                                                               FILED
                                                           OCTOBER 11, 2016
                                                        In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                           )         No. 33170-9-111
                                               )
                     Respondent,               )
                                               )
              V.                               )         UNPUBLISHED OPINION
                                               )
ROCKY M. HENSLEY,                              )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, A.CJ. -Rocky Hensley appeals his conviction for fourth

degree assault. He argues his constitutional right to a unanimous jury verdict was

violated because the State presented evidence of multiple assaults but the trial court did

not give a Petrich 1 unanimity instruction. He also asks this court to strike the

discretionary legal financial obligations (LFOs) from the judgment and sentence. We

determine that a Petrich instruction was not required because the State elected to rely on

acts occurring during a short melee. We, however, remand to give the trial court the



       1
        State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled in part on other
grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated in part on
other grounds by In re Pers. Restraint ofStockwell, 179 Wn.2d 588, 316 P.3d 1007
(2014).
No. 33170-9-III
State v. Hensley


discretion to either strike the discretionary LFOs or to conduct a proper Blazina2 inquiry.

                                          FACTS

       In October 2012, Mr. Hensley was a patient in the psychiatric unit at Lourdes

Counseling Center (Lourdes) in Richland, Washington. Around October 21, Mr. Hensley

became agitated and Lourdes staff moved him into the "quiet room." Report of

Proceedings (RP) at 70. Garrett Fordmeir, a mental health aide, monitored Mr. Hensley

in the quiet room area. A short melee occurred later that morning involving Mr. Hensley

and Mr. Fordmeir. As a result, the State charged Mr. Hensley with assaulting Mr.

Fordmeir. Specifically, the charging document stated Mr. Hensley assaulted Mr.

Fordmeir by "hitting, pushing, or spitting upon him." Clerk's Papers (CP) at 72.

      At trial, the State called Mr. Fordmeir. Mr. Fordmeir answered questions

concerning Mr. Hensley's mood and behavior the morning of October 21. Initially, Mr.

Hensley was acting in a hyper-sexual manner while in the quiet room. For instance, he

sexually propositioned Mr. Fordmeir and also tapped Mr. Fordmeir on the buttocks a

couple times.

      Later that morning, Mr. Hensley was loud and would not stop pounding on the

quiet room door. Mr. Fordmeir entered the room and attempted to discipline Mr. Hensley


      2
          State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015).

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State v. Hensley


by removing his radio. Mr. Hensley began screaming, and a nurse opened the quiet room

door to assist. Mr. Hensley turned his attention from Mr. Fordmeir to the opening door.

Mr. Hensley shoved the nurse and attempted to escape from the room. Mr. Fordmeir tried

to restrain him. According to Mr. Fordmeir, Mr. Hensley hit him in the face three times

with a closed fist. Other staff assisted. Eventually, Mr. Fordmeir was able to push Mr.

Hensley toward a comer of the quiet room so staff could exit. Mr. Hensley then spit in

Mr. Fordmeir's eye. Mr. Fordmeir then shoved Mr. Hensley into the comer, which

allowed Mr. Fordmeir and the nurse to exit the room and lock the door behind them.

       Mr. Hensley testified on his own behalf. He admitted to acting in a hyper-sexual

manner, blamed his actions on medication, but denied tapping Mr. Fordmeir on the

buttocks. He also denied that he later hit Mr. Fordmeir, or that he spit on him. Further,

he testified that it was Mr. F ordmeir who pushed him.

       After the trial court read its instructions to the jury, the parties gave their closing

arguments. Consistent with the charging document, the State did not argue that the

tapping of Mr. Fordmeir's buttocks, which occurred prior to the short melee, was an

assault.

       During deliberations, the jury submitted the following question in writing to the

court: "Are we also to consider the bottom patting and spitting in Mr. Fordmeir's face in


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State v. Hensley


the assault charge?" CP at 99. The trial court did not convene counsel to obtain their

input on how to respond. Instead, the court wrote back to the jury that it should rely on

their collective memories of the evidence and the court's instructions.

       The court clerk informed defense counsel by telephone of the jury's question and

the court's response. Defense counsel complained to the clerk about the court's response

and was informed that an objection on the record at that time was unnecessary. Soon

after, the jury announced it had a verdict. Counsel convened in the courtroom prior to the

jury announcing its verdict. Defense counsel objected on the record to the court's

response. Defense counsel noted that the court's response allowed the jury to convict Mr.

Hensley on an uncharged act, tapping Mr. Fordmeir on his buttocks.

       The jury convicted Mr. Hensley of fourth degree assault. At the sentencing

hearing, defense counsel asked the court to impose only mandatory LFOs. The court then

asked defense counsel which LFOs were mandatory. Defense counsel stated that the

witness fee, jury demand fee, sheriffs service fee, filing fee, and victim assessment were

all mandatory. The court then imposed a $41.28 witness fee, a $250.00 jury demand fee,

a $60.00 sheriffs service fee, a $200.00 filing fee, and a $500.00 victim assessment. Mr.

Hensley appeals.




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State v. Hensley


                                          ANALYSIS

       A.      JURY UNANIMITY


       Mr. Hensley argues his constitutional right to a unanimous jury verdict was

violated because the State presented evidence of multiple assaults, any of the assaults

could have constituted the charged crime, and the trial court did not give the jury a

Petrich unanimity instruction. Although Mr. Hensley did not object to the trial court's

instructions or request a unanimity instruction, the alleged error is one of constitutional

magnitude and may therefore be raised for the first time on appeal. E.g., State v. Crane,

116 Wn.2d 315,325,804 P.2d 10 (1991).

       The Washington Constitution gives criminal defendants the right to a unanimous

jury verdict. CONST. art. I,§ 21. In cases where the State presents evidence of multiple

criminal acts and any one of these acts could constitute the crime charged, the jury must

unanimously agree on the same act that constitutes the crime in order to convict the

defendant. Petrich, 101 Wn.2d at 572. To ensure jury unanimity when multiple acts

could relate to one charge, "either the State [must] elect the particular criminal act upon

which it will rely for conviction, or ... the trial court [must] instruct the jury that all of

them must agree that the same underlying criminal act has been proved beyond a

reasonable doubt." State v. Kitchen, 110 Wn.2d 403,411, 756 P.2d 105 (1988). Election



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State v. Hensley


of an act may be established if the State's charging document, when considered with the

jury instructions and the State's closing argument, makes it clear which act or acts the

State is relying on for the charge. State v. Bland, 71 Wn. App. 345, 351-52, 860 P.2d

1046 (1993), overruled in part on other grounds by State v. Smith, 159 Wn.2d 778, 154

PJd 873 (2007).

       Constitutional error occurs if the State does not make an election and the trial court

does not give a unanimity instruction. State v. Bobenhouse, 166 Wn.2d 881, 893, 214

P.3d 907 (2009). The error stems from the possibility that some jurors may have relied on

one act as the basis for convicting the defendant and other jurors may have relied on a

different act, resulting in a lack of unanimity on all of the elements necessary for a valid

conviction. Kitchen, 110 Wn.2d at 411.

       An exception exists when the evidence shows the defendant was engaged in a

"continuing course of conduct." State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453

( 1989). In determining whether the evidence supports multiple criminal acts or a

continuing course of conduct, this court considers ( 1) the time that elapsed between the

criminal acts, and (2) whether the different acts involved the same parties, the same

location, and the same ultimate objective. State v. Love, 80 Wn. App. 357, 361, 908 P.2d




                                              6
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State v. Hensley


395 (1996). This court must also evaluate the facts in a commonsense manner. Petrich,

101 Wn.2d at 571.

       In Crane, the court found the continuing course of conduct exception applied

where the defendant inflicted multiple injuries on the same victim during a specific two-

hour period. Crane, 116 Wn.2d at 320-21, 330. The court held that Petrich did not apply

because the evidence supported "only a small time frame in which the fatal assault could

have occurred." Id. at 330. Similarly, in Handran, the court found the continuing course

of conduct exception applied because the defendant broke into his ex-wife's residence

and repeatedly assaulted her at the same place, during a short period, and for the same

purpose of obtaining sex. See Handran, 113 Wn.2d at 17.

      Here, the State elected to charge Mr. Hensley with assault based only on the acts

that occurred during the short melee. Like in Crane and Handran, the evidence here

indicates that Mr. Hensley's actions during the short melee were all part of a continuous

course of conduct. Because the State elected to charge Mr. Hensley only with these acts,

a Petrich unanimity instruction was not required.

      Mr. Hensley argues the jury may have lacked unanimity because some jurors may

have convicted him based on the melee while others may have convicted him based on

the buttocks tapping. He implies that such a conviction lacks the required jury unanimity



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State v. Hensley


because the tapping on the buttocks occurred separately and earlier than the melee, and

was done with a different purpose. While this is arguably true, the error if any occurred

after the jury was properly instructed and was a result of the trial court's response to the

jury question. Mr. Hensley does not assign error to the trial court's response. We

conclude that a Petrich unanimity instruction was not required.

       B.     IMPOSITION OF DISCRETIONARY LFOS

       Mr. Hensley asks this court to strike the discretionary LFOs from the judgment and

sentence because the sentencing court only intended to impose mandatory LFOs.

       Defense counsel informed the sentencing court that the $41.28 witness fee,

$250.00 jury demand fee, $60.00 sheriffs service fee, $200.00 filing fee, and $500.00

victim assessment were all mandatory LFOs. Defense counsel was correct that

the filing fee and victim assessment were mandatory. See RCW 36. l 8.020(2)(h);

RCW 7.68.035(l)(a). However, the witness fee, sheriffs service fee, and jury demand

fee were discretionary. See RCW 10.01.160(2) (authorizing "expenses specially incurred

by the state in prosecuting the defendant"); RCW 36.18.016(3)(b) (stating that a $250 jury

demand fee may be imposed on conviction).

       Under the invited error doctrine, a party may not set up an error at trial and then

complain ofit on appeal. State v. Mercado, 181 Wn. App. 624,630,326 P.3d 154



                                              8
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State v. Hensley


(2014). To be invited, the defendant must materially contribute to the error by engaging

in some type of affirmative action through which he or she knowingly and voluntarily sets

up the error. Id. "The invited error doctrine is strictly enforced to prevent 'parties from

benefiting from an error they caused at trial regardless of whether it was done

intentionally or unintentionally."' State v. Ortiz-Triana, 193 Wn. App. 769, 777, 373

PJd 335 (2016) (quoting State v. Recuenco, 154 Wn.2d 156, 163, 110 PJd 188 (2005),

rev'd on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165

L. Ed. 2d 466 (2006)). The invited error doctrine applies to LFO and restitution

challenges. See State v. Stoddard, 192 Wn. App. 222, 225, 366 PJd 474 (2016) (invited

error doctrine precludes review of the restitution judgment where defendant agreed to

restitution amount).

       Nevertheless, we decline to affirm on an invited error analysis. To do so would be

inconsistent with recent admonitions that trial courts may not impose discretionary LFOs

without first conducting an individual inquiry into the defendant's current and future

ability to pay. Blazina, 182 Wn.2d at 838. We, therefore, remand to the trial court for it

to either strike the discretionary LFOs or conduct the required inquiry.




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No. 33170-9-III
State v. Hensley


      Affirmed in part and remanded.

      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.




WE CONCUR:




                                         Pennell, J.




                                            10
