                                                                              FILED
                                                                           August 18,2015
                                                                    In the Office of the Clerk of Court
                                                                   WA State Court of Appeals, Division III
J
I
1;

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

     STATE OF WASHINGTON, 
                        )        No. 33227-6-111


I
                 v.
                          Respondent, 

                                                   )
                                                   )
                                                   )
                                                   )
                                                   )
1    VINCENT L. FOWLER,                            )        UNPUBLISHED OPINION
                                                   )
                         Appellant.                )

            BROWN, A.C.J. -   Vincent Fowler appeals his conviction for two counts of first

     degree child molestation and one count of first degree rape of a child. He contends the

     trial court erred by (1) commenting on the evidence when it gave missing witness and

     non-corroboration jury instructions, (2) improperly giving an unconstitutional missing

     witness instruction, and (3) imposing $1,135 in legal financial obligations (LFOs) for

1    court-appointed counsel without making the requisite findings on his ability to pay. We

     disagree with Mr. Fowler's contentions and affirm his conviction.

                                               FACTS

I1          Mr. Fowler met AG. and AC.G.'s homeless mother through a friend. AG. was

     either nine or ten when she met Mr. Fowler, and A.C.G. was eight or nine. Mr. Fowler

     occasionally watched over the girls and gave them food, rides, and a place to stay.
No. 33227-6-111
State v. Fowler


       One night, AG. stayed at Mr. Fowler's apartment. According to AG., Mr.

Fowler's roommate, Monica Boyle,1 was not present the entire night. AG. said she

played with the dog before falling asleep on the couch in the living room. Mr. Fowler

slept on the floor. She woke up when she felt something unzip her pants; she was

wearing a shirt and jeans and had shorts and underwear underneath her jeans. Over .

her clothes, AG. felt Mr. Fowler touch her vagina. AG. turned over, got up, and went to

the bathroom. She noticed her zipper was undone. When she returned, Mr. Fowler

was pretending to sleep on the floor. AG. sat awake for the rest of the night. AG. told

her friend the next day. She told her brother, her sister, and her mom; her mom did not

believe her. AG. said Mr. Fowler apologized to her, said he was drunk, and he told her

if he had done it, he would not do it again. AG. continued to spend time with Mr.

Fowler after this incident, but she felt safe because they were not alone.

      AC.G. experienced two similar incidents with Mr. Fowler. The first occurred

while AC.G. and her family were at a friend's house. AC.G. fell asleep on one couch in

the living room while Mr. Fowler fell asleep on the other couch. She woke up when he

touched her. Mr. Fowler had pulled her pants and underwear down to her knees and

was touching the inside of her vagina with his hands. He stopped touching her when

her mom, who was sleeping in the bedroom, got up to use the bathroom. When her

mom came out of the bathroom, A.C.G. told her mom she wanted to sleep with her.




      1 While Mr. Fowler testified his roommate's name was Monica Boyd, all
references to her after his testimony are to Monica Boyle.

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No. 33227-6-111
State v. Fowler


      The second incident occurred in the same house, two days after the couch

incident. AC.G. was asleep on the bed in the bedroom; AG. and their older brother

were also sleeping on the bed. AC.G. wore a skirt and underwear. Mr. Fowler came

into the bedroom and touched AC.G.'s vagina under her skirt but on top of her

underwear. He stopped touching her when her brother moved.

      Both AG. and AC.G. talked with a child interviewer at the prosecutor's office.

Detective Kenny Davis reviewed the girls' statements and spoke with Natalie McMahon,

the apartment manager, and the girls' mom. He interviewed Mr. Fowler, who denied the

allegations but admitted he knew the girls, had spent time with them, and was around

them during the relevant time frame.

      At trial, Mr. Fowler again denied the allegations. Regarding the incident with

AG., Mr. Fowler testified Ms. Boyle and her dog were at the apartment. He fell asleep

on the floor while Ms. Boyle and AG. sat on the couch watching a movie. In the middle

of the night, the dog woke him up by licking his face. He pushed the dog off him, but

the dog jumped onto AG. and licked her, which caused her to awaken. He took the dog

off AG. and called to Ms. Boyle, who came out of the kitchen to get the dog. He talked

with Ms. Boyle for five minutes before going back to sleep on the floor. AG. was

already asleep on the couch and was still asleep when he left the next morning. While

Mr. Fowler mentioned he lived with Ms. Boyle during his interview with Detective Davis,

he never mentioned a dog or that she was present that night.




                                           3

1I
"
     No. 33227-6-111


I
J
     State v. Fowler


            Because of Mr. Fowler's testimony, the State requested a missing witness jury


I    instruction. The court gave the instruction over Mr. Fowler's objection. Mr. Fowler was

     convicted of two counts of first degree child molestation and one count of rape of a child

     in the first degree. Without objection, the court imposed $1,135 in LFOs for court-

     appointed attorney fees. Mr. Fowler appealed.

                                             ANALYSIS

                                    A. Judicial Comment Claims

            The issue is whether the non-corroboration instruction (No.8) and the missing

     witness instruction (No.9) constituted judicial comments on the evidence.

            Preliminarily, Mr. Fowler objected to the missing witness instruction at trial, but

     he did not object to the non-corroboration instruction. Because the claimed errors

     allege constitutional errors, we consider the issue. See State v. Levy, 156 Wn.2d 709,

     719-20, 132 P.3d 1076 (2006). We review constitutional challenges to jury instructions

     de novo, looking at them within the context of the instructions as a whole. Id. at 721.

            "Article IV, section 16 of the Washington Constitution prohibits a judge from

     conveying his or her personal perception of the merits of the case or giving an

     instruction thatimplies matters of fact have been established as a matter of law." State

     v. Steen, 155 Wn. App. 243, 247, 228 P.3d 1285 (2010). The purpose behind this

     provision is to prevent the jury from being influenced by the court's opinion. State v.

     Elmore, 139 Wn.2d 250, 275, 985 P.2d 289 (1999). Because the jury is the sole judge

     of the weight of testimony, "[t]he touchstone of error in a trial court's comment on the



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No. 33227-6-111
State v. Fowler


evidence is whether the feeling of the trial court as to the truth value of the testimony of

a witness has been communicated to the jury." State v. Lane, 125 Wn.2d 825, 838, 889

P.2d 929 (1995); see also In re Detention of RW, 98 Wn. App. 140, 144,988 P.2d

1034 (1999) (a court makes an impermissible comment on the evidence when it

instructs the jury as to the weight it should give certain evidence). A court's comment

on the evidence is presumed prejudicial, and the State must show no resulting

prejudice. Lane, 125 Wn.2d at 838-39.

       First, Mr. Fowler contends jury instruction 8 contained a judicial comment on the

evidence. Instruction 8 states: "In order to convict a person of Child Molestation in the

First Degree and/or Rape of a Child in the First Degree it is not necessary that the

testimony of the alleged victim be corroborated." Clerk's Papers (CP) at 45.

Instructions accurately stating the applicable law are not comments on the evidence.

State v. Zimmerman, 130 Wn. App. 170, 180-81,121 P.3d 1216 (2005). RCW

9A.44.020(1) provides "[i]n order to convict a person of any crime defined in this chapter

it shall not be necessary that the testimony of the alleged victim be corroborated." See

also RCW 9A.44.073 (defining rape of a child in the first degree); RCW 9A.44.083

(defining child molestation in the first degree).

       Similar non-corroboration instructions have been upheld. In State v. Malone, 20

Wn. App. 712, 714-15, 582 P.2d 883 (1978), the court found a substantially similar

instruction was not a comment on the evidence nor was it erroneously given because it

was a correct statement of Washington law, was pertinent to the issues presented, its



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No. 33227-6-111
State v. Fowler


phrasing did not convey the court's opinion on the alleged victim's credibility, and the

court had a duty to instruct the jury on pertinent legal issues. See also Zimmerman, 130

Wn. App. at 181-83 (noting even though the Washington Supreme Court Committee on

Jury Instructions recommends against such an instruction, the court was bound to hold

giving such an instruction was proper based on State v. Clayton, 32 Wn.2d 571, 202

P.2d 922 (1949». Here, the trial court's instruction was based on RCW 9A.44.020(1).

The instruction was a neutral and accurate statement of the law; it did not contain facts

nor did it convey the court's belief in any testimony.

       Mr. Fowler incorrectly argues additional Clayton language is needed in

instruction 8 telling the jury they decide credibility and including the standard of proof.

See Clayton, 32 Wn.2d at 572,577. 2 This issue was addressed in State v. Johnson,

152 Wn. App. 924, 219 P.3d 958 (2009). The Johnson court, seeing "no clear

pronouncement from [the Washington] Supreme Court on whether the additional

language is necessary to prevent an impermissible comment on the evidence under

article [IV], section 16," held the one-sentence instruction was "not an erroneous


       2   Clayton instructed:

              You are instructed that it is the law of this State that a person
      charged with attempting to carnally know a female child under the age of
      eighteen years may be convicted upon the uncorroborated testimony of
      the prosecutrix alone. That is, the question is distinctly one for the jury,
      and if you believe from the evidence and are satisfied beyond a
      reasonable doubt as to the guilt of the defendant, you will return a verdict
      of guilty, notwithstanding that there be no direct corroboration of her
      testimony as to the commission of the act.

Clayton, 32 Wn.2d at 572.

                                              6

No. 33227-6-111
State v. Fowler


statement of the law." Id. at 936. However, the court cautioned trial courts should

consider giving the additional language and omission of that language may be an

impermissible comment on the alleged victim's credibility. Id. at 936-37. Here, the trial

court did separately instruct them on credibility and the standard of proof. Looking at

the instructions as a whole, we conclude giving the non-corroboration instruction was

not error.

       Second, Mr. Fowler next contends jury instruction 9 contained a judicial comment

on the evidence. Instruction 9 states:

                If a person who could have been a witness at the trial is not called
       to testify, you may be able to infer that the person's testimony would have
       been unfavorable to a party in the case. You may draw this inference only
       if you find that:

              (1) The witness is within the control of, or peculiarly available to,
       that party;
              (2) The issue on which the person could have testified is an issue
       of fundamental importance, rather than one that is trivial or insignificant;
              (3) As a matter of reasonable probability, it appears naturally in the
       interest of that party to call the person as a witness;
              (4) There is no satisfactory explanation of why the party did not call
       the person as a witness; and
              (5) The inference is reasonable in light of all the circumstances.
              The parties in this case are the State of Washington and Vincent L.
       Fowler.

CP at 46. Again, an instruction stating the applicable law pertaining to an issue in the

case is not a comment on the evidence. R. W, 98 Wn. App. at 145. This instruction is

an accurate statement of the law. The instruction did not instruct the jury on the weight

to give certain evidence but does allow the jury to draw inferences; it does not convey

the court's feelings on the evidence. Instruction 9 does not comment on the evidence.


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No. 33227-6-111
State v. Fowler


                              B. Missing Witness Instruction

       Mr. Fowler first contends the missing witness instruction generally violates due

process by shifting the burden of proof onto him and encouraging the jury to make an

unreliable, irrational inference of his guilt. Second, Mr. Fowler contends instructing the

jury on the missing witness doctrine was improper under these facts.

       The missing witness doctrine permits the State to "point out the absence of a

'natural witness' when it appears reasonable that the witness is under the defendant's

control or peculiarly available to the defendant and the defendant would not have failed

to produce the witness unless the testimony were unfavorable." State v. Montgomery,

163 Wn.2d 577, 598, 183 P.3d 267 (2008). Because the doctrine subjects the

defendant's theory of the case to the same scrutiny as the State's theory, the State is

allowed to argue and the jury can infer the missing witness' testimony would have been

unfavorable to the defendant. Id. Over Mr. Fowler's objection, the trial court allowed

the State to argue to the jury that Ms. Boyle's testimony would have been unfavorable to

Mr. Fowler; the court also gave a jury instruction to that effect.

       Initially, we address Mr. Fowler'S due process arguments. Constitutional

challenges may be raised for the first time on appeal. RAP 2.5(a). "Due process

requires the State bear the 'burden of persuasion beyond a reasonable doubt of every

essential element of a crime.'" State v. Hanna, 123 Wn.2d 704,710,871 P.2d 135

(1994) (quoting Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct., 1965,85 LEd. 2d




                                              8

No. 33227-6-111
State v. Fowler


344 (1985)). In meeting its burden of proof, the State may use evidentiary devices

including inferences and presumptions. Id.

       In orderto determine whether an inference instruction, such as the missing

witness instruction, violates a defendant's right to due process, appellate courts "must

determine whether the instruction was only part of the State's proof supporting an

element of the crime or whether the State relied solely on the inference." State v. Reid,

74 Wn. App. 281,285,872 P.2d 1135 (1994). If the inference was the sole basis for

finding guilt, the inference must satisfy the reasonable doubt standard. Id. at 285-86;

see also Hanna, 123 Wn.2d at 710-11 (discussing such an inference as a mandatory

presumption). However, "[ilf the inference was only part of the proof, due process

requires the presumed fact to flow more likely than not from proof of the basic fact."

Reid, 74 Wn. App. at 285 (quoting Hanna, 123 Wn.2d at 710) (internal quotation marks

omitted); see also Hanna, 123 Wn.2d at 710 (discussing such an inference as a

permisSive inference or presumption).

       Both parties agree the missing witness instruction is a permissive inference. A

permissive inference "do[es] not relieve the State of its burden of persuasion because

the State must still convince the jury the suggested conclusion should be inferred from

the basic facts proved." Hanna, 123 Wn.2d at 710. As such, permissive inferences are

allowed "when there is a rational connection between the proven fact and the inferred

fact, and the inferred fact flows more likely than not from the proven fact." State v.

Ratliff, 46 Wn. App. 325, 331, 730 P.2d 716 (1986) (internal quotation marks omitted).



                                             9

No. 33227-6-111
State v. Fowler


Whether an inference is allowed is determined on a case-by-case basis. Hanna, 123

Wn.2d at 712 (stating the State is entitled to an inference if it introduces facts supporting

the inference to the degree required by due process and the jury is free to reject the

inference if it gives more weight to the defendant's version of facts).

       The missing witness instruction given in Mr. Fowler's case satisfies due process.

A rational connection exists between the inferred fact (Ms. Boyle's testimony would

have been unfavorable) and the proven fact (Mr. Fowler's testimony that Ms. Boyle was

present and could have corroborated his story about the dog). The inferred fact flows

more likely than not from the proven fact: if Mr. Fowler's version of events was true and

the case was essentially a credibility contest, he would have called someone, such as

Ms. Boyle, to corroborate his testimony. We are satisfied such an instruction does not

impermissibly shift the burden of proof. Montgomery, 163 Wn.2d at 599.

       Mr. Fowler cites to numerous out-of-state cases to support his contention the

instruction is uliconstitutional. But we need not resort to persuasive authorities when

our precedent sufficiently guides us. Moreover, the majority of these cases have not

found the instruction violates due process. See, e.g., State v. Tahair, 172 Vi. 101, 109,

111 n.3, 772 A2d 1079 (2001); State v. Malave, 250 Conn. 722, 737-38, 737 A2d 442

(1999); Russell v. Com., 216 Va. 833, 835-36, 223 S.E.2d 877 (1976). Mr. Fowler

argues the historical reasons for the missing witness doctrine are no longer relevant;

while this limits the prevalence of the doctrine in modern times, it does not mean the

doctrine is unconstitutional. As for Mr. Fowler's concerns about strategic reasons not to



                                            10 

No. 33227-6-111
State v. Fowler


call witnesses, the instruction itself states there must be no satisfactory explanation for

the witness' absence. The court ruled on this outside the presence of the jury, and Mr.

Fowler was able to raise his arguments, including strategic arguments.

       Next, we address whether the trial court properly gave the instruction. Mr.

Fowler argues the instruction was improper because (1) Ms. Boyle's testimony was not

material, (2) Ms. Boyle was not particularly available to Mr. Fowler, and (3) the

instruction shifted the burden of proof. We do not disturb a trial court's decision about

whether to give a missing witness instruction absent a clear showing of an abuse of

discretion. State   v.   Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998). We review de

novo whether legal error in jury instructions could have misled the jury. Montgomery,

163 Wn.2d at 597.

      The missing witness doctrine applies equally to the State and the defense. State

v. Blair, 117 Wn.2d 479,488,816 P.2d 718 (1991). Because a criminal defendant does

not have to present evidence, the State cannot suggest a defendant has this burden.

Montgomery, 163 Wn.2d at 597. However, the misSing witness doctrine allows the

State to argue a missing witness' testimony would have been unfavorable to the

defendant. Id. at 598. In light of these two competing considerations, the limitations on

the application of the missing witness doctrine "are particularly important when, as here,

the doctrine is applied against a criminal defendant." Id. The missing witness doctrine

applies only if four elements are met: (1) the misSing witness' testimony must be

material and n6t cumulative; (2) the missing witness must be "particularly under the



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No. 33227-6-111
State v. Fowler


control of the defendant rather than being equally available to both parties"; (3) the

witness' absence must not be satisfactorily explained;3 and (4) application of the

doctrine must not shift the burden of proof. Id. at 598-99.

       Blair illustrates when the missing witness inference is permissible.. The

defendant was arrested for unlawful delivery of a controlled substance; after searching

the defendant's home, officers found slips of papers with handwritten names and

notations that appeared to represent his drug transactions. Blair, 117 Wn.2d at 481-83.

The defendant testified most of the entries represented personal loans or money won

playing cards, but he called only one witness listed on the slips of paper to corroborate

this claim. Id. at 482-83. In finding the State properly argued the missing witness

doctrine during closing, the Washington Supreme Court held the comments did not

infringe on the defendant's constitutional rights or shift the burden of proof because the

witnesses were all personal and business acquaintances known only to the defendant,

listed solely by first name, and were peculiarly available to him. Id. at 490-92.

       By contrast, Montgomery illustrates a situation where the trial court erred in

giving a missing witness instruction. Montgomery, 163 Wn.2d at 599. Despite being

arrested for possession of pseudoephedrine with intent to manufacture

methamphetamine, the defendant testified he purchased the ingredients for innocent

reasons. Id. at 584-85,587. The defendant said his grandson and his landlord could

corroborate his explanation; neither testified. Id. at 596-97. On cross-examination, the


      3 Although the State provides an argument concerning this element, Mr. Fowler
does not. Thus, for purposes of this appeal, it is assumed this element is met.

                                            12 

No. 33227.;6-111
State v. Fowler


State elicited the information the grandson could not testify because he was in school.

Id. at 597. This was an adequate explanation for the grandson's absence. Id. at 599.

As to the landlord, the court found the landlord was not peculiarly within the defendant's

control. Id.

       As it relates to the first element, Ms. Boyle's testimony would have been material

and not cumulative. Mr. Fowler testified on direct Ms. Boyle was present in the

apartment the night of the incident. In refuting AG.'s testimony that it was Mr. Fowler's

act of unzipping her pants that awoke her, he testified Ms. Boyle's dog woke up AG.

After taking the dog off of AG., he called for Ms. Boyle, who came out of the kitchen.

Ms. Boyle and Mr. Fowler then talked about this for five minutes before she put the dog

away. Thus, according to Mr. Fowler, the sole thing that happened to AG. that night

was the dog jumped on her. Ms. Boyle was allegedly in the apartment and retrieved the

dog. Contrary to Mr. Fowler's assertions, her testimony would not have been limited to

whether or not a dog was in the apartment that night; rather, she could have

corroborated Mr. Fowler's version of events that the dog jumping on AG. woke her LIP

rather than Mr. Fowler unzipping her pants.

       Regarding the second element, Mr. Fowler asserts Ms. Boyle was not under his

control. He points to the following as support: (1) the State knew about Ms. Boyle after

A.G. mentioned Mr. Fowler's roommate during her pre-trial interview, (2) the State got

Ms. Boyle's name from the apartment manager, and (3) the apartment manager had a

forwarding address for Ms. Boyle. Mr. Fowler reads this element too narrowly.



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No. 33227-6-111
State v. Fowler


       Whether a witness is peculiarly available to one party does not mean the witness

is in court or is subject to the subpoena power. Blair, 117 Wn.2d at 490. Rather, a

witness is peculiarly available to one party if there is

       such a community of interest between the party and the witness, or the
       party [has] so superior an opportunity for knowledge of a witness, as in
       ordinary' experience would have made it reasonably probable that the
       witness would have been called to testify for such party except for the fact
       that [her] testimony would have been damaging.

State v. Davis, 73 Wn.2d 271,277,438 P.2d 185 (1968), overruled on other grounds by

State v. Abdulle, 174 Wn.2d 411,275 P.3d 1113 (2012). 'The rationale for this

requirement is that a party will likely call as a witness one who is bound to him by ties of

affection or interest unless the testimony will be adverse, and that a party with a close

connection to a potential witness will be more likely to determine in advance what the

testimony would be." Blair, 117 Wn.2d at 490. Thus, availability turns on the

relationship between the party and the witness. State v. Cheatam, 150 Wn.2d 626, 653,

81 P.3d 830 (2003).

       While the State knew about Ms. Boyle, they had no reason to suspect she was

present at the apartment during the incident until Mr. Fowler testified at trial. Mr. Fowler

never mentioned her or the dog to the police or the State until this time. The .State had

no motivation to call Ms. Boyle as a witness, despite the fact the State certainly could

have subpoenaed her. Rather, there was a community of interest between Mr. Fowler

and Ms. Boyle. While Mr. Fowler testified he did not know where she was, he did have




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No. 33227-6-111
State v. Fowler


a superior opportunity for knowledge of her as a witness. Ms. Boyle was particularly

available to Mr. Fowler.

       Lastly, Mr. Fowler argues the missing witness instruction shifted the burden of

proof. But nothing in the State's comments said Mr. Fowler had to present any proof on

the question of his innocence, and the State was entitled to argue the reasonable

inference from the evidence presented. Mr. Fowler testified specifically about Ms.

Boyle's presence and her dog. He had a personal relationship with Ms. Boyle. During

closing. Mr. Fowler reminded the jury of the State's burden of proof. Moreover, the jury

was instructed counsel's comments are not evidence, the State had the burden of

proving each element of each crime beyond a reasonable doubt. and Mr. Fowler was

presumed innocent. We conclude the missing witness instruction was warranted.

       Even if the missing witness jury instruction was not warranted, it was harmless

beyond a reasonable doubt. Improper jury instructions can be harmless error if the jury

was properly instructed on the State's burden. Montgomery, 163 Wn.2d at 600. "'An

erroneous instruction is harmless if, from the record in [the] case, it appears beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained.'" Id. (quoting State v. Brown, 147 Wn.2d 330, 332, 58 P.3d 889 (2002)

(finding error where jury was presented with two competing interpretations of

undisputed events and what those events meant about defendant's intent and the State

repeatedly referenced the missing witnesses).




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No. 33227-6-111
State v. Fowler


       Both A.G. and A.C.G. testified about what happened to them. The child

interviewer from the prosecutor's office independently testified and verified the girls'

version of events remained consistent throughout the entire trial period. There was no

dispute the girls had been alone with Mr. Fowler. There was no dispute the girls spent

the night with Mr. Fowler. During closing, the State did not focus on the missing witness

inference; rather the State referenced Mr. Fowler's failure to call Ms. Boyle when

discussing Mr. Fowler's credibility and then briefly argued the inference in its rebuttal.

Moreover, the jury was told not to apply the inference unless certain conditions were

met; if the evidence was not all that critical, the jury would not apply the inference. And

contrary to Mr. Fowler's contention, as discussed above, the instruction did not

constitute a judicial comment on any witnesses' credibility.

                                         C. LFOs

       The issue is whether the trial court erred by imposing $1,135 in LFOs for the

costs of court-appointed counsel without inquiring into Mr. Fowler's financial

circumstances. Despite not objecting at trial, Mr. Fowler contends we should review his

claim because he mounts a constitutional and statutory challenge: the trial court's action

impermissibly chills the exercise of his Sixth Amendment right to counsel. "A defendant

who makes no objection to the imposition of discretionary LFOs at sentencing is not

automatically entitled to review." State v. Blazina, No. 89028-5, slip op. at 4 (Wash.

Mar. 12,2015). We exercise our discretion and decline review because no




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No. 33227-6-111
State v. Fowler


extraordinary facts are shown. See State v. Duncan, 180 Wn. App. 245, 255, 327 P.3d

699 (2014).

          RCW 10.01.160(1) provides a trial court may require a defendant pay costs,

including costsof court-appointed counsel. See State v. Wimbs, 74 Wn. App. 511,516,

874 P.2d 193 (1994). Statutes are presumed constitutional, and the party challenging a

statute's constitutionality, here Mr. Fowler, must show the statute's unconstitutionality

beyond a reasonable doubt. State v. Blank, 131 Wn.2d 230,235,930 P.2d 1213

(1997).

       In State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992), the Washington

Supreme Court held formal findings of fact on ability to pay are not required for

recoupment of costs under RCW 10.01.160. The court stated a sentencing court has

discretion to impose repayment obligations, and a defendant is protected from abuse of

that discretion by RCW 10.01.160's directive that ability to pay be considered and

provision for modification of imposed LFOs if a defendant cannot pay. Id. Similarly in

Blank, the Washington Supreme Court reconsidered "whether, prior to including a

repayment obligation in defendant's judgment and sentence, it is constitutionally

necessary that there be an inquiry into the defendant's ability to pay, his or her financial

resources, and whether there is no likelihood that defendant's indigency will end."

Blank, 131 Wn.2d at 239 (reconsidering in lightofRCW 10.73.160 which provides for

recoupment of appellate costs from a convicted defendant). In holding the Constitution

does not require an inquiry into ability to pay at the time of sentencing, the Blank court



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No. 33227-6-111
State v. Fowler


relied on (1) the holding in Fullerv. Oregon, 417 U.S. 40,94 S. Ct. 2116,40 L. Ed. 2d

642 (1974), and (2) case law holding mandatory monetary assessments may be

imposed against indigent defendants at sentencing without any per se constitutional

violations. Blank, 131 Wn.2d at 239-42. Neither Blank nor Curry have been overruled,

and Mr. Fowler does not provide any persuasive argument to the contrary.

      Affirmed.

      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.



                                                  Brown, A.C.J.
WE CONCUR:




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