                                                                  FILED 

                                                                NOV. 26, 2013 

                                                        In the Office of the Clerk of Court 

                                                      W A State Court of Appeals, Division III 




  COURT OF APPEALS, DIVISION III, STATE OF 

              WASHINGTON 

STA"rE OF WASHINGTON,                           )        No. 30220-2-111
                                                )
                 Respondent,                    )
                                                )       ORDER GRANTING
          v.                                    )       MOTION FOR
                                                )       RECONSIDERATION AND
JONA RENEE ZEIGLER,                             )       WITHDRAWING OPINION
                                                )
                 Appellant.                     )

      The court has considered appellant's motion for reconsideration and is of the

opinion the motion should be granted.

       IT IS ORDERED the motion for reconsideration of this court's decision of

August 15, 2013, is hereby granted.

       IT IS FURTHER ORDERED the opinion filed August 15, 2013, is hereby

withdrawn and a new opinion will be filed this day.

      DATED:        November 26, 2013

      PANEL:        Judges Kulik, Korsmo, and Siddoway

      FOR THE COURT:


                                                KEVIN M. KORSMO
                                                CHIEF JUDGE
                                                                    FILED 

                                                                  NOV. 26, 2013 

                                                          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. 30220-2-III
                                                )
                     Respondent,                )
                                                )
              v.                                )         UNPUBLISHED OPINION
                                                )
JONA RENEE ZEIGLER,                             )
                                                )
                     Appellant.                 )

       KULIK, 1. -   Jona Renee Zeigler appeals her conviction for attempting to elude a

pursuing police vehicle. A CrR 3.5 hearing was held to assess the incriminating

statements Ms. Zeigler made to an officer while she was in the hospital recovering from

injuries she suffered during the incident. Ms. Zeigler did not appear at the hearing but

was represented by her counsel. The statements were admitted. A jury found Ms. Zeigler

guilty of attempting to elude. She contends that her absence from the CrR 3.5 hearing

violated her right to be present at all critical stages of trial proceedings. She also alleges

ineffective assistance of counsel.
No.30220-2-II1
State v. Zeigler


       We conclude that Ms. Zeigler fails to establish a manifest error. Her counsel was

effective. Therefore, we affirm the conviction.

                                           FACTS

       Corporal Thomas Tufte approached Jona Zeigler while she was sitting in her truck

in a parking lot near downtown Moses Lake. Corporal Tufte told her there was a warrant

for her arrest, and that she was not fr~e to go. After an additional conversation, Ms.

Zeigler told him'" I'm not going,'" backed up her truck, and then drove out of the

parking lot. Report of Proceedings (Aug. 24 & 25, 2011) (RP) at 139. Corporal Tufte got

into his patrol car and followed her.

       During the pursuit, Corporal Tufte activated his siren. After turning on a

residential street, Ms. Zeigler attempted to get out of the moving truck. She slipped,

grabbed the steering wheel and tried to get back into the truck. As the truck bounced off

the curb, Ms. Zeigler lost her grip and fell. The truck continued to roll until it high

centered on a chain link fence. Ms. Zeigler became pinned under the rear wheel of her

vehicle.

       Nearby neighbors came to the assist Corporal Tufte in getting Ms. Zeigler out from

underneath the truck. After he had moved her away from the truck, Corporal Tufte found




                                              2

No. 30220-2-II1
State v. Zeigler


Ms. Zeigler had a pulse but was not breathing. An ambulance took Ms. Zeigler to a

nearby hospital, where Detective Kurt Adkinson interviewed her 10 days later.

       The State charged Ms. Zeigler with attempting to elude and reckless endangerment

and sought an exceptional sentence based on an allegation of endangerment by eluding.

The State proposed to introduce statements by Ms. Zeigler allegedly made to Corporal

Tufte and Detective Adkinson.

       The trial court conducted a suppression hearing at which Ms. Zeigler did not

appear. Defense counsel told the court that she had asked Ms. Zeigler to be present, but

was prepared to proceed given the nature of the hearing. The court did not question the

reason for Ms. Zeigler's absence. The hearing proceeded without Ms. Zeigler.

       At the outset of the suppression hearing, defense counsel told the court that she

was not challenging the admissibility of Ms. Zeigler's statements to Corporal Tufte

because she did not believe that her client was in custody at the time. She offered to

stipulate to the admissibility of the statements in her client's absence, but ultimately

agreed to the admissibility of a transcript of the corporal's previously recorded statement.

The trial court found that defense counsel had stipulated to the admissibility of Ms.

Zeigler's statements to Corporal Tufte.




                                              3

No.30220-2-II1
State v. Zeigler


       As to the statements to Detective Adkinson, Ms. Zeigler contended that she was

heavily medicated at the time she was questioned by Detective Adkinson and not capable

of fully understanding her statements or the Miranda l warnings. The trial court found

that Ms. Zeigler's coherent and thoughtful responses to Detective Adkinson's questions

demonstrated that her waiver of rights was knowing and voluntary. The court ruled that

her statements to law enforcement officers were admissible.

       Five days later, Ms. Zeigler appeared at a hearing on the State's motion to amend

the information. The trial court did not ask her anything about her failure to appear at the

suppression hearing nor did Ms. Zeigler mention her nonappearance. Ms. Zeigler also did

not object when the findings of fact and conclusions of law from the suppression hearing

were presented to the court on the first day of trial.

       Ms. Zeigler appeared at a readiness hearing on Monday, August 22. Ms. Zeigler

acknowledged that she should be ready to proceed to trial on Wednesday. The trial began

as scheduled on Wednesday, August 24.

       During the State's case, Corporal Tufte told the jury that Ms. Zeigler initially lied

about her identity and that as she began to drive away, she said to Corporal Tufte, '" No,

I'm not going.''' RP at 139. Detective Adkinson related several of Ms. Zeigler's


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

                                               4

No.30220-2-III
State v. Zeigler


statements made during his interview with her, including her admission that she told

Corporal Tufte that she'" can't go to jail'" and was'" going to try and run.'" RP at 196,

198.

       Ms. Zeigler testified at trial. Her trial testimony did not address the statements

made to the officers. Instead, Ms. Zeigler testified that she left the parking lot quickly.

About one-half mile later, she saw the officer was following her with his lights on. She

said she knew the officer was behind her but was ignoring his signal. She also said that

she thought about stopping but her husband needed her care at home.

       A jury found Ms. Zeigler guilty of eluding and answered "yes" on the special

verdict form that Ms. Zeigler's actions of eluding threatened other persons with physical

injury or harm. Ms. Zeigler appeals.

                                        ANALYSIS

       Whether a defendant's constitutional right to be present has been violated is a

question of law reviewed de novo. State v. Irby, 170 Wn.2d 874, 880,246 P.3d 796

(2011).

       erR 3.5 Suppression Hearing. Generally, appellate courts will not consider an

issue raised for the first time on appeal unless the issue involves a manifest error affecting

a constitutional right. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)



                                              5

No.30220-2-Il1
State v. Zeigler


(quoting RAP 2.5(a)(3». A constitutional error is manifest if actual prejudice results

from the error. Id. The burden is on the defendant to identifY a constitutional error and

show how, in the context of the trial, the alleged error actually affected the defendant's

rights at trial. State v. O'Hara, 167 Wn.2d 91,99,217 P.3d 756 (2009). "[T]here must

be a 'plausible showing by the [appellant] that the asserted error had practical and

identifiable consequences in the trial of the case.'" Id. (internal quotation marks omitted)

(quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 PJd 125 (2007». Actual prejudice

focuses on "whether the error is so obvious on the record that the error warrants appellate

review." Id. at 99-100. "[S]peculation or possibility is insufficient to show prejudice."

State v. Sterling, 23 Wn. App. 171, 177, 596 P .2d 1082 (1979).

       "[P]ermitting every possible constitutional error to be raised for the first time on

appeal undermines the trial process, generates unnecessary appeals, creates undesirable

retrials and is wasteful of the limited resources of prosecutors, public defenders and

courts." State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992).

       A criminal defendant has a constitutional right to be present at all critical stages of

the proceedings. United States v. Gagnon, 470 U.S. 522,526, 105 S. Ct. 1482,84 L. Ed.

2d 486 (1985). "The core of the constitutional right to be present is the right to be present

when evidence is being presented." In re Pers. Restraint ofLord, 123 Wn.2d 296, 306,



                                              6

No. 30220-2-II1
State v. Zeigler


868 P.2d 835 (1994). A defendant may waive his rights under the constitution, provided

that such waiver is voluntary, knowing, and intelligent. State v. Thomson, 123 Wn.2d

877,880, 872 P.2d 1097 (1994).

       Washington requires courts to conduct a hearing pursuant to erR 3.5 to determine

the admissibility of a defendant's statements to law enforcement. State v. Williams, 137

Wn.2d 746, 749-S0, 975 P.2d 963 (1999). A erR 3.5 hearing tests the voluntariness of an

incriminating statement prior to its admission at trial. Williams, 137 Wn.2d at 754. Even

after incriminating statements are admitted following a erR 3.5 hearing, a defendant is

not precluded from presenting evidence that casts doubt on the credibility or weight to be

given to the statements. erR 3.S(d).

       "A violation of the due process right to be present is subject to harmless error

analysis." Irby, 170 Wn.2d at 885. '" [T]he burden of proving harmlessness is on the

State and it must do so beyond a reasonable doubt.'" Id. at 886 (quoting State v.

Caliguri, 99 Wn.2d 501, S09, 664 P.2d 466 (1983)).

       Ms. Zeigler contends that the trial court violated her due process right to be present

at all critical stages of the trial proceedings by conducting the erR 3.S hearing in her

absence. She maintains that the evidence fails to establish a knowing, voluntary, and

intelligent waiver of her rights. She also contends that this error is not harmless because


                                              7

No.30220-2-III
State v. Zeigler


she could have objected at the hearing to the testimony regarding her confessional

statements.

       Ms. Zeigler raises this due process challenge for the first time on appeaL Despite

several other complaints, Ms. Zeigler never approached the trial court with the issue of

her absence from the CrR 3.5 hearing. The preliminary question is whether Ms. Zeigler

raises a manifest error affecting a constitutional right.

       In this situation, Ms. Zeigler's CrR 3.5 hearing is a critical stage of the trial

proceedings because it involved the taking of testimony. Detective Adkinson testified at

the hearing regarding Ms. Zeigler's confessional statements, and the trial court ruled that

this evidence was admissible. Ms. Zeigler's alleged error involves a constitutional right.

Additionally, Ms. Zeigler is correct that the record fails to establish a knowing, voluntary,

and intelligent waiver of her rights. The trial court did not conduct a reasonable inquiry

into her absence.

       However, Ms. Zeigler fails establish that the trial court's decision to conduct the

hearing without her presence was a manifest error. She fails to demonstrate actual

prejudice from the error. She does not identify any practical and identifiable

consequences resulting from her absence. While she contends that she could have

indentified discrepancies in the witness testimony and contradicted witness accounts that



                                               8

No. 30220-2-III
State v. Zeigler


could have changed the court's decision, her speculative allegations as to what she might

have done or the trial court might have done if she had been physically present are

insufficient to establish manifest error. See O'Hara, 167 Wn.2d at 99. There is no

evidence in the record to determine if Ms. Zeigler's motion to suppress would have been

granted if she was present at the hearing. In addition, Ms. Zeigler's actions at trial

contradict her contention that her participation at the hearing could have changed the

result. At trial, Ms. Zeigler did not challenge the incriminating statements or offer any

contrasting testimony, even though she was given another opportunity to do so. Ms.

Zeigler shows no actual prejudice as a result of her absence from the CrR 3.5 hearing.

She fails to establish a manifest error.2

       Even if we were to decide that Ms. Zeigler raises a manifest error affecting a

constitutional right, her contention still fails. The alleged error was harmless beyond a

reasonable doubt. Even if Ms. Zeigler's presence would have somehow convinced the

court to suppress Detective Adkinson's statements, there was still ample evidence to

support the verdict that Ms. Zeigler attempted to evade the police. Corporal Tufte's

statements were not challenged by defense counsel and were admissible at trial. Corporal

Tufte's statements established that Ms. Zeigler knew she was not free to leave when she


       2But see Irby, 170 Wn.2d 874.

                                              9

No.30220-2-III
State v. Zeigler


exited the parking lot. Moreover, Ms. Zeigler testified that she was aware that a police

car was following her and that she did not stop. The videotape of the police pursuit also

established that Ms. Zeigler failed to stop for police. Ms. Zeigler's absence at the

suppression hearing was a harmless error beyond a reasonable doubt.

       We decline to review Ms. Zeigler's alleged error for the first time on appeal

because she fails to establish a manifest error affecting a constitutional right. Even if we

were to address Ms. Zeigler's contention that her constitutional right to be present at all

crucial stages of trial proceedings was violated, her contention fails. Any alleged error is

harmless.

             STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       Effectiveness ofCounsel. In her statement of additional grounds for review

(SAG), Ms. Zeigler claims ineffective assistance of counsel. Ms. Zeigler contends that

defense counsel's performance was defective when counsel (1) admitted in closing

arguments that Ms. Zeigler was eluding, (2) told Ms. Zeigler that she did not need to be

present during the erR 3.5 hearing, and (3) misled Ms. Zeigler about the date of the trial,

causing Ms. Zeigler to rush home from an out-of-town job opportunity.

       To establish ineffective assistance of counsel, two prongs need to be satisfied:

(1) counsel's conduct must be deficient, and (2) counsel's acts must have prejudiced the


                                             10 

No.30220-2-III
State v. Zeigler


defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,801. Ed. 2d

674 (1984). "[S]crutiny of counsel's performance must be highly deferential." Id. at 689.

       Where the evidence of guilt on a particular count is overwhelming and there is no

reason to suppose that any juror doubts it, conceding guilt on that count in closing can be

a sound trial tactic. State v. Silva, 106 Wn. App. 586, 596, 24 P .3d 477 (2001) (quoting

Underwood v. Clark, 939 F.2d 473,474 (7th Cir. 1991)). This approach may help win

the jury's confidence, preserve the defendant's credibility, and lead the jury toward

leniency by conceding that the defendant is guilty of a lesser charge. See id. at n.3 7. If

the concession is a matter of trial strategy or tactics, it is not ineffective representation.

Id. at 599.

       We conclude that Ms. Zeigler fails to establish that defense counsel was

ineffective. Defense counsel's statement during closing argument was not unreasonable.

Defense counsel could not deny the allegation of attempting to elude because Ms. Zeigler

admitted to all ofthe elements of the offense in her testimony. Also, the videotape

evidence clearly showed Ms. Zeigler's failure to stop. At this point, it is reasonable to

conclude that defense counsel's strategy was to minimize the impact of the evidence by

admitting that the evidence established the offense of eluding, but denying that the

evidence supported the recklessness charge or the special allegation of endangerment.


                                               11 

No.30220-2-II1
State v. Zeigler


This strategy of focusing on charges where reasonable doubt could be established was a

sound trial tactic. The strategy was effective, as Ms. Zeigler was found not guilty of

reckless endangennent.

       As for the erR 3.5 hearing, the record does not establish that defense counsel

advised Ms. Zeigler that she did not need to attend. However, even if this was true,

defense counsel did not act unreasonably in advising Ms. Zeigler. Ms. Zeigler's presence

would not have changed the outcome of the proceeding. The testimony would still have

been admitted. The trial court recognized the clear admissibility of the statements.

Defense counsel was reasonable in telling Ms. Zeigler that her presence was not

necessary. There is no prejudice to Ms. Zeigler.

       The alleged confusion over the trial date did not amount to ineffective assistance.

The trial court addressed this issue and recognized that it could not con finn that defense

counsel advised Ms. Zeigler of an incorrect trial date. Even so, the court correctly found

that the action was not prejudicial to Ms. Zeigler. The court found that Ms. Zeigler

appeared at the pretrial hearing, was advised of the trial date, and had an obligation to

appear on that date. Defense counsel's failure to confer with Ms. Zeigler immediately

before trial does not establish ineffective assistance of counsel. Defense counsel




                                             12 

No.30220-2-II1
State v. Zeigler


presented a coherent argument and was well prepared. Ms. Zeigler was not prejudiced by

the alleged error.

            Defense counsel effectively represented Ms. Zeigler.

            Jury Instructions. Next, Ms. Zeigler contends that the jury confused the

instruction on reckless endangerment with the instruction on the special allegation of

endangerment on the eluding charge. She contends that the instructions appear to charge

her twice for the same offense and the jury's confusion may have resulted in Ms. Zeigler

being convicted of the wrong offense. Ms. Zeigler did not object to the jury instructions

at trial.

            Generally, a defendant's failure to object to jury instructions at trial results in a

waiver of the right to challenge the instruction on appeal. However, an error may be

raised for the first time on appeal if it '" invades a fundamental right of the accused.'"

State v. Levy, 156 Wn.2d 709, 719,132 P.3d 1076 (2006) (quoting State v. Becker, 132

Wn.2d 54, 64, 935 P.2d 1321 (1997».             Also, a double jeopardy violation is an error of

constitutional magnitude and can be raised for the first time on appeal. State v. Mutch,

171 Wn.2d 646, 661, 254 P.3d 803 (2011). The constitutional guaranty against double

jeopardy protects a defendant against multiple punishments for the same offense. U.S.

CONST. amend. V; CONST. art. I, § 9.



                                                   13
No. 30220-2-III
State v. Zeigler


       Ms. Zeigler failed to object to the jury instructions at trial. Thus, she waived her

right to challenge the jury instructions on appeal. Admittedly, Ms. Zeigler alludes to a

double jeopardy violation in her challenge to the jury instructions. However, no double

jeopardy violation occurred because she was not convicted of both of the separate

charges. The jury answered affirmatively on the special endangerment allegation, but

found Ms. Zeigler not guilty of the count of reckless endangerment. Thus, she did not

receive multiple punishments for the same offense.

       In her last SAG issue, Ms. Zeigler suggests that she cannot be found guilty of

eluding if the act takes place on private property. Ms. Zeigler does not cite to legal

authority to support this position. In any case, the eluding statute does not require the

offense to occur on public highways.

       Ms. Zeigler waived her right to challenge the jury instructions on appeal.




                                             14 

No.30220-2-III
State v. Zeigler


       We affinn the conviction.

      A majority of the panel has detennined 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:



                                              ~,!i-

                                          Siddoway, J.




                                            15 

