            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                No. 78597-4-I
                             Respondent,
                                                DIVISION ONE
                V.

 SERGIO STUARDO MONROY,                         UNPUBLISHED OPINION

                            Appellant.          FILED: January 21, 2020



       SMITH, J.     —   Sergio Monroy appeals his conviction for rape in the second degree

of 34-year-old H.B., a resident at the apartment complex where Monroy worked as a

maintenance man. He contends the State failed to prove H.B. was incapable of consent

because of mental incapacity. Given overwhelming evidence of H.B.’s intoxication,

sufficient evidence supports the conviction. We also reject Mon roy’s claims that the trial

court erred by preventing him from cross-examining H.B. about her alcohol history, by

admitting statements he made prior to receiving Miranda1 warnings, and by failing to

give a unanimity instruction. And we reject Monroy’s argument in his statement of

additional grounds that the court erred in imposing an indeterminate sentence with a

maximum term of life. However, we agree that the sentencing court exceeded its




      I   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 78597-4-1/2



authority by ordering Monroy to submit to urinalysis and breath analysis monitoring as a

condition of community custody. Accordingly, we affirm Monroy’s conviction but remand

to the trial court with instructions to strike the challenged condition.

                                           FACTS

       On the evening of January 22, 2016, H.B. invited her friend Serenity Larson to go

out for a drink at the Seven Star, a bar located in the downtown area of Mercer Island.

H.B. and Larson were neighbors at an apartment complex on Mercer Island, and they

often went out drinking together. They arrived at the Seven Star around 6:30 or 7:00

p.m. There, a man named Terrence Stephens invited H.B. and Larson to attend a “hat

party” at a nearby apartment complex. After having one drink each, H.B. and Larson

went home to pick up hats, then H.B. drove them to the party.

       The hat party featured a buffet table with bottles of alcohol and mixers so guests

could make their own drinks. Over a period of a couple hours, H.B. poured herself

“quite a few” drinks consisting of approximately 75 percent whiskey and 25 percent

ginger ale. She recalled “drinking the whole time we were there.” When the party

started winding down, a group of people including H.B. and Larson returned to the

Seven Star. H.B. testified that she was “definitely” feeling “pretty buzzed” by then but

decided she was able to drive.

       H.B. and Larson arrived at the Seven Star around 10:00 or 11:00 p.m. Larson

testified that H.B. started drinking beer when they arrived. Larson soon noticed that

H.B. was becoming “loud,” “obnoxious,” “a little clumsy,” and “towards me kind of not

nice,” behaviors that to her indicated H.B. was “getting drunk.” Shortly before leaving,

                                              2
No. 78597-4-1/3



Larson ordered shots for herself and H.B. The bartender agreed to pour a shot for

Larson and a watered down shot for H.B. Larson “knew [H.B.] couldn’t drive,” so she

called an Uber and asked H.B. to leave with her. H.B. refused to leave, so Larson left

alone around 12:30 a.m.

       Stephens socialized with H.B. at the hat party and at the bar. Stephens testified

that H.B. began to display signs of intoxication at the bar, such as “erratic

communication,” having “glossy eyes,” and being “a little wobbly.” He also recalled that

H.B. continued drinking at the bar. Stephens said H.B. became flirtatious and asked

him for a kiss. Eventually, H.B. became “very loud” and “confrontational with the

bartender.” The bartender encouraged H.B. to call a cab, but H.B. refused. Stephens

asked H.B. if she needed someone to call her a cab, but H.B. got in her car and asked

Stephens to come with her. Stephens declined, and H.B. got angry and drove away.

       H.B. recalled drinking beer at the bar but could not say how many “[be]cause

that’s pretty much where I started to not really remember the night.” She did not recall

asking Stephens for a kiss or Larson leaving the bar. She did recall getting into her car

and driving away despite Stephens telling her not to.

       The next thing H.B. remembered was hearing a male voice tell her to “get out of

my car and go somewhere else.” She testified that she “wasn’t seeing anything. It was

like I was blacked out, but I could still hear things a little bit.” Next, she found herself

lying on her side on hard ground with her legs pushed up and a man on top of her,

penetrating her. H.B. did not know the man’s name but recognized him as a

maintenance man at her apartment complex. She testified that she was unable to

                                               3
 No. 78597-4-114



speak or move while the attack was happening. She did not know where she was, but

she could see a bright amber-colored fluorescent light shining through a window behind

the man. Detectives later discovered such a light outside the apartment complex

maintenance room a few hundred yards from where H.B. left her car.

       H.B. next remembered waking up in the bedroom of her apartment, wearing

pajama bottoms and the shirt she had on the night before. Her vagina and anus were

sore. H.B. felt “shameful” and did not know what to do. She spent the day watching

movies with Larson but did not reveal what had happened. The next day, H.B. went to

the street where she usually parked her car and discovered that the front end was

smashed and a tire was deflated. She then made the decision to go to Harborview

Medical Center for a rape exam. There, H.B. told the medical social worker and the

sexual assault nurse that she went out drinking and had only “spotty” memories or

“vague recollections” of what happened when she got back to her apartment complex,

including being on the ground while the maintenance man vaginally and anally

penetrated her.

      Mercer Island Police Detectives Joe Morris and David Canter went to H.B.’s

apartment complex seeking to interview the individual H.B. identified as the

maintenance man who had repaired her microwave a few days prior. The manager at

the leasing office told them the person who repaired R. B.’s microwave was Monroy.

The detectives asked the manager to have Monroy come to the leasing office so they

could speak with him. When asked his whereabouts during the relevant time period,

Monroy claimed that he got off work at 8:30 or 9:00 p.m., drove straight home, and

                                           4
 No. 78597-4-1/5



 returned to work the next morning. He confirmed that he knew who H.B. was but

denied ever having sex with her. The detectives asked Monroy for permission to collect

a DNA (deoxyribonucleic acid) sample to rule him out as a suspect, and Monroy agreed

to provide one.

       The rape exam results showed the presence of spermatozoa on the vaginal and

perineal swabs. DNA testing of these swabs showed a mixed sample, with the female

profile matching H.B. and the male profile matching Monroy. The anal swabs tested

positive for a protein called P30, a substance present in elevated levels in semen.

       The State charged Monroy with rape in the second degree, pursuant to

RCW 9A.44.050(1)(b). The first trial ended with the jury unable to reach a verdict.

Upon retrial, the jury convicted Monroy as charged. The trial court imposed a midrange

indeterminate standard sentence of 90 months to life. Monroy appealed.

                                       ANALYSIS

                               Sufficiency of the Evidence

       Monroy asserts that the State failed to present sufficient evidence that H.B. was

incapable of consenting to sexual intercourse due to mental incapacity. We disagree.

      A challenge to the sufficiency of the evidence admits the truth of the State’s

evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We view the

evidence in the light most favorable to the State and determine whether any rational

trier of fact could have found the elements of the crime beyond a reasonable doubt.

State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). “[A}ll reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

                                            5
 No. 78597-4-1/6



strongly against the defendant.” Salinas, 119 Wn.2d at 201. “Circumstantial evidence

 is as reliable as direct evidence.” State v. Jackson, 145 Wn. App. 814, 818, 187 P.3d

321 (2008).

        The State charged Monroy with violating RCW 9A.44.050(1)(b), which provides

that a person is guilty of rape in the second degree “when, under circumstances not

constituting rape in the first degree, the person engages in sexual intercourse with

another person [w]hen the victim is incapable of consent by reason of being      .




mentally incapacitated.” “Mental incapacity” refers to a “condition existing at the time of

the offense which prevents a person from understanding the nature or consequences of

the act of sexual intercourse whether that condition is produced by illness, defect, the

influence of a substance or from some other cause.” RCW 9A.44.010(4).

       Monroy asserts the evidence did not show H.B. was mentally incapacitated like

the victim in State v. Al-Hamdani, 109 Wn. App. 599, 608, 36 P.3d 1103 (2001). There,

the victim testified she consumed at least 10 drinks, and two experts respectively

testified she had an estimated blood alcohol level of .1375 and .21 at the time of the

sexual assault. Al-Hamdani, 109 Wn. App. at 609. In addition, the victim and a witness

testified that she was “stumbling, vomiting, and passing in and out of consciousness”

prior to the incident. Al-Hamdani, 109 Wn. App. at 609.

       Here, although H.B.’s blood alcohol level at the time of the sexual assault is not

known, the evidence is sufficient to support a finding that H.B. was mentally

incapacitated due to intoxication. Larson and Stephens testified that H.B. exhibited

visible signs of intoxication at the bar and was in no condition to drive. H.B. testified

                                              6
No. 78597-4-1/7



that she began losing her memories of the evening while at the bar. She described

being in a near blackout state while Monroy penetrated her, unable to move or speak.

Moreover, she had no memory of crashing her car while driving home.

        Monroy contends the evidence showed H.B. was sobering up by the time she left

the Seven Star. He relies substantially on the bartender’s testimony that H.B. only

consumed part of a beer before it was replaced with water and that H.B. seemed less

intoxicated when the bartender served her a watered down shot at the end of the night.

But the bartender also testified that H.B. was “showing signs of intoxication” and

indicated that H.B. should not have been driving. To the extent the bartender’s

testimony conflicted with that of Larson, Stephens, and H.B., we “must defer to the trier

of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d

970 (2004). Viewing the evidence and the inferences in the light most favorable to the

State, sufficient evidence supports the conviction of rape in the second degree.

                                        Cross-Examination

       Monroy asserts that the trial court erred in denying his motion to cross-examine

H.B. regarding her past history of alcohol use and about the fact that H.B. asked the

nurse during her rape examination not to document her past history of alcohol use. He

contends that evidence of H.B.’s past alcohol use is relevant to her tolerance to alcohol

on the evening in question and that H.B.’s attempt to limit evidence documented by the

nurse is relevant to her credibility.



                                               7
No. 78597-4-1/8



        “We review a cross-examination scope limitation for a manifest abuse of

discretion.” State v. Lile, 188 Wn.2d 766, 782, 398 P.3d 1052 (2017). An abuse of

discretion exists “[w]hen a trial court’s exercise of its discretion is manifestly

unreasonable or based upon untenable grounds or reasons.” State v. Stenson, 132

Wn.2d 668, 701, 940 P.2d 1239 (1997).

       Both the federal and state constitutions protect a defendant’s right to confront an

adverse witness. U.S. CONST. amend. VI; WASH. CONST. art. I,        § 22. “The primary and
most important component is the right to conduct a meaningful cross-examination of

adverse witnesses.” State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). “But

this right is not absolute.”    ,   188 Wn.2d at 782. “[T]rial judges retain wide latitude

insofar as the Confrontation Clause is concerned to impose reasonable limits on such

cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive

or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 5. Ct.

1431, 89 L. Ed. 2d 674 (1986).

       We apply a three-part test to determine whether a trial court violated a

defendant’s right to confront a witness by limiting the scope of cross-examination:

       “First, the evidence must be of at least minimal relevance. Second, if
       relevant, the burden is on the State to show the evidence is so prejudicial
       as to disrupt the fairness of the fact-finding process at trial. Finally, the
       State’s interest to exclude prejudicial evidence must be balanced against
       the defendant’s need for the information sought, and only if the State’s
       interest outweighs the defendant’s need can otherwise relevant
       information be withheld.”



                                                8
 No. 78597-4-119



State v. Lee, 188 Wn.2d 473, 488, 396 P.3d 316 (2017) (quoting Darden, 145 Wn.2d at

622). Evidence is relevant if it tends “to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” ER 401. If no other evidence rule applies, relevant

evidence is admissible unless “its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” ER 403. Evidence that is not relevant is not admissible. ER 402.

       Monroy asserts that he should have been able to cross-examine H.B. regarding

her prior use of alcohol—including her previous blackouts—because it was relevant to

her tolerance level for alcohol. Presumably, Monroy sought to argue that H.B.’s drinking

history showed she had a high tolerance for alcohol and was therefore unlikely to have

blacked out on the night in question. But Monroy offered no factual support, such as

expert testimony, in support of this inference. It is not possible for the finder of fact to

determine what inferences may be reasonably drawn from H.B.’s alcohol history. “[Tjhe

existence of a fact cannot rest upon guess, speculation, or conjecture.” State v.

Colguitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006). The trial court properly

determined that any minimal relevance was outweighed by the prejudice of introducing

evidence of H.B.’s alcohol use and blackouts on occasions prior to the night in question.

       Nor did the trial court abuse its discretion in preventing Monroy from cross

examining H.B. about asking the forensic nurse not to document her prior history of

alcohol use in her medical records. ER 608(b) allows a witness’ credibility to be

                                              9
 No. 78597-4-Ill 0



 attacked by specific instances of conduct if the instances are probative of the witness’

truthfulness or untruthfulness. There is no evidence that H.B. lied or failed to disclose

any facts about her use of alcohol to the medical professionals at Harborview, to the

police, or to the defense during the defense interview. H.B.’s request is not probative of

her character for truthfulness or her credibility regarding the night in question.

       Monroy further asserts that the trial court erred by ruling that the State did not

“open the door” to allow him to cross-examine H.B. regarding her alcohol history or to

cross-examine the forensic nurse regarding H.B.’s request not to document her alcohol

history. We review a trial court’s decision to allow cross-examination under the “open

door” rule for abuse of discretion. State v. Ortega, 134 Wn. App. 617, 626, 142 P.3d

175 (2006).

       Under the “open door” rule, if one party raises a material issue, the opposing

party is generally permitted to “explain, clarify, or contradict the evidence.” State v.

Berg, 147 Wn. App. 923, 939, 198 P.3d 529 (2008). “[I}t is a sound general rule that,

when a party opens up a subject of inquiry on direct or cross-examination, he

contemplates that the rules will permit cross-examination or redirect examination, as the

case may be, within the scope of the examination in which the subject matter was first

introduced.” State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). The rule “is

intended to preserve fairness” by preventing the introduction of one-sided testimony that

the opposing party has no opportunity to rebut. State v. Avendano-Lopez, 79 Wn. App.

706, 714, 904 P.2d 324 (1995).



                                             10
No. 78597-4-Ill I



       Here, to provide a basis for Larson’s belief that H.B. was intoxicated on the night

in question, the State elicited testimony from Larson that she knew how H.B. behaved

when she was drunk because she had gone out drinking with H.B. “[l}ots of times.”

Monroy asserts that the trial court’s refusal to apply the open door doctrine here

permitted the State to rely on H.B.’s history of alcohol use to bolster Larson’s credibility

while preventing Monroy from showing how H.B.’s alcohol history undermined H.B.’s

credibility. But Monroy has not shown how cross-examining H.B. regarding her alcohol

history—including usage of which Larson was not a part—would explain, clarify, or

contradict Larson’s testimony regarding the basis for her belief that H.B. was intoxicated

on the night in question or the forensic nurse’s testimony that H.B. asked her not to

document her alcohol history. The trial court did not err in ruling that these were

separate issues and denying Monroy’s request to cross-examine H.B. regarding her

alcohol history.

                                Noncustodial Interrogation

       Monroy asserts that the trial court erred in denying his CrR 3.5 motion to

suppress inculpatory statements he made to Detective Morris and Detective Canter at

the apartment complex because they were elicited during a pre-Miranda custodial

interrogation. We disagree.

       “Police must give Miranda warnings when a suspect is subject to interrogation

while in the coercive environment of police custody.” State v. Rosas-Miranda, 176 Wn.

App. 773, 779, 309 P.3d 728 (2013). “Without Miranda warnings, a suspect’s

statements during custodial interrogation are presumed involuntary.” State v. Heritage,

                                             II
No. 78597-4-1/12



152 Wn.2d 210, 214, 95 P.3d 345 (2004). We determine whether an interrogation is

custodial using an objective standard, which is ‘whether a reasonable person in the

individual’s position would believe he or she was in police custody to a degree

associated with formal arrest.” State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133

(2004). “The critical inquiry, however, is not the psychological state of the defendant,

but simply whether his freedom of movement was restricted.” State v. Sargent, 111

Wn.2d 641, 649, 762 P.2d 1127 (1988). We review a trial court’s ruling after a CrR 3.5

suppression hearing to determine whether substantial evidence supports the trial court’s

findings of fact and whether those findings, in turn, support the trial court’s conclusions

of law. Statev. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 (2014).

       Monroy likens his situation to that of the defendant in State v. France, 129 Wn.

App. 907, 120 P.3d 654 (2005). That case is distinguishable. In France, officers

detained a man suspected of violating a no-contact order and told him he was not free

to leave until the matter was resolved. France, 129 Wn. App. at 908-09. Because the

duration of the stop was open-ended, the court held that the questioning constituted

custodial interrogation. France, 129 Wn. App. at 909-11.

      Here, Detective Cantor testified that he did not expressly tell Monroy that he was

not in custody. However, unlike the defendant in France, there is no indication that

Monroy’s freedom to leave was conditional. Both detectives specifically advised

Monroy that he was not under arrest. They did not place him in handcuffs or restrict his

movement. Detective Morris testified that the general tone of the conversation was

“cordial” and that he did not believe Monroy was a suspect at that time. Although

                                            12
No. 78597-4-1/13



English is not Monroy’s first language, the detectives testified that they had no difficulty

conversing with him in English. Monroy did not ask to leave, did not ask detectives to

stop questioning him, and did not ask for an attorney at any time during the interview.

Under the totality of the circumstances, the trial court did not err in concluding that

Monroy was not in custody to a degree associated with formal arrest.

                                   Unanimity Instruction

       Monroy asserts that the trial court violated his constitutional right to a unanimous

jury verdict when it failed to give a unanimity instruction. He contends that such an

instruction was required because the State presented evidence that he penetrated H.B.

vaginally and anally but failed to specify which alleged act of penetration constituted the

“sexual intercourse” element of the crime of rape in the second degree.2

       To convict a defendant on a criminal charge, the jury must unanimously decide

that the defendant committed the criminal act. State v. Coleman, 159 Wn.2d 509, 511,

150 P.3d 1126 (2007). When the State presents evidence of multiple acts that could

constitute the crime charged, the jury must unanimously agree on which act constituted

the crime. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). To ensure jury

unanimity, the State must either elect the act on which it relies, or the court must instruct

the jury to unanimously agree on a specific criminal act. State v. Petrich, 101 Wn.2d

566, 572, 683 P.2d 173 (1984). “Failure to do so can be constitutional error because of

‘the possibility that some jurors may have relied on one act or incident and some



       2 The court instructed the jury that “sexual intercourse” is defined as “any
penetration of the vagina or anus.”
                                             13
 No. 78597-4-1/14



 another, resulting in a lack of unanimity on all of the elements necessary for a valid

 conviction.” State v. Rodriguez, 187 Wn. App. 922, 936, 352 P.3d 200 (2015) (quoting

 Kitchen, 110 Wn.2d at 411).

        However, the Petrich rule does not apply where the evidence shows a

“continuing course of conduct.” Petrich, 101 Wn.2d at 571. Where the evidence shows

the defendant engaged in a series of actions intended to achieve the same objective,

the acts are characterized as a continuing course of conduct rather than several distinct

acts. State v. Fiallo-Lo~Dez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). In contrast,

evidence that the charged conduct occurred at different times and places tends to show

that several distinct acts occurred. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453

(1989). We evaluate the facts in a commonsense manner to determine whether the

criminal conduct meets this standard. Petrich, 101 Wn.2d at 571.

       Monroy cites State v. Bobenhouse, 166 Wn.2d 881, 214 P.3d 907 (2009), for the

proposition that a unanimity instruction is required where separate acts of penetration

are alleged to have occurred during the same encounter. This argument misreads

Bobenhouse. The unanimity issue in Bobenhouse involved a single count of rape of a

child based on allegations that between June 2002 and November 2004, Bobenhouse

forced his son to regularly perform fellatio on him and that he inserted his finger in his

son’s anus on at least one occasion. Bobenhouse, 166 Wn.2d at 886. The court was

unable to determine from the record whether the State charged Bobenhouse based on

one act or multiple acts. Bobenhouse, 166 Wn.2d at 894. Therefore, the court held that

“[tic the extent this case falls under the ‘multiple acts’ line of cases, a Petrich instruction

                                              14
 No. 78597-4-1/15



was required.” Bobenhouse, 166 Wn.2d at 894. The court concluded that the error, if

any, was harmless because the evidence presented was sufficient to establish that

each incident occurred. Bobenhouse, 166 Wn.2d at 894-95.

       Here, in contrast, the State’s evidence plainly indicated that Monroy’s acts of

penetration occurred within a short period of time at a single location against the same

victim while she was mentally incapacitated due to intoxication. A commonsense

evaluation of this evidence indicates that Monroy’s acts of vaginal and anal penetration

of H.B. were part of a continuing course of conduct to have sexual intercourse with H.B.

while she was incapable of consent. Boben house does not control.

       Moreover, the record shows substantial evidence of vaginal and anal penetration.

H.B. testified that Monroy penetrated her vaginally and anally and that she awoke in the

morning with soreness in both areas. And the rape exam results were consistent with

this testimony. Even if we were to analyze this case as a multiple acts case, failure to

give a unanimity instruction would be harmless because a rational trier of fact could

have found each incident proved beyond a reasonable doubt. Hand ran, 113 Wn.2d at

17-18 (citing Petrich, 101 Wn.2d at 573).

                             Community Custody Condition

       Monroy challenges a community custody condition Imposed as part of his

sentence.3 He contends that special condition 12, requiring him to “[b]e available for




       ~ Monroy did not object to this condition at sentencing, but “a defendant may
challenge an erroneously imposed sentence for the first time on appeal.” State v.
Munoz-Rivera, 190 Wn. App. 870, 890, 361 P.3d 182 (2015).
                                             15
No. 78597-4-1/16



and submit to urinalysis and/or breathanalysis upon the request of the CCC and/or the

chemical dependency treatment provider,” is not crime related and violates his

constitutional privacy interests.

       We review de novo whether the trial court had statutory authorization to impose a

communitycustodycondition. Statev. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201

(2007). If the trial court acted within its statutory authority, we review its decision for

abuse of discretion. State v. Johnson, 180 Wn. App. 318, 326, 327 P.3d 704 (2014).

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, authorizes the trial

court to impose “crime-related prohibitions and affirmative conditions” as part of a

sentence. RCW 9.94A.505(9). A “crime-related prohibition” is “an order of a court

prohibiting conduct that directly relates to the circumstances of the crime for which the

offender has been convicted.” RCW 9.94A.030(10). Additional conditions may be

imposed to monitor or ensure compliance with crime-related sentencing conditions.

RCW 9.94A.030(10) (“affirmative acts necessary to monitor compliance with the order

of a court may be required by [DCC]”). “Any condition imposed in excess of this

statutory grant of power is void.” Johnson, 180 Wn. App. at 325.

       Here, the court imposed standard condition 3, requiring Monroy to refrain from

possessing or consuming controlled substances except where lawfully prescribed. This

condition is required unless the court waives it, regardless of the offense committed.

See RCW 9.94A.703(2)(c). The court also exercised its discretion to impose special

condition 11, prohibiting Monroy from consuming alcohol. See RCW 9.94A.703(3)(e);

State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258 (2003) (Courts are authorized

                                              16
No. 78597-4-1/17



to prohibit the consumption of alcohol regardless of whether alcohol contributed to the

offense.). Monroy does not challenge the imposition of either of these conditions. He

challenges only the imposition of special condition 12 to monitor his drug and alcohol

use.

          Monroy asserts that special condition 12 is not crime related and violates his

privacy interests under the Fourth Amendment to the United States Constitution and

article I, section 7 of the Washington State Constitution. He relies primarily on State v.

Olsen, 189 Wn.2d 118, 399 P.3d 1141 (2017). In Olsen, the Washington Supreme

Court held that random urinalysis, under certain circumstances, is constitutionally

permissible for probationers convicted of driving under the influence (DUI). 189 Wn.2d

at 134. In so holding, the court reasoned that although random drug testing implicates a

probationer’s privacy interests, the intrusion is lawful where it is narrowly tailored to

meet a compelling state interest. Olsen, 189 Wn.2d at 127-28. The Olsen court thus

upheld the monitoring condition because random urinalysis is narrowly tailored to meet

the State’s compelling interest in supervising probationers convicted of DUI. 189 Wn.2d

at 128.

          Monroy contends that unlike the probationer in Olsen, he was not charged with a

drug- or alcohol-related offense. Therefore, the court could not require him to submit to

suspicionless testing simply to monitor compliance with other conditions that were not

crime related. We agree.

       A trial court has authority to impose monitoring conditions, such as polygraph

testing, to monitor compliance with sentencing conditions. State v. Riles, 135 Wn.2d

                                              17
No. 78597-4-1/18



326, 342-43, 957 P.2d 655 (1998), abrocated on other cirounds ~y State v. Valencia,

169 Wn.2d 782, 239 P.3d 1059 (2010). In general, conditions that do not reasonably

relate to the circumstances of the crime are unlawful unless specifically authorized by

statute. Jones, 118 Wn. App. at 205. A condition is not crime related if there is no

evidence linking the prohibited conduct to the offense. State v. O’Cain, 144 Wn. App.

772, 775, 184 P.3d 1262 (2008). Here, unlike the probationer in Olsen, the State did

not show and the court did not find that Monroy abused drugs or alcohol or that such

use contributed to the crime for which he was convicted. Because special condition 12

is not crime related, we cannot say that it was narrowly tailored or reasonably necessary

to achieve a compelling state interest. Accordingly, it must be stricken.

                            Statement of Additional Grounds

       In a statement of additional grounds for review, Monroy asserts that the trial court

committed constitutional error by sentencing him to a maximum term of life pursuant to

RCW 9.94A.507. He appears to contend that this statute does not authorize life

imprisonment as a maximum term of confinement and that the State failed to provide

notice of intent to seek a sentence outside the standard range. Monroy is mistaken.

      RCW 9.94A.507 governs the sentencing of certain nonpersistent sex offenders,

including those who commit second degree rape. Offenders subject to RCW 9.94A.507

are sentenced to indeterminate sentences within the mandatory minimum sentence and

the statutory maximum sentence for the crime. RCW 9.94A.507(3)(a)-(b). The

maximum sentence is the statutory maximum sentence for the offense.

RCW 9.94A.507(3)(b). When imposing a minimum term, the court may impose either a

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standard range sentence or a sentence outside the standard range pursuant to

RCW 9.94A.535 if the offender is eligible. RCW 9.94A.507(3)(c)(i).

       Here, based on an offender score of zero, the court sentenced Monroy pursuant

to RCW 9.94A.507 to an indeterminate sentence with a minimum sentence of 90

months’ confinement (the middle of the standard range) and a maximum sentence of life

in prison. The statutory maximum sentence for rape in the second degree, a class A

felony, is life imprisonment. RCW 9A.20.021(1)(a); RCW 9A.44.050(2). Cases cited by

Monroy regarding determinate sentences or indeterminate minimum sentences have no

bearing in this situation. Mon roy’s sentence was proper.

       We affirm Monroy’s conviction but remand to the trial court with instructions to

strike special condition 12.



                                                (~1w)21,~.
WE CONCUR:




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