IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, ) No. 73904-2-I cf" c
77:4 C7
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Respondent, ) DIVISION ONE • r •
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V. )
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CLIFTON EUGENE TURNER, ) UNPUBLISHED
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Appellant. ) FILED: February 27, 2017`C:0
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Cox, J. — Clifton Turner appeals his judgment and sentence based on
convictions of two counts of second degree child molestation and one count of
fourth degree assault. The trial court did not abuse its discretion in admitting
evidence of the victim's emotional and psychological trauma following the
offenses without supporting expert testimony. Two of the several sentencing
conditions are improper: substance abuse counselling and submitting to
Breathalyzer tests. The criminal history in the judgment and sentence fails to list
two prior convictions used to compute the correct offender score of five.
Appellate costs shall not be awarded to the State. We affirm in part, vacate in
part, and remand with instructions.
The victim in this case is M. Turner met M.'s mother, L., when they were
both patients in drug treatment. Two and a half years later, Turner and L. moved
in together. M. would visit often.
No. 73904-2-1/3
TRAUMA EVIDENCE
Turner argues the trial court abused its discretion in admitting evidence of
M.'s behavior following the offenses without supporting expert testimony linking
her behavior to Post-Traumatic Stress Disorder(PTSD). We disagree.
We review for abuse of discretion a trial court's decision to admit
evidence.1 A trial court abuses its discretion when its ruling is manifestly
unreasonable or it bases its decision on "untenable grounds or reasons."2
The parties have couched their argument in the context of ER 702, which
governs the admission of expert opinion testimony. ER 702 allows the admission
of expert testimony where it will help the trier of fact understand evidence or facts
at issue. But no expert opinion was presented in this case.
Rather the parties contest the admission of M.'s alleged opinion testimony.
ER 701 governs our analysis of this testimony.
That rule provides for the admission of lay opinion testimony when it is "(a)
rationally based on the perception of the witness,(b) helpful to a clear
understanding of the witness'[s] testimony or the determination of a fact in issue,
and (c) not based on scientific, technical, or other specialized knowledge."
There is no question that M.'s testimony was based on her own
perception. She testified to her own behavior of self-harm and substance usage.
Similarly, there is no question that such testimony was helpful to understanding
1 State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207(2012).
2 Wade's Eastside Gun Shop, Inc. v. Dep't of Labor & Indus., 185 Wn.2d
270, 277, 372 P.3d 97(2016).
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No. 73904-2-1/4
her relevant experience of sexual abuse, a central determination of fact in this
case.
Thus, the parties' dispute focuses on whether M.'s testimony was based
on specialized knowledge.
In State v. Black, the supreme court explained that a lay witness may
testify to her own experience of trauma without supportive expert testimony.3 In
that case, the court reversed Michael Black's conviction because the trial court
had abused its discretion in admitting expert testimony about rape trauma
syndrome.4 The relevant expert, a counselor who had counseled the alleged
victim for several months, testified that there was "a specific profile for rape
victims and [the victim] fits in."5
On review, the supreme court found this testimony to be scientifically
unreliable because "there is no 'typical' response to rape."6 The counselor's
profiling technique was "not the type of scientific test that reliably determines
whether a rape has occurred, as the characteristic symptoms may follow any
psychologically traumatic [experience]."7
3 109 Wn.2d 336, 349, 745 P.2d 12 (1987).
4 Id. at 350.
5 Id. at 339(emphasis omitted).
6 Id. at 343.
7 Id. at 348.
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No. 73904-2-1/5
The supreme court further concluded such testimony was not helpful to
the trier of fact because it was overly prejudicia1.8 Specifically, the expert had
testified that the alleged victim fit the profile of rape victims, improperly
suggesting the guilt of the defendant.8
But the court clarified that it did:
not imply, of course, that evidence of emotional or psychological
trauma suffered by a complainant after an alleged rape is
inadmissible in a rape prosecution. The State is free to offer lay
testimony on these matters, and the jury is free to evaluate it as it
would any other evidence. We simply hold that the State may not
introduce expert testimony which purports to scientifically prove that
an alleged rape victim is suffering from rape trauma syndronne.110]
Here, the trial court admitted M.'s testimony concerning certain changes in
her behavior. It concluded that M. could "testify to her own behavior and her own
feelings." But it instructed the State not to ask questions that would require a
medical conclusion. Nothing in the record suggests the State violated this
instruction. The jury was fully capable of deciding whether the changes to M.'s
behavior arose in response to the past trauma of this molestation without expert
testimony. There was no abuse of discretion in admitting M.'s testimony.
Turner points to numerous cases that upheld the admission of expert
testimony connecting a person's response to previous trauma when the response
8 Id. at 349.
9 Id.
1° Id.
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might have seemed counterintuitive to the layperson.11 These cases fail to
establish that expert testimony is necessary rather than merely admissible under
such circumstances. Additionally, the testimony in this case did not present any
counterintuitive inference.
Here, the trial judge instructed the jurors that they could consider
inferences from circumstantial evidence based on their "common sense and
experience." Based on this instruction and the principle elucidated in Black, the
jury could properly consider M.'s relevant testimony against the backdrop of their
own experience.
SENTENCING CONDITIONS
Turner argues the trial court improperly imposed substance abuse
treatment as a condition of community custody. We agree.
The trial court's sentencing authority depends on statute.12 Generally, we
review for abuse of discretion the imposition of sentencing requirements.13 But
we review de novo that imposition when the trial court's statutory sentencing
authority is challenged.14
11 State v. Ciskie, 110 Wn.2d 263, 274, 751 P.2d 1165 (1988); State v.
Allery, 101 Wn.2d 591, 597, 682 P.2d 312(1984); State v. Green, 182 Wn. App.
133, 139, 328 P.3d 988 (2014); State v. Bottrell, 103 Wn. App. 706, 717, 14 P.3d
164 (2000).
12 In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293(1980).
13 State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
14 Id.
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The Sentencing Reform Act authorizes the trial court to impose certain
prohibitions or affirmative conditions of community custody so long as they are
"crime-related."15 A prohibition is "crime-related" when it "directly relates to the
circumstances of the crime for which the offender has been convicted."16 It "may
[also] include a prohibition on the use or possession of alcohol or controlled
substances if the court finds that any chemical dependency or substance abuse
contributed to the offense."17
When the trial court sentences the offender to community custody, RCW
9.94A.703(3)(c) authorizes it to require that the offender "[p]articipate in crime-
related treatment or counseling services.18 RCW 9.94A.703(3)(d) also authorizes
the trial court to require that the offender "[p]articipate in rehabilitative programs
or otherwise perform affirmative conduct reasonably related to the circumstances
of the offense, the offender's risk of reoffending, or the safety of the
community:19
But these two provisions present an ambiguity. A statute is ambiguous "if
it can be reasonably interpreted in more than one way."29 In this statute, it is
unclear whether the rehabilitative programs that the trial court may impose must
15 RCW 9.94A.505(9).
16 RCW 9.94A.030(10).
17 RCW 9.94A.505(9).
18 RCW 9.94A.703(3)(c).
19 RCW 9.94A.703(3)(d).
29 State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002).
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No. 73904-2-1/8
be "crime-related" or "reasonably related to the circumstances of the offense, the
offender's risk of reoffending, or the safety of the community." Thus, the trial
court could impose such programs even if not "crime-related," despite other clear
text in the statute.
Division Two of this court addressed these provisions in State v. Jones.21
The court examined the identical statutory precursors to what are now RCW
9.94A.703(3)(c) and (d).22 It cited the rule requiring that statutes be construed to
avoid rendering any provision superfluous.23 It explained that subsection (c),
allowing the court to order such services so long as they are crime-related, would
be rendered superfluous if subsection (d) were construed to allow courts to order
substance counselling or treatment without showing that the need for such
services was "crime-related."24 Thus, the court concluded that a trial court could
impose treatment programs under subsection (d)"only if the evidence shows that
[substance use] contributed to the offense."25 We agree with that reasoning.
Here, the trial court imposed a condition requiring that Turner participate in
"substance abuse treatment as directed by the supervising Community
Corrections Officer." But no evidence in the record shows that either alcohol or
drugs contributed to these offenses.
21 118 Wn. App. 199, 76 P.3d 258 (2003).
22 Id. at 207-08.
23 Id. at 208.
24 Id.
25 Id.
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No. 73904-2-1/9
On this record, the trial court lacked authority to impose community
custody condition 15, requiring that Turner participate in substance abuse
counselling. We vacate this condition and direct that it be stricken on remand.
The State argues that even if ROW 9.94A.703(c) is superfluous, to
harmonize this superfluity as Jones did, would render superfluous the language
in ROW 9.94A.703(d) concerning "the offender's risk of reoffending, or the safety
of the community." This argument is not convincing.
Subsection (c) requires the trial court to make a specific conclusion before
it orders that a defendant participate in counselling or treatment services. This
requirement avoids coercing offenders to undergo rehabilitation unrelated to their
crimes. Subsection (d), by contrast, allows the court to order other rehabilitative
programs "reasonably related to the circumstances of the offense, the offender's
risk of reoffending, or the safety of the community."
Because substance abuse treatment is at issue, subsection (c) controls
and dictates that such services must be crime-related. This case does not meet
the requirements of the statute and a fair reading of subsection (d) does not
require a different result.
Turner also argues that the court erred in imposing monitoring conditions,
requiring him to participate in urinalysis, polygraph, and Breathalyzer tests. We
agree in part.
A sentencing court may require that an offender submit to tests to monitor
compliance with the other valid conditions of community custody.26 Specifically,
26 State v. Riles, 135 Wn.2d 326, 342-43, 957 P.2d 655(1998).
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No. 73904-2-1/10
the supreme court has recognized the investigative utility of polygraph tests in
monitoring general compliance with sentencing conditions.27
Here, the trial court imposed three monitoring conditions. Of these, the
court acted within its discretion in requiring that Turner submit to polygraph
testing. But the court erred in imposing the Breathalyzer requirement because
any alcohol-related condition it was imposed to monitor was not crime-related.
But the trial court acted within its discretion in imposing the urinalysis
requirement. RCW 9.94A.703 divides the available conditions on community
custody into three categories. Some are mandatory, which the court must
impose.28 Some are discretionary, such as those discussed above.29 The rest
are waivable and imposed, unless the trial court affirmatively waives them.39
This last category includes the requirement that a defendant "Nefrain from
possessing or consuming controlled substances except pursuant to lawfully
issued prescriptions."31
Here, the trial court did not waive the above condition. It was thus
imposed. The condition that Turner submit to urinalysis testing was proper to
monitor whether he was consuming controlled substances.
27 Id.
28 RCW 9.94A.703(1).
29 RCW 9.94A.703(3).
39 RCW 9.94A.703(2).
31 RCW 9.94A.703(2)(c).
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Thus, we hold that the trial court was without authority to impose
community custody condition 15 and the Breathalyzer component of condition
16. It did not abuse its discretion in imposing the other challenged conditions.
STATEMENT OF ADDITIONAL GROUNDS
Turner argues that the trial court miscalculated his offender score for
sentencing purposes in his Statement of Additional Grounds pursuant to RAP
10.10. We hold that the trial court properly determined his offender score as five,
but remand with directions that the trial court correct the judgment and sentence
to correctly reflect the criminal history used to calculate that score.
RCW 9.94A.525(17) provides the framework for calculating an offender
score when the current crime is a sex crime. All current sex crimes count as
three. Turner concedes the base score is a three.
The RCW 9.94A.525(17)framework then directs the sentencing court's
consideration to RCW 9.94A.525(7)-(9). The court selects one of those
subsections based on whether the current offense was nonviolent, violent, or
seriously violent. The two felony convictions in this case were child molestation
in the second degree. The statute defining that offense does not characterize it
as violent.32 Thus, RCW 9.94A.525(7) provides the appropriate arithmetic for
calculating the score here. Under that provision, we add one point for each prior
adult felony conviction.
32 RCW 9A.44.086.
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Here, counsel for Turner properly conceded below that the offender score
for his current offenses totaled three. At the sentencing hearing, the trial court
had before it certified copies of two prior judgment and sentences for controlled
substance felonies. The first of these was entered on October 5, 1993. The
second was entered on February 9, 1996. Both serve as qualifying felonies that
would add one point each to Turner's current offender score, provided neither
"washed."
Pursuant RCW 9.94A.525(2)(b), Class B prior felony convictions
shall not be included in the offender score, if since the last date of
release from confinement. . . pursuant to a felony conviction, if any,
or entry of judgment and sentence, the offender had spent ten
consecutive years in the community without committing any
crime that subsequently results in a conviction.[331
The issue is whether the two prior felony convictions washed due to
Turner spending ten consecutive years in the community being crime free.
The certified copy of a 2004 controlled substances conviction proved that
he did not meet this test. Thus, the two prior convictions, and only those
convictions, were properly considered for inclusion in the offender score:
five.
The judgment and sentence does not correctly reflect both prior
convictions on which basis the offender score of five was calculated.
Accordingly, we vacate this judgment and sentence to that extent only and
direct the trial court on remand to modify the document accordingly to
include the correct prior convictions.
33 (Emphasis added.)
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No. 73904-2-1/13
COSTS
Turner argues that this court should decline to award the State appellate
costs should he not prevail. We agree.
RCW 10.73.160(1) gives appellate courts discretion to decline to impose
appellate costs on appea1.34 Under State v. Sinclair, there is a presumption that
indigency continues unless the record shows otherwise.35
Here, the trial court found at sentencing that Turner is indigent. Nothing in
this record overcomes this presumption.
The State counters that the record fails to indicate whether Turner will be
unable to pay in the future. This argument is insufficient to overcome the
presumption stated in Sinclair. The State also requests that we impose costs
because Turner did not litigate this matter for the public's benefit. This argument
also fails to overcome the presumption stated in Sinclair. An award to the State
for appellate costs is inappropriate under these circumstances.
34 State v. Nolan, 141 Wn.2d 620, 629,8 P.3d 300 (2000).
35 192 Wn. App. 380, 392-93, 367 P.3d 612, review denied, 185 Wn.2d
1034 (2016).
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No. 73904-2-1/14
We affirm Turner's conviction, vacate the substance abuse counselling
and Breathalyzer conditions, and remand for correction of the judgment and
sentence to reflect the correct criminal history and conditions. We deny any
award of costs to the State.
431( i al
WE CONCUR:
izieli,/
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