                                                                                                   COURT OF
                                                                                                                APPEALS
                                                                                                          DIVISION II
                                                                                                201

                                                                                                ST-       u;     T

    IN THE COURT OF APPEALS OF THE STATE OF WASHING I.                                                      Li1 SHINGTON
                                                  SY

                                           DIVISION II

STATE OF WASHINGTON,                                                         No. 45328 -2 -II


                                Respondent,


          v.



JEREMY L. MCCRACKEN,                                                UNPUBLISHED OPINION


                                Appellant.


          WORSWICK, J. —   A jury returned a verdict finding Jeremy McCracken guilty of third

degree assault. McCracken appeals his conviction and sentence, asserting that ( 1) a State witness

improperly commented on his post -arrest silence in violation of his due process rights, and (2)

the sentencing court erred by ordering him to pay a $ 500 fee for his court appointed counsel as

part of his legal financial obligations. We affirm.

                                                FACTS


          On April 16, 2013, McCracken was present for a hearing on a civil matter at the Grays

Harbor County Superior Court. As the trial court was announcing its final ruling, McCracken

 got increasingly irritated to the point that he started to argue and talk to the judge in a loud

voice."    Report of Proceedings ( RP) at 47. The trial court judge warned McCracken to stop

talking or it would place him in contempt of court. McCracken continued to talk, and the trial

court placed him in contempt of court and ordered court security officers to arrest him.

          Dwight Combs, a court deputy with the Grays Harbor County sheriffs department,

walked over    to McCracken   and   told him that   he   was under arrest.   McCracken    pushed   his   chair
No. 45328 -2 -II



back   and   repeatedly told Combs, "[ Y] ou'   re not   going to touch   me."   RP at 48. McCracken then


got up and started walking toward the exit door of the courtroom. David Haller, the deputy

director of security for the Grays Harbor County courts, was standing near the courtroom exit

and tried to stop McCracken when he approached. McCracken punched Haller in the chest,

causing Haller to fall into a bench. McCracken' s father convinced McCracken to calm down,

and courtroom security officers arrested him without further incident. Based on this incident, the

State charged McCracken with third degree assault.


         Before trial, the trial court held a CrR 3. 5 hearing to determine the admissibility of

statements McCracken had made while in police custody. Following the CrR 3. 5 hearing, the

trial court ruled that McCracken' s custodial statements were admissible at trial.


         At trial, Combs and Haller testified consistently with the facts as stated above. The State

also presented the testimony of three witnesses who were in the courtroom when McCracken

allegedly assaulted Haller. Amy Airhart testified that after Combs told McCracken that he was

being arrested for contempt, McCracken told Combs not to touch him before running toward the
courtroom exit while pushing people away with his uninjured hand. Airhart stated that

McCracken ran past her and that when she turned around she saw a security officer at the exit

door falling backwards to the ground. Cynthia Harris similarly testified that McCracken fled

when Combs attempted to arrest him and that a security officer at the exit door ended up on the

floor after McCracken tried to get the officer out of his way. Grays Harbor County court clerk

 Susan O' Brien testified that she started to call 911 when she saw McCracken stand up as Combs

 approached him. O' Brien stated that she looked up from her phone and saw McCracken push

 Haller, which push caused Haller to stagger back and hit a bench.



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No. 45328 -2 -II



          McCracken testified that he had accidently bumped into Haller and did not intend to

assault him. After the defense rested, the State called one rebuttal witness, Grays Harbor County

Deputy Sheriff Robert Wilson. Wilson testified that he had escorted McCracken from the

courtroom to the Grays Harbor County jail. Wilson stated that he had advised McCracken of his

Miranda1 rights and that McCracken chose to waive those rights to provide a statement. Later in

Wilson' s testimony, the following exchange took place:

           State]:    Did you ask him if he was warned to stop talking in court?
           Wilson]: I did.
           State]:    What did he say?
           Wilson]: He advised he was not.
           State] :   Did you ask him if he was aware that the officer was placing him under
          arrest?

           Wilson]: I did.
           State]:    What was his response?
           Wilson] :    He advised that he wasn' t aware that they were placing him under arrest.
           State] : Did you ask him if he struck the officer?
           Wilson]: I did.
           State]:    What did he say?
           Wilson]:     He didn' t   want   to   get   into that   was   his   statement.   I don' t want to get
          into that, was I believe the statement made.
           State]:    Thank you. Nothing further.

RP at 102- 103.


          The jury returned a verdict finding McCracken guilty of third degree assault, and the trial

court sentenced him to 3 months of incarceration and 12 months of community custody. The
                                                                                                                  2
trial   court' s sentence also .imposed a $      500 fee for McCracken'           s court appointed   attorney.


McCracken appeals.




 1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

2 McCracken' s sentence imposed a total of $1, 528. 03 in legal financial obligations, but
McCracken challenges only the $500. 00 fee for court appointed counsel.


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No. 45328 -2 -II



                                                         ANALYSIS


                                          I. COMMENT ON RIGHT TO SILENCE


           McCracken first asserts that Wilson' s testimony regarding his decision to decline

answering a question improperly commented on his exercise of the right to silence. We agree,

but hold this improper comment to be harmless.

           A criminal defendant has a right to remain silent under the Fifth Amendment to the

                                                     I, § 9   of our State Constitution.4 State v. Easter, 130
                   Constitution3
United States                       and article




Wn.2d 228, 235, 922 P. 2d 1285 ( 1996). We give the same interpretation to both clauses and


liberally construe the right against self -incrimination. Easter, 130 Wn.2d at 235 -36.

           The State may not use a defendant' s pre -arrest or post -arrest silence as substantive

evidence of guilt. Easter, 130 Wn.2d at 238. Testimony that the defendant refused to answer

questions can be an improper comment on the defendant' s right to silence. See e.g., State v.

Lewis, 130 Wn.2d 700, 705, 927 P. 2d 235 ( 1996) ( " A                     police witness may not comment on the

silence of    the defendant      so as   to infer   guilt   from   a refusal    to   answer questions. ");   State v. Perrett,


86 Wn.      App.   312, 322, 936 P. 2d 426 ( 1997) (            statement that defendant " had nothing to say" was

an    improper     comment on     the    right   to silence).    Testimony referencing a defendant' s decision to

not answer a question by the police amounts to an improper comment on the right to silence

     when used to the State' s advantage either as substantive evidence of guilt or to suggest to the


jury    that the silence     was an admission of guilt."           Lewis, 130 Wn.2d at 707.




3 The Fifth Amendment of the United States Constitution states in part that no person " shall be
 compelled in any criminal case to be a witness against himself."
 4
     Article I, § 9   of   the Washington Constitution           states   in   part, "   No person shall be compelled in
 any criminal case to give evidence against himself."
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No. 45328 -2 -II



         Here, after Wilson testified that he had asked McCracken whether he struck Haller, the

State   asked    Wilson, " What did [ McCracken] say ?" RP                   at    103. Wilson responded that


McCracken told him " I don' t            want   to   get   into that." RP     at   103. Although this was an improper


comment on McCracken' s invocation of his right to silence, we hold that the error was harmless

beyond a reasonable doubt.


             In analyzing whether an improper comment on the defendant' s right to silence was

harmless, our standard of review depends on whether the comment was direct or indirect. State

v.   Romero, 113 Wn.        App.      779, 790, 54 P. 3d 1255 ( 2002). A direct comment on the defendant' s


right to silence occurs when the State or a witness specifically refers to the defendant' s

invocation of the constitutional right to silence, whereas an indirect comment occurs when the

State or a witness refers to conduct of the defendant that could be inferred as an invocation of the

right   to   silence.   State   v.   Pottorff, 138   Wn.        App.   343, 347, 156 P. 3d 955 ( 2007). If the comment


on the defendant' s right to silence is direct, we must determine whether the error was harmless

beyond       a reasonable   doubt.       Romero, 113 Wn. App. at 790. And where the comment was

indirect, we apply the nonconstitutional harmless error standard to determine whether there was

any reasonable probability that the error affected the outcome of the case. Pottorff, 138 Wn.

App. at 347.

             Here, even assuming that Wilson' s testimony constituted a direct comment on

McCracken' s invocation of the right to silence for which the higher constitutional harmless error

 standard applies, the error was harmless beyond a reasonable doubt. In Pottorff, an officer

 testified that he had asked the defendant whether he struck the victim with a cane, but that the

 defendant then         chose   to invoke his   right      to   remain silent.     138 Wn. App. at 346. Division Three


                                                                       5
No. 45328 -2 -II



of this court held that the officer' s testimony constituted a direct comment on the defendant' s

right to silence, but that the comment was harmless beyond a reasonable doubt. Pottorff, 138

Wn. App. at 347 -48.

          In holding that the comment was harmless beyond a reasonable doubt, the Pottorff court

noted that ( 1) the defendant did not immediately invoke the right to silence following Miranda

warnings but, rather, agreed to answer the officer' s questions before later invoking the right to

silence; (    2) after the officer testified about the defendant' s invocation of the right to silence, the

prosecutor " continued with non -related              questioning      and   did   not argue   the   point   to the   jury "; and

 3) nothing in the record suggested that the jury relied on the defendant' s silence as evidence of

guilt.    138 Wn.        App.   at   347.   Similarly here, ( 1) McCracken initially chose to waive his Miranda

rights   to   answer      Wilson'     s questions until   Wilson   asked     him   whether    he had   struck   the victim; (2)



the prosecutor ended its examination of Wilson immediately after Wilson testified that

McCracken did not want to answer his question, and the prosecutor did not again refer to the

testimony at issue; and (3) nothing in this record suggests that the jury used McCracken' s silence

to infer his guilt. Accordingly, following Pottorff, we hold that Wilson' s improper testimony

was harmless beyond a reasonable doubt. 138 Wn. App. at 347 -48.

           Moreover, we are convinced that any reasonable jury would have reached the same

finding of guilt in the absence of Wilson' s improper testimony. See State v. Guloy, 104 Wn.2d
412, 425 -26, 705 P. 2d 1182 ( 1985) ( constitutional error is harmless where " the untainted


evidence       is   so   overwhelming that it necessarily leads to           a   finding   of guilt ");   State v. Keene, 86


Wn.      App.   589, 594, 938 P. 2d 839 ( 1997) ( " A constitutional error is harmless if the court is


convinced that any reasonable jury would have reached the same result in the absence of the


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No. 45328 -2 -II


error. ").    Here, Combs, Haller, Airhart, Harris, and O' Brien all described with substantial


similarity the courtroom incident forming the basis for McCracken' s assault charge. Each

witness testified that McCracken attempted to flee the courtroom after Combs attempted to arrest


him and that, when blocked by Haller at the exit door, McCracken pushed Haller into a bench.

Although Airhart stated that she did not see McCracken make contact with Haller, her testimony

nonetheless provided overwhelming circumstantial evidence that McCracken had pushed Haller.

Because this untainted testimony provided overwhelming evidence that McCracken was guilty of

third degree assault, Wilson' s testimony concerning McCracken' s right to silence was harmless

error.



                                      II. LEGAL FINANCIAL OBLIGATIONS


         Next, McCracken asserts that the trial court erred at sentencing by imposing a $ 500 fee

for his court appointed counsel as part of his legal financial obligations. Again, we disagree.

         McCracken first argues that the trial court violated his right to counsel by imposing the

  500 fee because it failed to enter a finding that he had the current or likely future ability to pay

the fee. But McCracken did not object at sentencing to the trial court' s imposition of this fee

absent a finding that he had the current or likely future ability to pay it. And our Supreme Court

has held that the Constitution does not require a trial court to consider a defendant' s ability to

pay discretionary legal financial obligations before imposing such financial obligations at

sentencing. State       v.   Blank, 131 Wn.2d 230, 241 -42, 930 P. 2d 1213 ( 1997). Rather,


               c] onstitutional principles will   be implicated ...   only if the government seeks to
             enforce collection of the assessments ` at a time when [ the defendant is] unable,
             through no fault of his own, to comply.' .. .




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No. 45328 -2 -II



                          It is   at   the                             where an indigent may be
                                             point of enforced collection ...,

             faced with the alternatives of payment or imprisonment, that he ` may assert a
             constitutional objection on the ground of his indigency. "'

State                 118 Wn.2d 911, 917, 829 P. 2d 166 ( 1992) (                          in   original) ( internal
        v.   Curry,                                                          alterations




quotation marks omitted) (             quoting State v. Curry, 62 Wn. App. 676, 681 -82, 814 P. 2d 1252

 1991) ( quoting United States               v.   Pagan, 785 F. 2d 378, 381 - 82 ( 2d Cir. 1986))).      Accordingly,

McCracken' s argument regarding the sentencing court' s failure to enter findings before imposing

a discretionary fee for court appointed counsel does not implicate a constitutional issue unless ,

and until such time that the State attempts to collect those fees. 5 Because McCracken did not

object to the imposition of fees for court appointed counsel at sentencing, and because the trial

court' s imposition of the fees absent a finding that McCracken had the current or likely future

ability to pay the fees does not implicate a constitutional issue, we decline to address this issue
for the first time on appeal. RAP 2. 5( a)( 3).


             McCracken also argues that the trial court lacked statutory authority to impose legal

financial obligations for court appointed counsel. We disagree. RCW 9. 94A.760( 1) provides in

relevant part, "      Whenever a person is convicted in superior court, the court may order the.



5McCracken acknowledges in his brief that our Supreme Court has repeatedly held that the
United States Constitution does not require a finding of the defendant' s ability to pay at the time
it imposes discretionary legal financial obligations, but he nonetheless argues that the absence of
such a   finding " violates       the   right      to counsel."Br. of Appellant at 12 ( citing Blank, 131 Wn.2d at
239;    Curry, 118 Wn.2d          at   916).      In forwarding his argument, McCracken does not cite any
United States Supreme Court case that purportedly overruled our Supreme Court' s decisions in
Blank and Curry. Instead, he cites to Fuller v. Oregon, 417 U.S. 40, 45, 94 S. Ct. 2116, 40 L.
Ed. 2d 642 ( 1974).        But our Supreme Court' s decisions in Blank and Curry addressed Fuller in
holding that trial courts are not constitutionally required to determine a defendant' s ability to pay
before ordering the defendant to pay legal financial obligations. Accordingly, we follow our
 Supreme Court' s precedent in those cases. State v. Watkins, 136 Wn. App. 240, 246, 148 P. 3d
 1112 ( 2006).



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No. 45328 -2 -II



payment of a   legal financial     obligation as part of   the   sentence."   And RCW 9. 94A.030( 30)


defines " legal financial obligation" as including " court- appointed attorneys' fees, and costs of

defense."   Accordingly, the trial court had statutory authority to impose a $ 500 fee for court

appointed counsel as part of McCracken' s legal financial obligations. We affirm McCracken' s

conviction and sentence.



        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.




 We concur:




                   f /   4,Co   w1..


            A.C. J.




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