### FILED MARCH 2, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. TRAVIS LEEP ADGETT, Appellant. ) ) ) ) ) ) ) ) ) No. 32927-5-111

UNPUBLISHED OPINION

SIDDOWAY, J. -TravisPadgettwas given an exceptional aggravated sentence of 360 months ofconfinement after ajury found him guilty of 11 sexual crimes committed against 3 young teenagers, including his own 14-year-old son, and ofdelivery of methamphetamineto 2 ofthe teens. He makes 19 assignments oferrorinhis briefand in
apro se statement ofadditional grounds. The evidence thatMr. Padgett delivered methamphetamineto his son is insufficient, so we reverse that conviction. We also remand for the trial courtto address two clerical errors and one oversight committed at sentencing. We otherwise affirm. FACTS AND PROCEDURAL BACKGROUND The underlying facts are knowntotheparties and disturbing details are irrelevant to this appeal. In January 2013, 6 months after Travis Padgettwas awarded custody of

### No. 32927-5-111 State v. Padgett
his then 14-year-old son, Henry M., 1Henry contacted his motherto say that Mr. Padgett
was using drugs and he wanted to run away. Henry's mother contacted Yakimapolice, and a patrol officerput Henry in touch with his school resource officer. Given the seriousness ofwhat Henry reported to the resource officer about not only drug use, but sexual abuse, she promptly took Henry to speak with Curtis Oja, a detective with the department's special assault unit. In an hour-long interview, Henry told Detective Oja about his father's drug use and about Henry's sexual contact withhis father and his father's female guests. Based on Henry's disclosures, the detective obtained a search warrant for Mr. Padgett'shome that officers executedthat evening. In the course ofthe search, police officers found sextoys and devices in an ottoman and utility room, along with a wadded up shower curtain. Attached to the four bedposts ofMr. Padgett's bed were industrial hooks, later testified to being used for bondage. Officers found no evidence ofdrugs or drug use. Officers executing the search warrant also encountered a 14-year-old girl, Candace S., in the home. Candace had met Mr. Padgettthrough her friend, who Candace said was Mr. Padgett's methamphetamine dealer. Candace had been at Mr. Padgett's home for

1 "HenryM.," "Jack J.," and "Candace S." are pseudonyms for thejuvenile victims ofMr. Padgett's crimes. See General Order ofDivision III, In re Use of Initials orPseudonyms/or Child Victims or Child Witnesses (Wash. Ct. App.), http://www.courts.wa.gov/appellate_ trial_courts/. 

### 2No. 32927-5-III State v. Padgett

two days, had engaged in oral sex during thattime with Mr. Padgett and an adult female friend, and had ingested methamphetamineprovidedby Mr. Padgettwithin a halfhour before the search warrantwas executed. She agreed to travel to the police departmentto be interviewed by DetectiveMichael Durbin, and based ontheir interview, the detective had another officertransport herto the hospital for a sexual assault examination. Several days afterthe search, Detective Ojawas contactedby a family member of Jack. J, a friend ofHenry's. The family member learned ofMr. Padgett's arrest andknowing Jack spenttime at the Padgett home-was concerned he might have been sexually assaulted. Detective Oja interviewed Jack onJanuary 22, 2013. The State filed initial charges against Mr. Padgettthe next day. Trial was delayed by the granting offour continuances, all made orjoined in by defense counsel, but over Mr. Padgett'spersonal objections. A little over2 months before a continuedtrial date ofOctober 7, 2013, the State amended its information to include the following 14 charges, involving the following victims: Crimes against Henry: Three counts ofthird degree rape ofa child (counts 1, 3, and 5); Three counts offirst degree incest (counts 2, 4, and 6); and One count ofdistributing a controlled substance to a minor (count 8).

3No. 32927-5-111 State v. Padgett

Crimes against Candace: One count ofcommunicatingwith a minor for immoral purposes (count 7); and

Crimes against Jack:

Clerk's Papers (CP) at 14-19. One count ofdistributing a controlled substance to a minor (count 9). Three counts ofthird degree child molestation (counts 10, 12, and 14); Two counts ofthird degree rape (counts 11 and 13).

Three days before trial was finally setto begin, Mr. Padgett's defense lawyer moved for a further continuance based in part onreceiving, only a weekbefore, results of court-ordered testing ofa DNA2 sample from Mr. Padgett and the shower curtain collected in the search ofMr. Padgett's home. The testing had beenrequested and ordered in August. Thetrial court denied a further continuance. Duringtrial, both Henry and Jack testified to multiple sexual encounters they had with Mr. Padgett. Henry testified to many more incidents than the number ofcounts charged, telling thejurythathis father had sexwith him "pretty much every day." Report ofProceedings (RP)3 at 763. Henry also testified to using methamphetamine provided by his father. He

2Deoxyribonucleic acid. 3 Except as otherwise indicated, citations to the report ofproceedings and "RP" are to the consecutively-numbered 10 volumes ofproceedings that begin withpretrial motions on October 7, 2013, and conclude withthe sentencing hearing on November 21, 2014. 4No. 32927-5-III State v. Padgett
testified thatMr. Padgett first gave it to him in a cup, telling him to lick the bottom ofthe cup, which was the meth, and that it "tasted really gross." RP at 780-82. Henry described feeling "full ofenergy" after licking the rocks, andtestified that he stayed up until 9:00 a.m., engaging in sexual contact with his father. RP at 783. Hetoldjurors that
on later occasions, he smoked methamphetamine with his father, using whathe described
as "atube sticking out ofa ball," but "itdidn'treally feel like you were smoking anything." RP at 806. The State offered experttestimony on DNAtesting ofthree dildos collected during the search ofMr. Padgett's home, each ofwhich contained DNAthat was a match for Mr. Padgett. One was a potential match for Henry. Trial evidence ofthe crimes committed against Candace included hertestimony and that ofDr. WyattRivas, the emergency room physicianwho treated her when she
was broughtto the hospital by police officers. Hetestified that she reported a history of drug use including methamphetamine, marijuana, mushrooms, and cocaine. Over a defense objection, he testified thathe ordered a drug screen ofa urine sample that tested positive for methamphetamine. The technician who conductedthe urine sample did not testify.To the extentthe 14 counts involved a charge ofthe same crime againstthe same victim (e.g., the instructions on counts 1, 3, and 5, charging the third degree rape of Henry) the to-convict instructions given thejury were, for the mostpart, identical. In 5

### No. 32927-5-111 State v. Padgett closing argument, the prosecutor identified forjurors the conduct being alleged as the basis for each count. Thejuryreturned guilty verdicts on all counts except count 14. On counts 1 through 6 (rape and incest involving Henry), thejuryreturned special verdicts finding that each crime (1) was part ofan ongoingpattern ofsexual abuse ofthe same victim under the age of 18 years, and 

### (2) was an aggravated domestic violence offense. On counts 10 through 13 (molestation and rape involving Jack), thejuryreturned special verdicts making the same ongoingpattern ofsexual abuse ofa minor finding made on counts 1through 6. The trial court imposed an exceptional sentence of360 months. It later entered written findings and conclusions in which it found that "any one aggravating factor found by thejury and/or the operation ofthe multiple offense policy" provided substantial and compelling reasons tojustifythe exceptional sentence. CP at 

### 497. Finally, the trial court imposed a total of$1,750 in legal financial obligations (LFOs). 4 Mr. Padgett made no objection. While thejudgment and sentence included a boilerplate finding that Mr. Padgett had the ability to pay the LFOs, the court did not inquire on the record into Mr. Padgett's existing orprojected financial circumstances.

4 They comprised a $500 crime penalty assessment, a $100 DNA collection fee, a $200 criminal filing fee, a $600 court appointed attorney recoupment fee, a $100 domestic violence assessment, and a $250jury fee. 6No. 32927-5-III State v. Padgett
Mr. Padgett appeals. ANALYSIS Mr. Padgett makes 17 assignments oferror on appeal, which can be grouped into eight categories: he argues (1) insufficient evidence supports the two convictions for delivery ofa controlled substance, (2) evidence ofCandace's drug screen was nonadmissible hearsay that did not qualify for the business record exception and its admission violated his constitutional confrontation rights, (3) because identical to-convict instructions were used for multiple counts, he was exposed to doublejeopardy, (4) the trial court's instructions on the "ongoingpattern ofsexual abuse against a minor" aggravating factor was an unlawful comment on the evidence and relievedthe State ofits burden ofproof, (5) aggravated domestic violence is an alternate means factor and the State failed to present sufficient evidence to establish each means, (6) the trial court entered an unsupported finding ofability to pay LFOs, (7) the felonyjudgment and sentence andwarrant ofcommitment contain clerical errors, and (8) the trial court engaged in impermissiblejudicial fact-finding in imposing an exceptional sentence. We address Mr. Padgett's arguments in the categories and in the order set forth above. I. Sufficiency of evidence: delivery of a controlledsubstance Mr. Padgett claims there was insufficient evidence for thejuryto find beyond a reasonable doubt that he gave methamphetamine to Henry and Candace. In Henry's case, he contends that no experttestimony identifiedthe substance provided and Henry was too 7No. 32927-5-III State v. Padgett inexperiencedto reliably identify the substance as methamphetamine. In Candace's case, he contends there was insufficient evidence the methamphetamine she consumed in the days before the search was provided by him. In connection with both arguments, he points out that no drugs or evidence ofdrug use was found in the search ofhis home and that Jack and two other ofHenry's friends testified they never saw drugs or drug use in the home. When presented with an evidence sufficiency challenge, we examine "whether, afterviewing the evidence in the light most favorable to the State, any rational trier of fact could have found guiltbeyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Aclaim ofinsufficiency admits the truth ofthe State's evidence and all inferences thatreasonably can be drawn therefrom." Id. We deferto the trier offact on issues involving conflictingtestimony, credibility ofthe witnesses, and the persuasiveness ofthe evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). In State v. Colquitt, 133 Wn. App. 789, 801, 137 P.3d 892 (2006), this court provided nonexclusive examples ofevidence that should be considered in determining whether the State has met its burden ofestablishing that the substance delivered by a defendant was a controlled substance: (1) testimony by witnesses who have a significant amount ofexperience withthe drug in question, so that their identification ofthe drug as the same as the drug in their past experience is highly credible; (2) corroborating 8No. 32927-5-111 State v. Padgett testimony by officers or other experts as to the identification ofthe substance; (3) references made to the drug by the defendant and others, either by the drug's name or a slang term commonly used to connote the drug; (4) prior involvement by the defendant in drug trafficking; (5) behavior characteristic ofuse orpossession ofthe particular controlled substance; and (6) sensory identification ofthe substance ifthe substance is sufficiently unique. Mr. Padgett claims the evidence in this case is comparable to that in Colquitt, which was found to be insufficient. Mr. Colquitt was convicted ofpossession ofcocaine based on substance identification evidence consisting ofthe arresting officer's statement that the substance appeared to be rock cocaine and a field test that was positive for cocaine. Id. at 794. Without evidence that the officerhad any experience and training enabling him to reliably identify the drug, the appellate court characterized the officer's identification as appearing to be pure conjecture. Id. at 800-02. The State counters thatthis case is more like In re PersonalRestraint of Delmarter, 124 Wn. App. 154, 101 P.3d 111 (2004), in which the court held that a positive field testby an officer, and a defendant's admission thatthe substances were heroin and cocaine were sufficientto uphold the defendant's convictions for possession ofthose substances. We agree with Mr. Padgettthat the State's evidence identifyingthe substance providedto Henry as methamphetamine is more like the evidence in Colquitt. Unlike in Delmarter, Mr. Padgett never confessedto giving Henry methamphetamine nor was any ofthe substance he provided available to be field tested. The State offered only Henry's 9No. 32927-5-111 State v. Padgett testimony that the substance was "meth"; that the first meth provided looked "white like little rocks," tasted "gross," and acted as a stimulant, causing him to stay awake all night; that he had seen Mr. Padgett use the drug intravenously; and that he had smoked the substance, wrapped in tinfoil, using a tube sticking out ofa ball. RP at 780, 782. Absent evidence that Henry had any prior experience enablinghim to recognize methamphetamine or experttestimony that his observations ofthe substance's appearance, use, and effects were consistent with methamphetamine, the State's evidence is insufficient to establishthe substance provided by Mr. Padgett was methamphetamine. Mr. Padgett's conviction on that count mustbe reversed. By contrast, Candace's testimony about her drug use and her friendship with Mr. Padgett's meth dealer, herreference to "all the rehabs" she had attended, and the history she providedto Dr. Rivas, established a basis on which she could reliably identify the drug provided to her as methamphetamine. 5 RP at 1094. Mr. Padgett's challenge to his conviction for delivery ofthe substance to Candace focuses on whathe contends was the State's failure to prove that he provided the drug to her. ButCandace testified as follows at trial:Q.
. .. [W]hy were you at Travis'? A. Because he had meth. Q.
. .. [H]e had meth. Did Travis give you meth?
5The drug screen (whose admission we uphold below) is not necessary to establish Candace's ability to recognize the drug, but corroborates her testimony that she smoked methamphetamine with Mr. Padgett before police arrived to execute the warrant. 10No. 32927-5-111 State v. Padgett
A. Yeah. RP at 1094. After establishingthe time frame, the questioning continued: Q.
. .. [Y]ou said that you wentthere because he had meth. Just for the record, when you say meth, is thatmethamphetamine? A. Yeah. Q. Was there any otherreason why you were there? A. No. RP at 1095. Aftertestifying that she had been at Mr. Padgett's home for two days when officers arrived to execute the searchwarrant, she answeredthe following questions: Q.
. ..Now, whenthe defendant, Mr. Padgett, gave you the meth, was that on one time or more than one time when youwere there? A. More than one time. Q. Doyou knowhow many times he gave you meth? A. No. RP at 1095-96. Finally, she was asked about when she lastused methbefore the officers arrived to execute the search warrant: Q.
. .. Hadyouhad any meth before the police came over? A. Oh, yeah. Q. All right. And do you know about how much longer it was when the last meth was? A. Like a halfanhour maybe. RP at 1098. Viewing this testimony in the light most favorable to the State, and deferring to thejurors' determinations about credibility and the persuasiveness ofthe evidence, the State did notneed to support Candace's testimony with other evidence. Hertestimony
was sufficientto establish thatMr. Padgettprovidedherwith methamphetamine. 11No. 32927-5-111 State v. Padgett
II. Admission of Candace's drug screen Before calling emergency physician Rivas as a witness, the State, outside the presence ofthejury, asked the courtto rule on the admissibility ofthe drug screen he ordered, which tested positive for methamphetamine. The State represented that Dr. Rivas would lay the foundation to admit the drug screen as a business record. The defense objected that the record was a hospital record, not Dr. Rivas's record, and that the proper custodian was the person who created the record, not the doctor. The defense also complained that the drug screen was "testimonial." CP at 1180. The trial court ruled the drug screen admissible subjectto the State laying the proper foundation for the business record exception, citing State v. Garrett6for support. Hearsay is inadmissible unless it falls within an exception. ER 802. The Uniform Business Records as Evidence Act, RCW 5.45.020, provides an exception for business records because they "arepresumptively reliable ifmade in the regular course ofbusiness and there was no apparent motive to falsify." State v. Ziegler, 114 Wn.2d 533, 538, 789 P.2d 79 (1990). For evidence to be admissible under the act, the business record must (1) be in record form, (2) be ofan act, condition or event, (3) be made in the regular course ofbusiness, (4) be made at or near the time ofthe act, condition or event, and (5) the court must be satisfiedthatthe sources of information, method, and time ofpreparationjustifythe admittance ofthe evidence.

6 76 Wn. App. 719, 887 P.2d 488 (1995). 12No. 32927-5-111 State v. Padgett
Id. A trial court's decision admitting or excluding such records "is given much weight and will not be reversed unless there has been a manifest abuse ofdiscretion." Cantril! v. Am. MailLine, 42 Wn.2d 590,608,257 P.2d 179 (1953). Our Supreme Courtheld in 1953 that "[a]s applied to hospital records, compliance with the act obviates the necessity, expense, inconvenience, and sometimes impossibility ofcalling as witnesses the attendants, nurses, physicians, X ray technicians, laboratory and other hospital employees who collaborated to make the hospital record ofthe patient." Id. "Itis not necessary to examine the person who actually createdthe record
so long as it is produced by one who has the custody ofthe record as a regularpart ofhis work or has supervision ofits creation." Id. In later cases, our Supreme Courthas held that aphysician can lay the foundation for laboratory tests where they are included in a medical file in the custody ofthe physician's clinic, clinic personnel ordered the tests and rely on the lab'stestresults in treating patients, and the physician is familiar with the laboratory and its testing procedures. Ziegler, 114 Wn.2d at 539-40. This court has rejected any requirement thatthe foundation for a medical record be laid by someone who supervises the individual who contributed a record to a patient's medical file. Garrett, 76 Wn. App. at 725. In Garrett, the appellate courtheld that a patient'streating physician could lay the foundation to admitrecords ofan emergency room visit at which the treating physician was notpresent. Id. Because the medical reports were signed and

13No. 32927-5-III State v. Padgett
dated by the individuals who made them, the time oftheirpreparation relative to the events recorded was demonstrated. Id. Here, Dr. Rivas testified that he treated Candace early in the morning on January 18, 2013. He testified thathe ordered a drug screen after learning she hadused methamphetamine the prior day, marijuana in the past week, and two other illicit drugs in the past year, explaining, "I wanted to ascertain what was in her system at thatpoint." RP at 1190. He testified that drug screens are done in the regular course ofbusiness and
are ordered from the emergency room "dozens oftimes a day." RP at 1191. He explained the process for collecting the patient's urine sample used for a drug screen, and how it is transmitted to the hospital's laboratory where it is run through "amachine, an analyzer ofsorts, that detects the various drug levels in the sample." 

### Id. He testified that the process is completed, with results back, within 30 to 40 minutes. The medical chart from which Dr. Rivas testified does not appearto have been offered as an exhibit,7 but he mentioned twice thathe hadthe medical chart with him on the witness stand and testified that Candace's drug screen was positive for

7No objection was made at trial to the failure to offerthe record itselfinto evidence, nor does Mr. Padgett attempt to raise an issue on that score for the first time on appeal. See RAP 2.5(a).

14No. 32927-5-111 State v. Padgett methamphetamines and marijuana. The foundation was sufficientto establish the business record exception. 8 Mr. Padgett next contends the trial court violated his constitutional confrontation rights when it admitted evidence ofthe drug test without the testimony ofthe technician who conducted the test, but he fails to demonstrate that the drug screenresults were testimonial. "Onlytestimonial statements 'causethe declarant to be a "witness" within the meaning ofthe Confrontation Clause."' State v. Wilcoxon, 185 Wn.2d 324,331,373 P.3d 224, cert. denied,
__U.S.
__ , 137 S. Ct. 580, 196 L. Ed. 2d 455 (2016) (quotingDavis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)). Various formulations ofwhat makes a statement "testimonial" exist; a relatively recent one is that "a statement is testimonial when 'theprimary purpose ofthe interrogation is to establish or prove past events potentially relevant to later criminal prosecution."' State v. Lui, 179 Wn.2d 457,473, 315 P.3d 493 (2014), review granted, 186 Wn.2d 1008, 380 P.3d 504 (2016) (quotingDavis, 547 U.S. at 822). The United

8 Mr. Padgett cites State v. Nation, 110 Wn. App. 651, 41 P.3d 1204 (2002) and State v. Hopkins, 134 Wn. App. 780, 142 P.3d 1104 (2006) in support ofan argument that the technician who conducts a drug screen mustbe identified and testify for its result to be admissible under Washington statutes and courtrules. Neither case is on point. In Nation, an expert's opiniontestimony was excluded because the foundation required by ER703 was not established and the record urged to be a business record failed to comply withrequirements ofa criminal rule, CrR 6.13(b). In Hopkins, the required foundation as to how the record was made-amatter that the appellate court viewed as "potentially very significant"-was lacking. 134 Wn. App. at 789. 15No. 32927-5-111 State v. Padgett
States Supreme Court noted in a footnote in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), that medical reports created for the purpose oftreatment are nontestimonial. Nonetheless, citingMelendez-Diaz andBullcomingv. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)-both ofwhich involved forensic analyses by state crime laboratories-Mr. Padgett argues thatDr. Rivas "was well aware" that any drug test he ordered would become evidence in a criminal investigation, making the results testimonial. Br. ofAppellant at 32. ButDr. Rivas nevertestified thathe ordered the drug screen at the behest ofpolice, or because he personally intended for it to be available for a prosecution purpose, or even, as Mr. Padgett argues, thathe knew it would be used for prosecuting a delivery ofa controlled substance charge. Rather, Dr. Rivas testified that because he was dealing with "a 14-year-old girl who is giving a lot ofthese sort ofhigh-risk behaviors that she's participating in
... I wanted to ascertain what was in her system at thatpoint." RP at 1190. Dr. Rivas's only testimony to his understanding about why police had brought Candace to the hospital was thatpolice were contacted after she revealed to her 17-year-oldboyfriend that a man who "was like 30's, 40 years old, had performed oral sex on her." RP at 1189.9

9 The only evidence ofa police role in the drug screen was Detective Durbin's testimony, unsupported by other evidence, that he ordered officers to take Candace to the hospital not only for a sexual assault examination but also for a drug screen. There was no evidence that Dr. Rivas was aware ofthe detective's intent. 16No. 32927-5-111 

### State v. Padgett
Theresults ofthe drug test were nottestimonial, and the trial court did not violate Mr. Padgett's confrontation right by admitting them. 

### III. Doublejeopardy Where a defendant is chargedwith multiple counts ofthe same crime, vaguejury instructions, coupledwith evidence and argument that fail to make it manifestly apparent that the State is not seekingto impose multiple punishments for a single offense, violate federal and state constitutional guarantees against doublejeopardy. 

### See U.S. CONST. amend. 

### V; WASH. CONST. art. I,§ 

### 9. "A doublejeopardy claim is ofconstitutional proportions and may beraised for the first time on appeal." 

### State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011). When reviewingthis type ofclaimedviolation ofthe constitutional guarantee against doublejeopardy, we engage in a two-step, de novo review. We first consider whetherthejury instructions given were flawed and could have permittedthejuryto convict a defendant ofmultiple counts based on a single act. Id. at 661-63. 

### Ifthe instructions are flawed, wethen examine the entire trial record (the evidence, the arguments, and the instructions)-and do so rigorously, in favor ofthe defendant-to ascertain whetherthere are potentially redundant convictions. Id. at 664. "[I]fit is not clearthat it was 

### 'manifestly apparentto thejurythatthe State [was] not seeking to impose multiplepunishments for the same offense' and that each countwas based on a separate act, there is a doublejeopardyviolation." Id. (second alteration in original) 17No. 32927-5-111 State v. Padgett (quoting State v. Berg, 147 Wn. App. 923, 931, 198 P.3d 529 (2008), overruledon other grounds byState v. Mutch, 171 Wn.2d 646 (2011)). Three instructions givento thejury in this case are relevant. The first, based on 11 WASHINGTON PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL 3.01, at 80 (3d ed. 2008) (WPIC), provided: A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control yourverdict on any other counts. CP at 166 (Jury Instruction 2). It is settled law that this instruction alone is insufficientto safeguard against a violation ofdoublejeopardy, because it does not explain tojurorsthat each "crime" requires proofofa different act. Mutch, 171 Wn.2d at 663 (citing State v. Borsheim, 140 Wn. App. 357, 367, 165 P.3d 417 (2007)). The court inMutch suggested that the separate act requirement can be explained tojurors by "sufficiently distinctive 'to convict' instructions or an instructionthat each count mustbebased on a separate and distinct criminal act." Id. at 662. In Mr. Padgett's trial, a series of jury instructions informedthejury ofthe separate act requirement, e.g.: The State ofWashington alleges that the defendant committed acts ofThird Degree Rape ofa Child on multiple occasions. To convictthe defendant on any count ofThird Degree Rape ofa Child, one particular act, a separate and distinct act, ofThird Degree Rape ofa Child mustbe proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts ofThird Degree Rape ofa Child. 18No. 32927-5-111 State v. Padgett

CP at 175 (Jury Instruction 11); see also CP at 178, 196 (parallel instructions for the first degree incest and third degree molestation counts). The "to-convict" instructions for third degree rape, first degree incest, and third degree molestation repeated the requirement ofa "particular" and "separate and distinct act," e.g.: To convict the defendant on any count ofThirdDegree Rape ofa Child, one particular act, a separate and distinct act ofThird Degree Rape ofa Child must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. CP at 176, 180, 182, 197, 199 (Jury Instructions 12, 16, 18, 33, 35); see also CP at 179, 181, 183, 195,198,200 (parallel instructions for the first degree incest and third degree molestation counts). Mr. Padgett argues that these instructions, even collectively, "failedto make manifestly apparent that each conviction must be predicated on both a separate and distinct act andthat proofofone act cannot support a finding ofguilt on more than one count." Br. ofAppellant at 36. We disagree. No reasonablejurorreading the instructions given in this case could believe, for example, that he or she could find Mr. Padgett guilty ofall ofcounts 1, 2, and 3 based on proofofa single act ofthird degree rape ofa child. The court's instructions protected Mr. Padgett against multiple convictions for a single act.

19No. 32927-5-111 State v. Padgett
Were we not satisfied that thejury instructions were sufficientto protect against doublejeopardy, rigorous review ofthe entire trial record would satisfy us that there could be no doublejeopardyviolation. In closing argument, the prosecutornot only identified the factual basis for each count, but cautionedjurors repeatedly about the need to unanimously agree onthe specific act charged withrespect to each count. See State v. Pena Fuentes, 179 Wn.2d 808,318 P.3d 257 (2014) (finding no doublejeopardy violation where, in closing, the State identified separate, specific acts supporting each count, and the defendant did not challenge the number ofincidents or whetherthey overlapped). Mr. Padgetthas not been punished multiple times for the same criminal act. IV Jnstructionfromformer WPIC 300.17, addressing "prolongedperiodof time " The State's charging documents included special allegations that Mr. Padgett's sexual offenses were "part ofan ongoing pattern ofsexual abuse ofthe same victim under the age ofeighteen years manifested by multiple incidents over a prolongedperiod oftime." CP at 14-19. On the basis ofthat aggravating circumstance, iffound by the jury, the trial court was authorized to impose an exceptional sentence. RCW 9.94A.535(3)(g). The charging documents also included special allegations that Mr. Padgett's sexual offenses against Henry were aggravated domestic violence offenses under RCW 9.94A.535(3)(h)(i), which similarly required thejuryto determine whether the offenses were part ofsuch apattern manifested by multiple incidents over a
20No. 32927-5-III State v. Padgett "prolonged period oftime"-afinding that would similarlyprovide a basis for exceptional sentencing. The court's instructions to thejury included an instruction derived from a former version ofWPIC 300.17 that toldjurors "[t]he term 'prolongedperiod oftime' means
more than a few weeks." CP at 205 (Jury Instruction 40). In State v. Brush, 183 Wn.2d 550, 557, 353 P.3d 213 (2015), our Supreme Courtheld that whether or not a period of time qualifies as "prolonged" is a question offact, and that to instruct thejurythat "'prolongedperiod oftime' means more than a few weeks" unlawfully comments on the evidence in violation ofthe Washington Constitution. Given the court's unlawful instruction, Mr. Padgett asks us to reverse his exceptional sentence andremand with instructions to (ifrequested) impanel ajuryto determine whetherthe evidence established aprolongedperiod oftime underproper instructions. Remand is not required in this case, however, because the trial court identified an independently sufficient basis for imposing an exceptional sentence. We may uphold an exceptional sentence ifany ofthe sentencing court's reasons for imposing the sentence
are valid. State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993). Reversal is only required ifit is not clearwhetherthe sentencing court would have imposedthe same sentence based on valid factors alone. Id. The court's findings in support ofthe exceptional sentence includedthe following:

21No. 32927-5-III State v. Padgett
33. The Defendant's offender score on each count is in excess of9:

CP at 494-95.Count 1: (29); Count 2: (29); Count 3: (29); Count 4: (29); Count 5: (29); Count 6: (29); Count 7: Gross Misdemeanor; Count 8: [(]11); Count 9: (11); Count 10: (29); Count 11: (29); Count 12: (29); Count 13: (29).

Its conclusions oflaw included the following: 2. The Court has the authority to enter an exceptional sentence based upon consecutive sentences on counts. 4. The Defendant's high offender score based upon multiple current offenses would result in some ofthe offenses going unpunished. 5. The Court has the authority to impose an aggravated sentence without a finding offact by thejury under this circumstance. CP at 495. Based on its findings and conclusions, the court ordered "that any one aggravating factor found by thejury and/or the operation of the multiple offensepolicypursuant to RCW9.94A.535(gj£ 10l is sufficienttojustifythe exceptional sentences entered by the Court." CP at 497 (emphasis added). We need not vacate the exceptional sentence, since

10 Given the findings and conclusions, it is evidentthat the court's reference to RCW 9.94A.535(g) is a scrivener's error. RCW 9.94A.535.{ll(g) provides mitigating circumstances where the operation ofthe multiple offensepolicy results in a sentence that is clearly excessive. We infer that the court meant to cite RCW 9.94A.535(2)(c), which provides for an exceptional sentence imposed by the court where the defendant's multiple offenses and high offender score would result in some current offenses going unpunished. A sentencing court's finding ofthis basis for an exceptional sentence does not violate the right to ajurytrial. State v. Alvarado, 164 Wn.2d 556, 567, 192 P.3d 345 (2008). We direct the court to clarify the basis for the exceptional sentence at the time of resentencing. 22No. 32927-5-111 State v. Padgett
it is clearthe court would have imposedthe same sentence on the basis ofthe multiple offensepolicy had it notbeen imposed on the basis ofaggravating circumstances whose proofcould have been affected by the court's unlawful comment on the evidence. V Allegedalternative means of committingaggravateddomestic violence Since we uphold the exceptional sentence onthe basis ofthe multiple offense policy provided by RCW 9.94A.535(2)(c), we need not address Mr. Padgett's argument that the State failed to prove each ofwhat he contends are "alternative means" of committing aggravated domestic violence. VI. LFOs Mr. Padgett argues thatthe trial court erred when it imposed LFOs without conducting an individualized inquiry into his ability to pay. As a preliminary matter, we considerwhetherto acceptreview ofthe issue. Mr. Padgett made no objection to the trial court's finding that he had the present and future ability to pay and thereby failed to preserve a claim oferror. RAP 2.5(a); State v. Blazina, 182 Wn.2d 827,833,344 P.3d 680 (2015) ("[u]npreserved LFO errors do not commandreview as a matter ofright"). A majority ofthe panel favors exercising our discretion under RAP 2.5(a) to review the issue. UnderRCW 10.01.160(3), "[t]he court shall not order a defendant to pay costs unless the defendant is orwill be able to pay them."

23No. 32927-5-111 State v. Padgett Practically speaking, this imperative under RCW 10.01.160(3) means that the court must do more than sign ajudgment and sentence with boilerplate language stating that it engaged in the required inquiry. The record must reflect that the trial court made an individualized inquiry into the defendant's current and future ability to pay. Within this inquiry, the court must also consider important factors, as amici suggest, such as incarceration and a defendant's other debts, including restitution, when determining a defendant's ability to pay. Blazina, 182 Wn.2d at 838. This statutory inquiry is required only for discretionary LFOs. State v. Clark, 191 Wn. App. 369,373,362 P.3d 309 (2015) (citing State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013)), remandedto superior court, __ Wn.2d , 388 P.3d 487 (2017). Ofthe LFOs imposed, only $950 worth were discretionary: a $600 court appointed attorney recoupment (RCW 9.94A.760), a $100 domestic violence assessment (RCW 10.99.080), and a $250jury fee. 11 RCW 7.68.035; RCW 43.43.7541; RCW 36.l8.020(h). The trial court entered only a boilerplate finding that Mr. Padgetthad the ability to pay the LFOs. Because such a finding is insufficient underBlazina, we direct the trial court to conductthe proper inquiry at the resentencing. VII. Clerical errors Mr. Padgett identifies two clerical errors that he requests be corrected. The first is

11 

### It is unclear whetherthejury fee is mandatory or discretionary. See State v. Clark, 195 Wn. App. 868, 872 & n.l, 381 P.3d 198 (2016), remandedto superior court, No. 93740-1 (Wash. Feb. 8, 2017). As the parties do not address its character, we assume for purposes ofthis opinionthat it is discretionary. 24No. 32927-5-III State v. Padgett
in thejudgment and sentence, which states: 2.2 Special Findings: The Court makes the following special findings, based upon special verdicts:



## IZ! Counts 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13, do not encompass the same criminal conduct and do not count as one crime in determining offender score, pursuantto RCW 9.94A.589. CP at 467. Mr. Padgett points out, and the State concedes, that the record does not contain a special verdict finding that each ofthe above listed counts encompass different criminal conduct. The second errorMr. Padgett identifies is in the warrant ofcommitment, which states that Mr. Padgettwas convicted ofcount 14. As the State again concedes, thejury did not find Mr. Padgett guilty on count 14. We accept the State's concessions and direct the trial courtto correct the clerical
errors at the time ofresentencing. VIII. AllegedBlakely error infinding substantialandcompelling reasonsfor an exceptionalsentence Finally, Mr. Padgett argues the trial court violated his right to ajurytrial by concluding that substantial and compelling reasonsjustified an exceptional sentence and making supporting findings. The United States Supreme Court has established that "[o]therthan
... aprior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum mustbe submittedto ajury, and proved beyond a reasonable doubt." 25No. 32927-5-111 State v. Padgett Apprendiv. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d435 (2000); Blakelyv. Washington, 542 U.S. 296,301, 124 S. Ct. 2531, 159 L. Ed. 2d403 (2004). The Washington Supreme Courthas found that "Blakely left intactthe trialjudge's authority to determine whether facts alleged and found are sufficiently substantial and compelling to warrant imposing an exceptional sentence under RCW 9.94A.535. That decision is a legaljudgmentwhich, unlike factual determinations, can still be made by the trial court." State v. Hughes, 154 Wn.2d 118, 137, 110 P.3d 192 (2005), overruledon othergrounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006); State v. Suleiman, 158 Wn.2d 280, 291, 143 P.3d 795 (2006). RCW 9.94A.535 provides: "Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings offact and conclusions oflaw." In State v. Friedlund, 182 Wn.2d 388,394,341 P.3d 280 (2015) our Supreme Court held that in orderto supportthe trial court's conclusion of substantial and compelling reasons for an exceptional sentence, the written findings provision ofthe Sentencing Reform Act of 1981, chapter 9.94A RCW, "requires exactly that-written findings." Decisions by our Supreme Court are binding on all lower courts in the state. 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006). It would be error for us to fail to follow our Supreme Court's directly controlling authority. Mr. Padgett can seekreview bythe Supreme Court. 26No. 32927-5-111 State v. Padgett
STATEMENT OF ADDITIONAL GROUNDS In apro se statement ofadditional grounds (SAG), Mr. Padgettraises two, both of which complain ofthe trial court's denial ofhis trial lawyer's motion to continue his October 2013 trial. Mr. Padgett individually objectedto the several continuances requested by his trial lawyer, but now argues thatthe last continuance his lawyer requested was necessary (1) to conduct an independent DNA analysis on the saliva sample taken from him two months before trial, and (2) to gather more evidence, such as
a drug or hair follicle test, to showthat Mr. Padgettwas not using drugs. Mr. Padgett argues the State violated CrR4.7(h)(2) by producing the DNA results
so close to the time oftrial (too late for independenttesting) and the trial court should have granted his lawyer's motion for a continuance as a sanction for the State's asserted violation ofthe criminal rule. He does not identify where, in the record, his lawyer ever asked that the continuance be imposed as a sanction for violation ofthe rule. Ifno such request was ever made, the issue is unpreserved. RAP 2.5(a). Assuming a request for such a sanction was made and denied, Mr. Padgett must show not only an abuse of discretion by the court, but also actual prejudice. "Absent some showing ofactual prejudice, we will not interfere with the trial court's exercise ofdiscretion in denying sanctions pursuant to CrR4.7(h)(7)(i)." State v. Bradfield, 29 Wn. App. 679, 682, 630 P.2d 494 (1981).

27No. 32927-5-III State v. Padgett
Mr. Padgett does not showprejudice. The DNA evidence about which he complains showed he used three dildos that he conceded were his, andthat he toldjurors
were used by him and his girlfriend. As his trial lawyer stated in opposing the request for
a saliva sample, "I still don't see that Mr. Padgett's DNA is relevant. It's the victims [sic] that is relevant." RP (Aug. 2, 2013) at 36. The only prejudicial information found bythe crime lab was a mixture ofDNA on
one ofthe dildos that it concluded included Henry as a possible contributor. While this evidence corroborates Henry's testimony, it was hardly important to the State's case. The defense argued that it actually detracted from the State's case, because Mr. Padgett testified thathe caught Henry and Jackplayingwith the dildo (hence Henry's DNA), and ifthere had been as much sexual contact as Henry claimed, one might have expected his DNAto be on more than one ofMr. Padgett's sextoys. Ultimately the case came down to whetherthejury found Mr. Padgett or Henry and Jacktobe more credible-andthe jurybelieved Henry and Jack. As far as the follicle drug test is concerned, Mr. Padgett offers no excuse for why that test could not have been conducted long before his lawyer's final, October4, 2013 request for a further trial continuance-and to berelevant, it probably needed to be. Mr. Padgett does not establishthat such a test, ifconducted after October4, would have produced evidence to showthatMr. Padgettwas not using drugs at the time ofthe crimes



### 28No. 32927-5-111 State v. Padgett charged, which occurred between May 2011 and January 31, 2013-atleast eight months before. Again, no prejudice is shown. Because Mr. Padgett does not showprejudice, we need not address whether denying a fifth continuance was aproper exercise ofthe court's discretion. We vacate Mr. Padgett's conviction for delivery ofmethamphetamineto Henry (count 8), affirm his remaining convictions, and remand for resentencing consistentwith this opinion. 12 A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: 

# Q Q2.~

Pennell, J.

12 Mr. Padgett moved this court to waive costs ifhe did notprevail on appeal. Because he has prevailed in part, the issue is moot. 29