                                                                                                    2014 OCT 28        Ail 10: 00
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                                                                                                     BY
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II


CITY OF TACOMA,                                                                       No. 44794 -1 - II


                                         Respondent,


         v.

                                                                              UNPUBLISHED OPINION
DAVID ERICKSON,


                                         Appellant.


         JOHANSON, C. J. —              On discretionary review, David Erickson challenges the superior

court' s affirmance of his municipal court jury trial conviction for being in physical control of a

motor vehicle while under the influence or effect of an intoxicant with a special verdict finding

that he had     refused a    breath test      requested     by   law   enforcement.    He argues that he proved his


affirmative defenses and that the City of Tacoma ( City) and one of its witnesses improperly

commented       on   his   requests     for   counsel.      Because the evidence supports the verdict and the




s " No person may be convicted [ of being in physical control of a motor vehicle while under the
influence     or affected    by   an   intoxicant],   prior to being pursued by a law enforcement officer, the
person   has   moved   the   vehicle    safely   off the   roadway." RCW 46. 61. 504( 2). In 2013, the legislature
amended RCW 46. 61. 504 to reflect changes in the law following the legalization of adult
marijuana use; these amendments did not alter any of the provisions relevant to this appeal. LAWS
OF 2013, ch. 3, § 35. Accordingly, we cite to the current version of the statute throughout.
No. 44794 -1 - II


references to Erickson' s requests for counsel were harmless beyond a reasonable doubt, we affirm

the superior court and the municipal court jury verdict.

                                                          FACTS


                                                      I. BACKGROUND


         In September 2011, Erickson legally parked his motorcycle on the side of a public street

and went into a bar. Anderson Durham later parked his car directly in front of the motorcycle and

went into a nearby restaurant.

         Later that night, Durham saw Erickson return to his motorcycle, straddle it, put a key in

the ignition, and try to " upright" the motorcycle. Although Erickson did not start the motorcycle,

he   was unable       to   control   the motorcycle     when   he   attempted   to "   upright     it," and it fell sideways


into and damaged Durham' s car. After bystanders helped him right the motorcycle, Erickson again

lost   control   of   the   motorcycle       and   it fell into Durham'   s car.   After this, a woman got on the


motorcycle and prevented him from getting back on it. Durham then saw Erickson lean over the

motorcycle, put something that looked like a key ring in his pocket, and walk away.

         Durham        called    911.      Officers responded a short time later, and one of them arrested

                                                                                                   Miranda2
                                       The arresting                      Erickson           his                        When
Erickson in      a   nearby bar.                       officer advised                  of                    rights.




the arresting officer then asked Erickson some questions, Erickson did not respond.

          When the officers escorted Erickson to the patrol car, he could not keep his balance and he

had    difficulty     standing       and   walking.   Erickson' s eyes were watery and droopy, his face was

flushed, he smelled strongly of alcohol, and his speech was slurred; the officers believed he was




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

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No. 44794 -1 - II



intoxicated. When Tacoma Police Officer Matthew Richard Graham asked Erickson whether he

had been    drinking,       Erickson   responded      that he   wanted an      attorney.    Officer Graham also asked


Erickson if he would perform sobriety tests; Erickson again asked for an attorney, and Officer

Graham stopped speaking with him.

          Once they arrived at the police station, Officer Graham again read Erickson his Miranda

rights. Erickson responded that he wanted an attorney and that he had his attorney' s business card

in his wallet. Within 5 minutes, the officers were able to put Erickson in contact with an attorney,

and Erickson spoke to the attorney while alone in a private room. About 10 to 15 minutes later,

the officers heard Erickson fall to the floor and start screaming for help, asserting that the police

had   assaulted      him.    After the officers picked up Erickson, they explained to counsel what had

happened       and   left the   room   to   allow   Erickson to     continue   to   speak   to counsel privately.   After


Erickson finished talking to counsel, the officers twice attempted to read him the implied consent

warnings3 for breath alcohol tests; he responded by stating that he needed a cab ride home. When

the   officers   asked      Erickson for     a   breath test, he    responded, "    Ah no, are you fucking stupid ?"

Clerk' s Papers ( CP) at 148. Erickson eventually passed out and was transported to the hospital.

                                                       II. PROCEDURE


          The City charged Erickson with physical control of a vehicle while under the influence;

the case went to a jury trial in municipal court. The City' s witnesses testified as described above.




3 Anyone operating a vehicle in the State of Washington " is deemed to have given consent" to
breath alcohol tests if the arresting officer has reasonable grounds to believe the defendant has
been driving or was in actual physical control of a vehicle while under the influence. Former RCW
46. 20. 308( 1) (    2008).     The implied consent warnings advise a defendant of the consequences
 should   he   refuse   to take the test. Former RCW 46.20. 308( 2) ( 2008).


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No. 44794 -1 - II


                                                       A. TESTIMONY


        During his direct testimony, Officer Graham testified about Erickson' s numerous requests

for an attorney, mentioning these requests five times while testifying about his contact with

Erickson before Erickson was advised of his Miranda rights. For example:

         City Attorney ( CA)]      :   Okay. And when you contacted [ Erikson in the patrol car]
                    what did you do?
         Officer Graham ( W)]:          I   opened     up the   patrol vehicle.   I contacted Mr. Erickson.
                    I noted that his eyes were watery, droopy. His face was very flushed with
                    color. Um I tried speaking with him. I noticed when he spoke the distinct
                    overpowering   odor of       intoxicants     were   coming    off of   his breath. Um his
                    speech was   very       slurred.   His head was kind of bobbling back and forth.
                    Um, I   even noted at one point         he was drooling. Um I you know I tried
                    asking him some questions. Ah wasn' t getting much out of it other than he
                    wanted an attorney. Um.
        CA:         Okay, did you did you ask him if he had anything to drink?
        W:          I attempted to ask him but all he would respond is that he wanted an
                    attorney.
         CA:        Okay, so did you try to pursue any questioning when he asked for an
                    attorney?
        W:          I just asked if he would perform voluntary field sobriety tests. Which all he
                    kept saying was that he wanted an attorney. And at that point we stopped.

CP at 134 -35 ( emphasis added).


         After Graham testified about reading Erickson his Miranda rights, he further testified in

per,



         CA:        Okay. And did the defendant indicate he understood that?
         W:         All he would say is I need an attorney.
         CA:        Okay. So did you try to ask the defendant questions at that point?
         W:         Other than just if he had an attorney that he wanted me to contact.
         CA:        Okay. So you um it' s fair to say you were not trying to investigate any and
                    ask him questions about what happened?
         W:         No.
         CA:        And why was that?
         W:         He had requested an attorney.
         CA:        Okay. And then um did you get any information about an attorney that the
                    defendant wanted?



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No. 44794 -1 - II



         W:         He advised that he had a business card in his wallet that had ah his
                    attorney' s number on it.

CP at 138 ( emphasis added).


         Officer Graham then testified that he made several attempts to contact the attorney and

ultimately    contacted counsel at          the Department         of   Assigned Counsel.      The officer then left the


room and shut       the door to         allow   Erickson to talk        on   the   phone with counsel.   About 10 to 15


minutes later, as recounted above, Officer Graham heard a " loud thud" and then heard Erickson


 screaming for      help."   CP    at   141.    The officer reentered the room and Erickson " started scream-
                                                                                                       creaming


that the   police   had   assaulted      him."    CP   at   141.    Officer Graham put Erickson back in the chair,


talked to the attorney about what had just happened, and then left the room again to allow Erickson

to continue to talk to counsel.


           Officer Graham also testified about reading the implied consent warnings to Erickson and

his subsequent refusal to give a breath test as described above. Officer Graham stated that he did

not know if Erickson understood the implied consent warnings but that he did not ask for any

clarification, ask to speak to a lawyer again, or otherwise indicate that he had not understood the

warnings.      Officer Graham also testified that when he arrived at the scene, the motorcycle was


legally parked and was safely out of the roadway.

           Erickson   was    the   sole   defense   witness.       He testified that he had given his keys to a friend


at the start of the evening and, therefore, he could not have placed them in the motorcycle' s ignition

when he damaged Graham' s car. He admitted, however, that he had been drinking that evening,

that his memory was "          foggy" because he had been drinking, and that the motorcycle " tipp[ ed]

 over"   at some point."      CP at 182, 184.




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No. 44794 -1 - II


                                  B. JURY INSTRUCTIONS AND CLOSING ARGUMENT


        The trial court instructed the jury on the statutory affirmative defense:.

        It is a defense to physical control while under the influence if prior to being pursued
        by law enforcement officer the person causes the vehicle to be moved safely off the
        roadway.           In determining whether a vehicle is safely off the roadway you may
        consider the location of the car, the extent to which the defendant maintained
        control over            the    vehicle,    and   any    other evidence        bearing    on   the question.    The

        defendant has the burden of proving this defense by a preponderance of the
        evidence.




CP at 206.


        In its closing argument, after noting that the officers had twice attempted to read Erickson

the implied consent warnings, the City argued,

        And we' re also asking you to find that the defendant refused to take the breath
        test....         And so to prove that we have to show that ah the defendant expressed or
         showed some positive unwillingness        to do this test. So how do we know that? Um

        the officer said Officer Graham had the defendant in the police station and he was
        there      for   quite a      long   time.    And he told you he read the implied consent warning
        two times.          That
                               long   of things....
                                      was a         But just to be sure he did read it two
                                                      list
        times. And then ah but prior to even reading the implied consent warning ah

        Officer Graham because the defendant wanted to talk to an attorney, put him in
        touch with the attorney and put him on speaker phone. When the attorney is on

         speakerphone            the officer       leaves the    room    to   give   him privacy....      And the officer
         said that he put the defendant in touch with the attorney at 9: 49 p.m. and then that
        call ended at 10: 09. That' s twenty minutes. That' s a long time. The defendant had
        plenty oftime to talk to this attorney and ask questions, get advice or whatever he
         needed. And then after the officer read the implied consent warning two times um
         or   then he      asked       the   ah   defendant    are you   going to take this breath test? The first
         time   he       gets   this   response of       I   want a cab.      I   need a cab.     And then there' s he' s
         unresponsive.            He doesn' t        give an actual answer           to the   question yes or no.     So the
         officer gets [ sic] he' s prepared to set up the machine. Everything is ready to go and
         asked him again. Will you take the breath test? And this time what does [ he] say?

         No, are you f* * ing * stupid? I mean how much more do you need? There was no.
         So we have proved that the defendant is guilty of physical control while under the
         influenceof intoxicating liquor. We' ve also proved that he refused the breath
         test....         So we' re asking you to hold the defendant responsible for his actions on
         September 29th and find him guilty of the crime of being in physical control and
         also find that he refused the breath test.



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No. 44794 -1 - II



CP   at   219 -22 (   emphasis   added).     Erickson did      not object     to this   argument.   The City did not

otherwise mention Erickson' s requests for counsel.


          Erickson argued that ( 1) the City had not proven its case because it had failed to prove that

he had the keys and there was no proof that he could have moved the motorcycle without starting

it, and ( 2) he had established the affirmative defense to the charge because Officer Graham had

testified that the     motorcycle was       legally   and   safely   parked   before the   officers arrived.   The jury

found Erickson guilty of physical control and found by special verdict that he had refused to submit

to the breath test requested by law enforcement.

                                                       C. APPEALS


           Erickson    appealed   his   conviction     to the Pierce   County     Superior Court. He argued, inter


alia, that ( 1) there was insufficient evidence to find that he was not safely off the roadway, and ( 2)

the City improperly commented on his exercise of his Miranda rights.

           The superior court affirmed the conviction. It held, in part,

           1.   There was sufficient evidence to convict Mr. Erickson of being in physical
           control of a motor vehicle while under the influence of alcohol. A rational trier of
           fact could have found Mr. Erickson failed to prove he was safely off the road by a
           preponderance of the evidence.
           2.   The City did not improperly comment on the exercise of the right to counsel;
           based on the facts of this case.


 CP at 266.


           Erickson    moved     for   discretionary   review with     this   court.    We accepted review in part on


 the issues of whether (1) there was sufficient evidence supporting the jury' s rejection of Erickson' s

 affirmative defense, and ( 2) the City and its witnesses improperly referenced Erickson' s requests

 for an attorney.



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No. 44794 -1 - II


                                                          DISCUSSION


                                 I. SUFFICIENCY OF EVIDENCE: AFFIRMATIVE DEFENSE


          Erickson first argues that the superior court erred in ruling that a rational trier of fact could

have found that he failed to prove the affirmative defense by a preponderance of the evidence. We

disagree.


                                           A. LAW AND STANDARD OF REVIEW


          We     review a municipal court' s           decision according to the       standards   in RALJ 9. 1.    City of

Seattle v. May, 151 Wn. App. 694, 697, 213 P. 3d 945 ( 2009), aff'd, 171 Wn.2d 847, 256 P. 3d 1161

 2011).     We review the record before the municipal court; we review factual issues for substantial

evidence and we review legal issues de novo. May, 151 Wn. App. at 697; City ofBellevue v. Jacke,

96 Wn. App. 209, 211, 978 P. 2d 1116 ( 1999).

           Actual physical control of a vehicle while under the influence of or affected by intoxicating

liquor    or   any   drug   is   a crime   in the State     of   Washington. RCW 46. 61. 504( 1).      But there is also a


statutory      affirmative       defense to that   crime.    RCW 46. 61. 504( 2). This affirmative defense provides,


 No person may be convicted under this section if, prior to being pursued by a law enforcement

officer,   the   person     has    moved    the   vehicle   safely   off   the roadway."   RCW 46. 61. 504( 2) (   emphasis




added).        Erickson was required to prove this affirmative defense by a preponderance of the

evidence. State v. Votava, 149 Wn.2d 178, 187, 66 P. 3d 1050 ( 2003).


           When reviewing a challenge to the sufficiency of evidence based on an affirmative
           defense ... ,  the inquiry is whether, considering the evidence in the light most
           favorable to the city, a rational trier of fact could have found that the accused failed
           to prove the defense by a preponderance of the evidence. State v. Lively, 130 Wn.2d
           1, 17, 921 P. 2d 1035 ( 1996).           Proof of a defense by a preponderance of the evidence
           merely means the greater weight of the evidence. State v. Harris, 74 Wash. 60, 64,
           132 P. 735 ( 1913).



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No. 44794 -1 - II



City   of Spokane   v.   Beck, 130 Wn.    App.   481, 486, 123 P. 3d 854 ( 2005), review denied, 157 Wn.2d


1022 ( 2006).


                                           B. SUFFICIENT EVIDENCE


         Erickson argues that the evidence proved the affirmative defense beyond a reasonable


doubt because Officer Graham testified that the motorcycle was safely off the roadway when he

arrived at the scene. 4 We disagree.

         Here, although Officer Graham testified that the motorcycle was safely off the roadway

when he arrived at the scene, a reasonable jury could have found that after Erickson reasserted

control over the motorcycle, it only remained safely off the roadway without Erickson' s assistance.

Durham testified that Erickson put a key in the motorcycle' s ignition before trying to upright it,

that he did not voluntarily relinquish control over the motorcycle, and that he relinquished control

only after a woman physically prevented him from getting back on. This evidence would allow a

reasonable jury to conclude that although Erickson had initially moved the motorcycle safely off

the roadway, he regained control of it when he left the bar, tried to drive the motorcycle away, but

was    prevented    by   a   bystander.   And the motorcycle remained safely off of the roadway only

because someone else had intervened. See City of Yakima v. Mendoza Godoy, 175 Wn. App. 233,

305 P. 3d 1100 ( to be entitled to this affirmative defense instruction, defendant had to present some




  We note that Erickson does not argue that there was insufficient evidence to prove that he was in
 physical control of the motorcycle while intoxicated.


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No. 44794 -1 - II



evidence that he or she in some way actively participated in moving or causing someone else to

move   the   vehicle off of      the roadway), 5   review denied, '178 Wn.2d 1019 ( 2013).

          Although under Votava, a defendant can assert the affirmative defense if another person

has moved the vehicle off the roadway at the defendant' s request, that is not what happened here.

149 Wn.2d      at   188.   Votava held " that a defendant who has been charged with being in physical

control   of a vehicle while under          the influence       of alcohol      is   entitled   to the defense ...   if the


defendant caused the vehicle to be moved off the roadway even if the defendant did not personally

drive the    vehicle off    the roadway."          149 Wn.2d      at   188 (   emphasis    added).     Erickson originally

parked the motorcycle off of the roadway safely, but he returned to it after consuming alcohol and

attempted     to    move   the   motorcycle.       In   so   doing,    he damaged       another person' s vehicle.     The


motorcycle was clearly not safe when Erickson was in control of it, and Erickson did not

voluntarily cease his attempts to control the motorcycle. He stopped only when someone else, on

her own initiative, prevented him from getting back on the motorcycle. Thus, we cannot say that

Erickson " caused" the vehicle to be removed safely off of the roadway as the defendant in Votava

did, and the evidence supports the jury' s rejection of this affirmative defense.




 5 In Mendoza Godoy, another person drove the intoxicated defendant to the parked vehicle, and
 the defendant then sat alone in the vehicle while drinking a beer. 175 Wn. App. at 235. The Court
 of Appeals affirmed the trial court' s refusal to give the affirmative defense instruction under these
 circumstances. Mendoza Godoy, 175 Wn. App. at 238.

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No. 44794 -1 - II


                                        II. COMMENT ON RIGHT TO COUNSEL


          Erickson next argues that the City or its witnesses improperly commented on his exercise

of his right to counsel. 6 Even presuming, but not deciding, that the testimony and argument about

Erickson' s requests for and access to counsel were improper and that he has properly preserved

these issues for review, we hold that the testimony and argument were harmless beyond a

reasonable doubt.


           Both the state and federal constitutions guarantee a criminal defendant the right to counsel.

U.S. CoNST.          amend.   VI; WASH. CONST.         art    I, § 22.   Commenting on the defendant' s exercise of

his    right   to   counsel can   be improper. United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-


17 ( 3d Cir.), cert. denied, 414 U.S. 855 ( 1973).


           Here, Officer Graham' s testimony and the City' s argument were arguably direct comments

on Erickson' s request for or access to an attorney. See State v. Pottorff, 138 Wn. App. 343, 346.

156 P. 3d 955 ( 2007) ( " A direct comment occurs when a witness or state agent makes reference to


the defendant' s invocation         of his or   her   right   to   remain silent. ").   We review direct comments using

the constitutional harmless error analysis in which the City bears the burden of showing the error

was     harmless.       Pottorff, 138   Wn.     App.   at    347.     A constitutional error is harmless when we are


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

 absent the error and when the untainted evidence is so overwhelming it necessarily leads to a

 finding of guilt. State v. Romero, 113 Wn. App. 779, 794 -95, 54 P. 3d 1255 ( 2002).


 6                                                                                                     in RALJ 9. 1.
     Again,    we review a municipal court' s           decision according to the          standards                   May,
 151 Wn. App. at 697. We review the record before the municipal court; we review factual issues
 for   substantial evidence and we review              legal issues de       novo.   May, 151 Wn. App. at 697; Jacke,
 96 Wn. App. at 211.

                                                                    11
No. 44794 -1 - I1



         As to the substantive offense, the facts here do not show that the City attempted to use

Officer Graham' s testimony about Erickson' s requests or access to counsel as substantive evidence

of that crime or as evidence that would impeach his credibility. And there was ample uncontested

evidence that Erickson was impaired (in fact, Erickson admitted he had been drinking), that he had

attempted to move the motorcycle, that he repeatedly dropped the motorcycle, and that he

relinquished his control of the motorcycle only when others interfered. Also, because the City did

not argue that Erickson' s requests for counsel were inconsistent with the acts of an innocent person,

this evidence and argument did not undermine Erickson' s defenses ( that he did not have the


motorcycle key and his affirmative defense).

         As to the special verdict, again, the City did not argue that Erickson' s requests for and

contact with counsel were inconsistent with Erickson' s innocence. Although the City argued that

Erickson' s request for and access to counsel was evidence that he had the opportunity to make a

knowing     and     intelligent decision         about   whether        to    refuse   the breath test,   this evidence is


insignificant in light      of   the    other evidence at     trial.    Specifically, the City presented evidence that

the   officers   twice    read   him the implied       consent warnings.          But all the City had to prove was that

Erickson had the opportunity to make a knowing and intelligent decision; and the other evidence

overwhelmingly demonstrates that this                   was   the      case   here.    Thus, we hold that there was no


reasonable probability that any comment on Erickson' s exercise of his right to counsel contributed

to the substantive or special verdicts.




  A defendant       must     have the " opportunity"        to make a knowing and intelligent decision about
whether    to    refuse   to take   a   breath test.   See Medcalf v. Dep 't ofLicensing, 133 Wn.2d 290, 299,
944 P. 2d 1014( 1997); State            v.      App. 871, 876, 220 P. 3d 211 ( 2009). The law does
                                             Elkins, 152 Wn.
not require that the City prove that the defendant actually made a knowing and intelligent refusal.
Medcalf, 133 Wn.2d at 299.
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No. 44794 -1 - II



        Because the evidence was sufficient to support the jury' s verdict and any mention of

Erickson' s exercise of his right to counsel was harmless beyond a reasonable doubt, we affirm the

superior court and the municipal court verdict.


        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:




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