Filed Washington State Court of Appeals Division Two
August 17, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON No. 54163-7-II
Respondent,
v. UNPUBLISHED OPINION KALOB KENNETH HACKETT,
Appellant.
SUTTON, J. — Kalob Kenneth Hackett appeals his conviction for felony harassment.
Hackett argues for the first time on appeal that the charging information was constitutionally
deficient because it did not include an essential element, that the law enforcement officer’s fear
was one that a reasonable officer would experience. Hackett further argues that the trial court’s
instructions to the jury relieved the State of its burden to prove the elements of felony harassment
and that insufficient evidence supports this conviction. Finally, Hackett argues that the trial court
erred by imposing costs and discretionary legal financial obligations (LFOs) without conducting
an individualized inquiry to determine his ability to pay.
We hold that the charging information was not constitutionally deficient, the jury
instructions did not relieve the State of its burden, and the evidence was sufficient to support the
conviction. The State concedes that the trial court failed to inquire into Hackett’s ability to pay.
We accept the State’s concession. We affirm Hackett’s conviction, but remand to the trial court No. 54163-7-II
to inquire into Hackett’s ability to pay the jury demand fee and the trial court should revisit the
DUI discretionary fees in light of its analysis of Hackett’s ability to pay.
FACTS
While conducting general traffic patrol on I-5, Washington State Patrol Trooper Nicholas
Macomber noticed a vehicle speeding at a rate of 91 miles per hour. He pursued the vehicle and
pulled it over. The vehicle was driven by Hackett. Macomber observed that Hackett’s speech was
slurred and his eyes were watery. He could also smell alcohol. Macomber asked Hackett if he
had been drinking and Hackett said that he had not.
Macomber asked Hackett to get out of the vehicle. Hackett smelled like alcohol.
Macomber again asked if he had had anything to drink, and Hackett admitted that “he had been
consuming alcohol and that his last drink was about two hours prior to [the] traffic stop.” Verbatim
Report of Proceedings (VRP) at 68. Macomber asked Hackett if he would do field sobriety tests
and Hackett agreed. Based on Hackett’s completion of the field sobriety tests, Macomber believed
Hackett was impaired. Macomber read Hackett his constitutional rights and placed him under
arrest.
After being placed under arrest and being transported to the jail, Hackett became very
upset. According to Macomber, he became “belligerent and vulgar” immediately after he had been
read his rights. VRP at 77. Hackett said, “Quit talking to me, pig,” as soon as Macomber read
him his rights. VRP at 77.
Macomber testified that after they arrived at the jail and he read Hackett his constitutional
rights again, he read the implied consent warnings to Hackett. While Macomber was reading
Hackett the consent warnings, Hackett was “mimicking the things that [Macomber] was saying
2 No. 54163-7-II
and talking over [him] the entire time.” VRP at 79. Macomber offered Hackett a breath test which
Hackett declined. Macomber testified that Hackett made a series of statements that made him fear
for his safety.
Macomber testified that
[Hackett] made statements about f**king my mother. He called me a child molester and a f**got. And he asked me how my wife was. Then he said, throughout the night, that someone would be – or that he would see me around town and that someone would be paying me a visit.
VRP at 80. At the time, Macomber’s in-car camera was recording Hackett’s conduct. This
recording was admitted into evidence and played for the jury to see and hear.
The State charged Hackett with felony harassment of a criminal justice participant for the
threat he made to Macomber.
At trial, Macomber testified that he took Hackett’s statements seriously and took them to
mean that Hackett was going to find out where he lived and come find him. He testified that while
people tend to get worked up when they are arrested while intoxicated, Hackett’s behavior was
“the most extreme example [he’d] encountered in [his] career.” VRP at 80. Hackett’s statements
made him feel as though his safety was threatened. Macomber testified that when Hackett made
statements about giving him a hug if he saw Macomber around town and that he was in fact not
threatening Macomber’s family, Hackett did so “sarcastically” and remained “belligerent.” VRP
at 97.
The jury found Hackett guilty of felony harassment of a criminal justice participant,
Trooper Macomber. The trial court imposed $2,295.50 in LFOs and costs, including the following
mandatory LFOs: $500.00 for the victim assessment, and $100.00 for the DNA collection fee. The
3 No. 54163-7-II
court imposed a cost, $250.00 for the jury demand fee, and the following discretionary LFOs:
$1,245.50 for “DUI fines, fees[,] and assessments” for a DUI conviction he was sentenced to on
the same day, and $200.00 for a “[blood alcohol content fee].” Clerk’s Papers (CP) at 42. Prior
to assessing the discretionary LFOs, the court did not conduct an individualized inquiry into
Hackett’s ability to pay under RCW 10.101.01 or make any findings. The court determined in a
separate order that Hackett was indigent for purposes of appeal.
Hackett appeals.1
ANALYSIS
I. CHARGING DOCUMENT
Hackett argues for the first time on appeal that the charging document was constitutionally
deficient because the information omitted an essential element of felony harassment: that the
officer’s fear was that of a reasonable officer under the circumstances. The State argues that the
charging information appropriately apprised Hackett of the essential elements of felony
harassment even though it omitted the phrase “the fear from the threat was a fear that a reasonable
criminal justice participant would have under all circumstances,” because that portion of the
statute, RCW 9A.46.020(2)(b), is not an essential element of the crime. Br. of Resp. at 5.
Additionally, even if it is an essential element, it can be inferred from the terms of the charge. We
agree with the State and hold that the charging document was not constitutionally deficient.
1 Hackett only challenges his conviction for harassment on appeal.
4 No. 54163-7-II
A. LEGAL PRINCIPLES
The accused in a criminal case has a constitutional right to notice of the alleged crime the
State intends to prove. WASH. CONST. art. I, § 22; U.S. CONST. amend. VI. The charging document
provides that notice. CrR 2.1(a)(1). To be constitutionally adequate, a charging document must
contain all essential elements of a crime to give the accused notice of the charges and to allow the
accused to prepare a defense. State v. Winings, 126 Wn. App. 75, 84, 107 P.3d 141 (2005).
“When a defendant challenges the sufficiency of a charging document for the first time on
appeal, an appellate court will liberally construe the language of the charging document in favor
of validity.” State v. Zillyette, 178 Wn.2d 153, 161, 307 P.3d 712 (2013). In liberally construing
the charging document, we engage in a de novo review and employ the two-pronged test
established in State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991): “(1) [D]o the necessary
elements appear in any form, or by fair construction, on the face of the document and, if so, (2)
can the defendant show [they were] actually prejudiced by the unartful language.” Zillyette, 178
Wn.2d at 158, 162.
“An ‘essential element of a crime is one whose specification is necessary to establish the
very illegality of the behavior’ charged.” State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)
(quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)). Under RCW
9A.46.020(1), a person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) To cause physical damage to the property of a person other than the actor; or
5 No. 54163-7-II
(iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. “Words or conduct” includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
Harassment is a felony when the victim is a “criminal justice participant” who is acting in
their official role at the time of the threat. RCW 9A.46.020(2)(b)(iii). A “criminal justice
participant” is a member of any federal, state, or local law enforcement. RCW 9A.46.020(4)(a).
B. ANALYSIS
The charging document stated the following:
The Defendant, Kalob Kenneth Hackett, in Cowlitz County, Washington, on or about March 22, 2019, without lawful authority, knowingly did threaten to cause bodily injury immediately or in the future to Trooper Nicholas Macomber, and the words or conduct did place Trooper Nicholas Macomber in reasonable fear that the threat would be carried out; and Trooper Nicholas Macomber was a criminal justice participant performing his official duties at the time the threat was made; Contrary to RCW 9A.46.020(1), (2)(b)(iii), and against the peace and dignity of the State of Washington.
CP at 1.
Under the first prong of Kjorsvik test, we look at the charging document to determine if the
“necessary elements appear in any form, or by fair construction, on the face of the document.”
Zillyette, 178 Wn.2d at 162 (emphasis added) (citing Kjorsvik, 117 Wn.2d at 105-06). Here, the
information states that the harassment victim is a law enforcement officer because it identifies the
victim as “Trooper Nicholas Macomber.” CP at 1 (emphasis added). The information further
states that the victim was placed in reasonable fear that the threat would be carried out because it
6 No. 54163-7-II
states exactly that. Because the information states that the victim is a law enforcement officer and
Hackett’s “words or conduct did place Trooper Nicholas Macomber in reasonable fear that the
threat would be carried out,” the information suggests that the reasonable fear would be that of a
law enforcement officer in the same position as Macomber. CP at 1 (emphasis added). Thus, the
necessary elements appear by fair construction on the face of the document.
Because we liberally construe charging documents that are not challenged until after the
verdict and the charging document contains the necessary elements of the charged crime of felony
harassment, Hackett cannot demonstrate that he was prejudiced and our review of the charging
document under the Kjorsvik test ends.
II. JURY INSTRUCTIONS
Hackett next argues that the trial court’s jury instructions relieved the State of its burden to
prove an essential element of felony harassment because the court did not instruct the jurors that a
person “must be acquitted of felony harassment of an officer if it is apparent that the accused lacks
the present and future ability to carry out the threat.” Appellant’s Opening Br. at 9. He claims
this error warrants reversal. The State argues that Division I of this court in State v Boyle2 rejected
this same argument holding that the “present and future” portion of the harassment statute is an
exception, not an element of the charged crime. We agree with the State and hold that the trial
court properly instructed the jury on the essential elements of felony harassment.
Hackett’s argument raises an issue of statutory interpretation, which we review de novo.
Boyle, 183 Wn. App. at 10. “When construing a statute, we primarily seek to ascertain and carry
2 183 Wn. App. 1, 11, 335 P.3d 954 (2014).
7 No. 54163-7-II
out the legislature’s intent.” Boyle, 183 Wn. App. at 10-11. “Statutory interpretation begins with
the statute’s plain meaning, which we discern from the ordinary meaning of its language in the
context of the whole statute, related statutory provisions, and the statutory scheme as a whole.”
Boyle, 183 Wn. App. at 11. “If the statute’s meaning is unambiguous, our inquiry ends [t]here.”
Boyle, 183 Wn. App. at 11.
As discussed above, RCW 9A.46.020 provides, in relevant part, “A person is guilty of
harassment if . . . [w]ithout lawful authority, the person knowingly threatens . . . [t]o cause bodily
injury immediately or in the future to the person threatened . . . and . . . [t]he person by words or
conduct places the person threatened in reasonable fear that the threat will be carried out.” RCW
9A.46.020(1)(a)(i), (1)(b). The crime of harassment is ordinarily a gross misdemeanor; however,
it is elevated to a Class C felony if the defendant “harasses a criminal justice participant who is
performing his or her official duties at the time the threat is made.” RCW 9A.46.020(2)(b)(iii).
For purposes of felony harassment of a criminal justice participant, the statute specifies that “the
fear from the threat must be a fear that a reasonable criminal justice participant would have under
all the circumstances,” and “[t]hreatening words do not constitute harassment if it is apparent to
the criminal justice participant that the person does not have the present and future ability to carry
out the threat.” RCW 9A.46.020(2)(b) (emphasis added).
Hackett contends that the final sentence of RCW 9A.46.020(2)(b) means that threatening
words constitute harassment only if he had the present and future ability to carry out his threat.
Division I of this court rejected this exact argument in Boyle. 183 Wn. App. at 12. In
Boyle, the police officer handcuffed Boyle then Boyle told the police officer that someone would
kill him and his family. Boyle, 183 Wn. App. at 5. Boyle argued that the jury should have been
8 No. 54163-7-II
instructed that the State had to prove both a present and future ability to carry out the threat. Boyle,
183 Wn. App. at 12. The Boyle court determined that Boyle misread the statute: “To the contrary,
as the trial court stated, ‘[T]his sentence is phrased as an exception, not as an element.’” 183 Wn.
App. at 11. Therefore, the court concluded that statements to a criminal justice participant
constitute felony harassment if it is apparent to the participant that the speaker had either the
present or future ability to carry out the threat. Boyle, 183 Wn. App. at 11. The court also noted
that this interpretation was consistent with the definition of “harassment” under RCW
9A.46.020(1), which includes threats to cause bodily injury “immediately or in the future.” Boyle,
183 Wn. App. at 11. Notably, Hackett fails to discuss Boyle in his brief.
The trial court’s to-convict instruction stated:
To convict the defendant of the crime of harassment as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about March 22, 2019, the defendant knowingly threatened to cause bodily injury immediately or in the future to Nicholas Macomber; (2) That Nicholas Macomber was a criminal justice participant who was performing his official duties at the time the threat was made; (3) That the words or conduct of the defendant placed Nicholas Macomber in reasonable fear that the threat would be carried out; (4) That the fear from the threat was a fear that a reasonable criminal justice participant would have under all the circumstances; (5) That the defendant acted without lawful authority; (6) That the threat was made or received in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to Count I.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
9 No. 54163-7-II
CP at 17.
The plain meaning of RCW 9A.46.020 does not, as Hackett claims, require the State to
prove that Hackett had the present and future ability to carry out his threats against Macomber.
We hold that the trial court’s to-convict instruction correctly stated the essential elements required
to convict Hackett of the charged crime, and thus, reversal is not required.
III. SUFFICIENCY OF THE EVIDENCE
Hackett claims that the State presented insufficient evidence to convict him beyond a
reasonable doubt of felony harassment of a criminal justice participant, here Trooper Macomber.
He claims this error warrants reversal. We disagree.
To satisfy the Fourteenth Amendment’s due process guarantee, the State “bears the burden
of proving every element of every crime beyond a reasonable doubt.” State v. Chacon, 192 Wn.2d
545, 549, 431 P.3d 477 (2018); U.S. CONST. amend. XIV. When a defendant challenges the
sufficiency of the evidence presented to meet this burden, “he or she admits the truth of all of the
State’s evidence.” State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). “In such
cases, we view the evidence in the light most favorable to the State, drawing reasonable inferences
in the State’s favor.” Cardenas-Flores, 189 Wn.2d at 265-66. “Evidence is sufficient to support
a guilty verdict if any rational trier of fact, viewing the evidence in the light most favorable to the
State, could find the elements of the charged crime beyond a reasonable doubt.” Cardenas-Flores,
189 Wn.2d at 265.
10 No. 54163-7-II
B. FEAR THAT A REASONABLE CRIMINAL JUSTICE PARTICIPANT WOULD HAVE
Hackett first argues that the State failed to prove that his statements would threaten a
reasonable criminal justice participant. We disagree.
“[T]he fear from the threat must be a fear that a reasonable criminal justice participant
would have under all the circumstances. Threatening words do not constitute harassment if it is
apparent to the criminal justice participant that the person does not have the present and future
ability to carry out the threat.” RCW 9A.46.020(2)(b).
Macomber testified that he took the threat seriously and Hackett’s statement to him placed
him in fear. Macomber testified that, while people tend to get worked up when they are arrested
while intoxicated, Hackett’s behavior was “the most extreme example [he’d] encountered in [his]
career.” VRP at 80. Macomber testified that he absolutely took the threat seriously and was in
fear when Hackett told him repeatedly “that [Hackett] would see [Macomber] around town and
that someone would be paying [Macomber] a visit.” VRP at 80. A rational trier of fact could find
this fear to be “a fear that a reasonable criminal justice participant would have under all the
circumstances.” See Boyle, 183 Wn. App. at 9.
Viewing the evidence in the light most favorable to the State, the evidence shows that any
rational trier of fact could have found that Hackett had the future ability to carry out his threats
beyond a reasonable doubt. We hold that the State presented sufficient evidence to support the
conviction for felony harassment of a criminal justice participant.
11 No. 54163-7-II
C. TRUE THREAT
Hackett next argues that the State failed to prove that he made a “true threat.” He argues
that the threats were “hyperbolic expressions of frustration.”3 Appellant’s Opening Br. at 17-18
(quoting State v. Kohonen, 192 Wn. App. 567, 583, 370 P.3d 16 (2016)). We disagree.
RCW 9A.46.020 prohibits only “true threats.” Boyle, 183 Wn. App. at 7. A “true threat”
is defined as “‘a statement made in a context or under such circumstances wherein a reasonable
person would foresee that the statement would be interpreted . . . as a serious expression of
intention to inflict bodily harm upon or to take the life of another person.’” State v. Locke, 175
Wn. App. 779, 789, 307 P.3d 771 (2013) (internal quotation marks omitted) (quoting State v. Allen,
176 Wn.2d 611, 626, 294 P.3d 679 (2013)). The reasonableness of a victim’s fear is “a question
for the trier of fact in light of the total context.” State v. Trey M., 186 Wn.2d 884, 906, 383 P.3d
474 (2016). Here, the trial court instructed the jury that
[a] threat means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person; or to do any act that is intended to harm substantially the person threatened or another with respect to the person’s health, safety, business, financial condition, or personal relationships.
CP at 15.
3 Hackett attempts to liken his case to State v. Kilburn, 151 Wn.2d 36, 53, 84 P.3d 1215 (2004). In Kilburn, the defendant maintained that his threats were a joke as he made them and other people were laughing around him as he spoke. 151 Wn.2d at 52. The victim testified that she did not feel scared. Kilburn, 151 Wn.2d at 52. Here, the context of the statements by Hackett are very different from those made by Kilburn. Hackett did not claim to be joking or retract his threats. And Macomber testified that Hackett was sarcastic and belligerent when he said that he or someone else would track Macomber down and if he found him he was going to hug him. Further, Macomber testified that Hackett’s statements made him fear for his safety. Accordingly, Kilburn is factually distinguishable.
12 No. 54163-7-II
“This objective standard focuses on the speaker, who need not actually intend to carry out
the threat: ‘[i]t is enough that a reasonable speaker would foresee that the threat would be
considered serious.’” Boyle, 183 Wn. App. at 8 (quoting State v. Schaler, 169 Wn.2d 274, 283,
236 P.3d 858 (2010)). “‘A true threat is a serious threat, not one said in jest, idle talk, or political
argument.’” Boyle, 183 Wn. App. at 8 (quoting Kilburn, 151 Wn.2d at 43). But, an indirect threat
may still constitute a true threat. Boyle, 183 Wn. App. at 8. “The nature of the threat depends on
a totality of the circumstances, and a reviewing court does not limit its inquiry to a literal translation
of the words spoken.” Boyle, 183 Wn. App. at 8.
Macomber testified that Hackett displayed great anger while being arrested, despite
Hackett’s explanations and apologies. He called Macomber “Officer Cock Sucker,” and accused
him of being a “child molester” and a “f**got.” VRP at 80, 85. Hackett told Macomber that he
would “see [Macomber] around town and that someone would be paying [Macomber] a visit.”
VRP at 80. Macomber testified that when Hackett made statements about giving him a hug if he
saw Macomber around town and that he was in fact not threatening Macomber’s family, Hackett
did so “sarcastically” and remained “belligerent.” VRP at 97.
This language constituted a “true threat” because a reasonable trier of fact could find these
statements to be true threats, a serious expression of intention to inflict bodily harm on Trooper
Macomber. Hackett, while in a state of incredible anger, stated that he or someone else would find
Macomber and pay him a visit. Hackett’s statements cannot be described as “hyperbolic
expressions of frustration,” especially when considered in the light most favorable to the State.
Accordingly, we hold that the State presented sufficient evidence of a true threat.
13 No. 54163-7-II
D. PRESENT AND FUTURE ABILITY TO CARRY OUT THE THREAT
Finally, Hackett argues that the State failed to prove that he had the present and future
ability to carry out the threat because RCW 9A.46.020 is a conjunctive statute requiring that both
be proven. RCW 9A.46.020 requires that the State prove either that Hackett had the present ability
or Hackett had the future ability to commit the threatened act.
Here, Hackett’s sufficiency argument relies entirely on his assertion that the State was
required to prove that Hackett had the present and future ability to carry out his threats against
Macomber contrary to the holding in Boyle. We follow Boyle and, viewing the evidence in the
light most favorable to the State, we hold that sufficient evidence exists that Hackett had the future
ability to carry out his threatening statements.
E. CONCLUSION
We hold that the State presented sufficient evidence to support the felony harassment
conviction. Thus, we affirm Hackett’s conviction.
IV. LFOS
Hackett argues that the trial court erred by imposing several discretionary LFOs without
conducting an individualized inquiry to determine his ability to pay. The State concedes that the
trial court did not inquire into Hackett’s ability to pay discretionary LFOs prior to imposing them,
but claims that because he did not raise this below, we should not consider this issue. We exercise
our discretion under RAP 1.2(a) to address the merits. We accept the State’s concession and
remand to the trial court to conduct an inquiry into Hackett’s ability to pay under the applicable
statutes.
14 No. 54163-7-II
A. JURY DEMAND FEE
Under RCW 10.01.160(3), a sentencing court shall not order a defendant to pay costs if a
defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). An additional statute,
RCW 9.94A.760(1), states that the sentencing court cannot impose “costs” as described in RCW
10.01.160 if the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). Under
RCW 10.01.160(2) “costs” are defined as follows: “Costs shall be limited to expenses specially
incurred by the state in prosecuting the defendant or in administering the deferred prosecution
program under chapter 10.05 RCW or pretrial supervision.” (Emphasis added).
RCW 10.46.190 prohibits the imposition of a jury demand fee if the person is indigent as
defined in RCW 10.101.010(3)(a) through (c). A trial court must conduct an individualized inquiry
on the record concerning a defendant’s current and future ability to pay LFOs that are costs under
RCW 10.101.010(3)(a) through (c), and the jury demand fee is a cost. See State v. Ramirez, 191
Wn.2d 732, 742, 426 P.3d 714 (2018).
Here, the trial court imposed a $250.00 jury demand fee and subsequently determined
Hackett was indigent for appeal. The State concedes that the court failed to conduct an
individualized inquiry into Hackett’s ability to pay. We accept the State’s concession and remand
for the trial court to inquire into Hackett’s ability to pay.
B. DUI RELATED DISCRETIONARY FEES
Here, the trial court also imposed $1,245.50 for “DUI fines, fees[,] and assessments,” and
$200.00 for a “[blood alcohol content fee].” CP at 42. As mentioned above, the court later
determined that Hackett was indigent for appeal.
15 No. 54163-7-II
The “DUI fines, fees[,] and assessments” and the blood alcohol content fee are
discretionary LFOs. CP at 42. The penalty schedule for DUI offenses is outlined in RCW
46.61.5055.4 This statute outlines minimum fines for DUI offenses depending on the number of
prior DUI offenses and on whether the person’s alcohol concentration was below or above 0.15.
RCW 46.61.5055(1)-(3). However, the provisions imposing the fines all state that the minimum
penalty “may not be suspended unless the court finds the offender to be indigent.” RCW
46.61.5055(1)(a)(ii), 1(b)(ii), (2)(a)(ii), 2(b)(ii), (3)(a)(ii), 3(b)(ii). Another DUI fee derives from
RCW 46.61.5054(1), which imposes a $250 alcohol violator fee. But upon petition, the court may
suspend this fine if the person does not have the ability to pay. RCW 46.61.5054(1)(b). Finally,
RCW 46.64.055(1) imposes a $50 penalty for any violation of Title 46 RCW. But again, this fine
may be waived or suspended if the court finds that the offender is indigent. RCW 46.64.055(1).
These statutes demonstrate that the trial court had the discretion not to impose the “DUI fines,
fees[,] and assessments,” and the blood alcohol content fee. Because we remand for
reconsideration of the jury demand fee, the trial court on remand should revisit these discretionary
fees in light of its analysis of Hackett’s ability to pay. .
CONCLUSION
We hold that the charging information was not constitutionally deficient, the jury
instructions did not relieve the State of its burden, and the evidence was sufficient to support the
conviction. We affirm Hackett’s conviction, but remand to the trial court to inquire into his ability
to pay LFOs.
4 RCW 46.61.5055 was amended in 2020. LAWS OF 2020, ch. 330, § 15. Because this amendment did not change the statutory language relevant here, we cite to the current version of the statute.
16 No. 54163-7-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J. We concur:
GLASGOW, A.C.J.
VELJACIC, J.