                                                                          FILED
                                                                       APRIL 25, 2019
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                         )
                                             )         No. 35561-6-III
                     Respondent,             )
                                             )
       v.                                    )
                                             )         UNPUBLISHED OPINION
ANDREW JOHN SPRINT,                          )
                                             )
                     Appellant.              )


       FEARING, J. — Andrew Sprint appeals his conviction for fourth degree assault of a

child, his infant son. He also challenges the imposition of legal financial obligations. We

affirm the conviction, but remand for a determination of whether to impose some of the

financial obligations.

                                         FACTS

       Andrew Sprint and Chalese Merritt begat a son, Charles, on February 3, 2014.

Charles is a pseudonym. This appeal concerns Sprint’s alleged assault on his son on

April 16, 2014.

       Andrew Sprint and Chalese Merritt met during a musical theatre production of

Sweeney Todd. Sprint was eight years the senior to Merritt. The two began dating in

April 2013 and engaged in sexual intercourse. Sprint and Merritt ended their brief
No. 35561-6-III
State v. Sprint


romance in July 2013, and the two had limited contact thereafter. In October 2013,

Merritt learned that she conceived a child with Sprint. She did not share the news with

Sprint.

          As a 21-year-old prospective mother, Chalese Merritt arranged through Mike

Magnotti, a friend of both Merritt and Andrew Sprint, for her baby to be adopted. On

February 3, 2014, Merritt gave birth to a healthy baby boy, Charles. Magnotti phoned

Sprint the day of Charles’ birth and informed him that he was a father. Sprint

immediately signed pleadings agreeing to adoption, but he changed his mind later that

day and rescinded his signature on February 4. When Merritt learned Sprint wanted to

raise Charles, she also decided to parent her son rather than consenting to adoption.

Charles went home with Merritt from the hospital.

          Chalese Merritt resided with her parents, and Andrew Sprint visited Charles, in the

month after his birth, at the Merritt abode. Sprint spent six to ten hours with Charles

every day. On March 5, 2014, Sprint, by court order, obtained primary temporary

custody of Charles. The custody order limited Merritt’s visitation with Charles to ninety

minutes every other day. Merritt typically retrieved Charles from Sprint’s apartment and

took the infant to her parent’s residence for visitation.

          On April 16, 2014, when Charles was approximately nine weeks old, Andrew

Sprint called 911 to report a medical emergency with Charles. Sprint reported to dispatch

that Charles was unconscious and limp, did not breathe right, had earlier turned the color

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No. 35561-6-III
State v. Sprint


red, and now appeared pale. While on the phone with the 911 operator, Sprint observed

that Charles’ breathing had improved, but he remained unconscious. While being

recorded, Sprint commented: “What’s up, little guy? What hurts? What did papa do?

What did papa do? I didn’t — I don’t know.” Report of Proceedings (RP) (Aug. 15,

2017) at 1408.

       Emergency medical technician (EMT) Kaila Brownlee and her work partner

arrived via ambulance at Andrew Sprint’s apartment and provided aid at the scene.

When Brownlee assessed the situation, she observed no anomalies in Charles. Sprint

spontaneously said to Brownlee: “Great, now I hope nobody thinks I shook my baby.”

RP (Aug. 7, 2017) at 167.

       Andrew Sprint, as a precaution, directed Kaila Brownlee to transport Charles to

Wenatchee’s Central Washington Hospital. After arriving at the hospital, Charles

underwent an absence seizure, and emergency nurses rushed him for a CT scan. An

absence seizure differs from the typical seizure in that the patient does not shake, but

becomes fixated with a blank expression. The CT scan revealed edema, subdural

hematomas, and retinal hemorrhaging. Central Washington Hospital physicians

anesthetized and intubated Charles for airlift to Seattle. Charles’ lung collapsed during

this procedure.

       Before Charles flew to Seattle, Andrew Sprint, while at the hospital, spoke by

phone with and texted his roommate, Justin Valdez. Valdez had occasionally, before

                                              3
No. 35561-6-III
State v. Sprint


April 16, witnessed Sprint being rough with Charles. Valdez asked during a heated

phone call: “What did you do?” Valdez added: “don’t sling me that bullshit that you’re

not responsible for this.” RP (Aug. 9, 2017) at 820. Sprint replied, “I can’t say that I am

or I’m not.” RP (Aug. 9, 2017) at 820. According to Valdez:

              And then when he [Andrew Sprint] texted me, he says baby’s got to
       get more tests, so I love him and I don’t shake my baby. And prior to that,
       I didn’t mention that I didn’t—you know, I didn’t accuse him of shaking
       the baby or anything like that, he just said that out of the blue.

RP (Aug. 9, 2017) at 821.

       Seattle physicians saved Charles’ life. Charles, however, suffers from permanent

speech and mental deficits. The child wears a brace on his right arm.

                                      PROCEDURE

       The State of Washington charged Andrew Sprint with assault of a child in the first

degree. The trial court found Sprint indigent and appointed a public defender. The

superior court conducted a bench trial.

       During trial, the State presented two medical witnesses, Dr. Rebecca Weister and

Dr. Kenneth Feldman, from Seattle’s Children’s Hospital Child Protection Program, who

cared for the child. Both opined that Charles’ injuries did not occur spontaneously from a

pre-existing defect, but resulted from abusive head trauma while in Andrew Sprint’s care

and control. Kenneth Feldman averred that the MRI revealed possible multiple injuries

days or even weeks apart. Both doctors rejected the possibility of subdural rebleeds,


                                             4
No. 35561-6-III
State v. Sprint


despite evidence that Charles may have experienced seizures before Sprint called 911 on

April 16. Brittney Morrisey, Andrew Sprint’s estranged girlfriend, and Chalese Merritt

testified to Charles’ staring to one side.

       Dr. Kenneth Feldman, during trial, opined that injuries suffered by Charles

occurred from a rotational acceleration. Nonetheless, he estimated that in eighty percent

of medical cases of abusive head trauma, some other form of injury occurs beyond

subdural hematoma, retinal hemorrhage, and brain injury. Feldman conceded that

Charles suffered no bruising or external injury consistent with trauma.

       Dr. Patrick David Barnes, Chief of Pediatric Neuroradiology at Lucille Packard

Children’s Hospital and a Professor of Radiology at Stanford School of Medicine,

testified for Andrew Sprint. David Barnes concurred with Kenneth Feldman that both the

CT scan and MRI revealed that a collection of blood in Charles’ brain occurred days

before April 16. Barnes explained the difficulty in assessing the timing of an acute or

subacute hemorrhage from a CT scan, and he opined that a “recent” hemorrhage could be

from three hours to ten days old. Dr. Barnes’ analysis of the CT scans and MRIs did not

rule out accidental trauma, birth trauma, or lack of oxygen from the failed intubation at

the hospital. Barnes added that literature from the American Academy of Pediatrics

deems a finding of neck injury to be an important method of confirming abusive head

trauma. Charles’ medical records showed no neck injury.

       During trial, the State played the 911 audio tape. The trial court also heard

                                             5
No. 35561-6-III
State v. Sprint


testimony from Justin Valdez, Andrew Sprint’s roommate. Valdez testified about

incidents wherein Sprint roughly burped Charles, yelled at the child for crying, and held

Charles without using proper neck support. Valdez testified that he witnessed “days of

[Sprint] being really rough with the baby.” RP (Aug. 9, 2017) at 820. Valdez repeatedly

used the word “free-floating” when describing Charles’ head as Sprint held him under the

arms. RP (Aug. 9, 2017) at 807-08. Valdez often confronted Sprint about mistreatment

of Charles, and Sprint ignored the concerns.

       Chalese Merritt and her mother, Melanie Merritt, testified at trial. Both expressed

no concern that Andrew Sprint would harm Charles. Andrew Sprint’s former and

estranged girlfriend, Brittney Morrissey, testified that she observed Sprint care for his son

and never saw any rough treatment of the son.

       Andrew Sprint testified in his defense. He did not accuse anyone of hurting

Charles. Sprint denied ever shaking, dropping, or slamming Charles. He admitted to

being overwhelmed at times when Charles fussed and being frustrated with Chalese

Merritt regarding her lack of care for their son.

       Andrew Sprint, during his testimony, denied that he asked during the emergency

call: “What did papa do?” He averred that he commented: “What does papa do?” RP

(Aug. 15, 2017) at 1453.

       The trial court acquitted Andrew Sprint of assault of a child in the first degree.

The court instead found Sprint guilty of the lesser included offense of assault in the

                                               6
No. 35561-6-III
State v. Sprint


fourth degree.

      The trial court entered the following findings of fact and conclusions of law:

                                II. FINDINGS OF FACT

              The following facts were found beyond a reasonable doubt:
              2.1 Andrew Sprint was the custodial parent of nine[-]week[-]old
      [Charles], when on April 16, 2014, [Charles] suffered injuries that caused
      him to have seizures, subdural hematoma, retinal hemorrhages, and
      swelling of the brain.
              2.2 Medical testimony supports the court’s finding that the injuries
      suffered by [Charles] occurred shortly before the 911 call and during the
      time when [Charles] was in Andrew Sprint’s sole and immediate care and
      control.
              2.3 While there was medical testimony from the defense experts that
      there may have been other possible causes for the injuries that were not, in
      their opinion, adequately explored, none of those experts ruled out abusive
      trauma.
              2.4 The court finds that [Charles] suffered his injuries due to non-
      accidental trauma.
              2.5 Andrew Sprint’s unsolicited comments overheard during the 911
      call of “What did papa do?”, and to the emergency medical technician Kaila
      Brown[lee] of people thinking he “shook the baby[”], and in a text message
      to his roommate Justin Valdez that “I don’t shake my baby”; and his
      statement in a phone call to Mr. Valdez of “I can’t say that I did, and I can’t
      say that I didn’t” in response to Mr. Valdez’ question of whether Sprint
      caused the injuries—the court finds these statements to be tacit admissions
      by Sprint that he was the cause of [Charles’s] injuries.
              2.6 Andrew Sprint, on other occasions, was observed by Justin
      Valdez roughly and inappropriately handling the child, such as using too
      much force when burping the child, holding the child in the air without
      giving proper neck support, and yelling at the child for crying. Even
      though such prior actions did not cause injury to the child or a report of
      abuse by Mr. Valdez, this information supports the court’s finding that
      Andrew Sprint intentionally assaulted [Charles].
              2.7 Andrew Sprint intentionally assaulted [Charles][.]
              2.8 The State did not prove beyond a reasonable doubt that Andrew
      Sprint either intentionally or recklessly caused the injuries. The court finds

                                            7
No. 35561-6-III
State v. Sprint


       that the injuries were negligently inflicted by Andrew Sprint’s intentional
       assault.

                               III. CONCLUSIONS OF LAW

             3.1 Andrew Sprint intentionally assaulted [Charles]. The
       circumstances of this assault do not rise to the level of assault in the first,
       second, or third degree.

Clerk’s Papers (CP) at 45-46.

       The trial court sentenced Andrew Sprint to three hundred sixty four days’

confinement with one hundred and eighty four suspended, contingent upon twenty-four

months of supervision. One hundred and eight days’ of actual confinement was ordered.

During the sentencing hearing, the trial court heard from the prosecution, defense

counsel, and Andrew Sprint about legal financial obligations and restitution. The

prosecutor mentioned the payment of approximately $30,000 in restitution. The trial

court scheduled a restitution hearing to occur two months later. Defense counsel

remarked to the court that Sprint faced paying tens of thousands, if not hundreds of

thousands of dollars, in restitution, presumably for medical bills. Counsel added that

Sprint possesses a significant amount of money to pay.

       During sentencing, Andrew Sprint commented that he worked during the last three

years at a restaurant as a cook and for two months he performed electrical work. He

mentioned the difficulty of finding employment with a pending felony. Sprint later

remarked that he worked part time at the Bremerton Symphony and that the Innocence


                                               8
No. 35561-6-III
State v. Sprint


Project of Washington offered him housing and employment. Sprint claimed he had the

ability to work to pay “any offending fees” ordered. RP (Aug. 15, 2017) at 1474.

       During sentencing, the trial court did not ask Andrew Sprint about his income at

the symphony or his possible income at the Innocence Project. The court did not inquire

about Sprint’s debt obligations. The defense registered no objection to the imposition of

legal financial obligations.

       The trial court imposed a $200 criminal filing fee, a $500 crime victim

assessment, a $250 fine, $400 for a court appointed attorney, and a $100 probation fee,

for a total of $1,450 in legal financial obligations. The court later imposed $30,021.55 in

restitution.

       After imposition of his sentence, Andrew Sprint informed the trial court that his

financial status had not changed since the filing of charges. The trial court again found

Sprint indigent and determined he had a right to pursue his appeal at public expense.

                                  LAW AND ANALYSIS

                                  Sufficiency of Evidence

       Andrew Sprint assigns error to his conviction and to the imposition of legal

financial obligations. As to his conviction, Sprint argues that insufficient evidence

supported his conviction for fourth degree assault. He claims, in part, that a conviction

demands direct evidence of his harmfully touching Charles. He challenges his statements

to others as tacit admissions of harming Charles, and he faults the trial court for relying

                                              9
No. 35561-6-III
State v. Sprint


on Justin Valdez’s testimony of earlier behavior. Sprint argues that reliance on his

statements and Valdez’s testimony constitutes mere speculation that cannot support a

finding of harmful touching. Conversely, the State contends that overwhelming

circumstantial evidence supports the conviction.

       When reviewing a claim for insufficiency of the evidence, this court asks whether,

after viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). We draw all reasonable

inferences from the evidence in favor of the prosecution and interpret the evidence most

strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). We deem circumstantial evidence as reliable as direct evidence. State v.

Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008). The trier of fact may rely

exclusively on circumstantial evidence to support its decision. State v. Jackson, 145 Wn.

App. at 818. Nevertheless, inferences drawn from circumstantial evidence must be

reasonable and cannot be based on speculation. State v. Vasquez, 178 Wn.2d 1, 16, 309

P.3d 318 (2013).

       The controlling statute, RCW 9A.36.041, declares:

              A person is guilty of assault in the fourth degree if, under
       circumstances not amounting to assault in the first, second, or third degree,
       or custodial assault, he or she assaults another.

Because the criminal code does not define assault, our courts apply common law

                                             10
No. 35561-6-III
State v. Sprint


definitions of assault. State v. Abuan, 161 Wn. App. 135, 154, 257 P.3d 1 (2011).

Washington law recognizes three definitions of assault: (1) an unlawful touching with

criminal intent, (2) attempt, with unlawful force, to inflict bodily injury on another, and

(3) placing another in apprehension of harm. State v. Jarvis, 160 Wn. App. 111, 117-18,

246 P.3d 1280 (2011). The State relies on the first definition in the prosecution of

Andrew Sprint. The intent required for assault is simply the intent to make physical

contact with the person, not the intent that the contact be malicious or criminal. State v.

Jarvis, 160 Wn. App. at 119. Sprint cites no decision that requires direct evidence of a

striking of the victim in order to prove an unlawful touching with criminal intent.

       In challenging his conviction, Andrew Sprint seeks to recharacterize some of the

testimony, on which the trial court relied. Sprint contends that he never asked: “What did

papa do?” while on the phone with emergency dispatch. He requests that we accept his

testimony that he said “What does papa do?” RP (Aug. 15, 2017) at 1453. Nevertheless,

the trial court, not us, determines the facts.

       Andrew Sprint further argues that the record containing this disputed statement is

not transcribed and is indecipherable. Sprint cites to page 285 of the report of

proceedings. Sprint correctly notes that the word “(Indiscernible),” appears on that page.

Nevertheless, the 911 call played a second time during the State’s closing argument

clearly broadcasted: “What’s up, little guy? What hurts? What did papa do? What did

papa do?” RP (Aug. 15, 2017) at 1408. Thus, the trial court could reasonably conclude,

                                                 11
No. 35561-6-III
State v. Sprint


based on the evidence, that Sprint asked: “What did papa do?”

       Andrew Sprint, relying on State v. Scanlan, 2 Wn. App. 2d 715, 733, 413 P.3d 82,

reviewed granted, 191 Wn.2d 1026, 428 P.3d 1171 (2018), argues that he made no tacit

admission of guilt when he asked: “What did papa do?” while on the line with 911. In

Scanlan, a police officer testified at trial about a statement wherein the victim’s children

yelled to Theresa Scanlan that “she had just beat her father half to death,” and Scanlan

yelled back, “It’s not that bad.” State v. Scanlan, 2 Wn. App. 2d at 733. The court held

that the defendant’s statement constituted a tacit admission of guilt. Sprint argues that he

made no such similar admission.

       We know of no legal rule that defines what constitutes a tacit admission of guilt or

of any legal test that assists in discerning a tacit admission. Andrew Sprint cites and

proposes no rule or standard. Absent such a rule or test, we defer to the trier of fact as to

what statements of an accused qualify as a tacit admission.

       We note other possible tacit admissions by Andrew Sprint. Sprint answered Justin

Valdez’s question about what caused the injuries: “I can’t say that I did, and I can’t say

that I didn’t.” CP at 45. Sprint, without any solicitation, commented to EMT Kaila

Brownlee: “Great, now I hope nobody thinks I shook my baby.” RP (Aug. 7, 2017) at

167. In his brief, Sprint posits his personal opinion as to why these statements were not

tacit admissions. He provides no citation to authority to support the argument.

       The trial court, as trier of fact, held the prerogative to determine whether Andrew

                                             12
No. 35561-6-III
State v. Sprint


Sprint’s statements constituted nonsensical panicked responses under extreme stress or

whether the remarks acted as tacit admissions of guilt in causing Charles’ serious injuries.

The trier of fact assesses the weight, credibility, and inferences of testimony. State v.

Bencivenga, 137 Wn.2d 703, 708-09, 974 P.2d 832 (1999).

       Andrew Sprint argues that Justin Valdez’s claim that Sprint roughly handled

Charles does not establish that he harmfully touched Charles on April 16, 2014. He

further contends that his own statements to the 911 operator, to Valdez, and to emergency

medical technician Kaila Brownlee did not admit harmful touching.

       While citing State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972), Andrew

Sprint states that a fact cannot rest upon guess, speculation, or conjecture. According to

Sprint, because Valdez did not witness Sprint touch Charles on April 16, Valdez’s

general opinion that Sprint was rough is not evidence of an assault on his child.

Nevertheless, no decision requires direct proof of a harmful touching. Also, we do not

need to decide whether Valdez’s testimony, by itself, constitutes sufficient evidence to

convict. Sprint’s comments to others, his opportunity to harm Charles, and the lack of

other caretakers provides additional circumstantial evidence to convict.

       Finally, Andrew Sprint argues that the findings of fact elucidate a logical flaw in

the court’s conclusions of law. He contends that, without evidence of “what happened,”

the trial court cannot infer a mental state of negligence for assault in the fourth degree.

Sprint emphasizes that the trial court agreed that it would only be guessing that Sprint

                                              13
No. 35561-6-III
State v. Sprint


acted intentionally or recklessly when injuring Charles. In turn, the trial court would also

be speculating whether Sprint acted negligently.

       While the trial court, in its oral ruling and in the findings of fact, commented that

Sprint was “negligent,” the court did not need to find any mental state to convict Sprint of

assault in the fourth degree. Unlike the requisite mental state that a defendant must

intentionally or recklessly cause injury for an assault in the first and second degree, the

intent required for assault in the fourth degree is simply the intent to make physical

contact with the person, not the intent that the contact be a malicious or criminal act.

State v. Jarvis, 160 Wn. App. at 119 (2011).

       Ample evidence supports that Andrew Sprint had frequent physical contact with

Charles and harmfully touched Charles. Charles was in Sprint’s sole custody for the

majority of the days leading up to the 911 call, and even Sprint’s medical expert could

not rule out abusive head trauma.

       Andrew Sprint’s trial court needed to rely heavily on circumstantial evidence. The

court noted that only two people witnessed the conduct of Sprint: Sprint and Charles,

who could not talk or testify. After viewing the evidence and listening to all of the

witnesses, the trial court did not believe Sprint and felt that his testimony was not always

truthful. The trial court, as finder of fact, relied on substantial evidence when convicting

Andrew Sprint.



                                             14
No. 35561-6-III
State v. Sprint


                                Legal Financial Obligations

       Andrew Sprint assigns error to the trial court’s imposition of legal financial

obligations, while arguing that the sentencing court failed to adequately inquire into his

ability to pay under State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). The State

answers that the sentencing court sufficiently inquired into Sprint’s ability to pay

financial obligations. The State also asks that we decline review of this second

assignment of error because Sprint never objected to imposition of the obligations before

the sentencing court. We exercise our discretion under State v. Blazina, 182 Wn.2d at

832, and address this assignment of error.

       The trial court imposed a $200 criminal filing fee, a $500 crime victim

assessment, a $250 fine, $400 for a court appointed attorney, and a $100 probation fee,

for a total of $1,450 in legal financial obligations. The court later imposed $30,021.55 in

restitution.

       Andrew Sprint mistakenly labels the $250 fine as a discretionary legal financial

obligation subject to his ability to pay. We disagree. This court has held that “a fine is

not a court cost subject to the strictures of RCW 10.01.160(3) and the trial court is not

required to conduct an inquiry into the defendant’s ability to pay.” State v. Clark, 191

Wn. App. 369, 376, 362 P.3d 309 (2015). Therefore, we affirm the $250 fine. We also

affirm the nondiscretionary $500 crime victim assessment.

       The 2018 Washington State Legislature adopted House Bill 1783 that transformed

                                             15
No. 35561-6-III
State v. Sprint


the $200 criminal filing fee into a discretionary legal financial obligation to be imposed

only if the defendant possesses the ability to pay. Our Supreme Court decided State v.

Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018) on September 20, 2018. The decision

declares the statutory amendments found in House Bill 1783 to apply prospectively to

cases on direct appeal at the time the amendment was enacted. State v. Ramirez, 191

Wn.2d at 747. The $400 court appointed attorney fee and the $100 probation fee always

qualified as discretionary legal financial obligations.

       Under RCW 10.01.160(3), the trial court is not authorized to order a defendant to

pay discretionary costs unless he will be able to pay them. Accordingly, “a trial court has

a statutory obligation to make an individualized inquiry into a defendant’s current and

future ability to pay before the court imposes” legal financial obligations. State v.

Blazina, 182 Wn.2d at 830. Notably, “the court must do more than sign a judgment and

sentence with boilerplate language stating that it engaged in the required inquiry.” State

v. Blazina, 182 Wn.2d at 838. The record must reflect that the trial court made an

individualized inquiry into the defendant’s current and future ability to pay, and the court

must consider the defendant’s other debts.

       Andrew Sprint’s sentencing court did not make an individualized inquiry into

Andrew Sprint’s current and future ability to pay. Sprint commented about a possible job

and a current job, but the court did not inquire into Sprint’s income from either job. The

court knew of the high sum of restitution, but the court did not ask about Sprint’s other

                                             16
No. 35561-6-III
State v. Sprint


debts, if any. The trial court appointed public counsel to represent Sprint at trial, and the

court later entered an order of indigency authorizing him to seek review at public

expense. Because the record does not show that the sentencing court made an adequate

inquiry into Sprint's ability to pay, we remand for a new sentencing hearing if the State

chooses not to strike the $200 filing fee, the $400 attorney fees, and the $100 probation

fee. If the State chooses to strike the three financial obligations, Andrew Sprint need not

appear in court for any hearing to strike.

                                      CONCLUSION

       We affirm Andrew Sprint's conviction for fourth degree assault of a child. We

remand to the sentencing court to determine Andrew Sprint's ability to pay discretionary

legal financial obligations.

       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.


                                                  _;j               ~
                                              Fearing~'
WE CONCUR:




                                             17
