STATE v. In re Personal Restraint Petition of William Henry Motter, Petitioner. (2007)

PART PUBLISHED OPINION

¶ 1 Around 10 o′clock at night, 71-year-old Dr. David Dixon responded to a burglar alarm at his medical office in Vancouver, Washington.   Dixon initially thought it was a false alarm, but once inside he confronted William Motter standing behind an examining room door armed with a homemade weapon.¹  Motter rammed Dixon with the examining room door and a scuffle ensued.

¶ 2 Dixon's security service heard his cries for help through an audio feed and called the Vancouver police.   A police K-9 unit responded and subsequently found Motter hiding in nearby blackberry brambles and arrested him.   Dixon sustained minor injuries as a result of his altercation with Motter, including a broken fingernail and several bruises.

¶ 3 The State charged Motter with one count of first degree burglary premised on assault.  RCW 9A.52.020(l )(b).  After a short trial in which Motter exercised his right not to testify, a jury convicted him as charged.   Motter appealed and filed a personal restraint petition (PRP) challenging this conviction.

¶ 4 We consolidated Motter's appeal and PRP. Here, we review:  (1) Motter's community custody conditions;  (2) a permissive inference jury instruction;  (3) a no duty to retreat jury instruction;  (4) the trial court's alleged failure to assess Motter's competency;  (5) the effectiveness of Motter's counsel;  and (6) alleged misconduct by the prosecution.   In the published portion of this opinion, we affirm Motter's community custody conditions.   But we analyze the remaining issues without publication because we resolve those issues by following well-established legal principles that have no precedential value.  RCW 2.06.040;  State v. Fitzpatrick, 5 Wash.App. 661, 669, 491 P.2d 262 (1971).

ANALYSIS

Community Custody

 ¶ 5 Motter challenges three of his community custody conditions:  (1) a mandate that Motter undergo substance abuse treatment;  (2) prohibition on Motter's possession or use of drug paraphernalia;  and (3) a requirement that Motter notify his community corrections officer when he is prescribed a controlled substance or legend drug.   A defendant may raise these claims for the first time on appeal.  State v. Jones, 118 Wash.App. 199, 204, 76 P.3d 258 (2003).   We affirm.²

 ¶ 6 We review a sentencing court's application of the community custody provisions of the Sentencing Reform Act de novo.  State v. Pierson, 105 Wash.App. 160, 165, 18 P.3d 1154 (2001).   And we review findings of fact that underlie the imposition of community custody for substantial evidence.   See State v. Brockob, 159 Wash.2d 311, 343, 150 P.3d 59 (2006).

 ¶ 7 First, we note that a proper community custody condition must be authorized by the legislature because it is the legislature's sole province to fix legal punishments.  State v. Pillatos, 159 Wash.2d 459, 469, 150 P.3d 1130 (2007).   Motter wrote a letter to the court asking to receive mental health treatment.   But a defendant's request does not give the court authority to impose a requested condition.

¶ 8 If an offender was convicted of a “violent offense,” a sentencing court may impose community custody under former RCW 9.94A.715 (2003).   The jury convicted Motter of first degree burglary, a class A felony.  RCW 9A.52.020. Class A felonies are violent offenses.  RCW 9.94A.030 (50)(a)(i).   Thus, former RCW 9.94A.715 authorized the trial court to impose community custody conditions.

 ¶ 9 Former RCW 9.94A.715 contains two provisions that are relevant to Motter's appeal.   First, it authorizes a sentencing court to:

order the offender to participate 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.

Former RCW 9.94A.715(2)(a).³

¶ 10 Second, it authorizes a court to impose conditions that are listed in RCW 9.94A.700(4)-(5).   Former RCW 9.94A.715(2)(a).  RCW 9.94A.700(5) allows the court to order that:

(c) The offender shall participate in crime-related treatment or counseling services;  [and]

․

(e) The offender shall comply with any crime-related prohibitions.

A condition is crime-related if it directly relates to the circumstances of the crime.  RCW 9.94A.030(13);  State v. Llamas-Villa, 67 Wash.App. 448, 456, 836 P.2d 239 (1992).   But subsection (e), relating to “crime-related prohibitions,” does not allow a court to order affirmative conduct.  RCW 9.94A.030(13).

A. Rehabilitative Programs

 ¶ 11 Motter first challenges the order that he participate in rehabilitative programs.   The sentencing court ordered that Motter

enter into, cooperate with, fully attend and successfully complete all in-patient and outpatient phases of a ․ substance abuse ․ [and] anger management treatment program as established by the community corrections officer and/or the treatment facility.

Clerk's Papers (CP) at 149.

¶ 12 Motter argues that substance abuse is not a “crime-related treatment or counseling servic[e]” under RCW 9.94A.700(5)(c).  But substantial evidence supports the finding of crime relation:  (1) Motter admitted he used heroin that night;  (2) Motter's attorney argued that “almost all of [Motter's] problems that are legal related revolve around his drug problems that he's had ongoing for quite some time”;  and (3) the burglary of a doctor's office is often motivated by a desire to steal drugs.   Report of Proceedings (RP) (Nov. 28, 2005) at 7. The trial court did not err when it found that substance abuse treatment and counseling was crime related.

¶ 13 Further, former RCW 9.94A.715 expressly authorizes the trial court to impose this condition when sentencing defendants such as Motter who have committed violent offenses.   The trial court's order directs that Motter “participate in rehabilitative programs ․ reasonably related to the circumstances of the offense.”   Former RCW 9.94A.715(2)(a).   The evidence outlined above substantially supports a finding that these rehabilitative programs relate reasonably to Motter's offense circumstances.   The trial court did not err when it required that Motter comply with these conditions.

B. Prohibition on Paraphernalia Possession and Use

 ¶ 14 Second, Motter challenges the trial court's order that he:

shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, cellular phones, police scanners, and hand held electronic scheduling and data storage devices.

CP at 149.   This condition does not order affirmative conduct.   And, as demonstrated above, Motter's crime was related to his substance abuse.   Thus, forbidding Motter from possessing or using controlled substance paraphernalia is a “crime-related prohibition[ ]” authorized under RCW 9. 94A.700(5)(e).   Thus, this condition is valid.

 ¶ 15 Motter argues that “almost any item can be used for the ingestion of controlled substances, such as knives, soda cans, or other kitchen utensils.”   Br. of Appellant at 29.   A community custody condition may be void for vagueness if it fails to define specifically the activity that it prohibits.  State v. Riles, 86 Wash.App. 10, 17-18, 936 P.2d 11 (1997), aff'd, 135 Wash.2d 326, 957 P.2d 655 (1998).   But Motter fails to cite to authority and his argument consists of one unhelpful sentence in the context of a complex constitutional legal doctrine.

 ¶ 16 Moreover, Motter's challenge is not ripe.   In State v. Massey, 81 Wash.App. 198, 200, 913 P.2d 424 (1996), the defendant challenged a condition that he submit to searches.   This court held that the judicial review was premature until the defendant had been subjected to a search he thought unreasonable.   And in State v. Langland, 42 Wash.App. 287, 292-93, 711 P.2d 1039 (1985), we held that the question of a law's constitutionality is not ripe for review unless the challenger was harmed by the law's alleged error.   Here, Motter claims that the court order could prohibit his possession of innocuous items.   But Motter has not been harmed by this potential for error and this issue therefore is not ripe for our review.   It is not reasonable to require a trial court to list every item that may possibly be misused to ingest or process controlled substances, items ranging from pop cans to coffee filters. Thus, we can review Motter's challenge only in context of an allegedly harmful application of this community custody condition.   This argument is not properly before this court and we will not address it.

C. Court-Ordered Affirmative Conduct

 ¶ 17 Last, the trial court ordered that Motter “shall notify his/her community corrections officer on the next working day when a controlled substance or legend drug has been medically prescribed.”   CP at 149.   This order requires that Motter perform affirmative conduct.   Thus, it is not a valid “crime-related prohibition[ ]” under RCW 9.94A.700(5)(e).   See RCW 9.94A.030(13).

¶ 18 But this condition is authorized under former RCW 9.94A.715(2)(a) as “affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community.”   This condition serves two purposes.   First, it prohibits Motter from obtaining multiple prescriptions from different doctors in order to receive otherwise legal drugs in unlawful amounts.   This rationale relates to Motter's risk of reoffending and the community's safety because Motter admits that his drug abuse led him to commit crimes.   Second, this condition protects Motter from being found in violation of his community custody conditions for taking a lawful prescription drug.   The Department of Corrections must know which drugs Motter takes lawfully in order to accurately assess his urinalysis tests.   By reporting his prescription drug use, Motter is protected from punishment for the use of those drugs.   Former RCW 9.94A.715(2)(a) authorizes this condition and so we affirm.⁴

¶ 19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Permissive Inference Jury Instruction

¶ 20 Motter also asserts three challenges to Instruction No. 12, which permitted the jury to infer criminal intent based on Motter's unlawful entry into the office.   Because he offers related arguments in his direct appeal and PRP, we address both here.   He argues that (1) the intent instruction is invalid because it shifts the burden of proof to the defendant;  (2) the trial court erred when it gave the instruction;  (3) his counsel was ineffective for failing to object to the instruction;  and (4) insufficient evidence supported the intent element.   Motter waived the first argument and the others lack merit.

¶ 21 In charging Motter with first degree burglary, the State was required to prove that he:  (1) entered or remained unlawfully in a building;  (2) did so with the intent to commit a crime against a person or property therein;  and (3) in entering or while in the building or in immediate flight therefrom, Motter assaulted any person.  RCW 9A.52.020(l)(b).  Relating to the second element, the trial court instructed the jury as follows:

A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein.   This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.

CP at 54;  11A Washington Practice:  Washington Pattern Jury Instructions:  Criminal 60.05, at 8 (Suppl.2005) (WPIC);  RCW 9A.52.040. Both WPIC 60.05 and RCW 9A.52.040 allow juries in burglary prosecutions to infer that a defendant intended to commit a crime on the premises when he unlawfully entered or remained in a building.5

A. Facially Valid Instruction

¶ 22 In his PRP, Motter argues that Instruction No. 12 impermissibly shifted the burden of proof to the defense to prove innocence.   But our Supreme Court analyzed this issue and found that, as now revised and conditioned by case law, the instruction does not shift the burden of proof or persuasion to the defendant.  State v. Deal, 128 Wash.2d 693, 699-701, 911 P.2d 996 (1996) (following State v. Brunson, 128 Wash.2d 98, 905 P.2d 346 (1995)).

B. Allegedly Erroneous Instruction

¶ 23 Motter challenges the sufficiency of the permissive inference jury instruction.   Despite lengthy debate about the proposed jury instructions' validity, Motter's trial counsel did not object to the court's giving this instruction.   A party must object to an erroneous instruction in order to afford the trial court an opportunity to correct the error.  CrR 6.15(c);  State v. Scott, 110 Wash.2d 682, 685-86, 757 P.2d 492 (1988).   Absent manifest injustice, we will not review an assignment of error based on deficiencies in the jury instructions when the defendant failed to object at trial.  State v. Stubsjoen, 48 Wash.App. 139, 148, 738 P.2d 306, review denied, 108 Wash.2d 1033 (1987).   No injustice is manifest, as discussed below, and so Motter waived this argument.

C. Effective Assistance of Counsel

¶ 24 In his PRP, Motter frames this same issue through a claim of ineffective assistance of counsel.   To prevail on this claim, Motter must show that his counsel's deficient performance prejudiced him.  State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995).   In order to meet this burden, Motter must first demonstrate that the challenged instruction was improperly given.

¶ 25 A permissive inference instruction of this nature is. appropriate in a burglary case where the evidence shows that the defendant illegally entered the building.  State v. Jackson, 112 Wash.2d 867, 876, 774 P.2d 1211 (1989).   But such an instruction is improper if the most that is shown is equivocal conduct.  “An inference [of intent to commit a crime in a building] should not arise where there exist other reasonable conclusions that would follow from the circumstances.”  Jackson, 112 Wash.2d at 876, 774 P.2d 1211.

¶ 26 Motter argues that his conduct in entering Dixon's office was equivocal because he could have trespassed for the sole purpose of, say, sleeping inside a warm building because he was homeless.   But no evidence supported this theory.   The police thought that Motter appeared to be homeless, but this belief was never pursued during trial.   And it was undisputed that Motter had no lawful purpose for entering the office.   More importantly, Motter wielded a weapon when Dixon entered the office and shoved a door into Dixon's shoulder.   Motter's conduct was inconsistent with simply seeking a warm place to sleep.

¶ 27 When permissive inferences are only part of the State's proof supporting an element and not the “ ‘sole and sufficient’ proof of such element, due process is not offended if the prosecution shows that the inference more likely than not flows from the proven fact.”  Deal, 128 Wash.2d at 700, 911 P.2d 996 (quoting Brunson, 128 Wash.2d at 107, 905 P.2d 346).   But when the inference described in the instruction is the only basis for finding an element of the crime charged, due process requires that the inference flow beyond a reasonable doubt from the proved fact.  State v. Hanna, 123 Wash.2d 704, 711, 871 P.2d 135, cert. denied, 513 U.S. 919, 115 S.Ct. 299, 130 L.Ed.2d 212 (1994);  State v. Farr-Lenzini, 93 Wash.App. 453, 469 n. 7, 970 P.2d 313 (1999).

¶ 28 Motter's entry into the office was not the only evidence offered to prove his intent to commit a crime inside.   Although there was no evidence that Motter disturbed or stole items in the office, the following evidence supported the jury finding of criminal intent:  (1) Motter was armed with a homemade weapon;  (2) he used the weapon and the door to repel Dixon;  and (3) he unlawfully entered a medical office, where prescription drugs are likely to be stored.   The State's proof of intent did not rest solely on Motter's illegal entry and the permissive inference instruction.   The evidence is sufficient to support the State's burden to show that the inference more likely than not flows from the proven facts.   Thus, the permissive inference instruction was proper and Motter's trial counsel was not deficient for not objecting to it.

D. Sufficient Evidence

¶ 29 Motter also alleges that the evidence of unlawful intent is insufficient to support his conviction.   The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.  State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980).   When the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.  State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977).   A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   Direct and circumstantial evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).   Here, the evidence listed above is sufficient to support the jury's verdict of Motter's criminal intent beyond a reasonable doubt.

No Duty to Retreat Jury Instruction

¶ 30 Motter also challenges Instruction No. 14, to which his attorney did object, on the ground that the instruction is unrelated to his case theory.   This argument has no merit because the instruction supported the State's theory.

¶ 31 The trial court instructed the jury as follows:

No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense or defense of another and thereupon use, offer, or attempt to use force upon or toward another person.   Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.

CP at 56.   The trial court gave no other self-defense instructions and Motter did not expressly assert that he was acting in self-defense when he assaulted Dixon.

¶ 32 Generally, we review a trial court's choice of jury instructions for abuse of discretion.  State v. Douglas, 128 Wash.App. 555, 561, 116 P.3d 1012 (2005).   Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and, when read as a whole, properly inform the trier of fact of the applicable law.  Douglas, 128 Wash.App. at 562, 116 P.3d 1012.

¶ 33 The instruction at issue, 11 WPIC 16.04, at 182 (2d ed.1994), is proper if there is credible evidence from which the jury could conclude that the defendant's (Motter's) intentional acts provoked a belligerent response, thereby requiring the victim (Dixon) to act in self-defense.  State v. Davis, 119 Wash.2d 657, 665-66, 835 P.2d 1039 (1992).   Here, there is credible evidence that Motter held a weapon and intentionally rammed a door into Dixon, hitting his shoulder.   According to Dixon, this was the first act of aggression and it provoked Dixon to respond violently.   This evidence satisfies the rule outlined in Davis.

¶ 34 Motter argues that Instruction No. 14 was improper because he did not assert self-defense but instead argued that he never touched Dixon and that the jury should not find Dixon a credible witness.   But the instruction need not support the defendant's theory of the case.   Rather, each party is entitled to instructions that support its case theory.  Douglas, 128 Wash.App. at 562, 116 P.3d 1012.   As Motter's counsel recognized, this instruction supported the State's theory that if Motter was the first aggressor, then Dixon did nothing wrong when he stood his ground and scuffled with Motter to protect his medical office and supplies.   The instruction was proper.

Issues in PRP

¶ 35 Motter raises several additional issues in his PRP, none of which warrant reversal.   Motter's first five arguments challenge Instruction No. 12 and whether sufficient evidence supported criminal intent.   Here, we address those arguments that do not duplicate the direct appeal or the previous section relating to Instruction No. 12.   The remaining issues fit into the following categories:  (1) failure to assess Motter's competency;  (2) ineffective assistance of counsel;  and (3) prosecutorial misconduct.

¶ 36 The Washington Supreme Court and the Court of Appeals have original concurrent jurisdiction in personal restraint proceedings in which the death penalty has not been decreed.  RAP 16.3(c).  In order to be entitled to relief under a PRP, a petitioner must establish a constitutional error resulting in actual and substantial prejudice or a nonconstitutional error constituting a fundamental defect that inherently results in a complete miscarriage of justice.  In Re Pers. Restraint of Breedlove, 138 Wash.2d 298, 304 n. 1, 979 P.2d 417 (1999) (citing In Re Pers. Restraint of Cook, 114 Wash.2d 802, 809, 792 P.2d 506 (1990)).

¶ 37 Regardless of whether a petitioner bases his challenges on constitutional or nonconstitutional error, he must support his petition with facts or evidence on which his claims of unlawful restraint are based and not solely on conclusory allegations.  Cook, 114 Wash.2d at 813-14, 792 P.2d 506.   He must present evidence that is more than speculation, conjecture, or inadmissible hearsay;  and, if his claimed evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say but must present their affidavits or other corroborative evidence.  In Re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344(1992).

A. No Requirement for Mental Health or Competency Evaluation

¶ 38 In Ground 7, Motter objects to the trial court's failure to sua sponte order an investigation into his competency to stand trial.   A court must order a competency evaluation when there is reason to doubt the defendant's competency.  RCW 10.77.060.   Here, no attorney requested a competency evaluation.   Motter politely and coherently answered the trial court's questions and did not cause any outbursts or distractions which might indicate mental illness.   The record reveals no basis for the trial court to doubt Motter's competency and request a competency evaluation.

B. Effective Assistance of Counsel

¶ 39 Motter alleges that his counsel was ineffective for failing to:  conduct adequate pre-trial discovery (Ground 9);  investigate thoroughly before presenting Motter with a plea bargain (Ground 10);  adequately cross-examine Deputy Lindsay Schultz (Ground 11);  and move for pretrial dismissal for insufficient evidence (Ground 13).   And in Ground 12, Motter claims that his attorney's ineffective assistance caused prejudice when viewed cumulatively.   As discussed above, to prevail on this claim, Motter must show that his counsel's deficient performance prejudiced him.  McFarland, 127 Wash.2d at 334-35, 899 P.2d 1251.   He has not done so.

¶ 40 Grounds 9 and 10 are not supported by the record:  there is no indication as to the depth of pretrial discovery conducted or warranted, and the record does not reflect the circumstances of the purported plea bargain offer that Motter apparently rejected.   Therefore, we cannot review these claims.   See Cook, 114 Wash.2d at 813-14, 792 P.2d 506.   In Ground 11, Motter claims that his attorney did not adequately cross-examine Deputy Schultz, but we have reviewed the record and find that the cross-examination was adequate:  Motter's attorney elicited testimony to emphasize that Schultz found no evidence of forced entry.

¶ 41 In Ground 13, Motter argues that his attorney should have brought a Knapstad motion, under which a trial court should dismiss a case if the evidence is insufficient as a matter of law to support a conviction.  State v. Knapstad, 107 Wash.2d 346, 352-56, 729 P.2d 48 (1986).   But the evidence was sufficient, as discussed above, and Motter's attorney was not deficient for not filing a Knapstad motion.   Last, Ground 12, claiming cumulative error, fails because there is no error to accumulate.   See State v. Stevens, 58 Wash.App. 478, 498, 794 P.2d 38, review denied, 115 Wash.2d 1025, 802 P.2d 128 (1990).

C. No Prosecutorial Misconduct

¶ 42 Motter also urges reversal for prosecutorial misconduct based on the following alleged errors:  the prosecutor opined that Motter was guilty during his closing argument (Ground 6);  the State charged Motter with first degree burglary (Ground 10);  the prosecutor withheld exculpatory evidence from Motter's defense counsel (Ground 14);  and the prosecutor allegedly violated the American Bar Association's discovery standards (Ground 15).   The record does not support these arguments.

¶ 43 To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney's conduct was both improper and prejudicial.  State v. Korum, 157 Wash.2d 614, 650, 141 P.3d 13 (2006).   In order to prove that the conduct was prejudicial, the defendant must prove there is a substantial likelihood the misconduct affected the jury's verdict.   Korum, 157 Wash.2d at 650, 141 P.3d 13.   If the defendant does not object to alleged misconduct at trial, the issue of prosecutorial misconduct is waived unless the misconduct was “so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.”  Korum, 157 Wash.2d at 650, 141 P.3d 13 (quoting State v. Stenson, 132 Wash.2d 668, 719, 940 P.2d 1239 (1997)).   During trial, Motter did not object on any of the grounds that he raises in his PRP.

¶ 44 Ground 6 fails because the prosecutor did not express an opinion about Motter's guilt, but instead argued inferences from the evidence establishing his guilt.   We review allegedly improper statements in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given.  State v. Gregory, 158 Wash.2d 759, 810, 147 P.3d 1201 (2006).   The prosecutor enjoys reasonable latitude in arguing inferences from the evidence, including inferences as to witness credibility.  Gregory, 158 Wash.2d at 860, 147 P.3d 1201.   Motter complains about numerous instances in which the prosecutor made remarks such as, “He was there to commit a crime,” and “Motter was not just trespassing.”   RP (Oct. 24, 2005) at 141, 164.   But Motter takes the remarks out of context.   In each instance, the prosecutor discussed the applicable jury instruction and the evidence at issue and asked the jury to infer from the evidence that Motter was guilty. The statements were proper and do not constitute prosecutorial misconduct.

¶ 45 Ground 10 is based on the theory that insufficient evidence supported the intent element, and so the State committed misconduct by charging Motter with first degree burglary.   This argument fails because the evidence did support the charge.

¶ 46 In Ground 14, Motter argues that the prosecutor withheld exculpatory evidence that showed that Motter did not have criminal intent, intentionally assault Dixon, or have a bat, club, or sap.6  Motter argues that two police reports would exculpate him, but those police reports were by Deputies Waddell and Schultz, who testified that they found no evidence of forced entry and did not find a bat, club, or sap.   Dixon referred to the weapon that Motter held as a sap, and it was later discovered that Motter had a homemade weapon of electrical tape covering rocks.   There is no evidence that the State withheld evidence and no prejudice could have resulted because the exculpatory evidence came out during trial. In Ground 15, Motter similarly asserts that the prosecutor failed to timely present its evidence to Motter's attorney.   But, again, no evidence supports this assertion.   Accordingly, we deny Motter's PRP.

¶ 47 I respectfully dissent only on the issue of whether a prohibition on the possession or use of cellular phones and hand held electronic scheduling and data storage devices is shown to be related to Motter's substance abuse and therefore is appropriately banned and whether the issue is ripe.

¶ 48 Here, the record does not demonstrate that Motter dealt or possessed drugs with the intent to transfer or sell them.   He does have an admitted drug use problem.   The trial court's order thus elevates ownership and use of cell phones and data storage devices by drug users to paraphernalia used in the street drug trade. While it has been demonstrated in numerous criminal prosecutions that drug dealers use cell phones and electronic scheduling and data storage devices. in their trade, the largest users and possessors of these devices are non-drug users.   Indeed, recent statistics report that almost three-fourths of the American public own or use cell phones.⁷  They are the sole telephone for approximately 26 million adults-some 11.8 percent of our households.⁸  The number of cell phone subscribers in Washington doubled from 2,144,767 in 2000, to 4,418,314 by June of 2006.⁹  THEIR MULTIPLE FUNctions allow them to replace other devices that take greater space and are much more costly.¹⁰  For those without a permanent address, they may be the only way for a community corrections officer to maintain regular, easy, and fast contact.

¶ 49 I disagree with the majority that Motter has not demonstrated immediate harm from the trial court's restrictions and that the matter is not ripe.   The majority states that “Motter claims that the court order could prohibit his possession of innocuous items” and reasons that “Motter has not been harmed by this potential for error and this issue is not ripe for our review.”   Majority at 1194. The majority partially relies on State v. Massey, 81 Wash.App. 198, 913 P.2d 424 (1996).   In Massey, the defendant challenged a condition that he submit to searches upon reasonable suspicion versus reasonable cause.  Massey, 81 Wash.App. at 199-200, 913 P.2d 424.   The Massey court held that judicial review was premature until the defendant had actually been subjected to a search.  Massey, 81 Wash.App. at 200, 913 P.2d 424.   But Massey may never be subjected to a search, whereas Motter will be continuously subjected to the restriction on cell phones.   Apparently the majority believes that in order to challenge these prohibitions, Motter must violate the order by possessing or using a cell phone or other device and face punishment before he can challenge the breadth of the order.   But the order clearly is an immediate restriction on Motter's ability to own (or even use another person's) cell phones or electronic data storage devices.

¶ 50 I would hold that, unless the record shows that Motter was selling or obtaining drugs by use of a cell phone or other electronic device, this restriction is not valid and should be vacated.

FOOTNOTES

1.   Motter's weapon was rocks wrapped with electrical tape.

2.   The State concedes that the sentencing court erred when it imposed alcohol-related conditions because no evidence supported the condition.   But we reject the concession because the sentencing court did not impose any alcohol-related conditions.   The State also replies that Motter was correctly given conditions relating to his mental health.   But Motter received no mental health conditions.

3.   The parties did not address the impact of this provision, but we may affirm on any ground established by the law and the record.  State v. Villarreal, 97 Wash.App. 636, 643, 984 P.2d 1064 (1999), review denied, 140 Wash.2d 1008, 999 P.2d 1261 (2000).

4.   At oral argument, both parties expressed concern that the judgment and sentencing forms used in Clark County cause a great deal of confusion and are resulting in an unnecessarily high number of reversals on appeal.   The parties acknowledged that it is not proper for this court to issue advisory opinions, but urged us to publish an opinion that may serve as guidance in crafting appropriate forms.We recognize that the form used in this case is a landmine of potential errors.   For instance, it is unclear whether the sentencing court intended to check the box finding that Motter had a chemical dependency, particularly given that Motter admitted that he was addicted to drugs and that his addiction motivated him to commit crimes.   As this finding is located on page two of the form, while the related community custody conditions begin on page six, it seems all too likely that a sentencing court would overlook the relationship between this finding and its authority to sentence a defendant to affirmative conduct under RCW 9.94A.607.Some counties organize the community custody conditions and related findings according to the specific grant of legal authority.   For instance, conditions that require a finding of “crime-relation” are grouped together, as are conditions that are always given unless waived by the court under RCW 9.94A.700(4).   In addition, as a reminder or a check on the exercise of judicial sentencing authority, some counties cite the specific statutory authority under which the court imposes each condition.   These procedures appear to minimize unintentional sentencing errors such as those alleged in this case.

FN5. RCW 9A.52.040 provides:In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent..  FN5. RCW 9A.52.040 provides:In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

FN6.  A sap is another name for a blackjack, a small weapon consisting of a weight that is wrapped in a material and attached to a shank..  FN6.  A sap is another name for a blackjack, a small weapon consisting of a weight that is wrapped in a material and attached to a shank.

7.   Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, FCC 2006-142 (Sept. 26, 2006) (statement of Kevin J. Martin, Chairman, Federal Communications Commission (FCC)) (“Approximately 28 Million additional wireless subscribers signed up. in 2005, bringing the total to 213 million subscribers and increasing the nationwide penetration rate to 71 percent.”), available at http:// ​wireless.​fcc.​gov/​cmrsreports.​html.

8.   Stephen J. Blumberg & Julian V. Luke, Wireless substitution:  Early release of estimates based on data from the National Health Interview Survey, July-December 2006.   National Center for Health Statistics, at 2 & Table 1, (May 14, 2007), available at http://​www.​cdc.​gov/​nchs/​nhis.​htm.

9.   Trends in Telephone Service, FCC's Wireline Competition Bureau, Industry Analysis and Technology Division, at 11-5 (February 2007), available at http://​www.​fcc.​gov/​wcb/​iatd/​trends.​html.

10.   The recently released iPhone is an example of such a multi-function electronic device.

Quinn-Brintnall, J.