                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           May 24, 2016



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

    STATE OF WASHINGTON,                                             No. 47153-1-II

                                Respondent,

         v.

    RAYMOND LEE CHANNEL,                                      UNPUBLISHED OPINION

                                Appellant.

        MELNICK, J. — Raymond Lee Channel appeals from his conviction for felony driving under

the influence (DUI).1 We conclude that sufficient evidence supports the conviction and that

Channel received a fair trial. Additionally, the trial court committed harmless error by failing to

enter written findings of fact and conclusions of law after a CrR 3.5 hearing, correctly admitted

Channel’s statements, and properly instructed the jury. Finally, Channel fails to establish prejudice

in his ineffective assistance of counsel claim. We affirm the conviction; however, because the

State concedes that Channel’s sentence exceeds the statutory maximum, we remand for

resentencing.   At resentencing, the trial court shall conduct an individualized inquiry into

Channel’s ability to pay discretionary legal financial obligations (LFOs).




1
    RCW 46.61.502.
47153-1-II


                                              FACTS

I. STOP AND ARREST

         At approximately 11:30 PM on July 16, 2014, Officer Timothy Huycke observed a vehicle

with a nonworking headlight and a broken taillight. Huycke activated his emergency lights to pull

the vehicle over for the infractions.

         The driver, Channel, pulled to the side of the road. According to Huycke, Channel pulled

to the side with a “quick jerk to the right and [a] quick slam on the brakes.” Report of Proceedings

(RP) (Dec. 9, 2014) at 87.       Huycke requested Channel’s license, proof of insurance, and

registration. Channel gave him his identification (ID) card and insurance only. Huycke observed

several signs indicating Channel might have been intoxicated, including Channel fumbling with

his ID card, failing to follow instructions, smelling of alcohol, displaying bloodshot and watery

eyes, and slurring his speech. Before leaving the immediate area of the driver, Huycke asked

Channel how much he had to drink that night. Channel replied, “[T]oo much.” RP (Dec. 9, 2014)

at 89.

         Huycke asked Channel to get out of the car and noted that Channel swayed and did not

walk “exactly straight.” RP (Dec. 9, 2014) at 90. Huycke conducted three field sobriety tests: the

horizontal gaze nystagmus (HGN) test, the one-leg stand test, and the walk-and-turn test. All the

clues were present for each test, indicating Channel was under the influence of alcohol. While

administering the HGN and one-leg stand tests, Huycke observed Channel “swaying.” RP (Dec.

9, 2014) at 96. Huycke had not yet placed Channel under arrest, Channel was not in handcuffs,

and Huycke did not draw his weapon. However, Channel was not free to leave.




                                                 2
47153-1-II


         Huycke placed Channel under arrest for DUI and transported him to the Cowlitz County

Jail. After Channel received his Miranda2 rights and waived them, Huycke asked Channel

questions from the DUI arrest report. Channel answered all the questions except 26 through 29,

to which he responded, “Rather not answer.” RP (Dec. 9, 2014) at 40-41. In response to question

30, Channel indicated his ability to drive was not affected by alcohol. Channel also told Huycke

that he previously had a broken hip. Channel declined to take a BAC (blood alcohol concentration)

breath test at the jail.

II.      PRETRIAL

         The State charged Channel with felony DUI (count I), driving while license suspended or

revoked in the first degree (DWS 1) (count II), and violation of ignition interlock device

requirement (count III). Channel pleaded guilty to counts II and III.

         Prior to trial, the court heard motions in limine and held a hearing pursuant to CrR 3.5.

Among other motions, Channel moved to prohibit testimony that he refused a portable breathalyzer

test (PBT). The State informed the court it “ha[d] no plans on eliciting any information about the

[PBT].” RP (Dec. 9, 2014) at 31. The court granted the motion.

         The State called Huycke as the only witness at the pretrial motions. Huycke testified

consistent with the facts stated above. The trial court summarized Huycke’s testimony and stated

the facts on which it was basing its ruling. The trial court ruled that because of an agreed motion

in limine,3 the responses to questions 26 through 29 were excluded. The trial court also ruled that




2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
 The motion prohibited “any testimony regarding questions [Channel] chose not to answer after
being [M]irandize.” CP at 46.


                                                 3
47153-1-II


Channel’s statement at his vehicle to Huycke, and Channel’s response to question 30 of the DUI

arrest report were admissible.

II.    TRIAL
       At trial, Huycke testified to the above facts. He also explained that field sobriety tests

assess a person’s coordination, ability to follow instructions, balance, and multi-tasking skills.

Huycke stated that “if a person is under the influence of alcohol, sometimes the—their multi-

tasking skills are deteriorated, and, obviously, that affects the ability to drive a vehicle, since it

involves multi-tasking.” RP (Dec. 9, 2014) at 91. Based on Huycke’s training, experience,

observations, and the field sobriety tests, in his opinion, “[Channel] was definitely under the

influence of alcohol.” RP (Dec. 9, 2014) at 105.

       Asa Louis, a scientist with the Washington State Patrol’s Forensic Toxicology Laboratory,

testified about the effects alcohol, a depressant, has on the central nervous system, cognitive skills,

motor skills, and memory. He explained that alcohol can cause a person’s eyes to be bloodshot

and water, or a person’s face to flush. Alcohol first impacts “high cognitive skill[s]” and then

“more obvious skills,” such as fine motor skills, finger dexterity, and the ability to multi-task. RP

(Dec. 9, 2014) at 155. He stated that depressants may hamper a person’s cognitive ability and

other skills. He also stated that as a person drinks more alcohol, more skills will be impaired.

Louis described driving as a “complex divided-attention activity,” meaning a skill that requires

collection and response to many inputs and variables at the same time. RP (Dec. 9, 2014) at 156.

He testified that all of the field sobriety tests are considered “simple divided-attention tests.” RP

(Dec. 9, 2014) at 164.

       Officer Ken Hardy, the officer who searched Channel’s impounded car, found nine cans of

unopened Natural Light beer in a twelve-pack container inside the vehicle. Hardy also responded




                                                  4
47153-1-II


to the scene of Channel’s arrest and, when asked what was happening when he arrived, said,

“Huycke was talking to the Defendant. I believe he was taking a PBT sample.” RP (Dec. 9, 2014)

at 170. Channel objected before Hardy finished the sentence.

         Outside the jury’s presence, defense counsel argued Hardy’s statement violated the motion

in limine. The State responded that the “question was not intended to elicit any information about

the PBT.”4 RP (Dec. 9, 2014) at 171. The court stated defense counsel had mentioned he wanted

to take a moment to speak with his client about potential motions and granted a brief recess for

that purpose. The parties reconvened approximately six minutes later. Defense counsel did not

make any motions at that time, stating he would wait for the court’s ruling on the objection. The

court sustained the objection and struck the statement. The court called the jury back, instructed

it to disregard Hardy’s statement, and then dismissed it for the day. Defense counsel made no

further motions.

         On the morning of the second day of trial, Channel stipulated to his prior conviction for

vehicular assault under the influence,5 which elevated his current DUI charge to a felony. The

State rested, and Channel moved to dismiss. Channel argued that the State failed to provide

sufficient evidence that his “ability to drive a motor vehicle is, or was lessened in any appreciable

degree.” RP (Dec. 9, 2014) at 30. The court denied the motion.

         Channel testified that he bought a twelve-pack of Natural Light beers earlier in the day and

had three to four while doing yard work. His best guess was that he consumed the beers around

5:30 or 6:00 in the evening. Channel also explained that his eyes were red because he had allergies

from cats at his friend’s house and because he smoked in the house and the truck. Channel told


4
    No other mention was made of “PBT” throughout the trial.
5
    RCW 46.61.522(1)(b)


                                                  5
47153-1-II


the jury that his previously broken pelvis, which required surgery in 2009, affected his

performance on the field sobriety tests.

         Channel did not dispute Huycke’s version of what happened during the field sobriety tests.

However, Channel recalled telling Huycke about the surgery right after the one-leg stand test.

According to Channel, he also told Huycke he had three or four drinks. And rather than saying,

“[T]oo much,” Channel recalled saying, “Not too much.” RP (Dec. 10, 2014) at 46.

         Defense counsel proposed a jury instruction that read, “You may give such weight and

credibility to any alleged out-of-court statements of the defendant as you see fit, taking into

consideration the surrounding circumstances.”6 Clerk’s Papers (CP) at 44. The State argued

against giving the instruction because another instruction informed the jury how to assess the

weight it should give the evidence. The State also suggested the instruction would give undue

weight to one witness’s testimony over others. The court then determined the proposed instruction

was duplicative of another instruction7 and that giving it would place extra emphasis on Channel’s

testimony. The court declined to give the instruction. Defense counsel excepted to the court’s

failure to give the instruction.

         The jury found Channel guilty of DUI and, by special verdict, that he refused to submit to

a breath test.

         At sentencing, the court calculated Channel’s offender score to be 8. It sentenced Channel

to 60 months of incarceration and 12 months of community custody for the felony DUI,

consecutive to 364 days of incarceration, with 334 days suspended, each for DWS 1 and the



6
  11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL (WPIC)
6.41, at 196 (3d ed. 2008).
7
    WPIC 1.02, at 14 (3d ed. 2008).


                                                 6
47153-1-II


ignition interlock device violation, which ran concurrent with each other. The court did not discuss

the imposition of LFOs on the record but ordered a total of $2,025.8 Channel did not object during

the sentencing hearing. Channel appeals.

                                             ANALYSIS

I.     SUFFICIENCY OF THE EVIDENCE

       Channel argues the State failed to produce sufficient evidence to prove his driving was

impaired and that he drove under the influence of alcohol. We disagree.

       A.      Standard of Review

       When reviewing whether sufficient evidence supports a criminal conviction, we view the

evidence in the light most favorable to the State to determine whether any rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt. State v. Engel, 166

Wn.2d 572, 576, 210 P.3d 1007 (2009). We weigh all reasonable inferences from the evidence in

the State’s favor. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). We defer to the trier

of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Circumstantial evidence

is no less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

       B.      Driving Under the Influence

       Channel contends the evidence does not support an inference that he was under the

influence of alcohol. “A person is guilty of driving while under the influence of intoxicating liquor

. . . if the person drives a vehicle within [Washington] . . . [w]hile the person is under the influence

of or affected by intoxicating liquor.”       RCW 46.61.502(1)(c).        The State must prove the


8
 In LFOs, the court ordered a $500 victim assessment fee, a $200 criminal filing fee, a $250 jury
demand fee, $150 incarceration fee, a $825 court appointed attorney fee, and a $100 DNA
collection fee.


                                                   7
47153-1-II


defendant’s “‘ability to handle an automobile was lessened in an appreciable degree by the

consumption of intoxicants or drugs.’” Peralta v. State, 191 Wn. App. 931, 946, 366 P.3d 45

(2015) (quoting State v. Wilhelm, 78 Wn. App. 188, 193, 896 P.2d 105 (1995)). Refusal to submit

to a breath test is admissible in subsequent criminal prosecutions. RCW 46.61.517. “The rationale

for admission of refusal evidence is that a refusal to take the test demonstrates the driver’s

consciousness of guilt.” State v. Cohen, 125 Wn. App. 220, 224, 104 P.3d 70 (2005).

       Taken in the light most favorable to the State, the evidence demonstrated the following:

Channel “abrupt[ly]” pulled his car over in response to Huycke’s emergency lights. RP (Dec. 9,

2014) at 87. Channel jerked the car to the right side and slammed on the brakes. When asked for

his license, registration, and insurance, Channel only provided his ID card and proof of insurance,

and he fumbled with his ID card. Channel’s breath smelled of intoxicants, his eyes were bloodshot

and watery, and his speech was slurred. Channel said he had “too much” to drink and, upon exiting

his vehicle, he swayed and did not walk “exactly straight.” RP (Dec. 9, 2014) at 89, 90.

       The evidence also showed that Channel failed three field sobriety tests: the HGN test, the

one-leg stand test, and the walk-and-turn test. He swayed during two of them. The tests are

designed to assess a person’s coordination and balance, ability to follow instructions, and ability

to multi-task. A person under the influence of alcohol may have deteriorated multi-tasking skills,

which affect the ability to drive a vehicle. Alcohol first impacts high cognitive skills and then fine

motor skills, finger dexterity, and the ability to multi-task. Channel declined to take a breath test

at the jail, and Huycke opined that “[Channel] was definitely under the influence of alcohol.” RP

(Dec. 9, 2014) at 105.




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47153-1-II


       In his arguments, Channel compartmentalizes the evidence and asks us to view the

evidence in the light most favorable to him. He argues that nine unopened cans of beer in the car

was insufficient to show he was under the influence. Channel also argues the odor of alcohol was

insufficient to meet the State’s burden. However, as outlined previously, other evidence existed.

       Channel also argues there is no proof of bad driving. However, “proof of erratic driving is

not required to convict [a person] of driving under the influence.” State v. Gillenwater, 96 Wn.

App. 667, 670, 980 P.2d 318 (1999). The State had to prove Channel’s ability to handle an

automobile was lessened in an appreciable degree by his consumption of alcohol. Peralta, 191

Wn. App. at 946.

       Viewing the evidence in the light most favorable to the State and deferring to the jury’s

credibility determinations, we conclude the State provided sufficient evidence to prove Channel’s

ability to operate his vehicle was lessened in an appreciable degree by his consumption of alcohol.

II.    RIGHT TO A FAIR TRIAL

       Channel next argues that Hardy’s response about the PBT to the State’s question violated

a motion in limine and Channel’s right to a fair trial. Assuming without deciding that the State

violated a motion in limine, we conclude the error was not prejudicial.

       The jury’s verdict in a criminal case will be set aside and a new trial granted only if the

asserted error is prejudicial. State v. Latham, 30 Wn. App. 776, 781, 638 P.2d 592 (1981) aff’d,

100 Wn.2d 59, 667 P.2d 56 (1983). An error is prejudicial if it affects, or presumptively affects,

the final result of the trial. Latham, 30 Wn. App. at 781. We presume that juries follow the court’s

instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). When a defendant’s guilt is

“consistently proven by competent evidence” and “no other rational conclusion [could] be

reached,” we do not set aside a conviction. Latham, 30 Wn. App. at 781.



                                                 9
47153-1-II


       Channel argues he was prejudiced because the mere mention of a PBT would lead the jury

to question why the results were not presented at trial. And because of defense counsel’s objection,

the jury would assume that the results were adverse. He contends that the implication to the jury

would be that Channel declined the breath test because he took a PBT, and the results were

incriminating. He also argues that the trial came down to a credibility contest and “any evidence

suggesting [Channel] was seeking to withhold information from the jury would most certainly

weigh heavily against him.” Br. of Appellant at 16.

       When Hardy mentioned the PBT, defense counsel objected, and the court instructed the

jury to disregard Hardy’s response. We presume the jury followed the court’s instructions, Stein,

144 Wn.2d at 247, and conclude that Channel’s guilt was proven by competent sufficient evidence.

Any “irregularity” was cured by the court’s instruction to the jury and as a result, Channel has not

demonstrated prejudice.

III.   FINDINGS OF FACT AND CONCLUSIONS OF LAW

       Channel argues that the trial court erred by not entering written findings of fact and

conclusions of law after the CrR 3.5 hearing. The State concedes that the failure to enter findings

was error but argues it was harmless because the court’s oral findings are sufficient to allow our

review. We agree with the State.

       A.      Standard of Review

       CrR 3.5(c) mandates that “[a]fter the [CrR 3.5] hearing, the court shall set forth in writing:

(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4)

conclusion as to whether the statement is admissible and the reasons therefor.” However, we

consider the absence of findings of fact harmless if the trial court’s oral opinion is clear and

comprehensive and written findings would be just a formality. State v. Trout, 125 Wn. App. 403,



                                                10
47153-1-II


415, 105 P.3d 69 (2005). Failure to comply with CrR 3.5’s writing requirement is harmless if the

trial court’s oral findings are sufficient to allow appellate review. State v. Grogan, 147 Wn. App.

511, 516, 195 P.3d 1017 (2008). We do not reverse for lack of findings unless there is a showing

of prejudice. State v. Thompson, 73 Wn. App. 122, 130, 867 P.2d 691 (1994).

       B.      Harmless Error

       Channel contends he was prejudiced because the trial court said the question of whether

Channel was in custody when Huycke initially stopped him was “close,” and because the court’s

opinion was not “clear and comprehensive.” Br. of Appellant at 22, 23. Despite the trial court’s

error in not entering written findings of fact and conclusions of law, there is a clear record for us

to review. Huycke was the sole witness at the hearing and no facts were in dispute.9 The trial

court made oral findings by summarizing Huycke’s testimony, stated the testimony it relied on,

interpreted the testimony, explained its rationale for the decision, and clearly stated its conclusions

as to each statement. The findings are in accord with the testimony at the hearing.

       Although the trial court stated that the legal conclusion as to custodial interrogation was

“close,” it explained that Huycke’s testimony persuaded it to conclude the statement was

admissible. RP (Dec. 9, 2014) at 53. The trial court also clearly stated its reasons for keeping

Channel’s answers to questions 26 through 29 out of evidence, but allowing Channel’s answer to

question 30. Because the court’s oral ruling is a clear record for us to review, Channel was not

prejudiced by the lack of written findings and conclusions.




9
 Channel states in his brief that he testified at the CrR 3.5 hearing. This does not appear
accurate based on the record.


                                                  11
47153-1-II


IV.    CRR 3.5 MOTION

       Channel argues the trial court erred when, after a hearing pursuant to CrR 3.5, it ruled

Channel’s statements to Huycke were admissible. He contends that his statement at the vehicle

was made during custodial interrogation, and his statement at the jail was made after he invoked

his right to remain silent. We disagree.

       A.      Standard of Review

       The Fifth Amendment protects a defendant against self-incrimination. U.S. CONST. amend.

V. “Miranda warnings were developed to protect a defendant’s constitutional right not to make

incriminating confessions or admissions to police while in the coercive environment of police

custody.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). “Without Miranda

warnings, a suspect’s statements during custodial interrogation are presumed involuntary.”

Heritage, 152 Wn.2d at 214. Therefore, courts must first determine whether a defendant was in

custody for the purposes of Miranda. See State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309

P.3d 728 (2013). We review a trial court’s custodial determination de novo. State v. Lorenz, 152

Wn.2d 22, 36, 93 P.3d 133 (2004).

       If Miranda warnings are necessary, police officers must advise the accused of his right to

counsel and right against self-incrimination before custodial interrogation begins. U.S. CONST.

amend. V; WASH. CONST. art. I, § 9; Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966). We review the question of whether a defendant invoked his right to remain

silent as a mixed question of law and fact, ultimately reviewed de novo. State v. I.B., 187 Wn.

App. 315, 319-20, 348 P.3d 1250 (2015).




                                               12
47153-1-II


          B.     Custodial Interrogation

          Channel argues he was in custody at the time Huycke took his ID card and registration, and

that Huycke should have read him his Miranda rights before questioning him. He submits that his

statement to Huycke at the vehicle should have been suppressed.

          We use an objective test to determine whether a person was in custody for purposes of

Miranda.       Lorenz, 152 Wn.2d at 36-37.         “‘Custody’ for Miranda purposes is narrowly

circumscribed and requires ‘formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest.’” State v. Post, 118 Wn.2d 596, 606, 826 P.2 172, 837 P.2d 599

(1992) (internal quotation marks omitted) (quoting Minnesota v. Murphy, 465 U.S. 420, 430, 104

S. Ct. 1136, 79 L. Ed. 2d 409 (1984)). We look at the circumstances surrounding the interrogation

and decide whether a reasonable person would have felt that he was free to terminate the

interrogation and leave. State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002).

          A routine traffic stop, such as a Terry10 stop, curtails the freedom of a motorist such that a

reasonable person would not feel free to leave the scene. Heritage, 152 Wn.2d at 218. However,

the United States Supreme Court has recognized that “because both traffic stops and routine Terry

stops are brief, and they occur in public, they are ‘substantially less police dominated’ than the

police interrogations contemplated by Miranda.” Heritage, 152 Wn.2d at 218 (internal quotations

omitted) (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317

(1984)). Washington courts have also determined that a routine Terry stop is not custodial for the

purposes of Miranda, and that an officer “may ask a moderate number of questions during a Terry

stop to determine the identity of the suspect and to confirm or dispel the officer’s suspicions

without rendering the suspect ‘in custody.’” Heritage, 152 Wn.2d at 218 (quoting Berkemer, 468


10
     Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


                                                   13
47153-1-II


U.S. at 439-40). “‘[T]he detainee is not obliged to respond.’” State v. Walton, 67 Wn. App. 127,

130, 834 P.2d 624 (1992) (quoting Berkemer, 468 U.S. at 439).

       Huycke pulled Channel over for an infraction at 11:30   PM.   When Huycke first asked for

Channel’s driver’s license and proof of insurance, he was not conducting a DUI investigation. It

was at that point, then that Huycke observed Channel’s bloodshot, watery eyes, and slurred speech.

Huycke asked Channel about his drinking and received the contested response.

       During a Terry stop, an officer is permitted to “‘ask a moderate number of questions’” to

determine identification and assess whether the individual is safe to drive. This inquiry does not

mean the individual is in custody. Heritage, 152 Wn.2d at 218 (quoting Berkemer, 468 U.S. at

439-40). Huycke asked one question designed to confirm or dispel his suspicions that Channel

drove while intoxicated. Thus, we conclude Channel was not in a custodial arrest situation, and

the trial court did not err by admitting the statement.

       C.      Right to Remain Silent

       Channel also argues his answer to the DUI arrest report question after he responded,

“[R]ather not answer,” should have been suppressed because he unequivocally invoked his right

to remain silent. Br. of Appellant at 19-20. We disagree.

       “[T]he invocation of the right to remain silent must be clear and unequivocal (whether

through silence or articulation) in order to be effectual; if the invocation is not clear and

unequivocal, the authorities are under no obligation to stop and ask clarifying questions, but may

continue with the interview.” State v. Walker, 129 Wn. App. 258, 276, 118 P.3d 935 (2005). “The

test as to whether a suspect’s invocation of his right to remain silent was unequivocal is an

objective one, asking whether ‘a reasonable police officer in the circumstances would understand

the statement’ to be an invocation of Miranda rights.” I.B., 187 Wn. App. at 321 (internal



                                                 14
47153-1-II


quotations omitted) (quoting State v. Piatnitsky, 180 Wn.2d 407, 413, 325 P.3d 167 (2014), cert.

denied, 135 S. Ct. 950 (2015)).

        The DUI arrest report contained at least 30 questions. Huycke read Channel his Miranda

rights, Channel waived them and signed the waiver. Channel answered questions 26 through 29,

“Rather not answer.” RP (Dec. 9, 2014) at 40-41. These responses are not an unequivocal

assertion of his right to remain silent. They are equivocal and address those specific questions

only. The final question was whether Channel believed his ability to drive was affected by alcohol,

to which he answered, “[N]o.” RP (Dec. 9, 2014) at 41.

        Viewing Channel’s statements in the context of the entire interaction, a reasonable police

officer would not necessarily assume the answer, “Rather not answer,” to several questions was

an unequivocal invocation of the right to remain silent as to all questions. RP (Dec. 9, 2014) at

40-41; see Walker, 129 Wn. App. at 274 (holding the defendant did not invoke his right to remain

silent where he “did not tell the police that he wished to remain silent, but instead said that he did

not want to say anything that would make him look guilty or incriminate him,” and then continued

to talk with officers further).

        We conclude Channel did not unequivocally invoke his right to remain silent. Therefore,

the trial court did not err by admitting the statement.

V.      JURY INSTRUCTIONS

        Channel argues the trial court erred and prejudiced him when it declined to give his

requested jury instruction relating to a defendant’s out-of-court statements. He specifically

contends that he was prejudiced because his own statements were offered during the trial. We

disagree.




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47153-1-II


         A.       Standard of Review

         We review a trial court’s refusal to give jury instructions for abuse of discretion. State v.

Buzzell, 148 Wn. App. 592, 602, 200 P.3d 287 (2009). A trial court abuses its discretion when its

decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.

State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). Each instruction is “‘evaluated in

the context of the instructions as a whole.’” State v. France, 180 Wn.2d 809, 816, 329 P.3d 864

(2014) (quoting State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d 289 (1993)). A trial court does

not err by refusing to give “a cumulative instruction or one collateral to or repetitious of

instructions already given.” Benn, 120 Wn.2d at 655.

         B.       Abuse of discretion

         Channel requested that the court give the following instruction: “You may give such weight

and credibility to any alleged out-of-court statements of the defendant as you see fit, taking into

consideration the surrounding circumstances.” CP at 44. The court determined that the instruction

was duplicative of another instruction and placed undue emphasis on the defendant’s testimony.

         The court did instruct the jury using this standard instruction:11

                 You are the sole judges of the credibility of each witness. You are also the
         sole judges of the value or weight to be given to the testimony of each witness. In
         considering a witness’s testimony, you may consider these things: the opportunity
         of the witness to observe or know the things he or she testifies about; the ability of
         the witness to observe accurately; the quality of a witness’s memory while
         testifying; the manner of the witness while testifying; any personal interest that the
         witness might have in the outcome or the issues; any bias or prejudice that the
         witness may have shown; the reasonableness of the witness’s statements in the
         context of all of the other evidence; and any other factors that affect your evaluation
         or belief of a witness or your evaluation of his or her testimony.




11
     WPIC 1.02.


                                                   16
47153-1-II


CP at 53. Channel contends that the trial court’s decision to not give his instruction hindered his

ability to counter the State’s version of what his alleged statement meant. However, Channel does

not point to how he was prevented from making his argument. Additionally, Channel fails to show

how the ruling prejudiced him. The trial court determined Channel’s proposed instruction was

cumulative and placed undue emphasis on the defendant’s statements. We conclude that the trial

court did not abuse its discretion when it determined the standard instruction fully informed the

jury of its role in weighing statements, and that it need not give Channel’s proposed instruction

because it was cumulative.

VI.    INEFFECTIVE ASSISTANCE OF COUNSEL

       Channel contends that he was denied effective assistance of counsel because his counsel

failed to propose a limiting instruction, and failed to move for a mistrial. We disagree.

       A.      Standard of Review

       We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P.3d 916 (2009). To prove ineffective assistance of counsel, an appellant must show

that (1) counsel’s performance was so deficient that it fell below an objective standard of

reasonableness and that (2) the deficient performance prejudiced him, to the extent that there is a

reasonable probability the deficient performance affected the outcome of the trial. State v. Thomas,

109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test). Failure to establish either prong is fatal to

the claim. Strickland, 466 U.S. at 700

       We determine counsel’s competency based upon the entire record below. State v. White,

81 Wn.2d 223, 225, 500 P.2d 1242 (1972). To prevail on an ineffective assistance claim, a

defendant alleging ineffective assistance must overcome “a strong presumption that counsel’s



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performance was reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). “The

threshold for the deficient performance prong is high, given the deference afforded to decisions of

defense counsel in the course of representation.” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260

(2011). “When counsel’s conduct can be characterized as legitimate trial strategy or tactics,

performance is not deficient.” Kyllo, 166 Wn.2d at 863.

B.     Limiting Instruction
       Channel argues his counsel was ineffective because he failed to request and propose a

limiting instruction on the breath test refusal evidence. He contends prejudice resulted because

“[g]iven the paucity of evidence presented, it is likely that the jury would have acquitted [Channel]

of [the] DUI.” Br. of Appellant at 27.

       Channel does not postulate what the instruction would have limited and thus, cannot

demonstrate prejudice. In State v. Long, 113 Wn.2d 266, 268-69, 778 P.2d 1027 (1989), the

Washington Supreme Court interpreted former RCW 46.61.517 (1986), the statute governing

admissibility of breath test refusal evidence. RCW 46.61.517 states, “The refusal of a person to

submit to a test of the alcohol or drug concentration in the person’s blood or breath under RCW

46.20.308 [the implied consent statute] is admissible into evidence at a subsequent criminal

trial.”12 The court in Long held,

       While we retain our power to determine the relevancy and thus the admissibility of
       certain types of evidence, we perceive no valid reason not to accept the
       Legislature’s recognition of relevancy in this instance. . . . This is not to say,
       however, that depending on the facts of the particular case, the trial court may not
       exclude such evidence if the probative value of such evidence is found to be
       substantially outweighed by the danger of unfair prejudice, confusion of the issues
       or misleading the jury.




12
  Amendments in 1987 and 2001 to this statute do not affect the applicability of this case to our
analysis here.


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47153-1-II


113 Wn.2d at 272. Finally, the court held, “We see no satisfactory reason not to follow the

Legislature’s now clear intent of rendering refusal evidence fully admissible in a criminal trial for

driving while under the influence of intoxicants.” Long, 113 Wn.2d at 272-73.

       Because Channel does not argue how the evidence would have been limited, it is far from

clear whether the trial court would have granted such an instruction. For this reason, and for the

reasons laid out in the sufficiency of the evidence section above, we conclude that Channel fails

to demonstrate prejudice, and his claim fails.

       C.      Mistrial

       Channel also argues he received ineffective assistance of counsel because his counsel failed

to move for a mistrial after Hardy testified about the PBT. Channel contends there was no

conceivable tactical reason for this inaction. Again, we disagree.

       When Hardy testified about the PBT, defense counsel immediately objected. After

argument and a short recess, defense counsel stated no motions would be made at that time, and

he would wait for the court’s ruling on the objection. The court sustained the objection and

instructed the jury to disregard Hardy’s statement. We presume the jury follows the court’s

instructions. Stein, 144 Wn.2d at 247. Defense counsel made no further motions. Based on the

record before us, defense counsel’s conduct was not deficient.

       A mistrial is only appropriate when, viewed in light of all the evidence, the defendant has

been so prejudiced that nothing short of a new trial will insure that the defendant receives a fair

trial. State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541 (2002). To show prejudice from

counsel’s failure to request a mistrial, Channel must show that the mistrial would have been

granted, which he cannot do.




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       Whether an irregularity justifies a mistrial depends on three factors: (1) whether the

irregularity was serious enough to materially affect the trial’s outcome, (2) whether the statement

in question was cumulative of other evidence, and (3) whether the irregularity could be cured by

an instruction to disregard the remark, an instruction the jury is presumed to follow. State v.

Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). Even serious irregularities can be cured by

an instruction to disregard. See State v. Gamble, 168 Wn.2d 161, 178-79, 225 P.3d 973 (2010).

Based on the other evidence available to the jury and the court’s instruction to disregard Hardy’s

statement, we conclude it is unlikely the trial court would have granted a mistrial. Consequently,

we hold that Channel received effective assistance of counsel.

VII.   SENTENCING

       Channel argues that the trial court imposed a sentence that exceeds the five year statutory

maximum for his DUI conviction. The State concedes that Channel is correct. RCW 9.94A.701(9)

provides, “The term of community custody . . . shall be reduced by the court whenever an

offender’s standard range term of confinement in combination with the term of community custody

exceeds the statutory maximum for the crime.” Felony DUI is a class C felony and the statutory

maximum for a class C felony is five years. RCW 46.61.502(6); RCW 9A.20.021(1)(c). The

sentence of 60 months of incarceration, in addition to 12 months of community custody exceeds

five years. We remand to the trial court for resentencing.

       Channel also argues that the trial court erred by imposing discretionary LFOs without

conducting an individualized inquiry into his ability to pay. We note that the court did not put the

imposition of LFOs or an inquiry into Channel’s ability to pay on the record. Channel also did not

object. While normally, we exercise our discretion to not review an unpreserved LFO error on

appeal, consistent with our opinion in State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492



                                                20
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(2013), because we are remanding for resentencing, we also direct the trial court to properly

conduct an individualized inquiry into Channel’s current and future ability to pay on the record.

See State v. Blazina, 182 Wn.2d 827, 833, 344 P.3d 680 (2015).

        We affirm Channel’s convictions but remand for resentencing consistent with this

opinion.

        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.




                                                            Melnick, J.

We concur:




        Worswick, P.J.




        Lee, J.




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