    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                          No. 72024-4-1
                      Respondent,
                                                          DIVISION ONE
              v.
                                                          UNPUBLISHED OPINION
SANDRA JESSIE HIMMELMAN,

                     Appellant.                           FILED: September 28, 2015


      Appelwick, J. — Himmelman appeals her conviction for trafficking in stolen

property. She asserts that the trial court erred in admitting a statement she made during

a custodial interrogation prior to receiving Miranda1 warnings. She contends that she

would not have been convicted had the statement been excluded. We affirm.

                                          FACTS


       In 2012, Sandra Himmelman was remodeling her home.                 She hired Derryn

VanSickle as a contractor on the project.         VanSickle used his own tools.       With

Himmelman's permission, he stored these tools in a storage shed on her property.

Himmelman did not store any tools in the shed. In the evenings, VanSickle secured the

shed with a padlock he purchased.

       On August 23, 2012, VanSickle arrived at Himmelman's home and discovered that

the storage shed had been vandalized. Its door was ripped offthe hinges, and his tools

were gone. VanSickle confronted Himmelman about the missing tools, and she gave him

three pawn slips that identified the tools that had been in the shed. She told VanSickle

that she had pawned his tools to pay bail for a friend.



       1 Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 72024-4-1/2




      VanSickle called the police to report the theft.     Officer Todd Bridgman was

dispatched to Himmelman's house to investigate.        Officer Bridgman first spoke to

VanSickle, who gave him the pawn slips he had received from Himmelman. Officer

Bridgman then examined the storage shed and determined that it had been forced open.

      At that point, Officer Bridgman knocked on Himmelman's door. Himmelman let

him inside her home. The officer informed Himmelman that he was investigating a theft,

and he asked her questions. During this conversation, Officer Bridgman stood about an

arm's length away from Himmelman.           He was accompanied by another officer.

Himmelman answered Officer Bridgman's questions. She told him that the tools belonged

to her boyfriend, Ryan Ronstadt, which was why she pawned them.

      After questioning Himmelman, Officer Bridgman placed her under arrest and read

her the Miranda warnings. He took her to the police station, where she gave another

statement. Himmelman told the officer that the tools belonged to her friend Derrick, and

she had pawned them for him.

      Officer Bridgman continued his investigation by contacting the pawnshops. He

informed two of the pawnshops that the tools had been stolen. Eventually, the Mill Creek

Police Department recovered all of the tools from the pawnshops and returned them to

Vansickle.

       Himmelman was charged with two counts of trafficking in stolen property in the

second degree.    She moved to suppress the initial statement she made to Officer

Bridgman in her home, claiming that the tools belonged to Ronstadt. The trial court

conducted a CrR 3.5 hearing before trial to determine the admissibility of this statement.

Officer Bridgman testified about the circumstances surrounding his initial questioning of
No. 72024-4-1/3




Himmelman.       The trial court concluded that Himmelman's statement was admissible,

because she was not in custody until the police arrested her. The court entered written

findings of fact and conclusions of law for the CrR 3.5 hearing.2

       At trial, the State presented the three pawn slips for VanSickle's tools. It also called

several witnesses, including VanSickle and Officer Bridgman. Officer Bridgman testified

to Himmelman's initial statements as well as the statement she gave at the police station.

Two pawn shop employees also testified that Himmelman pawned the tools identified on

two of the pawn slips.




       2 The trial court made three conclusions of law pertaining to Himmelman's initial
statements. It concluded:

       4.   Court's Conclusions as to Confessions Voluntary and Admissible or
            Involuntary and Inadmissible With Reasons in Either Case

            a.   The defendant was neither in custody nor were her movements
                  restricted to the degree associated with formal arrest until the
                  police actually arrested her. There were no facts to show that the
                  defendant was in custody. There were no facts to show that a
                  reasonable person in a same or similar situation to the defendant
                  would feel that they were in custody.



            d. No threats or promises were made to the defendant at any time.

            e. The initial statements of the defendant and the statements after she
                  was advised of her [Miranda! rights were freely, intelligently, and
                  voluntarily made. As a result the statements are admissible
                  pursuant to CrR 3.5.

Himmelman assigns error to conclusions of law 4(a) and 4(e) so far as they are
considered findings of fact. But, Himmelman has not supported this argument by
reference to the record or citation to authority. We decline to consider this argument.
RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d
549 (1992) (declining to consider arguments unsupported by reference to the record or
citation to authority).
No. 72024-4-1/4




       The jury found Himmelman guilty of two counts of trafficking in stolen property in

the second degree. Himmelman appeals.

                                       DISCUSSION


       To convict Himmelman of trafficking in stolen property in the second degree, the

State had to prove beyond a reasonable doubt that she recklessly trafficked in stolen

property in the state of Washington. RCW 9A.82.055. Himmelman argues that the State

proved the "recklessly" element of the offense by juxtaposing her initial statement to

Officer Bridgman that the tools belonged to Ronstadt with her later statement that the

tools belonged to Derrick. But, she claims that she was subject to a custodial interrogation

when she stated that the tools belonged to Ronstadt, and therefore she was entitled to

Miranda warnings. Because she did not receive the Miranda warnings, she contends that

the trial court erred in admitting this statement. Himmelman further asserts that the

admission of this statement at trial was not harmless error, as the State used it to establish

that she acted recklessly.

       When a state agent subjects a suspect to custodial interrogation, Miranda

warnings must be given. 384 U.S. at 467-68; State v. Heritage, 152 Wn.2d 210, 214, 95

P.3d 345 (2004). If police conduct a custodial interrogation without Miranda warnings,

statements made by the suspect during the interrogation must be suppressed. Miranda,

384 U.S. at 479. Whether a person is in "custody" is an objective inquiry: considering all

the circumstances, would a reasonable person feel that her freedom was curtailed to a

degree associated with formal arrest? Heritage. 152 Wn.2d at 218. The defendant must

show some objective facts indicating her freedom of movement was restricted or

curtailed. State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004). We review a trial
No. 72024-4-1/5




court's custodial determination de novo.   Id. at 36. Statements admitted in violation of

Miranda are subject to harmless error analysis. State v. Reuben, 62 Wn. App. 620, 626,

814P.2d 1177(1991).

       Himmelman argues the circumstances surrounding her initial statements to Officer

Bridgman illustrate that she was in custody. She claims that Orozco v. Texas, 394 U.S.

324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969) and State v. Dennis, 16 Wn. App. 417, 558

P.2d 297 (1976) are controlling. In both cases, the suspects were found to be subject to

custodial interrogation even though they were in their homes during the time of

questioning. Orozco, 394 U.S. at 326-27; Dennis, 16 Wn. App. at 421-22. But, those

cases presented objective facts indicating that the suspects' freedom of movement was

restricted.

       In Orozco, four police officers were let into the suspect's home by another person

in the early hours of the morning. 394 U.S. at 325. Officers entered the suspect's

bedroom and began questioning him. jd. One officer testified that at the time the suspect

was questioned, he was under arrest and not free to leave. Id. at 327. In Dennis, one of

the two suspects let the officer into their shared apartment. 16 Wn. App. at 419. However,

the officer refused to allow the suspects to move freely within their home and implied that

the suspects could either reveal the contraband or he would find it pursuant to a search

warrant. Id. at 422. In both of these cases, the officers created an environment in which

a reasonable person would have felt that his or her freedom was curtailed to a degree

associated with formal arrest. Orozco. 394 U.S. at 327; Dennis, 16 Wn. App. at 422.

       But, Officer Bridgman did not create such an environment. The undisputed facts

here indicate that a reasonable person in Himmelman's position would not have felt that
No. 72024-4-1/6




his or her freedom was curtailed to a degree associated with formal arrest.            Officer

Bridgman entered Himmelman's home peacefully. He knocked on her door and waited

for her to let him inside. He explained about the investigation and asked her questions.

Officer Bridgman never demanded that Himmelman respond to these questions.                 He

never stopped her from moving to another part of her home. He did not handcuff her or

otherwise restrict her freedom. He did not use force or threaten Himmelman. He did not

tell her she was under arrest, nor did he testify that he considered Himmelman to be under

arrest at that point. Rather, Officer Bridgman placed Himmelman under arrest only after

she made incriminating statements. That Officer Bridgman was accompanied by another

officer, they were both uniformed, and they considered her a suspect do not alone result

in Himmelman being in custody. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct.

711, 50 L. Ed. 2d 714 (1977) (noting that while there will always be coercive aspects when

police officers interview a suspect, that alone does not trigger Miranda). A reasonable

person in this situation would believe that she was free to ask the officer to leave or refuse

to answer his questions. Therefore, we hold that Himmelman was not in custody for

purposes of Miranda, and the trial court did not err by admitting her statements.

       Moreover, even if Himmelman's statements were admitted in error, we conclude

that the error was harmless. A constitutional error is harmless if we are convinced beyond

a reasonable doubt that any reasonable jury would have reached the same result absent

the error. State v. Gulov, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). We look at only

the untainted evidence to determine if the evidence is so overwhelming that it necessarily

leads to a finding of guilt. Id. at 426.
No. 72024-4-1/7




       Himmelman contends that the State used her statement to Officer Bridgman that

the tools belonged to Ronstadt to establish recklessness, an element of the charged

offense. To convict Himmelman of trafficking in stolen property in the second degree, the

State had to prove that she recklessly trafficked in stolen property. RCW 9A.82.055. A

person acts recklessly "when he or she knows of and disregards a substantial risk that a

wrongful act may occur and his or her disregard of such substantial risk is a gross

deviation from conduct that a reasonable person would exercise in the same situation."

RCW 9A.08.010.       Himmelman asserts that the State established recklessness by

juxtaposing her first statement to Officer Bridgman, where she said the tools were

Ronstadt's, with her statement at the police station, where she said they belonged to

Derrick.


       But, even without Himmelman's statement claiming the tools belonged to

Ronstadt, the evidence establishes that she acted recklessly. VanSickle testified that he

arrived at Himmelman's home to find his padlock on the shed destroyed and his tools

missing. He further testified that he received pawn slips identifying his stolen tools from

Himmelman herself, who told him she needed the money to pay bail for her friend. The

pawn slips were also admitted intoevidence—pawn slips from three different pawn shops.

Employees from two of these pawn shops testified that Himmelman pawned the tools.

       Additionally, the jury heard Officer Bridgman's testimony regarding Himmelman's

statements at the police station. Officer Bridgman testified that Himmelman told him that

the tools belonged to someone named Derrick. She had agreed to pawn the tools for

Derrick, because he was unable to do so himself. Himmelman said that she had known
No. 72024-4-1/8




Derrick for around a year, but did not know his last name or phone number, because it is

safer for her not to know much information about her friends.

      Himmelman argues without citation to authority that the two unchallenged

statements are not enough, and the third challenged statement was necessary for the

State to prove she acted recklessly. We disagree. Even excluding the statement she

claims i tainted, any reasonable jury could conclude beyond a reasonable doubt that

Himmelman was guilty of recklessly trafficking in stolen property. Therefore, even ifthe

statement was erroneously admitted, the error is harmless.

      We affirm.




WE CONCUR:




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