FILED OCTOBER 11, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 33170-9-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) ROCKY M. HENSLEY, ) ) Appellant. )
LAWRENCE-BERREY, A.CJ. -Rocky Hensley appeals his conviction for fourth
degree assault. He argues his constitutional right to a unanimous jury verdict was
violated because the State presented evidence of multiple assaults but the trial court did
not give a Petrich 1 unanimity instruction. He also asks this court to strike the
discretionary legal financial obligations (LFOs) from the judgment and sentence. We
determine that a Petrich instruction was not required because the State elected to rely on
acts occurring during a short melee. We, however, remand to give the trial court the
1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint ofStockwell, 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 proper Blazina2 inquiry.
FACTS
In October 2012, Mr. Hensley was a patient in the psychiatric unit at Lourdes
Counseling Center (Lourdes) in Richland, Washington. Around October 21, Mr. Hensley
became agitated and Lourdes staff moved him into the "quiet room." 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.
Fordmeir by "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 behavior the morning of October 21. Initially, Mr.
Hensley was acting in a hyper-sexual manner while in the quiet room. For instance, he
sexually propositioned Mr. Fordmeir and also tapped Mr. Fordmeir on the buttocks a
couple times.
Later that 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
2 State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015).
2 No. 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. Fordmeir tried
to restrain him. According to Mr. Fordmeir, Mr. Hensley hit him in the face three times
with a closed fist. Other staff assisted. Eventually, Mr. Fordmeir was able to push Mr.
Hensley toward a comer of the quiet room so staff could exit. Mr. Hensley then spit in
Mr. Fordmeir's eye. Mr. Fordmeir then 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, or that he spit on him. Further,
he testified that it was Mr. F ordmeir who pushed him.
After the trial court read its instructions to the jury, the parties gave their closing
arguments. Consistent with the charging document, the State did not argue that the
tapping of Mr. Fordmeir's buttocks, which occurred prior to the short melee, was an
assault.
During deliberations, the jury submitted the following question in writing to the
court: "Are we also to consider the bottom patting 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 back to the jury that it should rely on
their collective memories of the evidence and the court's instructions.
The court clerk informed defense counsel by telephone of the jury'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, the jury announced it had a verdict. Counsel convened in the courtroom prior to 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 the jury to convict Mr.
Hensley on an uncharged act, tapping Mr. Fordmeir on his buttocks.
The jury convicted Mr. Hensley of fourth degree assault. At the sentencing
hearing, defense counsel asked the court to impose only mandatory LFOs. The court then
asked defense counsel which LFOs were mandatory. Defense counsel stated that 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 $250.00 jury demand fee,
a $60.00 sheriffs service fee, a $200.00 filing fee, and a $500.00 victim assessment. Mr.
Hensley appeals.
4 No. 33170-9-III State v. Hensley
ANALYSIS
A. JURY UNANIMITY
Mr. Hensley argues his constitutional right to a unanimous jury verdict was
violated because the State presented evidence of multiple assaults, any of the assaults
could have constituted the charged crime, and the trial court did not give the jury a
Petrich unanimity instruction. Although Mr. Hensley did not object to the trial court's
instructions or request a unanimity instruction, the alleged error is one of constitutional
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
jury verdict. CONST. art. I,§ 21. In cases where the State presents evidence of multiple
criminal acts and any one of these acts could constitute the crime charged, the jury must
unanimously agree on the same act that constitutes the crime in order to convict the
defendant. Petrich, 101 Wn.2d at 572. To ensure jury unanimity when multiple acts
could relate to one charge, "either the State [must] elect the particular criminal act upon
which it will rely for conviction, or ... the trial court [must] instruct the jury that 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
5 No. 33170-9-III State v. Hensley
of an act may be established if the State's charging document, when considered with the
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FILED OCTOBER 11, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 33170-9-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) ROCKY M. HENSLEY, ) ) Appellant. )
LAWRENCE-BERREY, A.CJ. -Rocky Hensley appeals his conviction for fourth
degree assault. He argues his constitutional right to a unanimous jury verdict was
violated because the State presented evidence of multiple assaults but the trial court did
not give a Petrich 1 unanimity instruction. He also asks this court to strike the
discretionary legal financial obligations (LFOs) from the judgment and sentence. We
determine that a Petrich instruction was not required because the State elected to rely on
acts occurring during a short melee. We, however, remand to give the trial court the
1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint ofStockwell, 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 proper Blazina2 inquiry.
FACTS
In October 2012, Mr. Hensley was a patient in the psychiatric unit at Lourdes
Counseling Center (Lourdes) in Richland, Washington. Around October 21, Mr. Hensley
became agitated and Lourdes staff moved him into the "quiet room." 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.
Fordmeir by "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 behavior the morning of October 21. Initially, Mr.
Hensley was acting in a hyper-sexual manner while in the quiet room. For instance, he
sexually propositioned Mr. Fordmeir and also tapped Mr. Fordmeir on the buttocks a
couple times.
Later that 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
2 State v. Blazina, 182 Wn.2d 827,344 P.3d 680 (2015).
2 No. 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. Fordmeir tried
to restrain him. According to Mr. Fordmeir, Mr. Hensley hit him in the face three times
with a closed fist. Other staff assisted. Eventually, Mr. Fordmeir was able to push Mr.
Hensley toward a comer of the quiet room so staff could exit. Mr. Hensley then spit in
Mr. Fordmeir's eye. Mr. Fordmeir then 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, or that he spit on him. Further,
he testified that it was Mr. F ordmeir who pushed him.
After the trial court read its instructions to the jury, the parties gave their closing
arguments. Consistent with the charging document, the State did not argue that the
tapping of Mr. Fordmeir's buttocks, which occurred prior to the short melee, was an
assault.
During deliberations, the jury submitted the following question in writing to the
court: "Are we also to consider the bottom patting 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 back to the jury that it should rely on
their collective memories of the evidence and the court's instructions.
The court clerk informed defense counsel by telephone of the jury'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, the jury announced it had a verdict. Counsel convened in the courtroom prior to 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 the jury to convict Mr.
Hensley on an uncharged act, tapping Mr. Fordmeir on his buttocks.
The jury convicted Mr. Hensley of fourth degree assault. At the sentencing
hearing, defense counsel asked the court to impose only mandatory LFOs. The court then
asked defense counsel which LFOs were mandatory. Defense counsel stated that 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 $250.00 jury demand fee,
a $60.00 sheriffs service fee, a $200.00 filing fee, and a $500.00 victim assessment. Mr.
Hensley appeals.
4 No. 33170-9-III State v. Hensley
ANALYSIS
A. JURY UNANIMITY
Mr. Hensley argues his constitutional right to a unanimous jury verdict was
violated because the State presented evidence of multiple assaults, any of the assaults
could have constituted the charged crime, and the trial court did not give the jury a
Petrich unanimity instruction. Although Mr. Hensley did not object to the trial court's
instructions or request a unanimity instruction, the alleged error is one of constitutional
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
jury verdict. CONST. art. I,§ 21. In cases where the State presents evidence of multiple
criminal acts and any one of these acts could constitute the crime charged, the jury must
unanimously agree on the same act that constitutes the crime in order to convict the
defendant. Petrich, 101 Wn.2d at 572. To ensure jury unanimity when multiple acts
could relate to one charge, "either the State [must] elect the particular criminal act upon
which it will rely for conviction, or ... the trial court [must] instruct the jury that 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
5 No. 33170-9-III State v. Hensley
of an act may be established if the State's charging document, when considered with the
jury instructions and the State's closing argument, makes it clear which 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 in part on other grounds by State v. Smith, 159 Wn.2d 778, 154
PJd 873 (2007).
Constitutional error occurs if the State does not make 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 some jurors may have relied on
one act as the basis for convicting the defendant and other jurors may have relied on a
different act, resulting in a lack of unanimity on all of the 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 of conduct." State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453
( 1989). In determining whether the evidence supports multiple criminal acts or a
continuing course of conduct, this court considers ( 1) the time that elapsed between the
criminal acts, and (2) whether the different acts involved the same parties, the same
location, and the same ultimate objective. State v. Love, 80 Wn. App. 357, 361, 908 P.2d
6 No. 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 of conduct exception applied
where the defendant inflicted multiple injuries on the same victim during a specific two-
hour period. Crane, 116 Wn.2d at 320-21, 330. The court held that 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
of conduct exception applied because the defendant broke into his ex-wife's residence
and repeatedly assaulted her at the same place, during a short period, and for the same
purpose of obtaining 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 short melee. Like in Crane and Handran, the evidence here
indicates that Mr. Hensley's actions during the short melee were all part of a continuous
course of conduct. Because the State elected to charge Mr. Hensley only with these acts,
a Petrich unanimity instruction was not required.
Mr. Hensley argues the jury may have lacked unanimity because some jurors 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 required jury unanimity
7 No. 33170-9-III State v. Hensley
because the tapping on the buttocks occurred separately and earlier than the melee, and
was done with a different purpose. While this is arguably true, the error if any occurred
after the jury was properly instructed and was a result of the trial court's response to the
jury question. Mr. Hensley does not assign error to the trial court's response. We
conclude that a Petrich unanimity instruction was not required.
B. IMPOSITION OF DISCRETIONARY LFOS
Mr. Hensley asks this court to strike the discretionary LFOs from the judgment and
sentence because the sentencing court only intended to impose mandatory LFOs.
Defense counsel informed the sentencing court that the $41.28 witness fee,
$250.00 jury 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. l 8.020(2)(h);
RCW 7.68.035(l)(a). However, the witness fee, sheriffs service fee, and jury 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) (stating that a $250 jury
demand fee may be imposed on conviction).
Under the 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
8 No. 33170-9-III State v. Hensley
(2014). To be invited, the defendant must materially contribute to the error by engaging
in some type of affirmative 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 of whether it was done
intentionally or unintentionally."' 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'd on other grounds 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 PJd 474 (2016) (invited
error doctrine precludes review of the restitution judgment where 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.
9 No. 33170-9-III State v. Hensley
Affirmed in part and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Pennell, J.