State of Washington v. Sifa Timas Tutu ( 2016 )

FILED
Jan. 21, 2016
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30801-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
SIFA TIMAS TUTU, )
)
Appellant. )
LAWRENCE-BERREY, J. - Sifa Tutu appeals his conviction for first degree rape of
a child. He argues that the trial court violated his right to a unanimous jury verdict
because it failed to give a Petrich I instruction. Mr. Tutu also argues that the trial court
erred in imposing $6,805.66 in discretionary legal financial obligations (LFOs) without
making an individualized inquiry into his ability to pay. We reject his first argument and
accept his second argument. We, therefore, affirm Mr. Tutu's conviction but remand to
the trial court for it to make an individualized inquiry into Mr. Tutu's ability to pay
discretionary LFOs.
1 State
v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984), overruled in part on other
grounds by State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105 (1988).
No.30801-4-III
State v. Tutu
FACTS
In 2010, Rachell Spears lived in a house with her four children and her then-
boyfriend, Daniel. 2 Daniel became friends with 18-year-old Mr. Tutu, as they were both
Sudanese and both spoke Nubian. Mr. Tutu moved in with the family, and stayed in the
guest bedroom for several months. Mr. Tutu was close with two ofthe children, seven­
year-old E.B. and six-year-old S.B., and would take the girls to the park, to African
parties, and would watch them in the house while other people would drink and smoke.
Mr. Tutu had a drug and alcohol problem and, at some point, Ms. Spears kicked him out.
Ms. Spears shared custody of the children with their father, Ernest, who lived in a
different house than Ms. Spears. The children were at their mother's house from
August 21,2010 to August 24,2010. During their stay, E.B., S.B., and their two-year-old
brother K.B. all slept in the guest bedroom. S.B. and K.B. shared a mattress on the floor,
while E.B. slept on a bed in the room.
The night of August 24, Ms. Spears put sticks in the guest bedroom window to
prevent Mr. Tutu from entering her house. Nevertheless, at some point in the early
evening, Mr. Tutu entered through the window, turned the light off, and situated himself
on the floor in between the bed and the mattress. At 8:00 p.m., E.B. and S.B. both went
2 Daniel and Ms. Spears were married at the time of trial.
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No. 30801-4-111
State v. Tutu
to bed. S.B. joined K.B. on the mattress, and E.B. went to sleep on the bed. Neither Ms.
Spears nor Daniel put the girls to bed, and the lights were already offwhen the girls went
into the bedroom. At around 3:00 a.m., Mr. Tutu took S.B.'s blanket. While S.B. was
asleep, Mr. Tutu reached under S.B.'s nightgown and penetrated her vagina with the
middle finger of his left hand. S.B. woke up to Mr. Tutu touching her. Mr. Tutu rolled
S.B. from the mattress and on top of him. Mr. Tutu then penetrated S.B.'s anus with his
penis. From her bed, E.B. saw Mr. Tutu touch S.B. with his hand. S.B. went back to
sleep. When S.B. woke up in the morning, Mr. Tutu was asleep on the floor.
The morning of August 25, Ms. Spears woke up and found Mr. Tutu sitting on her
couch in her front room. Ms. Spears told Mr. Tutu to leave. She checked the guest
bedroom window, and the sticks she had used to barricade the window were gone. Later
in the day, Ms. Spears' sister, Andrea Connet, came to the house and drove E.B. and S.B.
to the fair. Ms. Connet noticed E.B. smelled like smoke and was concerned about the
children's home environment, so she asked E.B. if she had a place to sleep at night. In
answering Ms. Connet's question, E.B. disclosed that Mr. Tutu slept with S.B. on S.B.'s
mattress. Ms. Connet then questioned S.B. S.B. pointed to her pubic area and said that
Mr. Tutu touched her there.
3
No.30801-4-III
State v. Tutu
Ms. Connet told her husband about S.B.'s disclosure, and Ms. Connet's husband
told S.B. 's father, Ernest. Ernest went to the police station and filed a report the next day.
When Ernest asked S.B. what happened, S.B. told him that Mr. Tutu put his finger in her
vagina but did not describe any other contact. Ernest took S.B. to Kids Haven the next
week, where a child interviewer, Mari Murstig, interviewed her. S.B. described how Mr.
Tutu touched her underneath her underwear, and also marked her buttocks and Mr. Tutu's
penis on body maps.
Detective Mary Buchan watched S.B.'s interview at Kids Haven and determined
she needed to interview Mr. Tutu. In the interview, Mr. Tutu said he was drunk and high
that night. He admitted to Detective Buchan that he had a sexual encounter with S.B. and
that he put the middle finger of his left hand in her vagina. Mr. Tutu acknowledged that
he rolled S.B. from the mattress and on top of him, but denied that anything else
happened. Based on this information, the State charged Mr. Tutu with first degree rape of
a child under RCW 9A.44.073.
At trial, S.B. testified that Mr. Tutu penetrated her vagina with his finger and
penetrated her anus with his penis. Ms. Murstig corroborated S.B.'s testimony with the
body map diagrams from Kids Haven. E.B. testified she saw Mr. Tutu touch S.B. "[o]n
her privates," but did not describe any other conduct. Report of Proceedings (RP) at 268.
4
No. 30801-4-111
State v. Tutu
Mr. Tutu also testified at trial. He testified he is from Khartoum, Sudan, and that a
military commander took him and his two brothers away from their parents when Mr.
Tutu was four years old, and the commander forced them to fight in the Sudanese civil
war. Both of Mr. Tutu's brothers died in the war. When Mr. Tutu was 10 years old, he
escaped back to his parents' home in Khartoum. Mr. Tutu then fled to Egypt, lived there
for several years, and eventually came to the Tri-Cities when he was 12 years old. Mr.
Tutu testified he did not remember the weekend in August 2010 that precipitated this
case, denied being in Ms. Spears' house that night, and also could not really remember
talking to Detective Buchan.
During closing arguments, the prosecutor argued to the jury that it could convict
Mr. Tutu based on when he penetrated S.B.'s vagina with his finger or when he
penetrated S.B. 's anus with his penis. The State did not elect the specific act on which
the jury should rely in its deliberation nor did the trial court give a Petrich instruction.
The jury convicted Mr. Tutu. The trial court sentenced him to 103 months to life.
The trial court also imposed a $500.00 fine and $7,605.66 in costs, for a total of
$8,105.66 in LFOs. Of that sum, $6,805.66 were discretionary costs, including a
$4,248.54 special costs reimbursement, a $2,100.00 court-appointed attorney fee, a
$250.00 jury demand fee, a $147.l2 witness fee, and a $60.00 sheriffs service fee. The
5
No.3080J-4-III
State v. Tutu
judgment and sentence contained the following boilerplate language: "the defendant has
the ability or likely future ability to pay the legal financial obligations imposed herein."
Clerk's Papers (CP) at 40. The trial court did not mark the box next to this boilerplate
language. The trial court also did not inquire into Mr. Tutu's ability to pay the LFOs.
Mr. Tutu did not object to the LFOs at the sentencing hearing. This appeal followed. On
December 3,2013, this court stayed this appeal pending the Washington Supreme Court's
decision in Blazina. 3 On April 16, 2015, this court lifted the stay.
ANALYSIS
1. Whether the lack ofa unanimity instruction deprived Mr. Tutu ofhis right to a
unanimous jury verdict
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 anyone 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 Wash. 2d at 572. To ensure jury unanimity in "multiple acts" cases,
"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.
3 State v. Blazina, 182 Wash. 2d 827, 344 P.3d 680 (2015).
6
No.30801-4-III
State v. Tutu
Kitchen, 110 Wash. 2d 403,411, 756 P.2d 105 (1988). Constitutional error occurs ifthere is
no election and no unanimity instruction is given. State v. Bobenhouse, 166 Wash. 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 Wash. 2d at 411.
However, an exception exists when the evidence shows the defendant was engaged
in a '" continuing course of conduct.'" State v. Handran, 113 Wash. 2d 11, 17, 775 P .2d
453 (1989) (quoting Petrich, 101 Wash. 2d at 571). In this situation, neither an election nor
a unanimity instruction is required. Id. In determining whether the evidence supports
multiple criminal acts or a continuing course of conduct, this court evaluates the facts in a
commonsense manner considering (1) the time that elapsed between the criminal acts;
and (2) whether the different acts involved the same parties, the same location, and the
same ultimate purpose. State v. Love, 80 Wash. App. 357, 361, 908 P.2d 395 (1996).
"[W]here the evidence involves conduct at different times and places, then the evidence
tends to show'" several distinct acts.'" Handran, 113 Wash. 2d at 17. Importantly, when a
defendant's actions constitute a continuing course of conduct, "a unanimous jury verdict
would not be required as to each incident ... during this short period of time; instead, the
7
No. 30801-4-111
State v. Tutu
jury would only need to be unanimous in its determination that the conduct occurred."
State v. Crane, 116 Wash. 2d 315, 330, 804 P.2d 10 (1991).
In Handran, Me. Handran climbed through the window of his ex-wife's apartment,
leaned over her, and kissed her while he was nude. Handran, 113 Wash. 2d at 12. She
asked him to leave, but instead Mr. Handran pinned her down and hit her in the face. Id.
The State charged Mr. Handran by amended information with first degree burglary, but
did not elect which assault was the predicate for the charge, and the jury was not given an
instruction requiring it to be unanimous in determining a particular assault occurred. Id.
at 12-13. The jury found Mr. Handran guilty, and Mr. Handran appealed. Id. at 13. After
noting that Me. Handran's alleged criminal conduct occurred in one place during a short
period of time with the same victim and aggressor, the court concluded, "Under a
commonsense evaluation of these facts, the actions evidence a continuing course of
conduct to secure sexual relations with his ex-wife ... rather than several distinct acts."
Id. at 17. The court accordingly rejected Mr. Handran's argument that the trial court
should have issued a unanimity instruction. Id. at 17-18.
Here, the evidence does not indicate that Mr. Tutu's attack on S.B. in her bedroom
was a series of multiple distinct acts. While in S.B. 's bedroom, Mr. Tutu penetrated
S.B.'s vagina with his finger and then subsequently penetrated S.B.'s anus with his penis.
8
No.30801-4-II1
State v. Tutu
Similar to the defendant's conduct in Handran, Mr. Tutu's criminal acts occurred
moments apart, occurred in one location, and involved the same victim. Moreover, Mr.
Tutu committed both acts to further the same ultimate purpose of achieving sexual
gratification. Under a commonsense evaluation of the facts, Mr. Tutu's actions
constituted a continuous course of conduct and, therefore, neither an election nor a
Petrich unanimity instruction was required. We conclude that Mr. Tutu was not deprived
ofjury unanimity.
2. Whether the trial court erred in imposing discretionary LFOs
Whenever a person is convicted, the trial court "may order the payment
of a legal financial obligation" as part of the sentence. RCW 9.94A.760(1); accord
RCW 10.01.160(1). By statute, the trial court is not authorized to order a defendant to
pay costs unless he or she is or will be able to pay them. RCW 10.01.160(3). In
determining the amount and method of payment of costs, the trial court shall take account
of the financial resources of the defendant and the nature of the burden that payment of
costs will impose. RCW 10.01.160(3). Accordingly, "a trial court has a statutory
obligation to make an individualized inquiry into a defendant's current and future ability
to pay before the court imposes LFOs." Blazina, 182 Wash. 2d at 830.
9
No.30801-4-II1
State v. Tutu
Importantly, "the court must do more than sign a judgment and sentence with
boilerplate language stating that it engaged in the required inquiry." Jd. at 838.
Therefore, "[t]he record must reflect that the trial court made an individualized inquiry
into the defendant's current and future ability to pay."4 Jd. However, neither
RCW 10.01.160 nor the Constitution "'requires a trial court to enter formal, specific
findings regarding a defendant's ability to pay [discretionary] court costs.'" State v.
Lundy, 176 Wash. App. 96, 105,308 P.3d 755 (2013) (alteration in original) (quoting State
v. Curry, 118 Wn.2d 911,916,829 P.2d 166 (1992)).
"The trial court's determination 'as to the defendant's resources and ability to pay
is essentially factual and should be reviewed under the clearly erroneous standard.'"
State v. Bertrand, 165 Wash. App. 393, 404 n.13, 267 P.3d 511 (2011) (quoting State v.
Baldwin, 63 Wash. App. 303, 312, 818 P.2d 1116 (1991)). A finding of fact is clearly
erroneous when, '" although there is some evidence to support it, review of all of the
evidence leads to a "definite and firm conviction that a mistake has been committed."'"
Lundy, 176 Wash. App. at 105 (quoting Schryvers v. Coulee Cmty. Hosp., 138 Wash. App.
648, 654, 158 P.3d 113 (2007)).
4 Although courts have little guidance regarding what counts as an "individualized
inquiry," Blazina makes clear, at a minimum, the sentencing court "must also consider
important factors ... such as incarceration and a defendant's other debts, including
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No.30801-4-III
State v. Tutu
"A defendant who makes no objection to the imposition of discretionary LFOs at
sentencing is not automatically entitled to review." Blazina, 182 Wash. 2d at 832. Subject
to three exceptions which do not apply here, RAP 2.5( a) provides that an "appellate court
may refuse to review any claim of error which was not raised in the trial court." In
Blazina, the Washington Supreme Court recently confirmed an appellate court's
discretion under RAP 2.5(a) extends to review of a trial court's imposition of
discretionary LFOs. Blazina, 182 Wash. 2d at 834-35.
A. Whether this court should exercise its discretion under RAP 2.5 and review
Mr. Tutu's unpreserved LFO challenge
Under Blazina, each appellate court is entitled to "make its own decision to accept
discretionary review" of unpreserved LFO errors. Id. at 835. Admittedly, the judges of
this court are not in agreement as to what extent discretion should be exercised to review
unpreserved LFOs. An approach favored by the author is to consider the administrative
burden and expense of bringing a defendant to court for a new hearing, versus the
likelihood that the discretionary LFO result will change. "An important consideration of
this analysis is the dollar amount of discretionary LFOs imposed by the sentencing court."
State v. Arredondo, No. 30411-6-III, 2015 WL 5511574, at *13 (Wash. Ct. App. Sept. 17,
2015).
restitution, when determining a defendant's ability to pay." Blazina, 182 Wash. 2d at 838.
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No. 30801-4-111
State v. Tutu
Here, the trial court imposed both mandatory and discretionary LFOs. The
mandatory LFOs included the $500 victim assessment, $200 criminal filing fee,
and the $100 deoxyribonucleic acid (DNA) collection fee. See RCW 7.68.035(1)(a);
RCW 36.18.020(2)(h); RCW 43.43.7541. These mandatory LFOs are required
irrespective of Mr. Tutu's ability to pay. Lundy, 176 Wash. App. at 103. However, the
$4,248.54 special costs reimbursement, $2,100.00 court-appointed attorney fee, $250.00
jury demand fee, $147.12 witness fee, and $60.00 sheriffs service fee are all
discretionary LFOs.5 See RCW 10.01.160(2) (authorizing "expenses specially incurred
by the state in prosecuting the defendant"); RCW 36.l8.016(3)(b) (stating that a $250 jury
demand fee may be imposed upon conviction). The discretionary LFOs equal $6,805.66.
The trial court authorized "$50.00 per month to be taken from any income [Mr. Tutu]
eams while in the custody of the Department of Corrections." CP at 42.
A new sentencing hearing is likely to change the LFO result. The trial court found
that Mr. Tutu was indigent and thus qualified for publicly funded counsel both for trial
and on appeal. He testified he fled from Sudan to the United States to escape the
5 The trial court also imposed a $500 fine under RCW 9A.20.021. This division
recently decided that a trial court may impose fines under RCW 9A.20.021 without
inquiring into a defendant's ability to pay. See State v. Clark, 362 P.3d 309,312 (2015);
see also State v. Calvin, 176 Wash. App. 1, 25, 316 P.3d 496 (20 l3), review granted in
part, remanded, 183 Wash. 2d 1013,302 P.3d 509 (2015).
12
No. 30801-4-111
State v. Tutu
Sudanese civil war, in which he was forced to be a child soldier. Although Mr. Tutu
testified that he went to school when he first came to the United States when he was 12
years old, he never testified that he ever finished school, and there was no evidence he has
any work history or job skills. He declared in an affidavit, "I am unemployed ... 1 have
no assets, no real property, no stocks, no bonds." Notice of Appeal, Aff. of Def. in
Support of Motion for Order oflndigence. Therefore, considering both the likelihood
that a new sentencing hearing would change the LFO result and the $6,805.66 in
discretionary LFOs at issue here, this court concludes it should exercise its discretion
under RAP 2.5(a) and review Mr. Tutu's unpreserved LFO challenge.
B. Whether the trial court erred in imposing $6,805.66 in discretionary LFOs
without inquiring into Mr. Tutu's ability to pay
Mr. Tutu contends that the trial court never checked the available box on the
judgment and sentence indicating that "the defendant has the ability or likely future
ability to pay the legal financial obligations imposed herein," and therefore the trial court
erred in imposing discretionary LFOs.6 CP at 40. The fact that the trial court did not
check this box is wholly irrelevant for purposes of this appeal. While ability to pay is a
6 Although the trial court did not check the box indicating that Mr. Tutu had the
ability to pay, the fact that the trial court imposed discretionary LFOs indicates that this
was likely a scrivener's error. The remedy for clerical or scrivener's errors in judgment
and sentence fonns is remand to the trial court for correction. ·State v. Naillieux, 158 Wash.
13 No.30801-4-III
State v. Tutu
necessary threshold to the imposition of costs, "[n]either the statute nor the constitution
requires a trial court to enter formal, specific findings regarding a defendant's ability to
pay." Curry, 118 Wash. 2d at 916. "The boiler plate finding is therefore unnecessary
surplusage." State v. Calvin, 176 Wash. App. I, 25, 316 P.3d 496 (2013), review granted in
part, remanded, 183 Wash. 2d 1013,353 P.3d 640 (2015). However, what is required
before a trial court imposes LFOs is an individualized inquiry on the record. See Blazina,
182 Wash. 2d at 838.
Here, the record of the sentencing hearing does not reveal the presentation or
consideration of any information about Mr. Tutu's present or future ability to pay.
Moreover, Mr. Tutu never testified that he completed his education, has work experience,
or has any other tenable basis for which LFOs might be imposed. Accordingly, the record
does not show the trial court sufficiently considered Mr. Tutu's financial resources and
ability to pay before it imposed $6,805.66 in discretionary LFOs. This court therefore
remands this case to the trial court with instructions to conduct an individualized inquiry
into Mr. Tutu's present and future ability to pay.?
App. 630, 646-47, 241 P.3d 1280 (2010).
? Mr. Tutu also argues that the trial court violated his due process rights by
imposing arbitrary amounts ofLFOs and there is no evidence in the record that provides a
factual basis for these expenses or their relationship to this case. Because we determine
that remand is appropriate, we elect not to review this issue as it may be moot.
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No. 30801-4-111
State v. Tutu
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.
j
1 CONCUR:
15
30801-4-111
SIDDOWAY, C.J. (dissenting in part) - Sifa Timas Tutu did not object when
discretionary legal financial obligations were imposed at the time of sentencing. 1 would
follow the general rule and decline to consider his challenge for the first time on appeal
for the reasons set forth in State v. Duncan, 180 Wash. App. 245, 327 P.3d 699 (2014),
review granted, 183 Wash. 2d 1013 (2015) and in my concurring opinion in State v. Munoz-
Rivera, 361 P.3d 182, 194-95 (2015). 1 otherwise concur in the majority opinion.
``tu~, ~if=
Siddoway, C.J.