Find Legal Information

Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                               FILED

                                                           JUNE 07, 2012

                                                     In the Office of the Clerk of Court
                                                  WA State Court of Appeals, Division III

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

STATE OF WASHINGTON,                                      No.  29662-8-III
                                                )
                             Respondent,        )
                                                )
         v.                                     )
                                                )
JACK MARLIN AXTMAN,                             )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  The defendant here challenges a number of the conditions the 

sentencing court imposed as conditions of his community custody.  He contends the 

conditions are not related to his crimes.  We conclude they are with one exception.  We 

remand to delete references to "substance abuse" other than alcohol and affirm the 

decision to impose the remaining conditions of community custody. 

                                            FACTS

       The facts here are undisputed.  A jury found Jack Marlin Axtman guilty of first 

degree rape of a child and first degree child molestation.  The court then sentenced Mr.  

No. 29662-8-III
State v. Axtman

Axtman to concurrent terms of 140 months to life in prison on the rape conviction and 70 

months to life in prison on the child molestation conviction.  Community custody for life 

is mandatory.  RCW 9.94A.507(5).  

       The court imposed several conditions on Mr. Axtman as part of the community 

custody portion of his sentence, including that he (1) not own, use or possess firearms or 

ammunition; (2) not consume or possess any alcohol; (3) not frequent places where 

alcohol is the chief commodity being sold; (4) undergo an evaluation for substance abuse;

and (5) complete substance abuse treatment/alcohol abuse treatment with a qualified 

provider, including attendance at support groups such as Alcoholics Anonymous.  

       Mr. Axtman appeals the imposition of several of the conditions on the ground that 

the conditions are not crime related.

                                        DISCUSSION

       We review conditions of community custody for abuse of discretion.  State v. 

Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).  The sentencing court must base these 

conditions on tenable grounds or tenable reasons.  State v. Teems, 89 Wn. App. 385, 388, 

948 P.2d 1336 (1997).  A defendant may raise objections to community custody 

conditions for the first time on appeal.  State v. Jones, 118 Wn. App. 199, 204 n.9, 76 

P.3d 258 (2003). 

       The court may impose and enforce crime-related prohibitions and affirmative 

conditions as a part of any sentence.  RCW 

                                               2 

No. 29662-8-III
State v. Axtman

9.94A.505(8).  Conditions of community custody may include "crime-related treatment or 

counseling services," participation in "rehabilitative programs," and compliance with 

"crime-related prohibitions." RCW 9.94A.703(3)(c), (d), (f).  A "crime-related 

prohibition" is defined as "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).  

1. Prohibition related to firearms and ammunition. 

       Mr. Axtman first contends that while a court may prohibit a convicted felon from 

possessing a firearm, it may not prohibit possession of ammunition unless the prohibition 

directly relates to the underlying offense.  He argues his offenses had nothing to do with 

ammunition. He misreads the statute.  

       "No offender sentenced to a term of community custody under the supervision of 

the department may own, use, or possess firearms or ammunition."  Former RCW 

9.94A.706 (2008) (emphasis added).  

       Here, the court ordered that Mr. Axtman "not own, use, or possess a firearm or 

ammunition."  Clerk's Papers (CP) at 68, 76. The court's prohibition against possession 

of ammunition tracks precisely with the statutory language and, of course, the prohibition 

need not be crime related.  

2. Prohibition related to alcohol. 

       Mr. Axtman next contends that while 

                                               3 

No. 29662-8-III
State v. Axtman

a court may prohibit an offender from consuming alcohol, it may not prohibit visits to 

places that sell alcohol unless the condition relates to his offenses.  He argues that there is 

no evidence that bars were the source of his alcohol.  And he urges that there are other 

reasons to go to bars than to drink alcohol.  

       A court may require that an offender not consume alcohol.  RCW 9.94A.703(3)(e).  

A court may impose further restrictions on alcohol use or consumption if the community 

custody condition bears a reasonable relation to the circumstances of the offense, the 

offender's risk of reoffending, or the safety of the community.  RCW 9.94A.703(3)(d); 

Jones, 118 Wn. App. at 207-08.  

       In Jones, the defendant pleaded guilty to first degree burglary and "other crimes,"

and the court imposed a prison sentence and conditions of community custody relating to 

alcohol consumption and treatment.  118 Wn. App. at 202-03.  There nothing suggested 

that alcohol contributed to the defendant's offenses.  Id. at 207-08.  On appeal, the court 

found that the trial court had authority to prohibit alcohol consumption but that it could 

not order the defendant to participate in alcohol counseling because the counseling was 

not related to the crime.  Id. at 206-08. 

       Here, alcohol did contribute to Mr. Axtman's offenses.  So the court ordered Mr. 

Axtman not to "consume or possess alcohol" and not to "frequent places where alcohol is 

the chief commodity of sale such as bars, taverns or lounges." CP at 68.  We conclude 

that the court reasonably ordered Mr. 

                                               4 

No. 29662-8-III
State v. Axtman

Axtman not to frequent places that sell alcohol.  The temptation is obvious.  It is true, as 

Mr. Axtman suggests, that there may be reasons to go to a bar other than to drink alcohol.  

But it was also reasonable for the sentencing judge to assume that the primary reason 

people go to a bar is to drink alcohol.  And alcohol contributed to Mr. Axtman's criminal 

conduct.  Avoiding places that serve alcohol then removes the potential for violating the 

condition of community custody that he not drink alcohol.  

3. Substance abuse evaluation and treatment. 

       Mr. Axtman contends that while a court may order an offender to participate in 

crime-related treatment, the treatment must address an issue that contributed to the 

offense.  He argues that there is no support for general substance abuse treatment because 

he has never had any form of drug dependency.  His problem is alcohol abuse.  

       A court may order an offender to participate in crime-related treatment.  RCW 

9.94A.703(3)(c).  Court-ordered substance abuse evaluations and treatment must address 

an issue that contributed to the offense.  RCW 9.94A.607; see also Jones, 118 Wn. App. 

at 207-08. 

       Here, the court required that Mr. Axtman "complete a substance abuse assessment 

for alcohol, follow any recommended treatment, including any support groups such as 

AA [Alcoholics Anonymous], and obey all laws."  Report of Proceedings (RP) at 553.  

But the court also added an appendix to the judgment and sentence that requires that he 

"complete substance abuse 

                                               5 

No. 29662-8-III
State v. Axtman

treatment/alcohol abuse treatment with a qualified provider including that [he] attend non-

clinical support groups such as AA." CP at 68, App. H(b)(20).

       Mr. Axtman takes issue with the all encompassing "substance abuse treatment"

language found in the appendix to the judgment and sentence.  The State contends that 

the court was only referring to alcohol treatment but concedes that the court's use of a 

back-slash ("/") may be confusing.  The State would join in an order correcting the 

reference to substance abuse.  We then remand to correct the judgment and sentence to 

delete suggestions that he be treated for "substance abuse" since the court's findings 

address only alcohol abuse. 

                       STATEMENT OF ADDITIONAL GROUNDS

       In his Statement of Additional Grounds (SAG), Mr. Axtman raises claims of 

prosecutorial misconduct.  He contends that the prosecution over emphasized during both 

opening and closing statements that he had admitted guilt.  He also contends that the 

court showed bias in allowing the prosecution to change the dates of charges to add 

another year. 

       Prosecutorial misconduct is grounds for reversal if the prosecutor's conduct was 

both improper and prejudicial.  State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 

(2011).  We evaluate a prosecutor's conduct by examining it in the full trial context, 

                                               6 

No. 29662-8-III
State v. Axtman

including the evidence presented, the total argument, the issues in the case, the evidence 

addressed in argument, and the jury instructions.  Id.  

       The comments Mr. Axtman objects to are:

       [T]wo plainclothes detectives . . . interview Mr. Axtman in his yard at his 
       picnic table during the day.  They talk for roughly an hour.  And Mr. 
       Axtman's open, you know, he tells them  --  he tells them about his living 
       arrangements with Connie, that they used to be close but now they're more 
       just roommates.  He tells them about his medical problems, his ex-wife, his 
       mom's recent death.  Then he starts telling them about [sexual incidents 
       with the victim].  Subsequently he says he felt ashamed, and that he'd been 
       drinking a bit during that time frame, and that he'd never do it again.  But at 
       that point, obviously, he had admitted the crime.

RP at 238-39 (emphasis added).

       Mr. Axtman contends that by making these comments, the prosecutor prejudiced 

his case because he did not actually admit guilt.   The prosecutor's comments related 

information found in the police report.  And the officers who prepared that report testified

to as much.  It was then up to the jury to decide whether Mr. Axtman said those things or 

not.  Credibility determinations are for the jury.  Further, the jury was instructed that 

statements of the lawyers are not evidence and that the jury must disregard any remark, 

statement, or argument that is not supported by the evidence or the law as stated in the 

court's instructions.  

       With regard to Mr. Axtman's contention that the court improperly allowed the 

prosecution to change the dates of charges to add another year, he again fails to show any 

prejudice.  The court allowed the State to 

                                               7 

No. 29662-8-III
State v. Axtman

amend the information after the victim testified to being seven years old during the abuse.  

It had the authority to do that.  State v. Phillips, 98 Wn. App. 936, 940-41, 991 P.2d 1195 

(2000) (throughout pretrial period up until State rests its case, State may amend 

information to correct any defect).  Mr. Axtman was not prejudiced by the court's 

allowing the amendment.  His argument fails.  

       We remand to allow the court to delete references in the conditions of community 

custody that Mr. Axtman undergo "substance abuse" treatment other than treatment for 

alcohol abuse.  We otherwise affirm the convictions and the sentence.

       A majority of the panel has determined that 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.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Siddoway, A.C.J.

________________________________
Kulik, J.

                                               8