                                                                                                   FILED
                                                                                       COURT OF APPEALS
                                                                                                   j` '

      IN THE COURT OF APPEALS OF THE STATE O'                                                             WWAINGTON
                                                                                      2014 SEP - 3         AM 3: 22
                                                      DIVISION II

                                                                                       STATE OF WASHINGTON
                                                                                                        ON

STATE OF WASHINGTON,

                                       Respondent,

           v.


                                                                                 UNPUBLISHED OPINION

NICHOLAS KEITH MAYER,

                                       Appellant.




           Melnick, J. —        Nicholas Mayer appeals his convictions for first degree robbery with two

firearm enhancements, first degree burglary with two firearm enhancements, residential burglary,

three counts of theft of a firearm, three counts of second degree unlawful possession of a firearm,

and   third degree theft.         Nicholas'    argues (   1)     insufficient evidence supported his first degree


burglary        conviction, (   2) the jury instructions for first degree burglary violated his right to a

unanimous         jury verdict, ( 3) the trial court erred by denying his motions to suppress statements he

made      to the officers, (    4) the State improperly vouched for one of its key witnesses' credibility,

and ( 5) the trial court' s denial of his motion to continue the trial denied him effective assistance

of counsel. We affirm Nicholas' s convictions.


                                                          FACTS


I.         BACKGROUND


            On February 9, 2012, just         after   9: 00    P. M.,   officers responded to a 911 call regarding a

robbery      at   the KC Teriyaki    restaurant   in Salmon Creek, Washington. When the officers arrived,


they interviewed the restaurant' s owner, Hui Choe, a restaurant employee, Aljuarsmi Ortiz, and

1
     We   refer   to Nicholas Mayer    and   Emily Mayer by             their first   names   to   avoid confusion.
44232 -9 -II



two   other witnesses.        The    officers     believed that it       was   likely   an "   inside job," because the suspects


obviously knew          about      the   side    entrance   and    the   restaurant' s     closing    procedures.    1 Report of


Proceedings ( RP) at 21.


           Choe told the officers about his former employee, Emily Mayer, whom he had fired a few

months prior because he suspected her of stealing money. Choe also told the officers that Emily

had told him          she   had    an    older   brother    who    did drugs.           After reviewing their databases, the

officers    determined that Nicholas               was   Emily' s     older     brother.       At that point, the officers listed


Nicholas and Emily as potential suspects.

           KC Teriyaki' s closes at 9: 00 P. M. Choe' s usual closing procedure is to turn off the open

sign and put      the money         from the      day'   s sales   into a bank        bag. At closing on February 9, Choe

removed        the money from the            register,     approximately $          800, and put it in a bank bag with his

wallet.    He   set   the   bag    on a stool    behind the    counter.        Choe then went into the kitchen to prepare


an order for a customer who had come in late; Choe told Ortiz he could leave for the night. Ortiz


stated that when Ortiz opened the side door to leave, two young men, approximately six feet tall,

wearing hoodies and bandanas over their faces and holding guns, pushed open the door, entered

the   restaurant, and       demanded money.              The two men noticed the bank bag on the chair, grabbed

it, left through the        side   door,   and ran across      the    street.       Ortiz stated that it seemed as though the


two men were waiting for someone to open the side door so they could get into the restaurant.

           A   customer     in the      restaurant witnessed       two    men and        Ortiz   scuffle.   She stated that one of


the two men had a handgun pointed at Ortiz, while the other grabbed something from under the

counter.       The customer' s husband, who was waiting in his car outside the restaurant, saw two

men with covered            faces running from the             side      of   the   restaurant.     He stated that one of them


carried    a gun.      According to Choe, the restaurant' s side door is an iron door that is kept closed



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44232 -9 -II



during business hours          and, except      in   cases of emergencies,       is   used   only   by   employees.   The side


door is hidden          by   bushes     and   cannot    be   seen    from the    road.        Ortiz further explained that


customers use the main, front entrance to enter the restaurant, and that the side door is used only

by employees, usually to take out the trash and exit at the end of a shift.

          The following night the officers received a call from a person who identified himself as

 Matt."    Clerk'   s   Papers ( CP)     at   484. He    provided     the   police    his   phone number.     Matt stated ( 1)


that a person named Nicholas Mayer was bragging about having recently robbed a Vancouver

restaurant; (   2) that Nicholas had a revolver that he recently gave away to someone; and ( 3) that

Nicholas had a lot of cash, which was unusual for him. Matt also gave specific information that

Nicholas    was     with     his   girlfriend    Sarah Baker, riding in               a   grey pickup.      Based on Matt' s


information and their investigation, the officers went to the particular location Matt provided and


stopped a      grey pickup.        Inside the pickup were Nicholas, Baker, and another passenger, all of

whom went to the police precinct for interviews.


          Subsequently, Deputy Tom Dennison called Matt, who agreed to and did provide a

statement.      Dennison then interviewed Baker, who .stated that Nicholas admitted to her that he

had robbed a teriyaki restaurant.


          Dennison later interviewed Nicholas.                 Before talking to him, Dennison read Nicholas his
Miranda2
               rights   from   a card    that he     carried with    him.     Nicholas understood his rights, waived


them,   and agreed       to have his interview         recorded.     After starting the recording, Dennison re -read

Nicholas his Miranda           rights.    When asked if he understood his rights, Nicholas asked what he

would     do if he      wanted     an    attorney     and    could   not    afford    one.    Dennison responded that if


Nicholas was arrested and charged with a crime, when he went before a judge he would be



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


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44232 -9 -II



appointed an       attorney if   he   could not afford one.       Nicholas stated that he understood his rights


and would        talk to   Dennison. Nicholas admitted his involvement in the KC Teriyaki restaurant


robbery.


II.       PROCEDURAL HISTORY


          On February 24, 2012, the State charged Nicholas by amended information with first

degree     robbery     with     two   firearm   enhancements,         first degree burglary with two firearm

enhancements, residential burglary, three counts of theft of a firearm, three counts of second

degree unlawful possession of a firearm, third degree theft, and first degree attempted trafficking

in    stolen   property.    Nicholas moved, under CrR 3. 6, to suppress his statements, arguing that the

officers unlawfully stopped and detained him. Nicholas also moved, under CrR 3. 5, to suppress

his alleged confession to the crimes, ' arguing that the officers gave him improper Miranda

warnings.        The trial court denied both motions and entered findings of fact and conclusions of

law.


          At the    close of   the State' s case, the trial   court   dismissed the trafficking   charge.   The jury

found Nicholas guilty on all other counts and the four firearm enhancements. Nicholas received

a     306 -month    sentence,    which   included 240    months       for the firearm   enhancements.       Nicholas


appeals.



                                                     ANALYSIS


           SUFFICIENT EVIDENCE SUPPORTS NICHOLAS' S FIRST DEGREE BURGLARY CONVICTION


          Nicholas argues there is insufficient evidence to support his burglary conviction because

he    remained     only in   places open   to the public      in the KC Teriyaki   restaurant.    We disagree and


hold that there is sufficient evidence beyond a reasonable doubt that Nicholas unlawfully entered

and unlawfully remained in the restaurant.




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44232 -9 -II



              Evidence is sufficient if, when viewed in a light most favorable to the State, it permits


any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

State    v.   Salinas, 119 Wn.2d 192,. 201, 829 P. 2d 1068 ( 1992). "               A claim of insufficiency admits

the truth of the State' s evidence and all inferences that reasonably can be drawn therefrom,"

which        should    be interpreted   most     strongly   against   the defendant.          Salinas, 119 Wn.2d at 201.


Circumstantial          evidence and    direct   evidence are   deemed equally          reliable.   State v. Delmarter, 94


Wn.2d 634, 638, 618 P. 2d 99 ( 1980). "                 Credibility determinations are for the trier of fact and

cannot        be   reviewed on appeal."    State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


              A person is guilty of first degree burglary

              if, with intent to commit a crime against a person or property therein, he or she
              enters or remains unlawfully in a building and if, in entering or while in the
              building or in immediate flight therefrom, the actor or another participant in the
              crime ( a) is armed with a deadly weapon, or (b) assaults any person.

RCW 9A.52. 020( 1). "             A person ` enters or remains unlawfully' in or upon premises when he or

she     is    not    then licensed, invited,       or   otherwise     privileged   to    so     enter   or   remain."   RCW


9A.52. 010( 5).         A license or privilege to enter or remain in a building that is only partly open to

the public is not a license or privilege to enter or remain in that part of the building which is not

open to the public. RCW 9A.52. 010( 5).


              Whether a defendant enters or remains unlawfully in a building is decided on a case by

case    basis. State      v.   Collins, 110 Wn.2d 253, 258, 751 P. 2d 837 ( 1988). An individual' s presence


 may be unlawful because of an implied limitation on, or revocation of, his privilege to be on the
premises."           Collins, 110 Wri.2d   at    258. If an individual exceeds the scope of his invitation into a


building, he has         remained     unlawfully therein.       Collins, 110 Wn.2d         at   255.    Where a defendant' s


initial entry was clearly unlawful, the sufficiency of evidence that he or she remained unlawfully

follows automatically. State v. Cordero, 170 Wn. App. 351, 366, 284 P. 3d 773 ( 2012).


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44232 -9 -II



          Here, Nicholas hid outside a side door to the KC Teriyaki restaurant. This iron door, not


usually used by customers except in emergencies, is kept closed during business hours. It is used

by employees to take the trash out and exit the restaurant at the end of a work shift. When Ortiz

exited the side door after the restaurant' s business hours, Nicholas pushed him back into the

restaurant, entered the door with a gun drawn, and demanded money.

            When drawing all reasonable inferences in the State' s favor, we hold there is sufficient

evidence      that Nicholas        entered   and   remained      unlawfully in the KC Teriyaki         restaurant.   He


exceeded the scope of his invitation. The time of Nicholas' s entry occurred after the restaurant' s

normal business hours. Nicholas did not enter the restaurant through the front entrance or for the


purpose of ordering or eating food; he forcefully entered through a hidden side entrance with the

intent to steal money. Accordingly, we hold there is sufficient evidence that Nicholas unlawfully

entered     the restaurant.    Thus, there is also sufficient evidence that he unlawfully remained in the

closed restaurant while he completed the robbery.

II.         THE To CONVICT INSTRUCTION FOR FIRST DEGREE BURGLARY DID NOT VIOLATE
            NICHOLAS' S RIGHT To A UNANIMOUS JURY VERDICT.


            Nicholas argues there is insufficient evidence that he unlawfully remained in the

restaurant and because the jury instructions stated the jury could find him guilty for either

unlawful entering or unlawful remaining without requiring jury unanimity on either alternative,

he    was    deprived   of   his   constitutional    right .to   a   unanimous   jury verdict.    Because sufficient


evidence supports that Nicholas both unlawfully entered and unlawfully remained in the

restaurant, Nicholas received his constitutional right to a unanimous jury verdict.

            We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d

378, 382, 103 P. 3d 1219 ( 2005).              We    also review constitutional      challenges   de   novo.   State v.


Cubias, 155 Wn. 2d 549, 552, 120 P. 3d 929 ( 2005).
44232 -9 -II



            Nicholas      contends   State   v.   Klimes, 117 Wn.        App.    758, 73 P. 3d 416 ( 2003), overruled in


part   by   State    v.   Allen, 127 Wn.      App.      125, 110 P. 3d 849 ( 2005),        supports        this argument.   But


Klimes is       no    longer   good     law.       In Allen, Division One of this              court retreated from its


overstatement in Klimes that the unlawful entering and unlawful remaining ways of committing

burglary      are    repugnant   to   one    another.        127 Wn.      App.    at   132. " Regardless of whether the


defendant possessed an intent to commit a crime at the time of the unlawful entry, if the

defendant unlawfully remains with the intent to commit a crime, we see no reason such conduct

does   not    satisfy the    requirements         for   burglary."      Allen, 127 Wn.     App.      at    133.   Thus, in most


burglary cases, juries can be instructed as to both means and no special jury instruction or

prosecutorial election of means              is   required.    State v. Johnson, 132 Wn. App. 400, 409 -10, 132

P. 3d 737 ( 2006).


            So long as there is sufficient evidence as to each means or so long as a reviewing
            court can tell that the verdict was based on only one means which was supported
            by substantial evidence, a general verdict finding the defendant guilty of burglary
            will stand.




Johnson, 132 Wn. App. at 410.

            Here,    we already have found that there is sufficient evidence that. Nicholas both

unlawfully entered and unlawfully remained in the restaurant. Thus, this argument fails.

III.        THE OFFICERS PROPERLY STOPPED AND DETAINED NICHOLAS


            Nicholas argues the trial court erred by denying his motion to suppress because the

officers     improperly      relied on an anonymous           tip    to stop him.      Nicholas argues this stop violated

his federal and state constitutional right to be free from unreasonable searches and seizures.


Because the officers had corroborated the tip they received from an unknown but named

informant       with      information the         officers    already knew, the          officers'        stop did not violate




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44232 -9 -II



Nicholas'   s constitutional right       to be    free from     unreasonable searches and seizures.        We hold the


trial court did not err by denying Nicholas' s motion to suppress.

          When reviewing the denial of a suppression motion, we determine whether substantial

evidence supports the challenged findings of fact and whether the findings of fact support the


conclusions of      law. State    v.   Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009). " Evidence is


substantial when it is enough ` to persuade a fair -
                                                   minded person of the truth of the stated


premise. "'      Garvin, 166 Wn.2d at 249 ( quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d

1038 ( 1999)).      Unchallenged findings           of   fact   are considered verities      on appeal.   State v. Lohr,


164 Wn.     App.    414, 418, 263 P. 3d 1287 ( 2011).             We review de novo the trial court' s conclusions


of   law pertaining to the     suppression of evidence.               Garvin, 166 Wn.2d at 249.


          Here, Nicholas does not assign error to any of the trial court' s findings of fact from the

CrR 3. 6 hearing.         Accordingly, our review is limited to a de novo determination of whether the

trial court derived proper conclusions from the unchallenged findings.

          The Fourth Amendment to the United States Constitution and article I, section 7 of the


Washington State Constitution prohibit unreasonable searches and seizures. State v. Day, 161

Wn.2d 889, 893,            168 P. 3d 1265 ( 2007).              Generally, warrantless searches and seizures are

unreasonable and violate         the Fourth Amendment and article I,               section   7.   Garvin, 166 Wn.2d at


249.     There   are "    a few `jealously and carefully drawn exceptions' to the warrant requirement,"
              Terry3
including                investigative   stops.    State v. Duncan, 146 Wn.2d 166, 171, 43 P. 3d 513 ( 2002)


    quoting State   v.    Williams, 102 Wn.2d 733, 736, 689 P. 2d 1065 ( 1984)).                  A police officer may

conduct a warrantless investigative stop based upon less evidence than is needed to establish

probable cause       to   make an arrest.     State v. Acrey, 148 Wn.2d 738, 746 -47, 64 P. 3d 594 ( 2003).


3
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).

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44232 -9 -II




But the officer must have " a reasonable suspicion, grounded in specific and articulable facts, that

the   person stopped         has been         or   is   about   to be involved in     a crime."     Acrey, 148 Wn.2d at 747.

 A reasonable, articulable suspicion means that there ` is a substantial possibility that criminal

conduct   has     occurred or       is   about      to occur. "'        State v. Snapp, 174 Wn.2d 177, 197 -98, 275 P. 3d

289 ( 2012) ( quoting State              v.   Kennedy,          107 Wn.2d 1,      6, 726 P. 2d 445 ( 1986)).              The officer' s


suspicion must relate to a particular crime rather than a generalized suspicion that the person


detained is " up to     no good."         State v. Bliss, 153 Wn. App. 197, 204, 222 P. 3d 107 ( 2009).

         Information supplied by another person may authorize an investigative stop if the

informer'    s   tip demonstrates        some "`         indicia   of   reliability. "' State v. Lesnick, 84 Wn.2d 940, 943,


530 P. 2d 243 ( 1975) (           quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed.

2d 612 ( 1972)).        Our Supreme Court first                     stated    that reliability can      be   established      if (1)   the


informant was reliable or ( 2) the officer's corroborative observation suggests either the presence


of criminal       activity   or   that the information was                 obtained   in   a reliable   fashion.      State v. Z U.E.,


178 Wn.      App.    769, 781, 315 P. 3d 1158 ( 2014) ( citing Lesnick, 84 Wn.2d                             at   944).   Our Supreme


Court subsequently           clarified    that "`        reliability by itself generally does not justify an investigatory

detention.'        Instead, a reliable informant' s tip also must be supported by a ` sufficient factual

basis' or ` underlying factual justification' so officers can assess the probable accuracy of the

informant'       s conclusion."      Z.U.E.,            178 Wn. App. at 781 ( quoting State v. Sieler, 95 Wn.2d 43, 48,

621 P. 2d 1272 ( 1980)).            Thus, " an informant' s report can provide reasonable justification for an


officer' s   investigative stop in two                   situations: (   1) when the information available to the officer


showed that the informant was reliable or ( 2) when the officer' s observations corroborate either


the presence of criminal activity or that the informant' s report was obtained in a reliable




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44232 -9 -II



fashion."    Z.U.E.,     178 Wn. App. at 782 ( citing Sieler, 95 Wn.2d at 47 -48; Lesnick, 84 Wn.2d at

944).


          We determine the propriety                of an   investigative stop —the reasonableness of the officer' s


suspicion —based on         the "   totality   of   the   circumstances."          Snapp,       174 Wn.2d    at   198. The focus is


on what     the officer   knew      at   the time of the stop.             State v. Lee, 147 Wn. App. 912, 917, 199 P. 3d

445 ( 2008).         A   court   must      base its       evaluation        of reasonable        suspicion   on "`    commonsense




judgments      and   inferences     about    human behavior. '               Lee, 147 Wn. App. at 917 ( quoting Illinois v.

Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 ( 2000)).


          Whether a warrantless investigative stop was justified or represents a constitutional

violation    is   a question of     law,    which we review                de   novo.    State v. Bailey, 154 Wn. App. 295,

299, 224 P. 3d 852 ( 2010).                 The State bears the burden of showing the propriety of an

investigative stop.        Acrey,        148 Wn. 2d       at   746.        If the initial stop .was unlawful, the evidence

discovered during        that stop is      not admissible        because it is fruit        of   the   poisonous     tree.   Kennedy,

107 Wn.2d at 4.


          In this case, considering the totality of the circumstances, the information available to the

officer   demonstrated the informant' s reliability. Thus, the                          Terry   stop   was proper.     The day after

the incident at the KC Teriyaki restaurant,


          a person named         Matt     called    911 to
                                                      following: He had a friend named
                                                               report      the

          Nicholas Mayer, who was about 24 or 25 years old; Nicholas had been bragging
          about committing an armed robbery of a restaurant in Vancouver within the past
          several    days; Nicholas had         a "   butt load       of cash on        him," which is not normal for

          Nicholas; Nicholas had a revolver, which he recently gave to someone; Nicholas
          was with his girlfriend, named Sarah Baker; Nicholas and Sarah were traveling in
          a grey Dodge Dakota ( pick up truck), and that they had just arrived at a bar at
          Dollars Corner ( in Battleground); and Nicholas was known to have Heroin on
          him.




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44232 -9 -II



CP at 484. Matt did not want to provide his last name, but he did provide his telephone number.

Matt, therefore, is classified as an unknown, but named, informant and cannot be characterized


as an anonymous informant.


         Although Matt did not want to provide any additional personal information, he did

provide significant corroborating information regarding the armed robbery of the KC Teriyaki

restaurant.        The officers were aware that Choe had recently fired Emily for suspected stealing

and   that   she   had   an older    brother      who   had "   a   drug    problem."      1 RP   at   22. Matt told officers that


Nicholas was bragging about having recently robbed a Vancouver restaurant and that he

frequently had        heroin in his         possession.       Through their independent investigation, the officers

knew    of   Emily' s brother,            Nicholas.     The police considered Nicholas and Emily to be possible

suspects.      Matt identified the individual he                called about as           Nicholas Mayer.         The officers were


aware    that the suspects           were    armed at    the time      of    the robbery.       Matt stated that Nicholas had


recently     given    away     a gun.        The   officers     were       also   aware   that approximately $       800 had been


taken from the KC Teriyaki                   restaurant.    Matt stated that Nicholas had a lot of cash on hand,

which    was       unusual.      Thus, the information Matt provided corroborated information that the


officers     already knew.            Additionally, Matt provided specific information as to Nicholas' s

location,    whom        he   was with, and what           type     of vehicle     he   was   driving.    The officers found the


pickup     where     Matt     said   it   could   be located.       When the officers stopped the grey pickup, there

were three occupants, including Nicholas and Baker.

           Malt' s                                          the information the               police    already    possessed.   The
                      reliable    tip      corroborated




officers'     stop did not violate Nicholas' s constitutional right to be free from unreasonable

searches      and    seizures.       We hold the trial court did not err by denying Nicholas' s motion to

suppress.




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44232 -9 -II



IV.       NICHOLAS RECEIVED PROPER MIRANDA WARNINGS


          Nicholas also argues the trial court erred by denying his motion to suppress his

statements because the officer' s Miranda warnings did not properly apprise him of his right to an

attorney.      The officer read Nicholas his Miranda warnings and then explained the process to


obtain    an   attorney if Nicholas         could     not     afford    one.    We hold that the warnings Nicholas


received satisfied Miranda and the trial court did not err by denying Nicholas' s motion to

suppress his statements.


          When reviewing the denial of a suppression motion, we determine whether substantial

evidence supports the challenged findings of fact and whether the findings of fact support the

conclusions of     law.     Garvin, 166 Wn.2d            at   249. " Evidence is substantial when it is enough ` to


persuade a      fair -
                     minded     person of     the truth       of   the stated   premise. "'     Garvin, 166 Wn.2d at 249


 quoting Reid, 98 Wn.          App.   at    156).     Unchallenged findings of fact are considered verities on


appeal.     Lohr, 164 Wn.       App.   at    418.     We review de novo the trial court' s conclusions of law


pertaining to the    suppression of evidence.               Garvin, 166 Wn.2d at 249.


          The Fifth Amendment to the United States Constitution                        states   that "[   n] o person ...   shall




be    compelled    in any   criminal case       to be    a witness against        himself."      Article I, section 9 of the


Washington State Constitution              states   that "[   n] o person shall be compelled in any criminal case to

give evidence against          himself"      The protection provided by the state provision is coextensive

with   that    provided   by   the Fifth Amendment.                State v. Unga, 165 Wn.2d 95, 100, 196 P. 3d 645

 2008).


          Prior to any custodial interrogation, a suspect must be informed that " he has the right to

remain silent, that anything he says can be used against him in a court of law, that he has the

right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed



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44232 -9 -II



for him   prior   to any questioning."          Miranda v. Arizona, 384 U. S. 436, 479, 86 S. Ct. 1602, 16 L.


Ed. 2d 694 ( 1966).           Although       no magic words are required,                      Miranda   warnings   must "   clearly


inform[]" the individual         of    his   rights.    Miranda, 384 U. S.                at   471.   The Miranda warnings are


 not themselves rights protected by the Constitution but [ are] instead measures to insure that the

right against     compulsory       self incrimination
                                        -                     [ is]    protected."        Michigan v. Tucker, 417 U.S. 433,


444, 94 S. Ct. 2357, 41 L. Ed. 2d 182 ( 1974). "                           Reviewing courts therefore need not examine

Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is

simply    whether       the   warnings       reasonably "`     conve[        y] to [   a suspect] his rights as required by

Miranda. '      Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 ( 1989)

 quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct. 2806, 69 L. Ed. 2d 696 ( 1981))
 alteration in original).


          In Duckworth, the officers told the suspect " that he had the right to remain silent, that


anything he said could be used against him in court, that he had the right to speak to an attorney

before and during questioning, that he had this right to the advice and presence of a lawyer even

if [he could] not afford to hire one, and that he had the right to stop answering at any time until

 he] talked to      a   lawyer."       492 U. S.       at   203 (     alteration     in   original) (   internal quotation marks


omitted).    The officers then added " that they could not provide respondent with a lawyer, but that

one would      be   appointed     if   and when you go              to     court."     Duckworth, 492 U. S. at 203 ( internal


quotation      marks     omitted).      The Supreme Court                   stated   that "[    w]e think it must be relatively

commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain

counsel,"   and held that these initial warnings satisfied Miranda. Duckworth, 492 U. S. at 204 -05.




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44232 -9 -II




        Here, the officers read Nicholas his Miranda warnings, and he waived his rights by

stating, " Let'   s   talk."      CP   at   486.       The officers then asked to record Nicholas' s interview, to


which Nicholas agreed. Once the officers began recording, the following exchange occurred:

                      DEPUTY DENNISON:                     Okay.           Do I have your permission to record this
        statement?

                      MR. MAYER: Yes.


                      DEPUTY DENNISON:                         Okay.            So    you (   inaudible).    I read you your
        Miranda         prior     to it, but     now   that   we' re on —            on recording, I' m going to read it to
        you again,          okay? You have the                right   to   remain silent.       Anything you say can be
        used against you             in   a court of     law.         You have the right at this time to talk to a
        lawyer        and    have him       present with you while you are                        being   questioned.     If you
        cannot afford to hire a lawyer, one will be appointed to represent you before
        questioning if           you wish.        You can decide at any time to exercise these rights and
        not answer   any                       any statements.
                                    questions or make                                          Do you understand each of
        these rights as I' ve explained them to you?
                      MR. MAYER: Yes.                   Um, If I wanted an attorney and I can' t afford one,
        what —what would —?

                      DEPUTY DENNISON:                        If   you wanted            an    attorney —you know, if you
        were charged with a crime and arrested, if you wanted an attorney and couldn' t
        afford one, the Court would be willing to appoint you one. Do you want me to go
        over that with you again?
                      MR. MAYER: Yeah, but how                         would          that   work?   Will   you   be —how it—
        how I—
                      DEPUTY DENNISON: You' re not under arrest at this point, right?
                      MR. MAYER: Oh, okay. Okay.
                      DEPUTY DENNISON:                        So, if you were, then you would be taken to jail
        and then you' d go before a. judge and then he would ask you whatever at that
        point, if you were being charged, you would be afforded an attorney if you
        couldn'       t hi —you      know, if you weren' t able to afford one.
                      MR. MAYER: All right. I understand.
                      DEPUTY DENNISON: Understand?
                      MR. MAYER: Yeah.
                      DEPUTY DENNISON:                    Okay. So you do understand your rights?
                      MR. MAYER: Yes.
                      DEPUTY DENNISON:                         Keep your rights in mind. Do you want to
         explain       to   us or   talk to    us about —      all right, you know, I told you why you' re here.
         There        was    a   robbery    at   the — at KC Teriyaki                  and your name        has   come   up.   So,

         keeping your rights in mind, do you want to talk to us about it?
                      MR. MAYER: Okay.

1 RP at 78 -80.




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         In this case, like in Duckworth, Nicholas received Miranda warnings and then was also


told the      process   to have          an   attorney         appointed     if he   could not    afford one.   Deputy Dennison

believed Nicholas' s question about an attorney pertained to how he could get an attorney if he

could not afford one and             that he did              not request an   attorney   at   that time.   For this reason Deputy

Dennison       explained       the       process        for    having   an   attorney   appointed.     As the Duckworth Court


noted, it is relatively common for a suspect to ask when and how he will obtain counsel if he
cannot afford         one.    492 U.S.             at   204 -05.    Thus, we hold that the warnings Nicholas received


satisfied Miranda, and the trial court did not err by denying Nicholas' s motion to suppress his

statements.



V.        STATE WITNESS' S TESTIMONY REGARDING PLEA BARGAIN DID NOT VIOLATE NICHOLAS' S
         RIGHT To HAVE A FAIR AND IMPARTIAL JURY BE THE SOLE JUDGE OF THE FACTS


         Nicholas argues the State improperly bolstered Emily' s credibility by questioning her

about a condition            of    her   plea      bargain to testify truthfully.              Nicholas argues that by allowing

Emily' s testimony, the trial court violated his constitutional right to have the jury be the sole
judge    of   the facts      and   to determine the credibility                of witnesses.      We hold that the State did not


improperly vouch for Emily' s credibility by questioning her about the condition of her plea

bargain to testify truthfully.

           Generally, the State cannot admit evidence that a witness has agreed to testify truthfully

in its   case    in   chief.       State      v.   Ish, 170 Wn.2d 189, 198, 241 P. 3d 389 ( 2010).                    On redirect,


however, the State may question its witness about an agreement to testify truthfully where the




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44232 -9 -I1



defense first questioned the witness about the agreement on cross- examination.4 Ish, 170 Wn.2d

at 198 -99.


          Here,     a condition of   Emily' s   plea   bargain   was   to   testify truthfully in Nicholas'   s   trial. On



cross -examination, Nicholas questioned Emily about reasons to doubt her credibility, including

that   she    had   received a plea    bargain.   Nicholas specifically          asked   Emily, " And    the agreement


says you' re supposed       to   testify truthfully"   and "   according to     what you   told them   earlier ?"   4B RP


at   802 -03.    On redirect, the State questioned Emily about her plea bargain and her obligation

under the plea bargain to testify truthfully.

          Because Nicholas questioned Emily about her plea bargain on cross -examination, he

opened the door to this subject for redirect. Thus, the trial court did not err by allowing the State

to question Emily on redirect about her obligation to testify truthfully. Nicholas was not denied

his right to have the jury be the sole judge of witness credibility.

VI.       TRIAL COURT DID NOT ERR BY DENYING NICHOLAS' S MOTION To CONTINUE

          Nicholas argues he was denied effective assistance of counsel because the trial court


denied his motion for a continuance of the trial date. We disagree and hold the trial court did not

err and that Nicholas was not denied effective assistance of counsel.




4
                 A defendant may, however, impeach a witness on cross -examination by
          referencing any agreements or promises made by the State in exchange for the
          witness' s testimony.  During such cross -examination, the agreement may be
          marked as an exhibit, but not necessarily admitted, and relevant portions may be
             disclosed to the
                            jury. If the agreement contains provisions requiring the witness
          to give truthful testimony, the State is entitled to point out this fact on redirect if
          the defendant has previously attacked the witness' s credibility.
Ish, 170 Wn.2d at 198 -99.




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          A.             MOTION To CONTINUE


          We review a trial court' s decision to deny a continuance to determine if the trial court

exercised         its discretion based         on untenable grounds or reasons.              In   re   Dependency    of V.R.R., 134


Wn.   App.         573, 581, 141 P. 3d 85 ( 2006).                A court considers various factors when it decides a


motion to continue, including diligence, due process, the need for an orderly procedure, the

possible effect on             the trial,    and whether    the   court   previously    granted continuances.            V.R. R., 134


Wn.   App.        at   581.    To show that the, denial of a continuance violated the right to due process, the


defendant must show either that he was prejudiced by the denial or that the outcome would have

been different if the            continuance       had been   granted.     V. R.,
                                                                            R.        134 Wn. App. at 581.

          Nicholas argues he was prejudiced because his counsel received late DNA evidence and


therefore did not have time to employ an expert to evaluate and counter the DNA evidence to

prepare       a   defense.       The     record,   however, does       not   support    Nicholas'       s   assertion.   Instead, the


record demonstrates that Nicholas' s counsel was well -
                                                      prepared and made a strong case for him.

Nicholas' s counsel extensively cross -examined the State' s DNA witness, questioning the DNA

witness about, among other things, the DNA locations on a chromosome used to evaluate the

DNA evidence; the collection, storage, and testing processes; the precautions taken to avoid

contamination; and the statistical analysis performed. Nicholas fails to show prejudice and does

not establish ineffective assistance of counsel. Thus, his due process argument fails.

          Further, Nicholas received the DNA evidence on September 24, but did not move for a


continuance until the readiness hearing on October 4, four days before trial was set to begin. The

trial court noted the "            somewhat short on provision of              this   evidence,"        but that Nicholas did not


move     to   continue         until   the   readiness   hearing, " which makes it very short notice to reschedule the

entire   trial,        which    does have      a number of witnesses."         2 RP     at   240.       The trial court also stated




                                                                     17
44232 -9 -II



that it was familiar with a portion of the evidence from the CrR 3. 5 and CrR 3. 6 hearings and

that the DNA evidence was not a central part of the State' s case and was not critical evidence.

Thus,   considering the importance               of    evidence,      the timeframe      of when the         evidence     was


introduced and when Nicholas moved to continue, and that trial was set to begin in only four

days, the trial court concluded that a continuance was not justified.


          In a similar case, our Supreme Court affirmed the trial court' s denial of the defendant' s

motion to continue to obtain an expert witness. State v. Downing, 151 Wn.2d 265, 274, 87 P. 3d

1169 ( 2004).     The court held that although the defendant was surprised and did act diligently to

secure an expert, a continuance was unnecessary because the expert testimony would not change

any   material    facts.     Downing,        151 Wn.2d      at    274.    In   so   holding,   the   court   stated: "   While


reasonable      minds      may differ,       we cannot say that . the trial court' s determination that the

maintenance of orderly procedure outweighed the reasons favoring a continuance, such as

surprise and    due diligence,      was     manifestly   unreasonable."        Downing, 151 Wn.2d at 274.

          Similarly, here, we determine that the DNA evidence was not central to the State' s case.

Instead, the DNA evidence merely corroborated extensive witness testimony and Nicholas' s

confession      during his    interview       after   arrest.    The trial court weighed the timeline of events


against   the   evidence     at   issue   and concluded         that a   continuance was       not   necessary.    Although


reasonable      minds      may    differ,    we hold that the trial court' s decision was not manifestly

unreasonable. We hold the trial court did not err by denying Nicholas' s motion to continue.




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44232 -9 -II



             B.       INEFFECTIVE ASSISTANCE OF COUNSEL


             To    prove   ineffective           assistance    of    counsel,        Nicholas    must    show    that   counsel' s


performance was so deficient that it "fell below an objective standard of reasonableness" and that


the deficient        performance prejudiced            him. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816


 1987) (     quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674

 1984)).          There is a strong presumption that defense counsel' s performance was not deficient.

State   v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                             Performance was not deficient


if counsel' s conduct can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wn.2d

856, 863, 215 P. 3d 177 ( 2009).                   To establish prejudice, the defendant must show a reasonable


probability that the deficient              performance affected           the   outcome of     the trial.   Thomas, 109 Wn.2d


at   226.     We     review        ineffective    assistance   of counsel claims          de    novo.   State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009).

             Nicholas' s counsel was well -
                                          prepared and had a significant breadth of knowledge


regarding DNA           testing       and   interpretation     of   the   results.    Nicholas' s counsel extensively cross -

examined          the State'   s    DNA     witness.   Thus, Nicholas does not establish deficient performance.

Furthermore, as we established above, the trial court' s denial of Nicholas motion to continue did


not prejudice him. Having failed to meet both prongs of the test, Nicholas does not show that his

counsel rendered ineffective assistance.




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44232 -9 -II



        We affirm Nicholas' s convictions.


        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:




                         T,../,
          j orgen, J.




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