                                                                             C" IL ED
                                                                      OUR     OF APPEALS
                                                                           DIVISION ii

                                                                     2013 AUG -6    PM {   02

                                                                     STATE OF ViASd-1 CTON

                                                                       1' _.
                                                                                   UTY


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

STATE OF WASHINGTON,                                               No. 42398 7 II
                                                                             - -


                                Respondent,

       V.




GUY JAY RALPH, JR.,                                            PUBLISHED IN PART
                                                                      OPINION



          HUNT, J. —Guy Jay Ralph, Jr. appeals his jury trial convictions and sentences for second

degree robbery, second degree taking a motor vehicle without permission, and witness

tampering. He argues that (1) robbery and the taking a motor vehicle without permission
                             the

convictions constitute double jeopardy, 2) State failed to prove both " o convict"instruction
                                        ( the                         t

alternative means of committing witness tampering and the trial court failed to give a jury

instruction on alternative means unanimity, ( )the trial court erroneously °included a prior
                                            3

Oregon conviction in his offender score because the State failed to prove it comparable to a

Washington offense, and (4) trial court erred in imposing legal financial obligations (LFOs)
                           the

without finding that he had the ability to pay.

          In the published portion of this decision, we hold that Ralph's robbery and taking a motor

vehicle convictions constitute double jeopardy under the facts of this case. In the unpublished

portion   of this decision, we further hold that (
                                                 1)Ralph fails to show manifest constitutional   error
No. 42398 7 II
          - -




under RAP 2. ( merit addressing for the first time on appeal his unpreserved challenges
          a)(to
           3)
           5

to (a) State's failure to elect one alternative means of committing witness tampering, b)
      the                                                                              ( the

sufficiency of evidence to support the alternative means, and (c) trial court's failure to give
                                                                 the

the jury an alternative means unanimity instruction; 2) State failed to establish that Ralph's
                                                     ( the

prior Oregon conviction was legally comparable to a Washington felony; and (3) LFO issue
                                                                              his

is not ripe for review.

       We vacate Ralph's conviction for second degree taking a motor vehicle without

permission and remand to the trial court to strike this conviction from the record and to

resentence him. At Ralph's resentencing hearing on remand, the State may present additional

evidence to show the factual comparability of his prior Oregon conviction. We otherwise affirm.

                                                   FACTS


                                               1. CRIMES


        In February 2011, Guy Jay Ralph, Jr.,
                                            helped Leroy Hampton move belongings from

Emily Beadle's trailer house to a new residence. After unloading his truck, Hampton told Ralph

that they needed to return to Beadle's for another load. While Ralph was talking on Hampton's

cellular telephone en route, Ralph asked Hampton to drive to another location to look at a bridge

on which he (Hampton)had worked. Hampton heard Ralph ask whether the person to whom he

was speaking on the phone wanted him ( alph)to go through the second job, or something like
                                     R       "
that "; the other person   respond, Yes
                                    "     "; and   Ralph reply that he would "
                                                                             do it."
                                                                                   Verbatim Report

of Proceedings (VRP)July 19, 2011) at 35. Ralph then gave the phone back to Hampton and
                     (

asked him to "
             pull over."VRP (July 19, 2011) at 36. Feeling uncomfortable, Hampton initially

refused to stop.



                                                      2
No. 42398 7 II
          - -



        Ralph threatened to "beat [Hampton's] in," Hampton stopped. Ralph accused
                                            face and

Hampton of stealing a "$
                      10 knife"from Beadle's house. VRP (July 19, 2011) at 38. Hampton

denied this accusation and., demonstrate that he did not have the knife, emptied his pockets and
                           to

took off his jacket for Ralph to search. Ralph " unched [Hampton] in the face,"
                                               p                              knocked him to
the   ground, and "came   at [ him]   again "; Hampton "crawled   under the door and ...   took off


running."VRP ( uly 19, 2011)at 38.
             J

        Ralph drove away in Hampton's truck, which contained Hampton's jacket, wallet, and

cell phone. Hampton ran to the nearest house and called 911. Officers later found Hampton's

truck behind a store two or three miles from where the assault had occurred; Hampton's jacket

was still in the truck, but his GPS system, his wallet, some stereo equipment, and his cell phone

were missing.

         Hampton identified Ralph in     a
                                             photomontage. Ralph denied having taken Hampton's

truck and asserted that Hampton had dropped him off at the trailer park where Beadle lived. The

police arrested Ralph.

         While detained in the Clallam County Jail awaiting trial,Ralph wrote a letter to his sister,

stating:

                Hey sister, ... could you do me a great big favor before my trial?Please.
         I need Emily ( elcome Inn number 44)to write a statement that on the morning
                       W
         of the 27th of February Leroy Hampton picked [sic] me and Denise around 1:0 0
         a. .,and dropped us off around 4:0 a. .,and he was fine. Also, I need you to
            m                               0    m
         get ahold of Denise, Emily should know how, and have her say the same thing,
         only that Leroy, her and I drove to the Lower Elwha, he unloaded his truck and
         we came back. If you guys can't get ahold of her just leave her out of it. But
         have Emily write one please. And have her and Mike write that I stayed with
         them the rest of the day. Unless you want to write one for me. And Kim and
         mom. If not please make sure Emily will please. I need the statements to get to
         my attorney ....   I' putting his card in with this letter. Please make sure this
                              m


                                                   3
No. 42398 7 I1
          - -



       gets done. And write back soon and let me know. Love me always, your little
       brother.


VRP ( uly 20, 2011)at 37 38.
    J                    -

                                                11. PROCEDURE


       The State charged Ralph with second degree robbery ( f Hampton's personal property,"
                                                          o               "

otherwise unspecified), second degree taking a motor vehicle ( Hampton's truck) without

permission, third degree theft (of unspecified "property or services of another"), tampering
                                                                                and
with a witness (by attempting to induce a person to testify falsely or to withhold from a law

enforcement agency information relevant to a criminal investigation).Clerk's Papers (CP)at 92-

93. The case proceeded to a jury trial.

                                                    A. Trial


       At   trial, the State's witnesses testified          as   described above.   Ralph, the sole defense

witness, testified that ( )
                        1 Hampton arrived at Beadle's after midnight and he (Ralph)volunteered

to help Hampton move, 2) (Ralph)had not been angry with Hampton, and (3)
                      ( he                                              Hampton had

dropped   him off   near   the trailer   park   and left.    Ralph denied having assaulted Hampton and

having taken his truck or other property. Ralph admitted having written the letter to his sister

asking her to contact witnesses; but he claimed that he had not intended to ask anyone to change

his or her testimony and that he had just wanted these people to contact his attorney and say that

he (Ralph)had been with them on the day of the assault.

       The trial court gave the jury the following " o convict"witness tampering instruction:
                                                   t


1
  At trial, the State unsuccessfully tried to prove this count by offering evidence that Ralph stole
the items in Hampton's truck bed when Ralph stole the truck.



                                                        11
No. 42398 7 II
          - -



                 To convict the Defendant of the crime of TAMPERING WITH A
          WITNESS as charged in Count IV, each of the following elements of the crime
          must be proved beyond a reasonable doubt:
                 1)That during the period of time from on or about March 27, 2011, to on
          or about May 6, 2011, the Defendant attempted to induce a person to testify
         falsely or withhold from a law enforcement agency information which he or she
         had relevant to a criminal investigation; and
                 2) That the other person was a witness or a person the Defendant had
         reason to believe was about to be called as a witness in any official proceedings or
         a person whom the Defendant had reason to believe might have information
         relevant to a criminal investigation.

CP at 74 (Instruction     20) emphasis
                              (            added). Although Ralph objected to this "to convict"

instruction on various grounds,.he did not request a unanimity instruction for the alternative

means mentioned in part (1) this instruction. Nor did he object to the instruction's language
                           of

withhold from a law enforcement agency information which he or she had relevant to a criminal

investigation." Consequently, the trial court did not advise the jury that it must be unanimous

about the alternative means used to commit witness tampering.

          In their closing arguments, the State and Ralph mentioned both witness tampering means

from the "to convict"instruction: attempt to "nduce a person to testify falsely"and to " ithhold
                                             i                                         w

from a law enforcement agency information which he or she had relevant to a criminal

investigation." But the substance of their arguments focused solely on attempt to "induce a

person to testify falsely."VRP ( uly 20,2011)at 135.
                               J




2
    The trial court also instructed the jury:
                  A person commits the crime of TAMPERING WITH A WITNESS when
          he or she attempts to induce a witness or person he or she has reason to believe is
          about to be called as a witness in any official proceeding, or a person whom he or
          she has reason to believe may have information relevant to a criminal
          investigation to testify falsely.
CP    at 73 (Instruction 19).
No. 42398 7 II
          - -




       The jury found Ralph guilty of second degree robbery of Hampton's truck, second degree

taking a motor vehicle (Hampton's truck)without permission, and tampering with a witness. It

found him not guilty of third degree theft of Hampton's personal items in his truck.

                                              B. Sentencing

       At sentencing, the State conceded that Ralph's robbery and motor vehicle taking

convictions "merge[d] purposes of sentencing" because the jury had acquitted him of the
                     for

theft charge, which had been based on theft of the items in the stolen truck. VRP ( entencing)at
                                                                                  S

4. Neither the parties nor the trial court, however, addressed whether the robbery and the motor

vehicle taking convictions were the same crime for double jeopardy purposes.

       Also at sentencing, Ralph argued that.his prior 2004 Oregon conviction for unauthorized

use of a motor vehicle should not be included in his offender score because the Oregon offense's

elements"were not the same as those for the analogous Washington offense and that his Oregon

conviction should not be included in his offender score because it was " not counted" for


sentencing on a previous otherwise unrelated Washington conviction. VRP (Sentencing) at 9.

The State argued that the Oregon offense had the same elements as Washington's taking a motor

vehicle offense. Without addressing the factual comparability of the Oregon offense, the trial

court included the Oregon conviction in Ralph's offender score.

         Despite Ralph's assertion that he was "indigent," trial court imposed LFOs, without
                                                         the

          written        oral   findings about Ralph's present        future   ability   to pay them.   VRP
making              or                                           or




Sentencing)at 19. And, although the trial court listed each LFO separately, it did not expressly

designate which were mandatory or discretionary.




                                                     C
No. 42398 7 II
          - -




       Ralph appeals his convictions and specific aspects of his sentence, including imposition

of LFOs.

                                           Wela IM


                                       DOUBLE JEOPARDY


       Ralph first argues that his convictions for second degree robbery and second degree

taking of a motor vehicle without permission ( MVWP)violate his constitutional right to be free
                                             T

from double jeopardy. He did not challenge these two convictions on double jeopardy grounds

below when the State conceded that these two crimes "merged"for sentencing purposes and the

trial court sentenced him for only the robbery. VRP (Sentencing) at 9. But because this issue

constitutes a manifest constitutional error for purposes of RAP 2. (
                                                                s
                                                                a)( preservation
                                                                 3)'
                                                                 5

exception, we address this issue for the first time on appeal, agree with Ralph that these two

convictions constitute double jeopardy under the facts of this case, and remand to the trial court

to vacate his TMVWP conviction.




                                                7
No. 42398 7 II
          - -



                       Multiple Punishments Convictions for Same Crime
                                            /

       Our federal and state constitutions prohibit being punished twice for the same crime.
U. .CONST. amend. V;WASH. CONST. art. I, § RAP
 S                                       9;              a)(State v. Freeman, 153 Wn. d
                                                         2. (
                                                          3);
                                                          5                         2

765, 770 71, 108 P. d 753 ( 2005). Ralph's two convictions are not the same crime in law
         -        3


because their statutory elements differ. See Freeman, 153 Wn. d at 777, 772. Nevertheless, this
                                                            2

conclusion does not resolve the issue before us. Even where, as here, a defendant receives only

one sentence for the two crimes, double jeopardy can also encompass being twice convicted for

the same crime: Absent clear legislative intent to the contrary, two convictions constitute double

jeopardy when the evidence required to support a conviction for one charge is also sufficient to

support a conviction for the other charge, even if the more serious charge has additional

elements. See Freeman, 153 Wn. d at 777.
                             2




3
  We recognize that the legislature may constitutionally authorize multiple punishments for a
single course of conduct. State v. Calle, 125 Wn. d 769, 776, 888 P. d 155 (1995).Here, the
                                                2                   2
second degree robbery (RCW 9A. 6.and second degree TMVWP (RCW 9A. 6.
                               190) 5                                           075(  1
                                                                                      5 ))
statutes do notexpressly authorize separate punishments. Moreover, the legislature included
them in the same chapter of the criminal code, suggesting that it intended one conviction for a
single theft of a motor vehicle, even if chargeable both as a robbery and a TMVWP, depending
on the facts surrounding the particular crime. See State v. Hughes, 166 Wn. d 675, 685, 212
                                                                          2
P. d 558 (2009); re Pers. Restraint ofPercer, 150 Wn. d 41, 51, 75 P. d 488 (2003);
 3             In                                   2               3             Calle,
125 Wn. d at 779.
      2
       Here, however, we do not address whether the legislature intended multiple punishments
for stealing a truck with force from the owner's presence and simply stealing a motor vehicle
without.force in the owner's absence because (1) State conceded at sentencing that Ralph's
                                                 the
robbery and TMVWP counts merged for sentencing purposes, and (2) trial court imposed a
                                                                     the
single punishment  for both convictions.
No. 42398 7 II
          - -



         To determine whether Ralph's second degree robbery and TMVWP convictions

constitute double jeopardy, we turn to the merger doctrine and another related double jeopardy

exception, which allows two convictions where one crime is independent from (rather than

merely incidental to)the other crime or involves a separate injury. See Freeman, 153 Wn. d at
                                                                                       2

777, 779. Second degree robbery requires that the defendant (1)unlawfully take; 2)
                                                                                ( personal

property; 3)
          ( from the person of another or in his presence; 4)
                                                           ( against that person's will by use

of or threat of force, violence, or fear of injury.' RCW 9A. 6. Robbery also includes the
                                                         190.
                                                           5

    As Division One of our court has explained:
         The merger doctrine precludes conviction for one or more offenses based on acts
         which are so much a part of another substantive crime that the substantive crime
       could not have been committed without such acts and that independent criminal
       responsibility may not be attributed to them. If such acts have no independent
       purpose or effect, they become merged into the completed substantive crime.
       State v. Johnson, 92 Wn. d 671, 600 P. d 1249 (1979)[,
                                 2               2                overruled in part on
        other grounds by State v. Sweet, 138 Wn. d 466, 980 P. d 1223 (1999)]; v.
                                                2              2               State
       Hoyt, 29 Wn. App. 372, 628 P. d 515 (1981);
                                       2             State v. Ingham, 26 Wn. App. 45,
        612 P. d 801 (1980).
               2
State v. Penn, 32 Wn. App. 911; 914 15,650 P. d 1111, review denied, 98 Wn. d 1012 (1982)
                                     -          2                             2
 TMVWP and robbery were two distinct and separable acts; TMVWP was incidental to robbing
victim of wallet and had independent purpose of enabling Penn to flee the crime scene;
distinguished from cases where one charged crime could not practically have been committed
without commission of the other charged crimes).
5
    A person commits second degree robbery if he or she commits robbery." RCW 9A. 6.
                                              "                               210.
                                                                                5
The    legislature    amended RCW 9A56. 10 in 2011. LAWS
                                      2                                 of   2011, ch. 336, § 380, effective July
22, 2011. The amendments did not alter the statute in any way relevant to this case; accordingly,
we cite the current version of the statute. RCW 9A. 6.defines " obbery"as follows:
                                                190
                                                  5           r
          A person commits robbery when he or she unlawfully takes personal property
          from the person of another or in his or her presence against his or her will by the
          use or threatened use of immediate force, violence, or fear of injury to that person
          or   his   or   her property   or   the person   or   property of anyone. Such force or fear
          must be used to obtain or retain possession of the property, or to prevent or
          overcome resistance to the taking; in either of which cases the degree of force is
          immaterial.
Emphasis added).



                                                                6
No. 42398 7 II
          - -



non -statutory element of specific intent to steal, which our Supreme Court has held is the

equivalent to specific intent to deprive the victim of his or her property permanently. State v.

Sublett, 176 Wn. d 58, 88, 292 P. d 715 (2012) citing In re Pers. Restraint of Lavery, 154
               2                3              (

Wn. d 249,255, 111 P. d 837 (2005)).
  2                 3

          Second degree taking of a motor vehicle without permission ( MVWP)also requires that
                                                                     T

the defendant take another person's property; but it further requires taking a specific type of

property, namely a motor vehicle, unlike second degree robbery, which does not specify the type

of property    taken. Also, unlike second degree robbery, second degree TMVWP does not

require ( ) the taking occur from the victim or in his presence; 2) the taking be against
        1 that                                                   ( that

the victim's will by use or threat of force, violence, or fear of injury; or (3)that the taking be

done with intent to deprive the victim of his or her property permanently. RCW 9A. 6.
                                                                               075(
                                                                                  1
                                                                                  5 ).

          Although the statutory elements of the two crimes differ, as charged and proved here,

second degree TMVWP is the functional equivalent of a lesser included of the second degree

robbery. As applied here, both crimes required "taking"another person's property, Hampton's




6
      legislature amended RCW 9A. 6.in 2011. LAWS of 2011, ch. 336, § 379, effective
    The                            190  5
July 22, 2011. The amendments did not alter. the statute in any way relevant to this case;
accordingly, we cite the current version of the statute.

    RCW 9A. 6.
        075(   1 defines second degree taking of a motor vehicle without permission:
               5 )
        A person is guilty of taking a motor vehicle without permission in the second
        degree if he or she, without the permission of the owner or person entitled to
        possession, intentionally takes or drives away any automobile or motor vehicle,
        whether propelled by steam, electricity, or internal combustion engine, that is the
        property of another, or he or she voluntarily rides in or upon the automobile or
        motor vehicle with knowledge of the fact that the automobile or motor vehicle
          was unlawfully taken.



                                                 10
No. 42398 7 II
          - -



truck, without his permission; proving these two main facts proved second degree TMVWP.

The, following additional facts, however, elevated Ralph's TMVWP from non -forceful

joyriding"to second degree robbery: Ralph punched Hampton in the face and knocked him to

the ground to gain possession of Hampton's truck and drive it away. Under the facts charged
and proved here, the evidence supporting Ralph's robbery conviction was also sufficient to

support his TMVWP conviction.        Thus, the second degree robbery and the second degree

TMVWP, as charged and proved here, are the same in fact: The robbery was based on the single

act of Ralph's taking a motor vehicle from a single victim by force; and proof of the theft

element of the robbery also proved the TMVWP charge.

       As our Supreme Court has long acknowledged, the constitutional prohibition against

double jeopardy is violated when "`
                                 the evidence required to support a conviction [of one crime]

would have been sufficient to warrant   a   conviction upon the other. "'   Freeman, 153 Wn. d at
                                                                                           2

772 ( citing State v. Reiff, 14 Wash. 664, 667, 45 P. 318 ( 1896) (
                                                                  quoting Morey v.




8
  Although TMVWP specifically requires taking a motor vehicle and robbery requires taking
personal property generally, a person's motor vehicle is also personal property. Thus, theft of a
motor vehicle can be used, as here, to satisfy the theft of personal property element of a robbery
conviction. See e. . State v Crittenden, 146 Wn. App. 361, 367, 189 P. d 849 (2008) ( "
                   g                                                         3               Both
theft and second degree [taking of a motor vehicle] require an unauthorized taking of property. "),
review denied, 165 Wn. d 1042 (2009).
                     2
9
 Because we assume the jury followed the trial court's instructions, we can infer from the jury's
second degree robbery guilty verdict that the jury found all the elements in the second degree
robbery " o convict"instruction, including that Ralph intended to deprive Hampton of his truck
        t
permanently. See State v. Kirkman, 159 Wn. d 918, 937, 155 P. d 125 (2007)..
                                         2                  3


                                                 11
No. 42398 7 II
          - -



Commonwealth, 108 Mass. 433, 434 (1871))).
                                       Accordingly, we hold that, under the facts here,

Ralph's convictions for second degree robbery and second degree taking of a motor vehicle

without permission constitute double jeopardy. We vacate Ralph's conviction for second degree

taking of a motor vehicle without permission and remand for the trial court to strike that

conviction from Ralph's judgment and sentence. State v. Turner, 169 Wn. d 448, 455, 466, 238
                                                                      2

P. d 461 (2010) on remand for a double jeopardy violation, we must reverse and remand with
 3              (

instructions to vacate the lesser punished crime).

         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 in accordance with RCW 2.6.it is so ordered.
                                     040,
                                       0
                           WITNESS TAMPERING: ALTERNATIVE MEANS


         For the first time on appeal, Ralph argues that we should vacate his witness tampering

conviction and remand for a new trial on this charge because the State failed to elect between the

alternative means charged and it failed to present sufficient evidence to prove both means, in

particular the second alternative means, attempting to induce withholding of information from

to
     See also Hughes, 166 Wn. d at 682 84 (
                            2          - convictions for both rape of child and second degree
rape constituted double    jeopardy        1)both offenses arose out of one act of sexual
                                      where: (
intercourse with the child victim; 2)
                                   ( although the statutory elements of the two crimes differ,
both require proof of non consent (the victim's child status and resultant inability to consent)).
The statutes were both meant to protect individuals who are unable to consent by reason of their
status, whether the status is due to young age, mental incapacity, or physical helplessness.
Hughes, 166 Wn. d at 684.
                 2
        Similarly here, both convictions for second degree robbery and second degree TMVWP
were based on Ralph's single act of stealing Hampton's truck, the only stolen item that the State
proved beyond a reasonable doubt, as evinced by the jury's verdicts of guilty of taking
Hampton's truck without permission and of second degree robbery, and not guilty of third degree
theft of the less valuable personal property, the items in the back of Hampton's truck.


                                                 12
No. 42398 7 II
          - -



law enforcement. Because Ralph failed to raise this alleged error below and fails to show that it

falls within RAP 2. (
                 s
                 a)( manifest constitutional error, exception to the preservation
                  3)'
                  5

requirement, we do not address the merits of his argument on appeal.

                          A. Failure To Preserve Alleged Instructional Error

         The trial court instructed the jury about the alternative means of committing witness

tampering without also instructing that, in order to convict, the jury had to be unanimous about

the alternative means used. But Ralph failed ( ) ask the trial court to instruct the jury that, in
                                             1 to

order to convict him of witness tampering, it must agree unanimously on the alternative means

he used to commit this crime; and (2) object to lack of such an instruction. Therefore, unless
                                     to

he can show manifest, constitutional error under RAP 2. (
                                                     a),
                                                      5 justifying an exception to the

preservation requirement, we will not address this argument." As we previously explained, to
be "manifest,"
             Ralph must establish that the asserted constitutional error resulted in actual

prejudice by identifying its practical consequences in the trial of the case. State v. Davis, 175

Wn.2d 287, 344, 290 P. d 43 (2012),
                     3            petition for cert.filed,No. 12 9685 (U. .Apra 5, 2013).
                                                                 -      S



11 As we noted in Bertrand:
                At the outset, we note that Bertrand did not comply with CrR 6.5(
                                                                             c)
                                                                              1
       when she failed to object to the trial court's special verdict unanimity jury
       instruction. CrR 6.5( requires timely and well-
                              c)  1                                 stated objections to jury
       instructions "` order that the trial court may have the opportunity to correct any
                      in
        error. "' State v. Scott, 110 Wn. d 682, 685 86,757 P. d 492 (
                                         2            -           2       198 8)quoting City
                                                                                  (
        of Seattle v. Rainwater, 86 Wn. d 567, 571, 546 P. d 450 (1976)). failing to
                                          2                     2                 In
        object below, Bertrand did not give the trial court an opportunity to correct this
        instructional error; thus, she has not preserved this error for appeal.
State v. Bertrand, 165 Wn. App. 393, 399 400, 267 P. d 511 (2011),
                                              -           3                review denied, 175 Wn. d
                                                                                                2
1014 (2012).   The same rationale applies here.
12
     See also Bertrand:


                                                  13
No. 42398 7 II
          - -




Ralph fails to meet this burden.

                    B. Assumed Constitutional Character of Unpreserved Error

       A unanimity instruction is required where an offense may be committed in more than one
way. State   v.   Kitchen,   110 Wn. d 403, 410, 756 P. d 105 ( 1988). Failure
                                   2 .                2                           to give such an

instruction, however, does not require reversal of the conviction if the State presented sufficient

evidence to support each alternative means. State v. Sweany, 174 Wn. d 909, 914, 281 P. d 305
                                                                   2                  3

2012);
     State v. Randhawa, 133 Wn. d 67, 73 74,941 P. d 661 (1997).The test for determining
                              2          -       2

sufficiency of the evidence is whether, after viewing the evidence "in a light most favorable to

the State, any rational trier of fact could have found the essential elements of the crime beyond a
           `

reasonable doubt. "'   Sweany, 174 Wn. d at 914 (quoting Randhawa, 133 Wn. d at 73).
                                     2                                   2

       Ralph does not argue that the evidence was insufficient to support the first alternative

means for committing witness tampering—
                                      attempting to induce a person to testify falsely.

Rather, he challenges the sufficiency of the evidence to support only the second alternative

means—
     attempting to induce a person to withhold from a law enforcement agency, information

relevant to a criminal investigation. For purposes of our analysis here, 1) assume, without
                                                                         ( we




       As we recently held in State v. Grimes, 165 Wn. App. 172, 267 P. d 454 (2011),
                                               [                      3
       review denied, 175 Wn. d 1010 (2012)] this RAP 2. (
                            2              for        a)(exception to apply,
                                                       3)
                                                       5
       an appellant must show both that (1) error implicates a specifically identified
                                           the
        constitutional right, and (2)the error is "manifest" in that it had "practical and
        identifiable consequences"in the trial below.
Bertrand, 165 Wn. App. at 400 (footnotes omitted). As in Bertrand, Ralph fails to show any
practical and identifiable consequence at trial flowing from the lack of a " nanimity as to means"
                                                                           u
jury instruction for the witness tampering charge; therefore, again as in Bertrand, we do not
address the merits of his challenge. Bertrand, 165 Wn.App. at 403.

                                                 14
No. 42398 7 II
          - -


                                13
deciding, as Ralph asserts, that the evidence is insufficient to support this second alternative

means; and (2)thus, we acknowledge that he has identified a potentially constitutional error for

RAP 2. (
    a)(purposes.
     3)
     5

         That Ralph has shown a potentially constitutional error, however, does not automatically

warrant reversal of his conviction: He must also satisfy the "manifest"component of the RAP

a)
2. (
 5 exception to the preservation requirement—hat is, he must show the claimed error had
                                            t

practical and identifiable consequences at trial. State v. Grimes, 165 Wn. App. 172, 186 87,267
                                                                                         -

P. d 454 (2011),
 3             review denied, 175 Wn. d 1010 (2012).
                                    2

                                     C. Alleged Error Not Manifest

         Although, in closing, both counsel mentioned the two alternative means described in the

witness tampering "to convict" instruction, their arguments did not focus on the "withholding

evidence"alternative. In addition to noting the jury instructions, the State briefly mentioned that

Beadle had information contrary to what Ralph had wanted her to say 14 ; the predominant
remainder of the State's witness tampering argument focused on Ralph's attempts to have

someone provide him with a "false alibi" by providing his counsel with a specific, detailed


13 We agree with Ralph that, although his letter to his sister arguably attempted to induce a
person to testify falsely, it did not expressly attempt to induce anyone to withhold information
from law enforcement.

14
     The State argued:
         And, in fact, Ralph] even conceded that the part about Denise going with him
                       [
          and Leroy   was   false and that   was   something   that he ...   wanted ...   Emily to put
          in the statement and give to his attorney. At that particular point in time there was
         a trial pending, this information that— he laid out very specifically would
                                                which
         have given him an alibi, but she had information contrary to the that that both the
      Defendant and Leroy were gone about the same time.
VRP ( uly 20, 2011)at 131 32.
    J                     -



                                                       15
No. 42398 7 II
          - -


                                                              15
statement about the events       near   the time of the crime.     Similarly, defense counsel's argument

also focused on the "false testimony" alternative, rather than on the "withholding information"
             16
alternative.      Moreover, this focus of both counsel's closing arguments was consistent with the

evidence presented at trial, which also focused only on Ralph's attempt to induce a person to

testify falsely. In contrast, as Ralph indirectly concedes, the State neither presented evidence

about the second alternative means nor argued this second means as a basis for finding Ralph

guilty of witness tampering. Thus, there is "`
                                             no danger the jury was not unanimous in finding

Ralph] guilty based      on "'   the "false   testimony" alternative   means.   State v. Witherspoon, 171

Wn. App. 271, 287, 286 P. d 996 (2012) quoting State v. Lobe, 140 Wn. App. 897, 909, 167
                        3              (

15
     For example, the State argued:
          So [ Ralph] was setting [ Emily] up to testify falsely, basically making false
          statements so she would be called as a witness for him at trial.
VRP ( uly 20, 2011)at 133 (emphasis added).The State also argued:
    J
      He wrote a letter asking a person to contact Emily and that person was supposed
      to give Emily specific directives as to what she was supposed to say and it was
      very detailed, it was not just what happened that day. She was to say I left at this
          time, I came back, Leroy was fine and this is what happened for the rest of the
          day. This is something that he was directing her to do in order to— order to
                                                                            in
          make sure that he was not held accountable for what happened that day which was
          that he robbed Leroy Hampton, that he took his truck, and that he retained some
          of the property from that truck which Mr.Hampton was not able to recover.
VRP ( uly 20, 2011)at 133 34.
    J                     -

16 For example, defense counsel argued:
      s
      T] no evidence whatever in this case that my client attempted to have any
           here'
      of these people go to the police, to a law enforcement agency of any kind, to the
      sheriff or anybody, to give false testimony. It was only to talk to the lawyer.
VRP ( uly 20, 2011)at 136 (emphasis added).Defense counsel also argued:
    J
          So the State has fallen significantly and importantly short on the witness
          tampering in that there's no evidence in this case whatsoever that my client
          attempted to have people give false testimony to a law enforcement agency or
          anybody related to it.
VRP ( uly 20, 2011)at 137 (emphasis added).
    J



                                                       10
No. 42398 7 II
          - -




P. d 627 (2007)Hunt,J.,
 3             (      dissenting)),
                                 review granted, 177 Wn. d 1007 (2013).And Ralph has
                                                       2

failed to show that this unpreserved error was "manifest"to qualify for the RAP 2. (
                                                                                a)
                                                                                 5 exception

to the   preservation requirement. Therefore, we do not further consider his unpreserved jury

instruction argument.

                           PRIOR OREGON CONVICTION COMPARABILITY


         Ralph next argues that the trial court erred in finding his 2004 Oregon conviction legally

comparable to a Washington offense and,therefore, the trial court should resentence him without

considering this prior conviction. The State concedes the trial court erred when it ruled that

Ralph's 2004 Oregon conviction was legally comparable to the analogous Washington offense;

but it argues that, rather than vacating Ralph's sentence, we should remand to allow the State to

establish factual comparability. Accepting the State's concession, we also agree with and accept

the State's proposed remedy.

         Ralph argues that we must vacate his sentence and remand for resentencing without

considering the Oregon conviction. The State argues that we must remand and allow the State to

present additional evidence to establish that the Oregon crime was factually comparable to a

Washington felony offense because Ralph's objection at the sentencing hearing was limited to

the Oregon offense's elements. The State is correct. At sentencing, Ralph objected only to the

legal comparability of the Oregon offense; thus, the State was not called on to present evidence

relevant to the factual nature of Ralph's Oregon offense.

         As in State v. Jackson, 129 Wn. App. 95, 108 09, 117 P. d 1182 (2005),
                                                      -        3              review denied,

156 Wn. d 1029 (2006), ( we accept the State's concession that the trial court erred in finding
      2              1)

Ralph's Oregon offense legally comparable to the prior Oregon offense; and (2)because (a)the


                                                 17
No. 42398 7 II
          - -


                                                                                 17
State had neither need    nor   opportunity   to prove factual   comparability        and (b) record before
                                                                                             the

us on appeal does not show whether the Oregon offense was factually comparable to a similar

Washington offense, we remand for a hearing to determine the factual comparability of the two

crimes      in   conjunction with Ralph's resentencing           for his   robbery conviction.    See RCW


535.
9.
 94A.




17
     See State v. Thiefault, 160 Wn. d 409, 417, 158 P. d 580 (2007).
                                   2                  3
18
     As our Supreme Court has held:
         If the elements of the foreign offense are broader than the Washington
           counterpart, the sentencing court must then determine whether the offense is
           factually comparablethat is,whether the conduct underlying the foreign offense
           would have violated the    comparable Washington          statute.   In making its factual
           comparison, the sentencing court may rely on facts in the foreign record that are
      admitted, stipulated to,or proved beyond a reasonable doubt.
Thiefault, 160 Wn. d at 415 (citations omitted).
                 2
      The only evidence presented at sentencing relevant to the factual nature of the Oregon
offense was the Oregon indictment, which stated:
       The said defendant, on or about the 23rd day of July, 2003, in Coos County,
           Oregon, did unlawfully and knowingly exercise control over a vehicle, to wit: a
                                                                                    -
           car, without the consent of the owner, Tammy Foster; contrary to the statutes in
           such cases made and provided and against the peace and dignity of the State of
           Oregon.
CP at 26 (emphasis added). Ralph pled guilty to that charge. Although Ralph testified at trial
here about the circumstances of his prior Oregon conviction, see verbatim report of proceedings
July 20, 2011) at 76, the factual comparison here must be based on '!/
                                                                     acts in the foreign record
that are admitted, stipulated to, or proved beyond a reasonable doubt."Thiefault, 160 Wn. d at
                                                                                            2
415 (emphasis added). Ralph's testimony here was not based on the foreign record; thus, we
cannot consider those facts. Exercising control over another person's vehicle is a broad term that
could include taking or driving away another's vehicle, but nothing in the record explains how
Ralph " xercis[ d]
      e       e   control."CP at 26.
19
     The   legislature amended   this statute in 2011. LAWS        of   2011, ch. 87, § 3, effective July 22,
2011. The amendment is not.relevant to this case; accordingly, we cite the current version of the
statute.




                                                       18
No. 42398 7 II
          - -



                               DISCRETIONARY LEGAL FINANCIAL OBLIGATIONS


          Ralph also argues that we should vacate from his judgment and sentence the trial court's
                                    20
imposition     of   discretionary        LFOs ($
                                               500 in court-
                                                           appointed attorney fees and a $
                                                                                         192 sheriff's

service fee)because he is indigent and the trial court made no oral or written findings that he had
                            21
the   ability to   pay them.     This argument also fails.

          The trial court may order a convicted felon to repay court costs, including attorney fees,

as part of his judgment and sentence. RCW 10. 1.
                                          160(
                                             1 State
                                             0 );v. Smits, 152 Wn. App. 514,

519, 521, 216 P. d
               3           1097 (   2009). The trial court may not, however, require an indigent

20
     Ralph does not challenge, and thus we do not address, the trial court's imposition of 600 in
                                                                                           $
mandatory LFOs. Br. of Appellant at 23 ( "[T] e mandatory assessments were properly
                                                  h
imposed. "). State v. Curry, 118 Wn. d 911, 917 18, 829 P. d 166 (1992), which our Supreme
                                   2            -        2             in
Court rejected an indigent defendant's constitutional challenge to imposition of the mandatory
victim penalty assessment under former RCW 7.8.1991), consistent with Ralph's
                                                 035( 1
                                                      6 ) (is
position. See also Br. of Appellant at 23 (challenging only the "discretionary costs and fees"
imposed).

21 We are aware that other Division Two panels have not reached the ripeness rationale, on
which we base our decision here, and instead have declined under RAP 2. ( consider the
                                                                     a)
                                                                      5 to
defendant's unpreserved challenge to the trial court's failure to enter findings of fact and
                                                           g State v. Blazina,
conclusions of law about his ability to pay LFOs. See, e. .,                    Wn App ;
301 P. d 492 (2013),
          3            petition for review filed,No. 89028 5 ( ash. July 8, 2013).But see State
                                                             - W
v. Bower, 64 Wn. App. 808, 810, 827 P. d 308 (1992)Division One of our court exercising its
                                           2               (
RAP 2. (  a)5 discretion to accept review of the defendant's unpreserved challenge to the trial
court's failure to consider and to make findings about his ability to pay before imposing LFOs,
even though this issue did not raise a manifest error affecting a constitutional right under RAP
a)(exception
s
2. (
 3)'
 5                         to the        preservation requirement);State   v   Calvin,   Wn. App.   _,   302
P. d 509, at 521 n. ( 013) Division One allowing the defendant to challenge for the first time
  3                 22           (
on appeal the trial court's entering a "boilerplate"finding of his ability to pay LFOs and the lack
of evidence to support this finding because "illegal or erroneous sentences may be challenged for
the first time on appeal ") ( iting State v. Ford, 137 Wn. d 472, 477, 973 P. d 452 (1999)).
                            c                            2                     2
22
  See also Bertrand, 165 Wn. App. at 405 (citing State v. Curry, 62 Wn. App. 676, 680, 814
P. d 1252, aff'd,118 Wn. d 911, 829 P. d 166 (1991)); v. Crook, 146 Wn. App. 24, 27,
  2                       2               2                State
189 P. d 811 (2008) ( "
       3                Inquiry into the defendant's ability to pay is appropriate only when the
State enforces collection under the judgment or imposes sanctions for nonpayment; a defendant's

                                                           Q
No. 42398 7 II
          - -



defendant to reimburse the State for such costs unless the defendant then has or will have the

means to do so in the future. RCW 10. 1. State v. Curry, 118 Wn. d 911, 915 16,
                                  160(
                                     3 see
                                     0 );                      2            -

829 P. d 166 (1992).Thus, if collection of LFOs later presents a financial hardship, a defendant
     2

may petition the court to modify his LFO payments. RCW 10. 1.160( ).
                                                         0      4 Accordingly, the time

to examine a defendant's ability to pay is when the government seeks to collect those LFO costs.

Smits, 152 Wn.App. at 523 24.
                          -

            As Division One of our court recently noted:

            It is well-
                      established that [RCW 10. 1.
                                                160(   3 does not
                                                       0 )] require the trial court to
            enter formal, specific findings. See [Curry, 118 Wn. d at 916].Rather, it is only
                                                                   2
            necessary that the record is sufficient for us to review whether the trial court took
            the defendant's financial resources into account. State v. Bertrand, 165 Wn. App.
            393, 404, 267 P. d 511 (2011),
                              3                review denied, 175 Wn. d 1014 [( 012)].
                                                                       2         2        But,
            where the trial court does enter a finding, it must be supported by evidence.

State   v   Calvin, _   Wn.App.       _,   302 P. d 509, 521 (2013).
                                                3




indigent      status at the time of   sentencing   does not bar   an   award of costs. "), review denied, 165
Wn. 2d 1044 (2009).Unlike the facts in Bertrand, however, here, the trial court did not enter
any findings about Ralph's ability to pay; thus, we need not address Bertrand's remand to strike
unsupported findings.



                                                        20
No. 42398 7 II
          - -



         Here, the trial court did not enter formal findings about Ralph's ability to pay his LFOs.

Nevertheless, the record is sufficient for us to review whether the trial court took into account his
                     23
financial   resources.    Moreover, Ralph is currently imprisoned for having committed armed

robbery, not for failure to pay his LFOs. Thus, the trial court's failure to make findings about
                                                         24
Ralph's ability     to pay at the time of   sentencing        does not warrant vacation of the LFOs it


imposed. State v. Bower, 64 Wn. App. 808, 812 13, 827 P. d 308 (citing State v. Baldwin, 63
                                              -        2

Wn. App. 303, 310 11, 818 P. d 1116, 837 P. d 646 (1992)),
                  -        2              2             review denied, 119 Wn. d 1016
                                                                             2

1992).

23
     Despite his assertion of indigency, Ralph also testified at trial that he had worked as a logger
or a fisherman. Thus, at the time of sentencing, the trial court had before it evidence of Ralph's
ability to pay his $
                   692 in discretionary LFOs.

24 As Ralph notes in his brief, T] e checkbox in the judgment and sentence stating `the
                                "[ h
defendant has the ability or likely future ability to pay the legal financial obligations imposed
herein' is not checked."Br.of Appellant at 22 ( uoting CP at 10).
                                                q

25 In Bower, Division One of our court held that " ormal findings"about the defendant's ability
                                                 f
to pay LFOs "were unnecessary since adequate procedural safeguards existed within the
applicable statutes ":
          T] e meaningful time to examine the defendant's ability to pay is when the
              h
          government seeks to collect the obligation. RCW 10. 1.provides, as did the
                                                              160 0
          statute upheld in Fuller [v. Oregon, 417 U. .40, 94 S. Ct. 2116, 40 L.Ed. 2d 642
                                                    S
          1974)], at the time payment is to be enforced the defendant will not be held
                    that
          in default if such payment would impose a "manifest hardship"on the defendant
                                                                            .
          or the defendant's family. The defendant may petition the court at any time for
          remission or modification of the payments on this basis. Through this procedure
          the defendant is entitled to judicial scrutiny of his obligation and his present
          ability to pay at the relevant time. In contrast, the inquiry at sentencing as to
         future ability to pay is somewhat speculative and does not necessarily threaten
          incrimination."
Bower, 64 Wn. App. at 813 (imposition of mandatory victim restitution, former RCW 9.
                                                                                  142
                                                                                    94A.
recodified    as   RCW 9.94A. ( see LAWS
                       753 2000),                         of   2001, ch. 10, § 6, and mandatory victim
penalty assessment, former RCW 7.8.quoting Baldwin, 63 Wn. App. at 310 11 (footnotes
                               035) (
                                6                                      -
omitted.)).Thus, "any inquiry at sentencing as to future ability to pay is necessarily
speculative."Bower, 64 Wn. App. at 814 (citing Baldwin, 63 Wn. App. at 311).But see contra,

                                                   21
No. 42398 7 II
          - -



       We vacate Ralph's second degree taking a motor vehicle without permission conviction

and remand to the trial court ( ) strike that conviction from his judgment and sentence, and ( )
                              1 to                                                           2

to conduct a new sentencing hearing, at which the State may present additional evidence

showing the factual comparability of his prior Oregon conviction. We otherwise affirm.



                                                            I` - J.
                                                             Iunt,    i
                                                                          i
I concur:




Bj    en,




Calvin, _      Wn. App. at    ,      302 P. d at 513 (Division One case holding: "
                                          2                                      Because there is no
evidence to support the trial court's finding that Calvin has the ability to pay court costs and the
record does not otherwise show that the trial court considered Calvin's financial resources, we
remand for the trial court to strike the finding and the imposition of court costs. ").
      See also Curry, 62 Wn. App. at 681 82 (   - quoting United States v. Pagan, 785 F. d 378,
                                                                                        2
381 82 ( d Cir.), denied, 479 U. . 1017 (1986))It "` at the point of enforced collection. .
    - 2         cent.           S                   ( is
  where an indigent maybe faced with the alternatives of payment or imprisonment, that he
may   assert   a   constitutional       ground of his indigency. "'); Curry, 118 Wn. d at
                                    objection   on   the                              2
918 n. and text (( A] y argument that imprisonment for an unpaid fine is unconstitutional is
     3          1) "[
                    n
premature" because there was "[n] defendant presently before the court claim[ ng] to be
                                o                                           i
                                   2)there are sufficient safeguards in the current sentencing
incarcerated for failure to pay "; (   "
scheme to prevent imprisonment of indigent defendants "; and ( 3) because " contempt
proceedings for violations of a sentence are defined as those which are intentional, . .. no
defendant will be incarcerated for his or her inability to pay the penalty assessment unless the
violation is willful." (
                     emphasis added) internal citations omitted)).
                                       (



                                                           22
No. 42398 7 II
          - -



       JOHANSON, A. .concurring) —I concur with the majority opinion but write separately
                 J.
                  C      (


regarding Ralph's legal financial obligation ( FO)challenge because I would follow our analysis
                                             L
in State   v.   Blazina,   Wn. App.   _,   301 P. d 492 (2013).I would decline to reach the merits
                                                3

of the LFO issue because Ralph did not object when the trial court failed to find that Ralph had a

present or future ability to pay LFOs and when the trial court imposed the LFOs. Accordingly, I

would hold that Ralph did not properly preserve the issue for appellate review. RAP 2. (
                                                                                    a).
                                                                                     5




                                                         Johanson, A. .
                                                                   J.
                                                                    C




                                                  23
