### FILED OCTOBER 11, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. ROCKY M. HENSLEY, Appellant. 

### ) ) ) ) ) ) ) ) ) No. 33170-9-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.CJ. -RockyHensley appeals his conviction for fourth degree assault. He argues his constitutional rightto a unanimousjuryverdictwas violatedbecausethe Statepresented evidence ofmultiple assaults butthe trial court did not give aPetrich 1unanimity instruction. He also asks this courtto strikethe discretionary legal financial obligations (LFOs) from thejudgmentand sentence. We determinethat aPetrich instruction was notrequiredbecause the State electedtorely on acts occurring during a short melee. We, however, remandto give the trial courtthe

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), abrogatedinparton othergrounds by In re Pers. Restraintof Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014).

### No. 33170-9-III State v. Hensley


### discretion to either strike the discretionary LFOs or to conduct a properBlazina2

### inquiry. FACTS In October 2012, Mr. Hensley was apatient in the psychiatric unit at Lourdes Counseling Center (Lourdes) in Richland, Washington. Around October 21, Mr. Hensley became agitated and Lourdes staffmoved him into the "quietroom." Report of Proceedings (RP) at 70. Garrett Fordmeir, a mental health aide, monitored Mr. Hensley in the quiet room area. A short melee occurred later that morning involving Mr. Hensley and Mr. Fordmeir. As a result, the State charged Mr. Hensley with assaulting Mr. Fordmeir. Specifically, the charging document stated Mr. Hensley assaulted Mr. Fordmeirby "hitting, pushing, or spitting upon him." Clerk's Papers (CP) at 72. At trial, the State called Mr. Fordmeir. Mr. Fordmeir answered questions concerning Mr. Hensley's mood and behaviorthe morning ofOctober 21. Initially, Mr. Hensley was acting in a hyper-sexual mannerwhile in the quietroom. For instance, he sexually propositioned Mr. Fordmeir and also tapped Mr. Fordmeir on the buttocks a couple times. Laterthat morning, Mr. Hensley was loud and would not stop pounding on the quiet room door. Mr. Fordmeir entered the room and attempted to discipline Mr. Hensley

2State v. Blazina, 

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

### 2No. 33170-9-III State v. Hensley 

### by removing his radio. Mr. Hensley began screaming, and a nurse opened the quiet room door to assist. Mr. Hensley turned his attention from Mr. Fordmeir to the opening door. Mr. Hensley shoved the nurse and attempted to escape from the room. Mr. Fordmeirtried to restrain him. According to Mr. Fordmeir, Mr. Hensley hithim in the face three times with a closed fist. Other staffassisted. Eventually, Mr. Fordmeir was able to push Mr. Hensley toward a comer ofthe quiet room so staffcould exit. Mr. Hensley then spit in Mr. Fordmeir's eye. Mr. Fordmeirthen shoved Mr. Hensley into the comer, which allowed Mr. Fordmeir and the nurse to exit the room and lock the door behind them. Mr. Hensley testified on his own behalf. He admitted to acting in a hyper-sexual manner, blamed his actions on medication, but denied tapping Mr. 

### Fordmeir on the buttocks. He also denied that he later hit Mr. 

### Fordmeir, orthat he spit on him. Further, he testified that it was Mr. Fordmeir who pushed him. After the trial court read its instructions to thejury, the parties gave their closing arguments. Consistent with the charging document, the State did not argue that the tapping ofMr. Fordmeir's buttocks, which occurredpriorto the short melee, was an assault. During deliberations, thejury submittedthe following question in writing to the court: "Are we also to considerthe bottompatting and spitting in Mr. Fordmeir's face in
3

### No. 33170-9-III State v. Hensley


### the assault charge?" CP at 99. The trial court did not convene counsel to obtain their input on how to respond. Instead, the court wrote backto thejurythat it shouldrely on their collective memories ofthe evidence and the court's instructions. The court clerk informed defense counsel by telephone ofthejury's question and the court's response. Defense counsel complained to the clerk about the court's response and was informed that an objection on the record at that time was unnecessary. Soon after, thejury announced it had a verdict. Counsel convened in the courtroompriorto the jury announcing its verdict. Defense counsel objected on the record to the court's response. Defense counsel noted that the court's response allowed thejuryto convictMr. Hensley on an uncharged act, tapping Mr. Fordmeir on his buttocks. Thejury convicted Mr. Hensley offourth degree assault. Atthe sentencing hearing, defense counsel asked the court to impose only mandatory LFOs. The court then asked defense counsel which LFOs were mandatory. Defense counsel statedthat the witness fee,jury demand fee, sheriffs service fee, filing fee, and victim assessment were all mandatory. The court then imposed a $41.28 witness fee, a $250.00jury demand fee,
a $60.00 sheriffs service fee, a $200.00 filing fee, and a $500.00 victim assessment. Mr. Hensley appeals.

4No. 33170-9-III State v. Hensley

A. JURY UNANIMITY ANALYSIS

Mr. Hensley argues his constitutional right to a unanimousjuryverdict was violated because the State presented evidence ofmultiple assaults, any ofthe assaults could have constituted the charged crime, and the trial court did not give thejury a Petrich unanimity instruction. Although Mr. Hensley did not objectto the trial court's instructions or request a unanimity instruction, the alleged error is one ofconstitutional magnitude and may therefore be raised for the first time on appeal. E.g., State v. Crane, 116 Wn.2d 315,325,804 P.2d 10 (1991). The Washington Constitution gives criminal defendants the right to a unanimous juryverdict. CONST. art. I,§ 21. In cases where the State presents evidence ofmultiple criminal acts and any one ofthese acts could constitute the crime charged, thejurymust unanimously agree onthe same act that constitutes the crime in orderto convictthe defendant. Petrich, 101 Wn.2d at 572. To ensurejuryunanimity when multiple acts could relate to one charge, "eitherthe State [must] elect the particular criminal act upon which it will rely for conviction, or ...the trial court [must] instructthejurythat all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt." State v. Kitchen, 110 Wn.2d 403,411, 756 P.2d 105 (1988). Election


### 5No. 33170-9-III 

### State v. Hensley
ofan act may be established ifthe State's charging document, when consideredwiththe jury instructions andthe State's closing argument, makes it clearwhich act or acts the State is relying on for the charge. 

### State v. Bland, 71 Wn. App. 345, 351-52, 860 P.2d 1046 (1993), 

### overruled inparton othergrounds byState v. Smith, 159 Wn.2d 778, 154 PJd 873 (2007). Constitutional error occurs ifthe State does notmake an election and the trial court does not give a unanimity instruction. 

### State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009). The error stems from the possibility that somejurors may have relied on
one act as the basis for convicting the defendant and otherjurors may 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. 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). In determining whetherthe evidence supports multiple criminal acts or a continuing course ofconduct, this court considers (1) the time that elapsedbetween the criminal acts, and (2) whetherthe different acts involved the sameparties, the same location, and the same ultimate objective. 

### State v. Love, 80 Wn. App. 357, 361, 908 P.2d

6No. 33170-9-III 

### State v. Hensley
395 (1996). This court must also evaluate the facts in a commonsense manner. 

### Petrich, 101 Wn.2d at 571. In 

### Crane, the court found the continuing course ofconduct exception applied where the defendant inflicted multiple injuries on the same victim during a specific twohourperiod. 

### Crane, 116 Wn.2d at 320-21, 330. The courtheldthat

### Petrich did not apply because the evidence supported "only a small time frame in which the fatal assault could have occurred." 

### Id. at 330. Similarly, in

### Handran, the court found the continuing course ofconduct exception applied because the defendantbroke into his ex-wife's residence and repeatedly assaulted her at the same place, during a shortperiod, and for the same purpose ofobtaining sex. 

### See Handran, 113 Wn.2d at 17. Here, the State elected to charge Mr. Hensley with assault based only on the acts that occurred during the shortmelee. Like in 

### Crane and

### Handran, the evidence here indicates that Mr. Hensley's actions during the short melee were all part ofa continuous
course ofconduct. Because the State electedto charge Mr. Hensley only with these acts,
a

### Petrich unanimity instruction was not required. Mr. Hensley argues thejurymayhave lacked unanimity because somejurors may have convicted him based on the melee while others may have convicted him based on the buttocks tapping. He implies that such a conviction lacks the requiredjuryunanimity
7No. 33170-9-III State v. Hensley
because the tapping on the buttocks occurred separately and earlierthan the melee, and
was done with a different purpose. While this is arguably true, the error ifany occurred after thejurywas properly instructed and was a result ofthe trial court's response to the jury question. Mr. Hensley does not assign errorto the trial court's response. We conclude that a Petrich unanimity instruction was notrequired. B. IMPOSITION OF DISCRETIONARY LFOS Mr. Hensley asks this courtto strike the discretionary LFOs from thejudgment and sentence because the sentencing court only intended to impose mandatory LFOs. Defense counsel informedthe sentencing courtthatthe $41.28 witness fee, $250.00jury demand fee, $60.00 sheriffs service fee, $200.00 filing fee, and $500.00 victim assessment were all mandatory LFOs. Defense counsel was correct that the filing fee and victim assessment were mandatory. See RCW 36.l8.020(2)(h); RCW 7.68.035(l)(a). However, the witness fee, sheriffs service fee, andjury demand fee were discretionary. See RCW 10.01.160(2) (authorizing "expenses specially incurred by the state in prosecuting the defendant"); RCW 36.18.016(3)(b) (statingthat a $250jury demand fee maybe imposed on conviction). Underthe invited error doctrine, a party may not set up an error at trial and then complain ofit on appeal. State v. Mercado, 181 Wn. App. 624,630,326 P.3d 154
8No. 33170-9-III 

### State v. Hensley (2014). To be invited, the defendant must materially contribute to the errorby engaging in some type ofaffirmative action through which he or she knowingly and voluntarily sets up the error. Id. "The invited error doctrine is strictly enforced to prevent 'parties from benefiting from an error they caused at trial regardless ofwhether it was done intentionally orunintentionally."' 

### State v. Ortiz-Triana, 193 Wn. App. 769, 777, 373 PJd 335 (2016) (quoting 

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

### rev'don othergrounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). The invited error doctrine applies to LFO and restitution challenges. 

### See State v. Stoddard, 192 Wn. App. 222, 225, 366 PJd474 (2016) (invited
error doctrine precludes review ofthe restitutionjudgmentwhere defendant agreed to restitution amount). Nevertheless, we decline to affirm on an invited error analysis. To do so would be inconsistent with recent admonitions that trial courts may not impose discretionary LFOs without first conducting an individual inquiry into the defendant's current and future ability to pay. 

### Blazina, 182 Wn.2d at 838. We, therefore, remand to the trial court for it to either strike the discretionary LFOs or conduct the required inquiry.

9No. 33170-9-III State v. Hensley
Affirmed in part and remanded. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

WE CONCUR:

Pennell, J.

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