                                                                             FILED
                                                                         MAY 4, 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. 34037-6-111
                                                    )
                          Respondent,               )
                                                    )
           v.                                       )         UNPUBLISHED OPINION
                                                    )
    HERBERT AARON MARTIN II,                        )
                                                    )
                          Appellant.                )

           PENNELL, J. - Herbert Martin appeals his conviction for possession of a

    controlled substance (methamphetamine) with intent to deliver, with an aggravating

    factor that he committed the crime within 1,000 feet of a school bus stop. We affirm Mr.

    Martin's conviction, but remand for modification of his community custody conditions

    and the correction of a scrivener's error on his judgment and sentence.

                                                FACTS

           The facts are well known to the parties and need not be recounted in detail. In

    March 2015, Mr. Martin was charged with delivery of a controlled substance after selling

    methamphetamine to an undercover informant. The sales took place at Mr. Martin's

    residence in Ellensburg.

           During trial in January 2016, the transportation director for the Ellensburg School

    District testified that, at the time of the trial, there were six active school bus stops within


l   1,000 feet of Mr. Martin's Ellensburg residence. The director further testified that he had
    No. 34037-6-111
    State v. Martin


    been working with the school district for over four years and that almost every location in

    Ellensburg is within 1,000 feet of a school bus stop. He never clarified whether the

    school bus stops identified at trial were also active in February 2015, when Mr. Martin

    committed the charged crime. According to the transportation director, school bus stops

    are constantly reviewed and are always changing based upon community needs.
~
J          A jury convicted Mr. Martin of possession of methamphetamine with intent to

l   deliver. It also answered yes to a special verdict form that inquired whether Mr. Martin

l   committed the offense within 1,000 feet of a school bus stop.


I         At sentencing, the trial court imposed a number of community custody conditions


I
1
    and legal financial obligations (LFOs ). The trial court struck all discretionary LFOs with

    the exception of $200 in court costs. Mr. Martin appeals.
l
                                           ANALYSIS

    Sufficiency of the evidence

          Mr. Martin first argues there is insufficient evidence that he committed this crime

    within 1,000 feet of a school bus stop. We disagree. In a criminal case, the State must

    provide sufficient evidence to prove each element of the charged offense beyond a

    reasonable doubt. State v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016). The

    same is true of any sentencing enhancements. State v. Tongate, 93 Wn.2d 751, 754-55,

    613 P.2d 121 (1980). In a sufficiency challenge, "all reasonable inferences from the


                                                2
J   No. 34037-6-III
    State v. Martin


I   evidence must be drawn in favor of the State and interpreted most strongly against the

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

           As Mr. Martin points out, the Ellensburg School District's transportation director

    never specified whether the school bus stops identified at trial were also active at the time

1   of the offense. However, given the director's tenure with the school district, the

1   testimony was sufficient to permit a jury finding that, at the time of the offense, any

I   location in Ellensburg, including Mr. Martin's home, would have been within 1,000 feet

I   of a school bus stop. This was sufficient to support the conviction.
J
    Special verdict form

           Mr. Martin next contends the trial court acted without authority to impose the

    school bus stop sentencing enhancement. He argues that while the court's to-convict

    instruction to the jury outlined the elements of possession of a controlled substance with

    intent to deliver, the special verdict form asked whether he delivered a controlled

    substance within 1,000 feet of a school zone. Thus, he argues the special verdict form

    referenced a crime different than the one of conviction. As pointed out by the State, no

    objection was made at trial.

           Mr. Martin's argument ignores the language on the special verdict form that very

    clearly tells the jury to only address the special verdict if they also find Mr. Martin guilty

l
l
    of possession with intent to deliver, which they did. We presume the jury followed its
l
                                                  3
No. 34037-6-III
State v. Martin


instructions. See, e.g., State v. Lamar, 180 Wn.2d 576, 586, 327 P.3d 46 (2014).

Although the special verdict form could have been worded more artfully, there was no

danger that the jury may have imposed the school bus stop enhancement without first

finding Mr. Martin guilty of a qualifying offense, or that they may have failed to find all

of the required elements of the school bus enhancement beyond a reasonable doubt. The

enhancement is sustained.

Community custody conditions

       Mr. Martin next challenges four of his community custody conditions. 1 He argues

conditions 7 and 8 are impermissibly vague and infringe on his right to free association

under the First Amendment to the United States Constitution. He also claims conditions

9 and 10 are not crime related. Community custody conditions are reviewed for 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 being

unconstitutionally vague. See id. at 652, 656; State v. Sanchez Valencia, 169 Wn.2d 782,

791-92, 239 P.3d 1059 (2010) (vagueness); State v. Cordero, 170 Wn. App. 351, 373,

284 P.3d 773 (2012) (crime related).


       1Contrary to the State's contentions, these claims are ripe for review. State v.
Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008).

                                             4
1
I
I
1
1    No. 34037-6-111
l    State v. Martin
l
f
            We begin with Mr. Martin's vagueness challenge to conditions 7 and 8, which

     provide:

            (7)    Defendant shall not associate with persons involved in the use, sales
                   and/or possession of dangerous drugs, narcotics or controlled
                   substances.

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

     Clerk's Papers (CP) at 166.

            Mr. Martin argues these conditions are impermissibly vague because they could

     encompass interactions with lawful medical providers. He also claims they impinge on

     his freedom of association. We agree that, as worded, the conditions are overbroad and

     unclear. There is no precise distinction between "dangerous drugs," "narcotics," and

     "controlled substances." Id. In addition, the conditions are not clearly limited to

     unlawful drugs, as opposed to substances prescribed by a licensed medical provider. We

     therefore remand for modification of conditions 7 and 8 and suggest the following

     wording:

            (7)    Defendant shall not associate with persons involved in the unlawful
                   use, sale, and/or possession of controlled substances.

           (8)    Defendant shall not enter into or remain in areas where controlled


Il                substances are being unlawfully sold/purchased, possessed, and/or
                  consumed.




l
I
                                                  5




l
No. 34037-6-III
State v. Martin


This wording addresses Mr. Martin's vagueness concerns and conscribes his

associational limitations to individuals actively involved in illegal drug activity. See

State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993) (sentencing conditions may

restrict a defendant from associating with individuals involved in illegal activities similar

to the offense of conviction).

       Mr. Martin's next challenge is that conditions 9 and 10 are not crime related.

Those conditions provide:

       (9)    Defendant shall not purchase, possess, and/or consume any
              intoxicating liquors.

       (10)   Defendant shall not enter into or remain in establishments where
              alcohol is the main source of revenue. This does not include a
              restaurant which is attached to but separate from a bar/lounge area.

CP at 167.

       Mr. Martin acknowledges the trial court had absolute discretion to prohibit his

possession or consumption of alcohol. RCW 9.94A.703(3)(e). But he asserts the trial

court exceeded its authority when it also barred him from purchasing alcohol and from

entering into certain establishments where alcohol is the main source of revenue because

his crime was not alcohol related. We agree with Mr. Martin's contentions as to

condition 10, but not 9.




                                             6
    No. 34037-6-111
    State v. Martin
{

I          The challenge to condition 9 fails based on Mr. Martin's concession that the trial

    court acted within its discretion in prohibiting the possession or consumption of alcohol.



I
~
    It is difficult to purchase an item without also being in possession of the same. This is

    particularly true for alcohol, which is highly regulated in order to limit access by end

    users. The trial court's restriction on purchasing alcohol was logically related to the

    restriction on possession and consumption. We will not disturb this restriction.
j          Condition 10 is different. It is not one of the conditions contemplated by



'   RCW 9.94A.703(3)(e). Condition 10 can stand only if it qualifies under

    RCW 9.94A.703(3)(f) as a condition directly related to the circumstances of the crime

    of conviction. RCW 9 .94A.030(10). This standard is not met. There is no indication

    alcohol played a role in Mr. Martin's offense. Prohibiting Mr. Martin from entering

    establishments serving alcohol is not a logical corollary to the prohibition on the

    possession or consumption of alcohol. On remand this condition shall be stricken.

    See State v. Kinzle, 181 Wn. App. 774,786,326 P.3d 870 (2014).

    LFOs

           Mr. Martin raises a number of constitutional challenges to the trial court's

    imposition of LFOs. No objection was raised in the trial court. Mr. Martin cannot

    demonstrate that any error in imposing nondiscretionary LFOs was manifestly

    unconstitutional. See State v. Mathers, 193 Wn. App. 913, 376 P.3d _1163, review denied,


                                                 7
    No. 34037-6-111
    State v. Martin


    186 Wn.2d 1015, 380 P.3d 482 (2016) (rejecting similar constitutional claims). We

    therefore decline to address his claims for the first time on appeal. RAP 2.5(a).

           Mr. Martin also asks that we remand for reconsideration under State v. Blazina,

    182 Wn.2d 827, 344 P.3d 680 (2015), of the $200 in discretionary LFOs. Mr. Martin was

    sentenced after Blazina. The trial court did make at least a limited inquiry into Mr.

    Martin's ability to pay prior to imposing LFOs. There was no objection to the adequacy

    of the court's colloquy. Given the small amount of discretionary LFOs imposed and the

    failure to object, we decline to exercise our discretion to review this unpreserved error.

    Scrivener's error

           Mr. Martin's judgment and sentence indicates he was convicted of delivery of a

    controlled substance. The jury found him guilty of possession of a controlled substance
1
t

J   with intent to deliver. The parties agree this was a scrivener's error. Remand is


l
1
    appropriate so Mr. Martin's judgment and sentence can be corrected to accurately reflect



l
    that he was found guilty of possession of methamphetamine with intent to deliver.

    See State v. Munoz-Rivera, 190 Wn. App. 870, 895, 361 P .3d 182 (2015); see also

    CrR 7.8(a); RAP 7.2(e).

                         STATEMENT OF ADDITIONAL GROUNDS

           In his statement of additional grounds for review, Mr. Martin challenges the

    veracity of the State's evidence and the adequacy of his attorney's investigation and


                                                 8
        No. 34037-6-III
        State v. Martin


l
1
        performance. Full consideration of Mr. Martin's contentions would require an

        assessment of facts that are not part of the appellate record. The proper avenue for
J
        consideration of Mr. Martin's claims is a personal restraint petition, not a direct appeal.

l1      See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

\                                             CONCLUSION




I
i
'
               Mr. Martin's conviction is affirmed. We remand to the trial court for modification

        of his community custody conditions and correction of the scrivener's error on his

        judgment and sentence. We further grant Mr. Martin's request to deny appellate costs.
1
               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.


                                                 Q Pennell, J.
                                                                 __Q_ __Q          ,0~
        WE CONCUR:



I
l                                                  Lawrence-Berrey, J.




I
l1
                                                      9


I
i   j
    1
