implicate the rule, will be disturbed only on a showing of prejudice. See

Edwards, 68 Wn.2d at 257. Mr. Garcia cites no Washington authority for the proposition

that a CrR 3 .3 analysis should apply to a recess requested during trial.

       Mr. Garcia argues he was prejudiced by the recess because without it, the State

would never have been able to prove its assault or harassment charges and the trial court

would have been required to dismiss them. This argument misconstrues the meaning of

"prejudice." Prejudice, in this context, does not mean contributing to a conviction. If it

                                               15
No. 34176-3-III
State v. Garcia


did, then every continuance or recess that helps the State would be prohibited. Prejudice

means unfairly or unjustly contributing to a conviction. State v. Day, 51 Wn. App. 544,

549-50, 754 P.2d 1021 (1988). The two week continuance was neither unfair nor unjust.

For instance, the recess did not cause Mr. Garcia's evidence to spoil, cause his witnesses

to become unavailable, or cause his constitutional rights (such as his right to a speedy

trial) or any other right to be violated. Mr. Garcia contends he was prejudiced because he

did not receive a windfall from April's reluctance to testify, but this is not the kind of

prejudice that deprives a trial court of discretion to grant a recess.

       Applying the strong presumption that counsel has rendered adequate assistance,

together with the fact that controlling authority supports the trial court's decision to grant

the recess, we conclude that Mr. Garcia has failed to demonstrate that defense counsel

performed deficiently by not objecting to the recess. Accordingly, we conclude Mr.

Garcia did not receive ineffective assistance of counsel.

       B.     CONSTITUTIONAL SUFFICIENCY OF THE INFORMATION

       Mr. Garcia argues the information was constitutionally defective because it failed

to allege all the essential elements of felony harassment and unlawful possession of a

firearm.




                                              16
No. 34176-3-111
State v. Garcia


              1.     Missing amended information and second amended information

       The central issue with respect to Mr. Garcia's challenge to the charging document

is the question of whether this court should evaluate the sufficiency of the original

information, given that there is no written record of the amended information or the

second amended information.

       The State concedes that neither the amended information nor the second amended

information are in the trial court file. However, the State argues that Mr. Garcia was tried

on the second amended information-not the original information. Thus, it argues, he

had the burden of designating this document for this court's review and, because he did

not do so, the record is insufficient for this court to review his challenge to the

constitutional sufficiency of that document.

       The State's argument is unpersuasive. The State moved to amend the information

and, thus, it had the burden to ensure its own pleading was properly filed. See CrR 2.1.

On this record, there is no evidence the amended information or second amended

information were ever actually filed.

       Moreover, the parties indicated on the record the exact nature of the amendments

to each information. The changes involved minor corrections such as changing syntax,

removing Kittitas County as a venue, and correcting the summary portion of the

information. The parties made a detailed record of the amendments to the information,

                                               17
No. 34176-3-III
State v. Garcia


and the record does not reflect that the State ever amended the language to correct any

missing elements. We, therefore, will review the original information and presume that

the elements stated therein were stated in the same manner in the second amended

information.

               2.    Merits of Mr. Garcia's challenge to the constitutional sufficiency of
                     the information

       Criminal defendants have the constitutional right to know "the nature and cause of

the accusation" against them. U.S. CONST. amend. VI; WASH. CONST. art. I,§ 22. To be

constitutionally sufficient, a charging document must include all essential elements of a

crime, statutory and nonstatutory, so as to inform a criminal defendant of the charges and

to allow the defendant to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 102, 812

P.2d 86 (1991). A charging document that omits an essential element of the charged

crime is constitutionally defective and must be dismissed without prejudice. State v.

Johnson, 180 Wn.2d 295, 300-01, 325 P.3d 135 (2014). "An 'essential element is one

whose specification is necessary to establish the very illegality of the behavior' charged."

State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks

omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). This court

reviews the constitutional adequacy of a charging document de novo. State v. Goss, 186

Wn.2d 372, 376, 378 P.3d 154 (2016).



                                            18
No. 34176-3-111
State v. Garcia


       When the defendant challenges a charging document for the first time on appeal,

the appellate court will liberally construe it in favor of validity. Kjorsvik, 117 Wn.2d at

102. Under the liberal standard, this court has "considerable leeway .to imply the

necessary allegations from the language of the charging document." Id. at 104.

       The liberal review standard employs the two-prong Kjorsvik test: ( 1) do the

necessary elements appear in any form, or by fair construction can they be found, in the

information, and if so (2) can the defendant nevertheless show he or she was actually

prejudiced by the unartful language. Id. at 105-06; see also State v. Zillyette, 173 Wn.2d

784, 786, 270 P.3d 589 (2012). If the necessary elements are not found or fairly implied

on the face of the information, this court must presume prejudice and is required to

reverse without reaching the question of prejudice. Zillyette, 173 Wn.2d at 786. If a

court does find all essential elements, the defendant is still entitled to reversal if he or she

can show actual prejudice. State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185

(1995).

       Under the first Kjorsvik prong, this court looks solely to the face of the charging

document. Kjorsvik, 117 Wn.2d at 106. "Words in a charging document are read as a

whole, construed according to common sense, and include facts which are necessarily

implied." Id. at 109. A charging document satisfies the first prong if it includes the

essential elements of the offense even if it does not contain the exact statutory language.

                                               19
No. 34176-3-III
State v. Garcia


State v. Hopper, 118 Wn.2d 151,156,822 P.2d 775 (1992). "Even missing elements

may be implied if the language supports such a result." Id. However, "[i]f the document

cannot be construed to give notice of or to contain in some manner the essential elements

of a crime, the most liberal reading cannot cure it." Campbell, 125 Wn.2d at 802.

                     1.    Unlawful possession of a firearm

       For unlawful possession of a firearm, Mr. Garcia argues the State did not allege

the nonstatutory element that he knowingly possessed a firearm.

       A person is guilty of unlawful possession of a firearm-either first or second

degree-when "the person owns, has in his or her possession, or has in his or her control

any firearm" and is subject to an enumerated disqualifying condition. RCW

9.41.040(1)(a), (2)(a).

       Although RCW 9.41.040(1)(a) does not expressly include "knowledge" as an

element of unlawful firearm possession, our Supreme Court has held that "knowledge" is

an additional nonstatutory element that the State must prove beyond a reasonable doubt.

State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000). Thus, although the statute

does not require the defendant to have known that possessing a firearm was unlawful, it

does require the defendant to have known that he or she actually possessed the firearm.

State v. Marcum, 116 Wn. App. 526, 535, 66 P.3d 690 (2003). Accordingly, when the

State charges a person with unlawful possession of a firearm, the knowledge element

                                           20
No. 34176-3-III
State v. Garcia


must either appear in the body of the information, or the information must include

language from which the knowledge element can be inferred. Id. "Simply to state that

the offense charged is unlawful possession is not enough." Id.

       Here, the original information alleged:

       That on or about September 22, 2015 in Kittitas County, Washington, the
       defendant, Richard Garcia, owned, had in his possession, or had in his
       control any firearm after having previously been convicted in this state or
       elsewhere of any serious offense, as defined in this chapter, thereby
       committing the felony crime of UNLAWFUL POSSESSION OF A
       FIREARM IN THE FIRST DEGREE, in violation of RCW
       9.41.040(1 )(a).

CP at 2.

       In Marcum, this court held that a substantively identical charging document was

constitutionally insufficient, even under a liberal construction, because it omitted the

essential element ofknowledge. 2 See Marcum, 116 Wn. App. at 533, 535-36. The

Marcum court acknowledged the language alleged the defendant "did own or have in

his/her possession or control a firearm," but found this could not conceivably be

      2
      There, the information alleged:
                                    JARED MARCUM
     of the crime(s) of: COUNT I: UNLAWFUL POSSESSION OF A
     FIREARM IN THE FIRST DEGREE, RCW 9.41.040(l)(a); ... committed
     as follows, to-wit:
             That [he] ... did own or have in his/her possession or control a
             firearm, to wit: [described] after having been convicted [of a serious
             offense] ....
Marcum, 116 Wn. App. at 533 (alterations in original).

                                             21
No. 34176-3-III
State v. Garcia


construed as charging knowledge. Id. at 535; accord State v. 0 'Neal, 126 Wn. App. 395,

415, 109 P.3d 429 (2005) (information alleging defendant had firearm "under his control"

did not substitute for the "knowingly" element), ajf'd, 159 Wn.2d 500, 150 P.3d 1121

(2007). Therefore, because the count charging Mr. Garcia with unlawful possession of a

firearm was nearly identical to the one at issue in Marcum, it failed to allege the essential

element of knowledge.

       The State argues the "knowledge" element is present under the liberal standard

because the information also charged Mr. Garcia with assault based on pointing a firearm

at April, which would necessarily have required Mr. Garcia to know he possessed the

firearm. The State's argument has merit.

       When evaluating the sufficiency of the information under the liberal standard, this

court may look at the other counts in the information to determine if the challenged count

is constitutionally sufficient. State v. Nonog, 169 Wn.2d 220,227, 237 P.3d 250 (2010).

Here, count one of the information charged Mr. Garcia with first degree assault. It

alleged that Mr. Garcia "pointed a firearm at April Garcia, thereby committing" first

degree assault. CP at 1. Given these allegations, and construing the information liberally

and according to common sense, the missing element that Mr. Garcia knew he possessed

the gun can be fairly inferred here. The charging document, taken as a whole, adequately

informed Mr. Garcia that he knowingly possessed the firearm.

                                             22
No. 34176-3-III
State v. Garcia


       Although the charging document alleged all of the essential elements, Mr. Garcia

is still entitled to reversal if he can show he was actually prejudiced by the unartful

language in the information. Campbell, 125 Wn.2d at 802. Here, Mr. Garcia makes no

attempt to demonstrate he was prejudiced. See Br. of Appellant at 29. Nor could he.

During pretrial motions, the State expressly discussed its burden to prove knowledge:

"[O]ne of the essential elements is the knowledge element. He has to know. Knowingly

possess the firearm." RP at 62. Accordingly, because the State's charging document

informed Mr. Garcia of all the elements of unlawful possession of a firearm, we affirm

this conviction.

                     11.     Felony harassment

       For felony harassment, Mr. Garcia argues the State did not allege the essential

element requiring April to have reasonably feared he would carry out his threat to kill.

       The State charged Mr. Garcia with felony harassment under RCW 9A.46.020.

That statute provides, in relevant part:

       ( 1) A person is guilty of harassment if:
              (a) Without lawful authority, the person knowingly threatens:
              (i) To cause bodily injury immediately or in the future to the person
       threatened or to any other person [and]

             (b) The person by words or conduct places the person threatened in
       reasonable fear that the threat will be carried out. ...




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No. 34176-3-III
State v. Garcia


       [(2)](b) A person who harasses another ... is guilty of a class C felony if
       ... (ii) the person harasses another person under subsection (l)(a)(i) of this
       section by threatening to kill the person threatened ....

RCW 9A.46.020.

       Here, the information alleged:

       That on or about September 22, 2015, in Kittitas County, WA, the
       defendant, Richard Garcia, without lawful authority, knowingly threatened
       to cause bodily injury immediately or in the future to the person threatened,
       to wit: threatened to kill April Garcia, thereby committing the felony crime
       of HARASSMENT, in violation ofRCW 9A.46.020(l)(a) and (2)(b)(ii).

CP at 2. The essential element requiring the threatened person to have reasonably feared

the defendant would carry out the threat to kill is completely absent.

       Like before, the State argues the "reasonable fear" element is present under

the liberal standard because the information charged Mr. Garcia with assault based

on pointing a firearm at April, which would logically have placed her in

reasonable fear that his threat would be carried out.

       However, for this particular charge, this argument stretches the inference too far.

Unlike with the knowledge element for possession of a firearm, it is too great of a factual

leap to conclude April was in reasonable fear of harm. This is because the question of

reasonable fear of harm depends on all the facts and circumstances of the threat. State v.

C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003). This question also often depends on

prior incidents between the defendant and the listener, such as whether the defendant has

                                             24
No. 34176-3-III
State v. Garcia


made prior threats or acts of violence. See State v. Ragin, 94 Wn. App. 407, 411-12, 972

P.2d 519 (1999). In light of this authority, the allegation that Mr. Garcia pointed the

firearm at April, even construed according to common sense, did not fairly inform him of

the essential element that April was in reasonable fear that he would act on his threats.

Thus, even "the most liberal reading cannot cure it." Campbell, 125 Wn.2d at 802.

Because this element was missing entirely, Mr. Garcia need not show prejudice.

Zillyette, 173 Wn.2d at 786.

       We conclude the information was constitutionally sufficient as to the unlawful

possession of a firearm charge, but defective as to the felony harassment charge. We,

therefore, reverse Mr. Garcia's conviction for felony harassment and dismiss the charge

without prejudice to the right of the State to recharge and retry either the same offense or

any lesser included offense. See State v. Vangerpen, 125 Wn.2d 782, 791-95, 888 P.2d

1177 (1995).

       C.      COMMUNITY CUSTODY CONDITIONS

       Mr. Garcia challenges several of his community custody conditions. He argues

conditions 5 and 10 are not crime related. He argues condition 8 is unconstitutionally

vague. Defendants may challenge community custody conditions for the first time on

appeal. State v. Cordero, 170 Wn. App. 351,373,284 P.3d 773 (2012).




                                            25
No. 34176-3-111
State v. Garcia


       This court reviews community custody conditions for an abuse of discretion. State

v. Irwin, 191 Wn. App. 644,652,364 P.3d 830 (2015). The abuse of discretion standard

applies whether this court is reviewing a crime-related community custody condition or

reviewing a community custody condition for vagueness. See id. at 652, 656; State v.

Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010) (vagueness); Cordero,

170 Wn. App. at 3 7-3 (crime related). Imposing an unconstitutional condition is always

an abuse of discretion. Irwin, 191 Wn. App. at 652.

              1.     Condition number 5: Substance abuse evaluation and treatment

       Mr. Garcia challenges community custody condition 5, which requires him to

obtain a substance abuse evaluation and comply with treatment. He argues, and the State

concedes, that neither the evidence nor the trial court's findings established that

substance abuse was related to his crimes.

       A trial court lacks authority to impose a community custody condition unless

authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173

(2013 ). As part of any term of community custody, the court may impose and enforce

crime-related prohibitions. RCW 9.94A.505(9); RCW 9.94A.703(3)(f). A crime-related

condition prohibits conduct that "directly relates to the circumstances of the crime for

which the offender has been convicted." RCW 9.94A.030(10). The court may also

require a defendant to participate in crime-related treatment, counseling services,

                                             26
No. 34176-3-III
State v. Garcia


rehabilitative programs, or other "affirmative conduct reasonably related to the

circumstances of the offense, the offender's risk of reoffending, or the safety of the

community." RCW 9.94A.703(3)(c)-(d).

       The Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, authorizes the court

to order a defendant to obtain a chemical dependency evaluation and to comply with

recommended treatment only if it finds that the offender has a chemical dependency that

contributed to his or her offense:

       Where the court finds that the offender has any chemical dependency that
       has contributed to his or her offense, the court may, as a condition of the
       sentence and subject to available resources, order the offender to participate
       in rehabilitative programs or otherwise to perform affirmative conduct
       reasonably related to the circumstances of the crime for which the offender
       has been convicted and reasonably necessary or beneficial to the offender
       and the community in rehabilitating the offender.

RCW 9.94A.607(1); see Warnock, 174 Wn. App. at 609 (trial court may only impose

chemical dependency evaluation and treatment if it finds chemical dependency

contributed to offense). "If the court fails to make the required finding, it lacks statutory

authority to impose the condition." Warnock, 174 Wn. App. at 612.

       Here, the trial court ordered Mr. Garcia to undergo substance abuse evaluation and

to comply with treatment as condition 5 of his community custody. The judgment and

sentence contained a provision for the court to find, under RCW 9.94A.607, that "[t]he




                                             27
No. 34176-3-III
State v. Garcia


defendant has a chemical dependency that has contributed to the offense(s)." CP at 17.

The trial court did not make this finding.

       Condition 5 was also not authorized by RCW 9.94A.703(3)(c)-(d), which allows

courts to impose crime-related treatment, counseling, rehabilitative programs, and other

affirmative conduct. There was no evidence at trial or at sentencing that substance abuse

or chemical dependency played a role in Mr. Garcia's offenses. April testified that Mr.

Garcia did not, to her knowledge, have any problems with drug abuse. And although the

risk assessment submitted for sentencing indicated Mr. Garcia used methamphetamine

intermittently between 2005 and 2015, it also indicated he stopped one month before the

crimes. The risk assessment did not relate Mr. Garcia's prior methamphetamine use to

his crimes.

       In the absence of evidence or a finding that substance abuse was directly related to

the circumstances of Mr. Garcia's crimes, the trial court lacked authority to require

substance abuse treatment as a community custody condition. See Warnock, 174 Wn.

App. at 612. Accordingly, we accept the State's concession and remand for the trial court

to strike condition 5.




                                             28
No. 34176-3-111
State v. Garcia


              2.     Condition number 10: Prohibition on going to establishments where
                     alcohol is the main revenue source

       Mr. Garcia challenges community custody condition 10, which prohibits him from

entering establishments where alcohol is the main revenue source. He argues this

condition is not crime related.

       A trial court may prohibit any defendant from "possessing or consuming alcohol"

as a condition of community custody, regardless of whether alcohol was crime related.

RCW 9.94A.703(3)(e); see State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258

(2003 ). Although a trial court may always prohibit the possession and consumption of

alcohol, the trial court here went a step further and prohibited Mr. Garcia from entering

establishments where alcohol is the main revenue source.

       The only evidence in the record relating to alcohol is that Mr. Garcia abused

alcohol as a teenager, but successfully completed alcohol treatment in 1999. No evidence

suggests alcohol was directly related to the circumstances of Mr. Garcia's crimes.

Therefore, the condition prohibiting Mr. Garcia from entering establishments where

alcohol is the main revenue source is not crime related. See RCW 9.94A.030(10),

.703(3)(t); Jones, 118 Wn. App. at 207-08. Accordingly, the trial court lacked authority

to impose condition 10 and we remand for the trial court to strike it.




                                             29
No. 34176-3-III
State v. Garcia


              3.     Condition number 8: Prohibition on entering or remaining in areas
                     where controlled substances are sold, possessed, or consumed

       Mr. Garcia argues, and the State concedes, that condition 8 is unconstitutionally

vague. Condition 8 states that Mr. Garcia "shall not enter into or remain in areas where

dangerous drugs, narcotics, or controlled substances are being sold/purchased, possessed,

and/or consumed." CP at 27.

       Due process requires that laws not be vague. Irwin, 191 Wn. App. at 652. A

community custody condition is not vague as long as it ( 1) provides ordinary people with

fair warning of the proscribed conduct, and (2) has standards that are definite enough to

"' protect against arbitrary enforcement.'" Id. at 652-53 ( quoting State v. Bahl, 164

Wn.2d 739, 752-53, 193 P.3d 678 (2008)).

       Importantly, in deciding whether a community custody condition is impermissibly

vague, this court does not consider the terms in a vacuum. Bahl, 164 Wn.2d at 754.

Rather, this court considers them in the context in which they are used. Id. If a person of

ordinary intelligence can understand what conduct the condition prohibits,

notwithstanding some possible areas of disagreement, the condition is not

unconstitutionally vague. Id.

      Mr. Garcia argues condition 8 could conceivably prohibit him from going to a

hospital to visit a sick friend, going to a pharmacy to buy cough suppressant, or going to



                                            30
No. 34176-3-III
State v. Garcia


a grocery store. While this argument has some merit, the problem is that it focuses on

condition 8 in isolation. Condition 6 allows Mr. Garcia to purchase, possess, and

consume dangerous drugs, narcotics, and controlled substances with a "valid prescription

from a licensed physician." CP at 27. Condition 8 must be read as part of this broader

condition. When the challenged language is read in context, ordinary people can

understand what is prohibited.

       However, we agree that, as worded, condition 8 is unclear. There is no precise

distinction between "dangerous drugs," "narcotics," and "controlled substances." CP at

27. Moreover, Mr. Garcia could still conceivably violate condition 8 by entering a

hospital, pharmacy, or grocery store without a valid prescription. Therefore, on remand,

we instruct the trial court to amend condition 8 to read:

       (8)    Defendant shall not enter into or remain in areas where controlled
              substances are being unlawfully sold/purchased, possessed, and/or
              consumed.

       D.     LACK OF FINDINGS AND CONCLUSIONS FOR EXCEPTIONAL SENTENCE

       Mr. Garcia argues, and the State concedes, that the trial court failed to enter

written findings of fact and conclusions of law setting forth its reasons for imposing a

sentence above the standard range.

       RCW 9.94A.535 governs exceptional sentences. It provides that "[w]henever a

sentence outside the standard sentence range is imposed, the court shall set forth the

                                             31
No. 34176-3-III
State v. Garcia


reasons for its decision in written findings of fact and conclusions of law." RCW

9.94A.535. This requirement is essential whenever a court imposes an exceptional

sentence. State v. Friedlund, 182 Wn.2d 388, 393, 341 P.3d 280 (2015). An oral

colloquy on the record does not satisfy this requirement. Id.

       Here, the record does not contain findings and conclusions setting forth the trial

court's reasons for imposing a sentence above the standard range. We remand the case

for entry of those findings and conclusions. Id. at 395.

       E.     APPELLATE COSTS

       Mr. Garcia asks this court to waive appellate costs in the event the State prevails

on appeal. He timely filed a report as to continued indigency in support of his request.

       Generally, "the party that substantially prevails on review" will be awarded

appellate costs, unless the court directs otherwise in its decision terminating review.

RAP 14.2. "A 'prevailing party' is any party that receives some judgment in its favor."

Guillen v. Contreras, 169 Wn.2d 769,775,238 P.3d 1168 (2010). "If neither party

completely prevails, the court must decide which, if either, substantially prevailed." Id.

       Here, the State prevailed on the first issue. Mr. Garcia partially prevailed on the

second issue, and entirely prevailed on the third and fourth issues. Under such

circumstances, we do not deem the State the substantially prevailing party and deny it an

award of costs on appeal.

                                             32
No. 34176-3-III
State v. Garcia


      Affirmed in part, reversed in part, and remanded for entry of findings and

conclusions relating to the exceptional sentence, and for striking and amending the

community custody conditions.

      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.


                                         Lawrence-Berrey, J.

WE CONCUR:




Fearing,




                                           33
