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                                                  2015 JUL 20 lii 12: 3„



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

STATE OF WASHINGTON,                            No. 71843-6-1

                    Respondent,

          v.



JONATHAN MICHAEL OLHAVA,                        UNPUBLISHED OPINION

                    Appellant.                  FILED: July 20, 2015


      Verellen, A.C.J. — A jury found Jonathan Olhava guilty of first degree taking a

motor vehicle without permission. Olhava challenges the trial court's denial of his

motion to suppress statements that he made to police. Specifically, he contends that he

did not have the presence of mind to waive his right to remain silent because he was

too intoxicated. But intoxication alone does not render Olhava's statements involuntary.

Based on the totality of the circumstances, including testimony that Olhava understood

and coherently responded to the detective's questions, substantial evidence supports

the finding of fact that Olhava had the presence of mind to waive his right to remain

silent. That finding together with the undisputed findings support the conclusion that

Olhava voluntarily waived his right to remain silent. We affirm.

                                         FACTS


      A dump truck driver for a construction company saw a white Acura car pushing a

white Honda car at a construction site. Each car had one individual inside. Both cars
No. 71843-6-1/2


crashed through a cable barrier prohibiting access to the construction site. The vehicles

came to rest trunk-to-trunk in a wooded area. The dump truck driver alerted his

colleagues and blocked the entrance to the site. One colleague approached the cars

and saw two individuals working on them.

      Two police deputies saw Olhava and another individual, Eric Hoover, in the

wooded area near the two vehicles. The deputies saw Hoover underneath the Honda

cutting parts with an acetylene torch and saw Olhava standing between the two
vehicles. The deputies determined that the Honda was stolen.

       Olhava was handcuffed, and Deputy Steven Dosch read Olhava his Miranda1
rights in the woods. About an hour later, Detective Terry Haldeman interviewed Olhava
at the precinct. During the interview, Olhava was "nodding off'2 and had "pinpoint
pupils"3 and "slurred speech."4 Detective Haldeman believed Olhava "was under the
influence of illegal narcotics," but did not believe the narcotics affected Olhava's ability
to speak.5 Olhava was coherent and responsive to Detective Haldeman's questions,
and at no time during the interview did Olhava appear to not understand any questions
posed. Olhava was "very specific" in talking with Detective Haldeman.6 Further, Olhava
"had a toothache" caused by an "abscessed tooth," but did not appear to be debilitated

by the ailment.7

       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
       2 Report of Proceedings (RP) (Jan. 30, 2014) at 20.

       4 Id, at 24.
       5 ]d at 21.
       6 id, at 23.
        7 Id. at 24.
No. 71843-6-1/3


       The State charged Olhava with first degree taking a motor vehicle without

permission. The trial court denied Olhava's motion to suppress. After a CrR 3.5

hearing, the trial court entered written findings and conclusions. The trial court made

the following undisputed findings:

       •   Olhava understood his Miranda rights, waived those rights, and agreed
           to talk to Deputy Dosch in the woods.

       •   Olhava "remembered his rights" and "was willing to talk" to Detective
           Haldeman at the precinct.8

       •   Olhava was "coherent and essentially responsive" to Detective
           Haldeman's questions.9

       In its oral decision, the trial court observed that "while the defendant was

apparently ... under the influence of a substance to some degree, it was not to such a

degree as to make him incoherent or anything of that sort, that the defendant had the

presence of mind to speak voluntarily and, indeed, was doing so."10 The trial court also

entered a written finding of fact that Olhava "had the presence of mind" to waive his

right to remain silent.11 In its written conclusions of law, the trial court concluded Olhava

voluntarily waived his right to remain silent, and denied the motion to suppress. A jury

found Olhava guilty as charged.

       Olhava appeals.




       8 Id at 30.

       9|g\
       10 jd at 30-31.
       11 Clerk's Papers (CP) at 37 (Finding of Fact 13).
No. 71843-6-1/4


                                        ANALYSIS

       Olhava challenges the trial court's finding that he had the presence of mind to

waive his right to remain silent and the conclusion that his waiver was voluntary.

       We review the denial of a suppression motion to determine whether substantial

evidence supports the trial court's findings and whether the findings support its

conclusions.12 "Substantial evidence is 'evidence sufficient to persuade a fair-minded,

rational person of the truth of the finding.'"13 Unchallenged findings are verities on

appeal.14 We review conclusions of law de novo.15

       A defendant may waive the right to remain silent if the waiver is knowing,

voluntary, and intelligent.16 The State bears the burden of proving voluntariness by a

preponderance of the evidence.17 In determining whether a defendant voluntarily

waived his right to remain silent, we consider the totality of the circumstances.18

Factors we may consider include the defendant's physical condition, age, mental

abilities, experience, and police conduct.19 Intoxication alone does not render a




       12 State v. Ross, 106 Wn. App 876, 880, 26 P.3d 298 (2001).
     13 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v.
Mendez. 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
       14 Ross, 106 Wn. App. at 880.
       15 State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
       16 Miranda. 384 U.S. at 444; State v. Aten, 130 Wn.2d 640, 663-64, 927 P.2d 210
(1996).
       17 State v. Braun. 82 Wn.2d 157, 162, 509 P.2d 742 (1973).
       18 Aten. 130 Wn.2d at 663-64.
       19 Id.
No. 71843-6-1/5


defendant's statements involuntary.20 But intoxication is "a factor in deciding whether
the defendant understood his rights and made a conscious decision" to forego them.21

       Olhava claims his level of intoxication rendered his statements involuntary. We

disagree.

       The totality of the circumstances here supports the trial court's determination that

Olhava had the presence of mind to waive his right to remain silent. Undisputed

findings reflect that (1) Olhava was read his Miranda rights; (2) he understood those

rights; (3) he agreed to speak with Deputy Dosch and Detective Haldeman; and (4) he

was coherent and responsive to all of Detective Haldeman's questions. Detective

Haldeman interviewed Olhava at the precinct. During the interview, Olhava was

handcuffed in a jail cell. Approximately an hour had passed when Deputy Dosch had

read Olhava his Miranda rights and when Detective Haldeman interviewed Olhava.

Olhava told Detective Haldeman that "he remembered his rights, he understood them,

and he was still willing to speak" to him.22

       As to Olhava's specific argument that his level of intoxication impaired his ability

to understand or voluntarily waive his right to remain silent, the totality of the

circumstances here includes some evidence suggesting Olhava was under the

influence of some substance, but an undisputed finding reflects that Olhava "was

coherent and responsive" to all of Detective Haldeman's questions.23 And Detective

Haldeman specifically testified that Olhava understood his questions, did not ramble,


       20 State v. Turner. 31 Wn. App. 843, 845-46, 644 P.2d 1224 (1982).
       21 State v. Gardner, 28 Wn. App. 721, 723, 626 P.2d 56 (1981).
       22RP(Jan. 30, 2014) at 18.
       23 CP at 36 (Finding of Fact 11).
No. 71843-6-1/6


and directly answered his questions. Therefore, substantial evidence supports the

challenged finding that Olhava had the presence of mind to waive his right to remain

silent. Additionally, that finding together with the undisputed findings support the trial

court's conclusion that Olhava voluntarily waived his right to remain silent.

                                      CONCLUSION

       Substantial evidence in the record supports the trial court's finding that Olhava

had the presence of mind to validly waive his right to remain silent, and the findings

support the conclusion that Olhava voluntarily waived his right to remain silent.

       We affirm.


                                                             AT



WE CONCUR:




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