### FILED 

### Jan.21, 2016 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 30801-4-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) SIFATIMAS TUTU, ) ) Appellant. ) LAWRENCE-BERREY, 

### J.

- SifaTutu appeals his conviction for first degree rape of
a child. He argues thatthe trial courtviolatedhis rightto a unanimousjuryverdict because it failed to give a PetrichI instruction. 

### Mr. Tutu also argues that the trial court erred in imposing $6,805.66 in discretionary legal financial obligations (LFOs) without making an individualized inquiry into his ability topay. We rejecthis first argument and accepthis second argument. We, therefore, affirm 

### Mr. Tutu's conviction butremand to the trial court for it to make an individualized inquiry into 

### Mr. Tutu's ability topay discretionary LFOs.

1State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruledinparton other grounds byState v. Kitchen, 110 Wn.2d403, 756 P.2d 105 (1988).No.30801-4-III State v. Tutu
FACTS In 2010, Rachell Spears lived in a house with her four children and her thenboyfriend, Daniel.2 Daniel became friends with 18-year-old

### Mr. Tutu, as they were both Sudanese and both spoke Nubian. Mr. Tutu moved in with the family, and stayed in the guest bedroom for several months. 

### Mr. Tutu was close with two ofthe children, sevenyear-old E.B. and six-year-old S.B., and would take the girls to the park, to African parties, and would watch them in the house while other people would drink and smoke. Mr. Tutu had a drug and alcohol problem and, at some point, Ms. Spears kicked him out. Ms. Spears shared custody ofthe children with their father, Ernest, who lived in a different house than Ms. Spears. The children were at their mother's house from August 21,2010 to August 24,2010. During their stay, E.B., S.B., and theirtwo-year-old brother K.B. all slept in the guest bedroom. S.B. and K.B. shared a mattress on the floor, while E.B. slept on a bed in the room. The night ofAugust 24, Ms. Spearsput sticks in the guest bedroom window to prevent Mr. Tutu from entering her house. Nevertheless, at some point in the early evening, Mr. Tutu entered through the window, turned the light off, and situated himself
on the floor in between thebed and themattress. At 8:00 p.m., E.B. and S.B. both went

2Daniel and Ms. Spears were married at the time oftrial. 2No. 30801-4-111 State 

### v. Tutu

to bed. S.B.joined K.B. onthe mattress, and E.B. went to sleep onthe bed. Neither Ms. Spears nor Daniel put the girls to bed, and the lights were already offwhen the girls went into the bedroom. At around 3:00 a.m., Mr. Tutu took S.B.'s blanket. While S.B. was asleep, Mr. Tutureached under S.B.'s nightgown and penetratedher vagina with the middle finger ofhis left hand. S.B. woke up to Mr. Tutu touching her. Mr. Tutu rolled S.B. from the mattress and ontop ofhim. Mr. Tutu then penetrated S.B.'s anus withhis penis. Fromher bed, E.B. saw Mr. Tutu touch S.B. with his hand. S.B. wentbackto sleep. When S.B. woke up in the morning, Mr. Tutu was asleep on the floor. The morning ofAugust 25, Ms. Spears woke up and found Mr. Tutu sitting onher couch in her front room. Ms. Spears told Mr. Tutu to leave. She checked the guest bedroom window, and the sticks shehad used to barricade the window were gone. Later in the day, Ms. Spears' sister, Andrea Connet, cameto the house and drove E.B. and S.B. to the fair. Ms. Connetnoticed E.B. smelled like smoke and was concerned about the children's home environment, so she asked E.B. ifshe had a place to sleep at night. In answering Ms. Connet's question, E.B. disclosed that Mr. Tutu slept with S.B. on S.B.'s mattress. Ms. Connet then questioned S.B. S.B. pointed to herpubic area and said that Mr. Tutu touched herthere.



### 3No.30801-4-III State 

### v. Tutu
Ms. Connettold herhusband about S.B.'s disclosure, and Ms. Connet's husband told S.B.'s father, Ernest. Ernestwentto the police station and filed a report the next day. When Ernest asked S.B. whathappened, S.B. told himthat Mr. Tutuputhis finger in her vaginabut did not describe any other contact. Ernesttook S.B. to Kids Haven the next week, where a child interviewer, MariMurstig, interviewed her. S.B. described howMr. Tutu touched herunderneath her underwear, and also marked her buttocks and Mr. Tutu's penis on body maps. Detective Mary Buchan watched S.B.'s interview at Kids Haven and determined she needed to interview Mr. Tutu. In the interview, Mr. Tutu saidhe was drunk and high thatnight. He admitted to Detective Buchan that he had a sexual encounter with S.B. and that he putthe middle finger ofhis left hand in her vagina. 

### Mr. Tutu acknowledged that he rolled S.B. from the mattress and on top ofhim, but denied that anything else happened. Based onthis information, the State chargedMr. Tutu with first degree rape of
a child underRCW 9A.44.073. Attrial, S.B. testifiedthat Mr. Tutu penetratedher vaginawith his finger and penetratedher anus with his penis. Ms. Murstig corroborated S.B.'s testimony withthe body map diagramsfrom Kids Haven. E.B. testified she saw Mr. Tututouch S.B. "[o]n herprivates," but did not describe any other conduct. Report ofProceedings (RP) at 268.
4No. 30801-4-111 State 

### v. Tutu
Mr. Tutu also testified at trial. He testified he is from Khartoum, Sudan, and that a military commandertook him and his twobrothers away from theirparents when Mr. Tutu was four years old, and the commander forced them to fight in the Sudanese civil
war. Both ofMr. Tutu'sbrothers died in the war. When Mr. Tutu was 10 years old, he escaped backto his parents' home in Khartoum. Mr. Tututhen fled to Egypt, lived there for several years, and eventually came to the Tri-Cities when he was 12 years old. Mr. Tutu testified he did notremember the weekend in August 2010 thatprecipitatedthis case, denied being in Ms. Spears' house that night, and also could not really remember talkingto Detective Buchan. During closing arguments, the prosecutor argued to thejurythat it could convict Mr. Tutu based onwhenhepenetrated S.B.'svagina withhis finger orwhen he penetrated S.B.'s anus withhis penis. The State did not elect the specific act on which thejury shouldrely in its deliberation nor did the trial court give a Petrich instruction. ThejuryconvictedMr. Tutu. Thetrial court sentencedhimto 103 months to life. The trial court also imposed a $500.00 fine and $7,605.66 in costs, for a total of $8,105.66 in LFOs. Ofthat sum, $6,805.66 were discretionary costs, including a $4,248.54 special costs reimbursement, a $2,100.00 court-appointed attorney fee, a $250.00jurydemand fee, a $147.l2 witness fee, and a $60.00 sheriffs service fee. The


### 5No.3080J-4-III 

### State v. 

### Tutu judgment and sentence contained the following boilerplate language: "thedefendant has the ability or likely future ability to paythe legal financial obligations imposed herein." Clerk's Papers (CP) at 40. The trial court did not markthe box next to this boilerplate language. The trial court also did not inquire into Mr. Tutu's ability topaythe LFOs. 

### Mr. Tutu did not object to the LFOs atthe sentencing hearing. This appeal followed. On December 3,2013, this court stayed this appeal pending the Washington Supreme Court's decision in 

### Blazina. 3 On April 16, 2015, this court lifted the stay. ANALYSIS 

### 1. Whether the lack of a unanimity instruction deprivedMr. Tutu of his right to a unanimousjuryverdict The Washington Constitution gives criminal defendants the right to a unanimous jury verdict. CONST. art. I, 

### §21. In cases where the State presents evidence ofmultiple criminal acts and anyone ofthese acts could constitute the crime charged, thejury must unanimously agree on the same actthat constitutes the crime in orderto convict the defendant. 

### Petrich, 101 Wn.2d at 572. To ensurejury unanimity in "multiple acts" cases, "eitherthe State [must] elect the particular criminal act upon which it will rely for conviction, or ... the trial court [must] instructthejury that all ofthem must agree that the same underlying criminal acthas been proved beyond a reasonable doubt." 

### State v.

3

### State v. 

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

### 6No.30801-4-III State 

### v. Tutu Kitchen, 110 Wn.2d 403,411, 756 P.2d 105 (1988). Constitutional error occurs ifthere is
no election and no unanimity instruction is given. State v. Bobenhouse, 166 Wn.2d 881, 893,214 P.3d 907 (2009). The error stems from the possibility that somejurorsmay have relied on one act as the basis for convicting the defendant and otherjurorsmay have relied on a different act, resulting in a lack ofunanimity on all ofthe elements necessary for a valid conviction. Kitchen, 110 Wn.2d at 411. However, an exception exists when the evidence shows the defendant was engaged in a '" continuing course ofconduct.'" State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quotingPetrich, 101 Wn.2d at 571). In this situation, neither an election nor
a unanimity instruction is required. Id. In determining whether the evidence supports multiple criminal acts or a continuing course ofconduct, this court evaluates the facts in a
commonsense manner considering (1) the time that elapsed between the criminal acts; and (2) whether the different acts involved the sameparties, the same location, and the
same ultimate purpose. State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). "[W]herethe evidence involves conduct at different times and places, then the evidence tends to show'" several distinct acts.'" Handran, 113 Wn.2d at 17. Importantly, when a defendant's actions constitute a continuing course ofconduct, "aunanimousjuryverdict would not be required as to each incident
... during this shortperiod oftime; instead, the
7No. 30801-4-111 State v. Tutu jurywould only need to be unanimous in its determinationthatthe conduct occurred." State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991). InHandran, Me. Handran climbedthrough the window ofhis ex-wife's apartment, leaned over her, and kissed herwhile hewas nude. Handran, 113 Wn.2d at 12. She askedhimto leave, but instead Mr. Handran pinnedher down and hit her in the face. 

### Id. The State charged Mr. Handranby amended information with first degree burglary, but didnot electwhich assault was thepredicate for the charge, and thejurywas not given an instructionrequiring itto be unanimous in determining a particular assault occurred. Id. at 12-13. Thejury found Mr. Handran guilty, and Mr. Handran appealed. Id. at 13. After noting that Me. Handran's alleged criminal conductoccurred in one place during a short period oftime with the same victim and aggressor, the court concluded, "Under a
commonsense evaluation ofthese facts, the actions evidence a continuing course of conductto secure sexual relations with his ex-wife
...rather than several distinct acts." 

### Id. at 17. The court accordingly rejected Mr. Handran's argumentthatthetrial court should have issued a unanimity instruction. Id. at 17-18. Here, the evidence does not indicate thatMr. Tutu's attack on S.B. in herbedroom
was a series ofmultiple distinct acts. While in S.B.'s bedroom, Mr. Tutupenetrated S.B.'s vaginawith his finger andthen subsequently penetrated S.B.'s anus with his penis.
8No.30801-4-II1 

### State v. 

### Tutu
Similar to the defendant's conduct in 

### Handran, Mr. Tutu's criminal acts occurred moments apart, occurred in one location, and involved the same victim. Moreover, Mr. Tutu committed both acts to further the same ultimatepurpose ofachieving sexual gratification. Under a commonsense evaluation ofthe facts, Mr. Tutu's actions constituted a continuous course ofconduct and, therefore, neither an election nor a 

### Petrich unanimity instruction was required. We conclude that Mr. Tutu was not deprived of juryunanimity. 

### 2. Whether the trial courterredin imposingdiscretionaryLFOs Whenever aperson is convicted, the trial court "may order the payment ofa legal financial obligation" as part ofthe sentence. RCW 9.94A.760(1); 

### accord RCW 10.01.160(1). By statute, the trial court is not authorized to order a defendantto pay costs unless he or she is orwill be able topay them. RCW 10.01.160(3). 

### In determiningthe amount and method ofpayment ofcosts, the trial court shall take account ofthe financial resources ofthe defendant and the nature ofthe burden thatpayment of costs will impose. RCW 10.01.160(3). Accordingly, "atrial courthas a statutory obligation to make an individualized inquiry into a defendant's current and future ability to pay before the court imposes LFOs." 

### Blazina, 182 Wn.2d at 830.

9No.30801-4-II1 State v. Tutu Importantly, "the court must do more than sign ajudgment and sentence with boilerplate language stating that it engaged inthe required inquiry." Jd. at 838. Therefore, "[t]he record must reflect thatthe trial court made an individualized inquiry into the defendant's current and future ability to pay."4 Jd. However, neither RCW 10.01.160 northe Constitution "'requires atrial courtto enter formal, specific findings regarding a defendant's abilityto pay [discretionary] courtcosts.'" State v. Lundy, 176 Wn. App. 96, 105,308 P.3d 755 (2013) (alteration in original) (quotingState


### v. Curry, 118 Wn.2d 911,916,829 P.2d 166 (1992)). "Thetrial court's determination 'as to the defendant's resources and ability topay is essentially factual and should be reviewed under the clearly erroneous standard.'" State v. Bertrand, 165 Wn. App. 393, 404 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991)). A finding offact is clearly
erroneous when, '" although there is some evidenceto support it, review ofall ofthe evidence leads to a "definite and firm conviction that a mistake has been committed."'" Lundy, 176 Wn. App. at 105 (quoting Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113 (2007)).
4Although courts have little guidanceregarding what counts as an "individualized inquiry," Blazina makes clear, at a minimum, the sentencing court "must also consider important factors
... such as incarceration and a defendant's other debts, including 10No.30801-4-III State v. Tutu
"A defendant who makes no objectionto the imposition ofdiscretionary LFOs at sentencing is not automatically entitledto review." Blazina, 182 Wn.2d at 832. Subject to three exceptions which do not apply here, RAP 2.5(a) provides that an "appellate court may refuse to review any claim oferror which was not raised in the trial court." In Blazina, the Washington Supreme Courtrecently confirmed an appellate court's discretion under RAP 2.5(a) extends to review ofa trial court's imposition of discretionary LFOs. Blazina, 182 Wn.2d at 834-35. A. Whether this courtshouldexercise its discretion underRAP2.5 andreview Mr. Tutu's un preservedLFO challenge UnderBlazina, each appellate court is entitled to "make its own decision to accept discretionary review" ofunpreserved LFO errors. Id. at 835. Admittedly, thejudges of this court are not in agreement as to what extent discretion should be exercisedto review unpreserved LFOs. An approach favored by the author is to considerthe administrative burden and expense ofbringing a defendant to court for a new hearing, versus the likelihood thatthe discretionary LFO result will change. 

### "An important consideration of this analysis is the dollar amount ofdiscretionary LFOs imposedby the sentencing court." State v. Arredondo, No. 30411-6-III, 2015 WL 5511574, at *13 (Wash. Ct. App. Sept. 17, 2015). restitution, when determining a defendant's ability to pay." Blazina, 182 Wn.2d at 838. 

### 11No. 30801-4-111 State v. Tutu Here, the trial court imposed both mandatory and discretionary LFOs. The mandatory LFOs included the $500 victim assessment, $200 criminal filing fee, and the $100 deoxyribonucleic acid (DNA) collection fee. See RCW 7.68.035(1)(a); RCW 36.18.020(2)(h); RCW 43.43.7541. These mandatory LFOs are required irrespective ofMr. Tutu's ability to pay. Lundy, 176 Wn. App. at 103. However, the $4,248.54 special costs reimbursement, $2,100.00 court-appointed attorney fee, $250.00 jurydemand fee, $147.12 witness fee, and $60.00 sheriffs service fee are all discretionary LFOs.5 See RCW 10.01.160(2) (authorizing "expenses specially incurred by the state in prosecuting the defendant"); RCW 36.l8.016(3)(b) (stating that a $250jury demand fee maybe imposed upon conviction). The discretionary LFOs equal $6,805.66. The trial court authorized "$50.00 permonth to betaken from any income [Mr. Tutu]
eams while in the custody ofthe Department ofCorrections." CP at 42. A new sentencinghearing is likely to change the LFO result. The trial court found that Mr. Tutu was indigent and thus qualified for publicly funded counsel both for trial and on appeal. He testified he fled from Sudan to the United States to escape the
5The trial court also imposed a $500 fine under RCW 9A.20.021. This division recently decided that a trial court may impose fines under RCW 9A.20.021 without inquiring into a defendant's ability to pay. See State v. Clark, 362 P.3d 309,312 (2015); see also State v. Calvin, 176 Wn. App. 1, 25, 316 P.3d 496 (20l3), review granted in part, remanded, 183 Wn.2d 1013,302P.3d 509 (2015). 12No. 30801-4-111 State v. Tutu
Sudanese civil war, in which he was forced to be a child soldier. Although Mr. Tutu testified that he wentto school when he first came to the United States when he was 12 years old, he never testified that he ever finished school, and there was no evidence he has any workhistory orjob skills. He declared in an affidavit, "I am unemployed
... 1have
no assets, no real property, no stocks, no bonds." Notice ofAppeal, Aff. ofDef. in Support ofMotion for Order oflndigence. Therefore, considering both the likelihood that a new sentencing hearing would change the LFO result and the $6,805.66 in discretionary LFOs at issue here, this court concludes it should exercise its discretion under RAP 2.5(a) andreview Mr. Tutu'sunpreserved LFO challenge. B. Whether the trialcourterredin imposing $6,805.66 in discretionaryLFOs without inquiring into Mr. Tutu's ability topay Mr. Tutu contends that the trial court never checked the available box on the judgment and sentence indicating that "thedefendant has the ability or likely future ability to pay the legal financial obligations imposed herein," and therefore the trial court erred in imposing discretionary LFOs.6 CP at 40. The fact that the trial court did not checkthis box is wholly irrelevant for purposes ofthis appeal. While ability to pay is a
6Although the trial court did not check the boxindicating thatMr. Tutu hadthe ability to pay, the fact that the trial court imposed discretionary LFOs indicates that this was likely a scrivener's error. The remedy for clerical or scrivener's errors injudgment and sentence fonns is remand to the trial court for correction. ·State v. Naillieux, 158 Wn. 13No.30801-4-III State v. Tutu
necessary threshold to the imposition ofcosts, "[n]eitherthe statute northe constitution requires a trial court to enter formal, specific findings regarding a defendant's ability to pay." Curry, 118 Wn.2d at 916. "The boilerplate finding is therefore unnecessary surplusage." State v. Calvin, 176 Wn. App. I, 25, 316 P.3d 496 (2013), reviewgranted in part, remanded, 183 Wn.2d 1013,353 P.3d 640 (2015). However, what is required before a trial court imposes LFOs is an individualized inquiry on the record. See Blazina, 182 Wn.2d at 838. Here, the record ofthe sentencing hearing does not reveal the presentation or consideration ofany information about Mr. Tutu'spresent or future ability to pay. Moreover, Mr. Tutu nevertestified that he completedhis education, has work experience,
or has any othertenable basis for which LFOs might be imposed. Accordingly, the record does not showthe trial court sufficiently considered Mr. Tutu's financial resources and ability to pay before it imposed $6,805.66 in discretionary LFOs. This courttherefore remands this case to the trial court with instructions to conduct an individualized inquiry into Mr. Tutu'spresent and future ability topay.? App. 630, 646-47, 241 P.3d 1280 (2010). ?Mr. Tutu also argues that the trial courtviolated his due process rights by imposing arbitrary amounts ofLFOs and there is no evidence in the record thatprovides a factual basis for these expenses ortheir relationship to this case. Because we determine thatremand is appropriate, we elect not to review this issue as it may be moot. 14No. 30801-4-111 State v. Tutu
Affirmed in part and remanded. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, butitwill be filed for public record pursuantto RCW 2.06.040. 

## j 1CONCUR:

1530801-4-111 SIDDOWAY, C.J. (dissenting in part)

- Sifa Timas Tutu did not object when discretionary legal financial obligations were imposed at the time ofsentencing. 1would follow the general rule and decline to consider his challenge for the first time on appeal for the reasons set forth in State v. Duncan, 180 Wn. App. 245, 327 P.3d 699 (2014), review granted, 183 Wn.2d 1013 (2015) and in my concurring opinion in State v. MunozRivera, 361 P.3d 182, 194-95 (2015). 1otherwise concur in the majority opinion.

# ~~tu~,**~if=** Siddoway, C.J.