                                                                 FILED 

                                                               SEPT. 9,2014 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30166-4-III
                                             )
                    Respondent,              )
                                             )
               v.                            )         UNPUBLISHED OPINION
                                             )
NIKOLAS FRANCIS GLENN                        )

CAMPBELL,                                    )

                                             )

                    Appellant.               )


      LAWRENCE-BERREY, J.         Nikolas Campbell and another man allegedly entered a

woman's apartment, took some items, and left in her vehicle. The State charged Mr.

Campbell with one count of fIrst degree robbery with a deadly weapon enhancement, one

count oftheft of a motor vehicle, and one count of fIrst degree burglary with a deadly

weapon enhancement. Mr. Campbell was convicted by a jury, sentenced, and he then

appealed.

      Among other errors, he contends that (I) the charging information impermissibly

varied from the jury instructions, (2) the State failed to prove the deadly weapon element

of fIrst degree robbery, fIrst degree burglary, and the deadly weapon enhancements, and
No. 30166-4-111
State v. Campbell


(3) the trial court erred, for sentencing purposes, in not considering the first degree

robbery and the first degree burglary as encompassing the same criminal conduct. We

determine that the charging document, as a whole, provided fair notice to Mr. Campbell

of the allegations he faced, and reject Mr. Campbell's first argument. We also determine

that the undisputed evidence showed that either Mr. Campbell or his accomplice was

armed with a firearm, which is a deadly weapon and, therefore, reject Mr. Campbell's

second argument. We also determine that the burglary anti-merger statute, among other

reasons, supports the trial court's decision of treating the offenses separate for sentencing

purposes. We therefore affirm the convictions and the sentence and remand for

correction of a scrivener's error.

                                           FACTS

       On April 7, 2010, two men kicked open the door of Debra Vargas's apartment.

Ms. Vargas was home at the time. Also in the apartment was Ms. Vargas's son, James

Stethem, who was sleeping in a separate room. Mr. Stethem awoke to find one of the

men carrying items out of the apartment. Mr. Stethem saw that both men were masked,

and that one of the men was carrying a gun. The man with the gun told Mr. Stethem to

tum away. The man without the gun took Mr. Stethem's portable DVD player and his




                                              2

No. 30166-4-111
State v. Campbell


mom's laptop. The men drove away in Ms. Vargas's van. Ms. Vargas called 911.

According to her, one man had a gun and the other had a pipe.

      In the same apartment complex lived Ms. Vargas's niece, Christina Morales. The

night before the robbery, Mr. Campbell, Michael Rice, and Cecelia Circo were visiting

Jerami Wilson at Ms. Morales's apartment. Mr. Campbell told Mr. Wilson that he had a

gun. Mr. Wilson saw a black handle in Mr. Campbell's waistline and saw something

shaking in Mr. CampbeH's pants that he suspected was a gun. Mr. Wilson saw a pipe in

Mr. Rice's back pocket. Mr. Rice asked if Mr. Wilson was interested in helping "get

back" at Ms. Morales's aunt. Report of Proceedings (RP) at 139-40. Mr. Wilson

remembered a laptop being mentioned in the conversation and that it could be worth the

same amount of money that Ms. Vargas owed Ms. Morales.

      Eventually, Mr. Wilson went to bed. He did not see the group leave. He awoke to

find law enforcement in Ms. Morales's apartment. The apartment was in disarray. Law

enforcement asked Mr. Wilson ifhe knew the apartment was robbed. Missing from the

apartment was Ms. Morales's collection of three Chuckyl dolls as well as other items.

During the police investigation of the incident, Mr. Wilson was shown a photograph of




      I "Chucky" is a fictional character from the 1988 horror movie "Child's Play."
http://www.imdb.com/tltle/tt0094862/ .

                                            3

No.30166-4-III
State v. Campbell


the pipe found in Ms. Vargas's apartment and identified the pipe as the same pipe carried

by Mr. Rice.

       Law enforcement found a Chucky doll outside Ms. Vargas's apartment. Ms.

Morales identified the doll as one from her collection. Law enforcement concluded that

someone broke into Ms. Vargas's apartment, based on a footprint outside Ms. Vargas's

door and damage to the door frame and door. Ms. Vargas's landlord saw Mr. Campbell

and Mr. Rice going between the apartments of Ms. Vargas and Ms. Morales on the night

of the incident.

       Ms. Circo remembered that on the night of the incident, Mr. Campbell and Mr.

Rice were in Ms. Morales's apartment. Mr. Campbell had a silver gun. She did not see

Mr. Rice with a pipe. Ms. Circo fell asleep at the apartment. She awoke to find Mr.

Campbell pointing a gun at her, telling her to get into a van. Ms. Circo complied, and Mr.

Rice drove to Portland. While in the van, Ms. Circo noticed a Chucky doll tied to Mr.

Campbell. The van was recovered by law enforcement in Portland.

       The State charged Mr. Campbell with one count of first degree robbery with a

deadly weapon enhancement, one count of theft of a motor vehicle, and one count of first

degree burglary with a deadly weapon enhancement. As to the first degree robbery

charge, the victim named in the information was Debra Vargas. As to the first degree



                                            4

No. 30 166-4-III
State v. Campbell


burglary charge, the victim named in the information was Debra Vargas and/or James

Stethem.

       Mr. Campbell and Mr. Rice were codefendants at trial. The jury was given to-

convict instructions for each crime. Pertinent here, for first degree robbery, the court

instructed the jury that it needed to find that Mr. Campbell or an accomplice was "armed

with a deadly weapon" in the commission of the crime. Clerk's Papers (CP) at 88-89

(emphasis added). This instruction differed from the information that charged Mr.

Campbell of "display[ing] what appeared to be a firearm or other deadly weapon, to wit: a

pipe and/or a firearm." CP at 73 (emphasis added).

       For first degree burglary, the court instructed the jury that it needed to find that Mr.

Campbell was "armed with a deadly weapon." CP at 100 (emphasis added). This

language was consistent with the information that alleged Mr. Campbell was "armed with

a pipe or firearm, a deadly weapon." CP at 73 (emphasis added).

      For the jury to decide the deadly weapon enhancements, the court instructed the

jury that it needed to find Mr. Campbell or an accomplice was "armed with a deadly

weapon at the time of the commission of the crimes of Robbery in the First Degree and/or

Burglary in the First Degree ... even if only one deadly weapon [was] involved." CP at

111. The instruction further provided that "[a]ny metal pipe or bar used or intended to be



                                              5

No. 30166-4-III
State v. Campbell


used as a club is a deadly weapon. A pistol, revolver or any other firearm is also a deadly

weapon whether loaded or unloaded." CP at 111. This weapon enhancement instruction

differed from the enhancement notice in the information. The enhancement notice

alleged that Mr. Campbell "was armed with a deadly weapon and/or a weapon was easily

accessible ... to-wit: A PIPE." CP at 73 (emphasis added). In short, the enhancement

instruction referenced a pipe or a firearm, but the enhancement notice in the information

referenced only a pipe.

       Mr. Campbell did not object or take exception to the jury instructions at trial. A

jury found Mr. Campbell guilty on all charges, and found that Mr. Campbell (or his

accomplice)2 was armed with a deadly weapon during the commission of the crimes.

       The trial court imposed consecutive sentences on Mr. Campbell's first degree

robbery and first degree burglary convictions. In addition, the trial court increased the

criminal history score for first degree robbery to include the current felony conviction for

first degree burglary. In doing so, the court found that the convictions did not constitute

the same criminal conduct because (a) differing victims in the two crimes, (b) differing



       2 The special verdict forms state the jury's finding that Mr. Campbell was armed
with a deadly weapon. However, because of the accomplice instruction, it cannot be
determined which of the two men the jury determined was armed with the firearm. The
accomplice instruction stated in part: "If one person is armed with a deadly weapon, all
accomplices are deemed to be so armed, even if only one deadly weapon is involved."

                                             6

No. 301 66-4-III
State v. Campbell


intent of the two crimes, and (c) the State's interest in punishing a burglary separately

from other crimes, as provided for in RCW 9A.52.050. The court sentenced Mr.

Campbell to 153 months for the first degree robbery conviction and another 87 months

for the first degree burglary conviction. Mr. Campbell appealed.

                                        ANALYSIS

       A.    Whether the State properly relied on the firearm to support the deadly
       weapon element offirst degree robbery and the deadly weapon enhancement.

       Mr. Campbell challenges the State's reliance on the firearm to support the deadly

weapon element of his crimes. First, he contends that the State could not use the firearm

to support the deadly weapon enhancement because in the information, the State

specifically alleged that the pipe was the deadly weapon used for purposes of the

enhancement and cited the applicable statute. Mr. Campbell maintains that because the

State specifically designated the pipe, the pipe was the only weapon that could be used to

support the deadly weapon enhancement at trial.

       "In all criminal prosecutions, the accused shall enjoy the right to ... be informed

of the nature and cause of the accusation." U.S. CONST. amend. VI. "An information

must state all the essential statutory and nonstatutory elements of the crimes charged."

State v. Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728 (2005). Generally, an information must


CP at 111 (Instruction 27).
                                             7
No.30166-4-III
State v. Campbell


be worded so that a person of common understanding will know what acts constitute the

criminal offense. RCW 10.37.052(2). The exact words of the relevant statute need not be

used if words conveying the same meaning are used to give reasonable notice to the

defendant of the charge. State v. Kjorsvik, 117 Wn.2d 93, 108-09,812 P.2d 86 (1991).

       Where a criminal defendant challenges the sufficiency of a charging document for

the first time on appeal, we construe the documents liberally in favor of validity. Id. at

104-05. In liberally construing the information, we apply the following two-part test,

asking (1) whether the necessary facts appear in any form or can be found by liberal

construction in the document, and, if so, (2) whether the defendant can show that the

in artfu I language caused a lack of notice. Id. at 105-06.

       The first prong of this test rests solely on the language on the face of the charging

document. Id. at 106. We read the charging document "as a whole, according to

common sense and including facts that are implied." State v. Nonog, 169 Wn.2d 220,

227,237 P.3d 250 (2010). Loosely or inartfully drawn charging documents are forgiven

on appeal if the necessary elements appear in the document in any form. State v. Hopper,

118 Wn.2d 151, 155,822 P.2d 775 (1992). The second prong allows us to consider

whether the defendant received actual notice. Kjorsvik, 117 Wn.2d at 106.




                                              8

No. 30166-4-111
State v. Campbell


       Here, the infonnation is sufficient under the Kjorsvik test to give Mr. Campbell

notice that the pipe or the fire ann could be used to support the deadly weapon

enhancement. The infonnation contained the necessary fact that a fireann and/or pipe

was used in commission of the charged offenses. The State alleged in the infonnation

that a fireann and/or pipe was the deadly weapon involved in the crime for first degree

burglary and first degree robbery. The deadly weapon enhancements were associated

with both of these crimes. A liberal reading of the infonnation provides Mr. Campbell

with notice that the deadly weapons involved in the underlying crimes could also be used

to support the deadly weapon enhancements added to those crimes.

       Next, Mr. Campbell challenges the use of the fireann to support the convictions

for first degree robbery and first degree burglary. He contends that the jury instructions

for these crimes were unclear because the to-convict jury instructions referred to a deadly

weapon and not a firearm. Thus, the deadly weapon element became the law of the case

to be proven, and not the fireann.

       "Generally, a party must object to an instruction at trial in order to preserve the

issue for appellate review." State v. Nicholas, 55 Wn. App. 261,273, 776 P.2d 1385

(1989). Jury instructions not objected to become the law of the case. State v. Hickman,

135 Wn.2d 97, 102, 954 P .2d 900 (1998).



                                              9

No.30166-4-III
State v. Campbell


       To-convict jury instructions must contain all of the elements of a crime as the

instruction serves as a tool for a jury to use to measure the evidence and detennine guilt

or innocence. State v. Saunders, 177 Wn. App. 259, 263, 311 P.3d 601 (2013) (quoting

State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003)). '" Jury instructions are

sufficient if they are supported by substantial evidence, allow the parties to argue their

theories of the case, and when read as a whole properly infonn the jury of the applicable

law.'" ld. at 270 (quoting State v. Clausing, 147 Wn.2d 620,626, 56 P.3d 550 (2002)).

       Mr. Campbell did not object to the jury instructions at trial. Nor does he claim a

"manifest error affecting a constitutional right." RAP 2.5(a)(3). Instructional errors are

of constitutional magnitude only where the jury is not instructed on every element of the

charged crime. State v. Stearns, 119 Wn.2d 247, 250,830 P.2d 355 (1992). "As long as

the instructions properly infonn the jury of the elements of the charged crime, any error in

further defining tenns used in the elements is not of constitutional magnitude." ld.

       Here, the jury instructions sufficiently state the elements of the crime including

being anned with a deadly weapon. Mr. Campbell's alleged error involves use of "deadly

weapon" instead of "fireann" in the elements. This error is not of constitutional

magnitude and, unless objected to at trial, is not reviewable on appeal.




                                             10 

No. 30166-4-II1
State v. Campbell


       Even if we were to consider the merits of the argument, Mr. Campbell's contention

fails. The jury instructions when read as a whole properly informed the jury that a firearm

was a deadly weapon. The deadly weapon instruction defined a "deadly weapon" as "any

weapon, device, instrument, substance, or article, which under the circumstances in which

it is used, attempted to be used, or threatened to be used, is readily capable of causing

death or substantial bodily harm." CP at 94. The definitional instruction for firearm

referred to a firearm as a weapon. Also, the definitional instruction for first degree

robbery includes the language "firearm or other deadly weapon." CP at 87. The

definitional instruction for first degree burglary includes the language "deadly weapon."

CP at 99. As a whole, the jury instructions were sufficient to inform the jury that the

firearm satisfied the deadly weapon element of first degree burglary and first degree

robbery.

       Based on the charging information and the jury instructions, there was no error in

allowing the State to rely on the firearm to establish the deadly weapon element for first

degree robbery and first degree burglary.




                                             11 

No. 30166-4-111
State v. Campbell


       B.    Whether the defendant was adequately notified ofthe alternative means of
       committing first degree robbery so that the variance between the charging
       information and the trial court's instructions was harmless error.

       Mr. Campbell contends that there was a variance between the information and the

to-convict jury instructions for first degree robbery because the means for committing the

crime differed. The information alleged that Mr. Campbell displayed what appeared to be

a deadly weapon; whereas the jury instruction uses the phrase, "armed with a deadly

weapon." He contends that this variance violates the essential elements rule.

       Mr. Campbell confuses the issue of variance with the essential elements rule. The

essential elements rule concerns whether the defendant received sufficient notice within

the charging information of the elements of the charged offense. Variance concerns those

situations where the charging information is sufficient, but a question arises of whether

the trial court erred in instructing the jury on an alternative uncharged means of

committing the charged offense. Because both the essential elements rule and variance

implicate the Sixth Amendment and the Washington Constitution article I, section 22, it is

not uncommon for the arguments to be muddled. However, the arguments are distinct.

See In re Pers. Restraint ofBrockie, 178 Wn.2d 532, 536-37, 309 P.3d 498 (2013).

       "[W]here the statute provides that a crime may be committed in different ways or

by different means, it is proper to charge in the information that the crime was committed


                                             12 

No. 30 166-4-III
State v. Campbell


in one of the ways or by one of the means specified in the statute, or in all the ways."

State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942). When the charging

information alleges only one alternative means of committing a crime, it is reversible

error for the jury to consider other means by which the crime could have been committed.

State v. Bray, 52 Wn. App. 30,34, 756 P.2d 1332 (1988). When challenged on direct

appeal, this error is presumed to be prejudicial unless the State can show harmless error.

Brockie, 178 Wn.2d at 538-39. For first degree robbery, the two alternatives of

"displaying what appeared to be a firearm or other deadly weapon" and being "armed

with a deadly weapon" are distinct alternative means and are not interchangeable. Id. at

538.

       In Brockie, the court addressed a conviction for first degree robbery where a jury

was instructed on the alternative means of being armed with a deadly weapon even

though Mr. Brockie was charged only with displaying what appeared to be a deadly

weapon. Id. Before applying the harmless error standard, the court held that Mr. Brockie

was given notice only on one particular means charged when the State chose to specify

that means in the charging document. "Nothing in the charging information put [Mr.]

Brockie on notice that he might be charged with the alternative means of first degree

robbery while armed with a deadly weapon." Id.



                                             13
No. 30166-4-111
State v. Campbell


       Here, unlike Brockie, Mr. Campbell had notice that he was being charged with

both alternative means. The charging language for first degree robbery alleged that Mr.

Campbell "displayed what appeared to be a firearm or other deadly weapon," whereas the

language for the linked deadly weapon enhancement alleged the alternative means of

being "armed with a deadly weapon." CP at 73. Thus, Mr. Campbell had notice that he

was being charged with both "displayed what appeared to be a firearm or other deadly

weapon" and "being armed with a deadly weapon." While the to-convict instruction

varied from the information because the instruction stated "armed with a deadly weapon,"

Mr. Campbell was on notice that he was required to defend against "displayed what

appeared to be a firearm or other deadly weapon," both alternative means of committing

first degree robbery. The variance between the charging information and the to-convict

instruction for first degree robbery therefore does not result in reversible error.

       C.    Whether the State proved beyond a reasonable doubt the deadly weapon
       element offirst degree robbery, first degree burglary, and the deadly weapon
       enhancement.

       Mr. Campbell challenges the sufficiency of the evidence to support his convictions

for first degree robbery, first degree burglary, and the deadly weapon enhancements.

Each contain a deadly weapon element, and Mr. Campbell contends that the State failed




                                              14 

No.30166-4-III
State v. Campbell


to prove that he was armed with a deadly weapon. He maintains that the State did not

present evidence the pipe was used as a deadly weapon.

       Evidence is sufficient to support a conviction if, in viewing the evidence and all

reasonable inferences therefrom in the light most favorable to the State, a rational trier of

fact could find each element of the crime beyond a reasonable doubt. State v. Hosier, 157

Wn.2d 1,8, 133 P.3d 936 (2006). The reviewing court should consider "whether the

totality of the evidence is sufficient to prove all the required elements." State v.

Ceglowski, 103 Wn. App. 346,350, 12 P.3d 160 (2000). Although all jurors must agree

that the crime has been committed, they are not required to be in agreement on the means

by which the crime occurred. See State v. Whitney, 108 Wn.2d 506, 511-12, 739 P .2d

1150 (1987).

       The trial court instructed the jury that "[i]f one person is armed with a deadly

weapon, all accomplices are deemed to be so armed, even if only one deadly weapon is

involved." CP at 111 (Instruction 27). This instruction is a correct statement of the law

and was not objected to. Here, the undisputed testimony was that one of the men who

broke into Ms. Vargas's apartment was armed with a firearm. We conclude that there

was sufficient evidence for ajury to find that a deadly weapon was used either by Mr.




                                              15 

No.30166-4-II1
State v. Campbell


Campbell or his accomplice so as to meet the deadly weapon element of first degree

robbery, first degree burglary, and the weapon enhancement allegations.

       D.     Whether counsel's assistance was ineffective.

       Mr. Campbell argues that he received ineffective assistance of counsel. He first

argues that his counsel was ineffective because he failed to request an instruction on

second degree robbery. "To demonstrate ineffective assistance of counsel, a defendant

must make two showings: (1) defense counsel's representation was deficient, i.e., it fell

below an objective standard of reasonableness based on consideration of all the

circumstances; and (2) defense counsel's deficient representation prejudiced the

defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional

errors, the result of the proceedings would have been different." State v. McFarland, 127

Wn.2d 322, 334-35,899 P.2d 1251 (1995).

       The threshold for deficient performance is high; a defendant must overcome a

strong presumption that counsel's performance was reasonable. State v. Kyllo, 166

Wn.2d 856, 862,215 P.3d 177 (2009). When counsel's conduct can be characterized as

legitimate trial strategy or tactics, the performance is not deficient. McFarland, 127

Wn.2d at 336. The "all or none" tactic of not proposing an instruction on a lesser




                                             16 

No. 30166-4-III
State v. Campbell


included offense is a legitimate trial tactic. State v. Grier, 171 Wn.2d 17,42-43,246 PJd

1260 (2011).

       Mr. Campbell fails to establish ineffective assistance of counsel. First, defense

counsel's performance was not deficient because he failed to request a lesser included

instruction. Not requesting the lesser instruction was a legitimate and reasonable trial

tactic because it fit with Mr. Campbell's trial theory that he did not commit the offense, as

opposed to a strategy that he only committed the lesser offense. Also, Mr. Campbell did

not show prejudice because proposing the lesser instruction would not have changed the

outcome. The evidence supported the jury finding that Mr. Campbell or his accomplice

was armed with a firearm and, therefore, Mr. Campbell committed first degree robbery.

       Mr. Campbell next argues that his counsel was ineffective for failing to alert the

trial court that the pipe was the only weapon relied upon in the information for the deadly

weapon enhancement. However, Mr. Campbell fails to show how he was prejudiced by

this error. As noted above, the trial court did not err in how it instructed the jury, and

even had defense counsel raised the issue of variance, the prosecution would have been

entitled to an enhancement instruction that specified "deadly weapon" or "firearm."

       Similarly, defense counsel did not commit error by failing to object to any jury

instruction that referenced a firearm. As previously stated, the information as a whole



                                              17 

No. 30 166-4-III
State v. Campbell


alerted Mr. Campbell that a firearm could support the crimes charged and the deadly

weapon enhancement. We, therefore, reject Mr. Campbell's ineffective assistance of

counsel arguments.

       E.    Whether the first degree burglary andfirst degree robbery constituted the
       same criminal conduct and counted as one crime for sentencing purposes.

       Mr. Campbell contends that the trial court was not allowed to sentence him for

both first degree burglary and first degree robbery because the crimes constituted the

same criminal conduct. RCW 9.94A.589(l)(a) provides:

      [W]henever a person is to be sentenced for two or more current offenses, the
      sentence range for each current offense shall be determined by using all other
      current and prior convictions as ifthey were prior convictions for the purpose of
      the offender score: PROVIDED, That if the court enters a finding that some or all
      of the current offenses encompass the same criminal conduct then those current
      offenses' shall be counted as one crime. Sentences imposed under this subsection
      shall be served concurrently. Consecutive sentences may only be imposed under
      the exceptional sentence provisions ofRCW 9.94A.535Pl "Same criminal
      conduct, " as used in this subsection, means two or more crimes that require the
      same criminal intent, are committed at the same time and place, and involve the
      same victim.

(Emphasis added.)

      A defendant has the burden of proving that the current offenses constitute the same

criminal conduct. State v. Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013). The



      3 Here, the trial court entered a consecutive sentence for Mr. Campbell's first
degree robbery and first degree burglary convictions. The consecutive sentence is

                                            18 

No. 30 166-4-III
State v. Campbell


crimes will not be considered the same criminal conduct if the defendant fails to prove

any of the three elements of the statute. Id. at S40. Crimes affecting more than one

victim cannot encompass the same criminal conduct. State v. Dunaway, 109 Wn.2d 207,

21S, 743 P.2d 1237 (1987). Crimes committed in separate rooms in the same residence

are committed in "separate places." See State v. Stockmyer, 136 Wn. App. 212,219-20,

148 P.3d 1077 (2006). Here, the first degree robbery and the first degree burglary

affected two victims and were committed in separate rooms. Therefore, the two offenses

do not constitute the same criminal conduct.

       In addition, there is another independent basis to affirm the trial court: the burglary

anti-merger statute, RCW 9A.S2.0S0, which provides: "Every person who, in the

commission of a burglary shall commit any other crime, may be punished therefor as well

as for the burglary, and may be prosecuted for each crime separately." For mUltiple

current convictions, a sentencing court has the discretion to separately punish a crime

committed during a burglary, regardless of whether it and the burglary encompassed the

same criminal conduct. State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 (1992).4



permitted under RCW 9.94A.S3S(2)(c), and is not challenged by Mr. Campbell.
       4 Mr. Campbell argues that the language we rely upon in Lessley is dicta.
Regardless, this is a unanimous statement by our highest court that has gone unchallenged
for over 20 years. We choose to follow it.
       Mr. Campbell also cites State v. Williams, 176 Wn. App. 138,307 P.3d 819

                                             19
No.30166-4-II1
State v. Campbell


       F.         Whether the judgment and sentence contains any scrivener's errors.

       Mr. Campbell also contends that section 2.4 of the judgment and sentence contains

two scrivener's errors. First, he contends that this section indicates that he waived his

right to a jury trial. We acknowledge this error and remand to the trial court for the

purpose of making the correct notation on the judgment and sentence. Second, he

contends that this same section erroneously indicates that the prosecutor recommended a

similar sentence to the one imposed by the court. We find no error here. Mr. Campbell

received an exceptional sentence as recommended by the prosecutor, and although the

sentence was less than recommended, the sentence was "similar."

        G.    Whether the trial court erred when it ordered Mr. Campbell to pay legal
       financial obligations.

       For the first time on appeal, Mr. Campbell challenges the imposition of legal

financial obligations (LFOs). He contends that the court erroneously imposed special

costs without a record of what those costs were, and neglected to enter findings on his

ability to pay.




(2013), review granted, 180 Wn.2d 1001,319 P.3d 800 (2014) for the proposition that a
sentencing court lacks discretion to count prior convictions separately under the burglary
anti-merger statute. However, in that case, this court held that the burglary anti-merger
statute applies to current offenses. Id. at 143. Here, we are applying the statute to current
convictions, not prior convictions. Williams, therefore, is distinguishable.

                                              20
No.30166-4-II1
State v. Campbell


        Challenges to LFOs must be raised at the trial court. A failure to object to a cost

imposed by the trial court waives the right to challenge the issue on appeal. State v.

Danis, 64 Wn. App. 814, 822, 826 P.2d 1096 (1992). Also, challenges to a defendant's

ability to pay LFOs which are not raised to the trial court will not be addressed on appeal.

Rather, the meaningful time to examine the defendant's ability to pay is when the

government seeks to collect the debt. State v. funcan, 180 Wn. App. 245, 250-51, 327

PJd 699 (2014).
                                                I
        We affirm the conviction and sentence, except we remand to the trial court to

correct the scrivener's error which incorrectly states that Mr. Campbell waived his right

to a jury trial.

        A majority of the panel has determined 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.


                                           Lawrence-Berrey, J.

WE CONCUR:




                                           Fear~~( :1=' 

                                             21 

