                                                                                                           - F OF
                                                                                                        OU P,      A PEALS
                                                                                                             MIVIS101',1II
                                                                                                            6 UG   25   A t,1, 8   5

     IN THE COURT OF APPEALS OF THE STATE OF WASHIlN
                                                      DIVISION II                                      gY


 STATE OF WASHINGTON,                                                           No. 45833 -1 - II


                                        Respondent,


             v



 B. J. C.,                                                                UNPUBLISHED OPINION




             SUTTON, J. —     BJC1 appeals his adjudications for first degree child rape and first degree

child molestation. He argues that the trial court ( 1) violated his right against self-incrimination by

admitting his       confession, (   2) violated his right to due process by requiring him to register as a sex

offender, and ( 3) abused its discretion by imposing a sentence greater than 150 percent of the

maximum for his conviction on his most serious offense. We hold that the trial court ( 1) properly

admitted BJC' s confession, (2) did not violate BJC' s due process rights by requiring him to register

as a sex offender, and ( 3) did not abuse its discretion in sentencing BJC. Therefore, we affirm.

                                                          FACTS

                                                  2
             A   seven year   old   female; CC,       alleged   that BJC sexually   assaulted   her.    After a child


forensics specialist interviewed CC, two police officers, Rich Fletcher and Dave Voelker, went to




1 BJC is a minor; therefore, we use initials to maintain confidentiality.

2 We use the minor victim' s initials to protect the victim' s privacy. Gen. Order 2011- 1 of Division
II, In re the Use of Initials of Pseudonyms for Child Witnesses in Sex Crime Cases ( Wash. Ct.
App.),   available at     http:// www. courts. wa. gov/ appellate– trial– courts/.
No. 45833 - 1 - II




BJC' s home, a second floor apartment, to speak with him. BJC came to the door at the officers'

request.




         While BJC stood in the doorway, the officers identified themselves, told BJC that a

complaint had been filed against him, and asked if he would voluntarily answer questions. Fletcher

asked BJC if there was somewhere else they could speak, and the three of them walked downstairs

into   a courtyard   adjoining his   apartment   building.   Fletcher told BJC that he could stop the

questions at any time and BJC said he understood. Fletcher assured BJC that he did not intend to

arrest him. Both officers knew that BJC was 13 years old at the time of their interview.
                                                             Miranda3
           Although Fletcher   considered   giving BJC the              warning, he did   not   do   so.   The


officers were dressed in civilian clothes with jackets that covered their guns, handcuffs, and police

badges.     They did not place BJC in handcuffs or have any physical contact with him or threaten
him. The officers' tones were conversational without raised voices.


           Once the officers and BJC were in the courtyard, Fletcher explained the allegations to BJC.

BJC first denied that he had touched CC and suggested that CC had fabricated the allegations. The

officers told BJC that they did not believe him, and BJC began to confess to portions of CC' s

allegations. Fletcher confronted BJC and said that they knew he was not divulging the entire series

 of events based on what CC had said, and in response BJC slowly admitted to all of the allegations.

 BJC divulged information that neither CC' s interview nor any other evidence suggested had

 occurred. The conversation between the officers and BJC lasted 30- 40 minutes.




 3 Miranda v. Arizona, 384 U.S. 436,. 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                      2
No. 45833 -1 - II



        The State charged BJC with two counts of child rape and one count of child molestation.


BJC moved to suppress the statements he made to Fletcher and Voelker. After a CrR 3. 5 hearing,

the trial court ruled that BJC' s statements were admissible because he made them voluntarily and


he was not in custody at the time he confessed. The trial court found BJC guilty of one count of

first degree child rape and one count of first degree child molestation.4

        The trial court required BJC to register as a sex offender and sentenced him to two

consecutive    terms   of   the   standard range   sentence   for   each    crime.    The trial court ruled that


RCW 13. 40. 180( 1) did not apply to limit BJC' s sentence to 150 percent of the maximum sentence

of BJC' s most serious offense, first degree child rape. BJC appeals.

                                                   ANALYSIS


                    I. THE TRIAL COURT PROPERLY ADMITTED BJC' s CONFESSION

          BJC argues that the trial court violated his right against self-incrimination by admitting his

              because he                                            first receiving   a   Miranda warning.   We
confession                   involuntarily   confessed without




disagree.


A. Standard of Review


          The Fifth Amendment          guarantees   the   right   against    self-incrimination.   U. S. CONST.


 amend.   V. Article 1, section 9 of the Washington Constitution, which also guarantees the right


 against self-incrimination, is co -extensive with the Fifth Amendment. State v. Unga, 165 Wn.2d

 95, 100, 196 P. 3d 645 ( 2008).




 4 Because the State' s second charged count of child rape was based solely on BJC' s confession,
 the trial court ruled that the State failed to prove that count of first degree child rape under the
 corpus delecti rule.

                                                          3
No. 45833 - 1 - II




          When reviewing a trial court' s CrR 3. 5 ruling, we decide whether substantial evidence

supports the trial court' s findings of fact and whether the findings of fact support the trial court' s

conclusions of law, which we review de novo. State v. Russell, 180 Wn.2d 860, 866- 67, 330 P. 3d

151 ( 2014).      Substantial evidence is evidence sufficient to persuade a fair-minded person of its

truth. Russell, 180 Wn.2d             at   866- 67. Unchallenged findings of fact are verities on appeal. State


v. Bonds, 174 Wn. App. 553, 563, 299 P. 3d 663, review denied, 178 Wn.2d 1011 ( 2013).

          BJC assigns error to the trial court' s determination that his confession was voluntary and

the product of rational intellect and free will, that he was not subjected to custodial interrogation

without     Miranda         warnings,       and that therefore his statements to Fletcher and Voelker are

admissible. -    Although he does not specifically list the paragraphs he claims are erroneous, these

assignments of error point to paragraphs four, five, six, and eight of the trial court' s findings of

fact and conclusions of law. Paragraph four stated that " it may be reasonable for a thirteen year

old child to believe they were in custody as it would take a rather bold move to walk away from
the   police,   but the   statements were not made while [ BJC] was                  in custody." Clerk' s Papers ( CP) at


43.     Paragraph five       stated   that "[    BJC] chose the location the conversation [ between he, Fletcher,

 and Voelker] would take place, which shows the questioning was not done in custody and makes

the   statements                      made."      CP   at   43. Paragraph   six stated    that "[ BJC]   did not have his free
                     voluntarily


 will   inhibited   by [ Fletcher and Voelker]." CP at 43. Finally, paragraph eight states the trial court' s

 ultimate conclusion, that BJC' s confession is admissible.

           BJC' s assignments of error do not appear to challenge the trial court' s remaining

 paragraphs      in its. findings          of   fact   and   conclusions    of   law: (    1)    paragraph two, that BJC' s


 conversation        with    Fletcher      and    Voelker lasted 30- 45          minutes, (     2) paragraph three, that the



                                                                   rd
No. 45833 -1 - II



conversation was cordial, and ( 3) paragraph seven, that Fletcher' s and Voelker' s interaction with

BJC was not combative or confrontational. Because BJC did not challenge these three findings or

conclusions, they are verities on appeal.

        The trial court did not err in admitting BJC' s confession.

B.   BJC Was Not in Custody

        BJC argues that the trial court erred in admitting his confession because he was in custody

when Fletcher and Voelker questioned him in the courtyard and they did not give him.the Miranda

warning before he confessed. We disagree.

         We review a trial court' s determination whether a defendant was in custody de novo as a

question of    law. State      v.   Rosas -Miranda, 176 Wn.         App.    773, 779, 309 P. 3d 728 ( 2013).   A self-



incriminating confession made while a suspect is subject to custodial interrogation is not
admissible unless officers provided a Miranda warning before the confession. State v. Piatnitsky,

 180 Wn.2d      407, 412, 325 P. 3d 167 ( 2014),           cert.   denied, 135 S. Ct. 950 ( 2015).      A person is in


 custody for the purposes of the Miranda warning requirement when a reasonable person in the
 suspect' s position would believe that he or she is in police custody to the degree associated with a

 formal arrest. State     v.   Lorenz, 152 Wn.2d 22, 36- 37, 93 P. 3d 133 ( 2.004).           We determine whether



 a person is in custody by the totality of the circumstances. Rosas -Miranda, 176 Wn. App. at 779.
 A juvenile' s age informs our custody analysis so long as the interrogating officer knew the

 juvenile'   s age at   the time     of   the interview.   J.D.B.    v.   North Carolina, _     U. S.       131 S. Ct.


 2394, 2406, 180 L. Ed. 2d 310 ( 2011).


         Based on the totality of the circumstances, substantial evidence supports the trial court' s
 findings of fact and conclusions of law in paragraphs four and five that BJC was not subject to


                                                               5
No. 45833- 1- I1




custodial    interrogation.        Fletcher and Voelker asked BJC if he would voluntarily answer some

questions.      They also asked BJC if there was somewhere else they could speak other than at the

front door of the apartment, and, in response, BJC took them downstairs to an open courtyard


adjoining his     apartment       building. The officers were dressed in civilian clothes with their badges

and guns covered. BJC agreed to talk to the officers and Fletcher told BJC that he could cease the

questioning     at    any time.    BJC replied that he understood. Fletcher told BJC that they would not

arrest   him.   The officers did not place BJC in handcuffs or have any other physical contact with

him. Under these circumstances, a reasonable person would not have believed that he was under

police.custody to the degree associated with a formal arrest. Thus, BJC was not subj ect to custodial

interrogation, and the officers were not required to give him the Miranda warnings for his

confession to be admissible.


C. BJC Confessed Voluntarily

          BJC also argues that the trial court erred in ruling his confession was admissible because

his inculpatory statements to Fletcher and Voelker were not voluntary. We disagree.

          We review for substantial evidence a trial court' s ruling that a confession was voluntary by

a preponderance of the evidence. State v. Rafay, 168 Wn. App. 734, 757- 58, 285 P. 3d 83 ( 2012),

review    denied, 175 Wn.2d 1023 ( 2013),            cert.   denied, 134 S. Ct. 170 ( 2013) (              explaining that our

 Supreme Court has          rejected   independent   appellate review of            the   record   in   a confession case).   A


 confession is admissible in court if it was made voluntarily and was not the product of coercion or

 improper inducement;             voluntariness   is determined        by   the   totality   of   the   circumstances.   Unga,


 165 Wn.2d       at    100- 01.    Washington courts have a " responsibility to examine confessions of a

juvenile     with special care."         Unga, 165 Wn.2d          at   103.       Relevant factors in the totality of the


                                                              G
No. 45833 -1 - II



circumstances analysis include the person' s age, maturity, experience, intelligence, education,

background, physical condition, mental health, whether the person has the capacity to understand

the police' s warning, the interrogation' s location and length, any police coercion, and whether the

police told the juvenile that he or she has the right to remain silent. Unga, 165 Wn.2d at 101, 103.

         Based on the totality of the circumstances, substantial evidence in the record supports the

trial court' s findings of fact and those findings in turn support the trial court' s conclusions of law

in   paragraphs     five    and six   that BJC' s   confession was        voluntarily.   After Fletcher and Voelker


identified themselves to BJC, he agreed that they could ask him questions and he led the officers

downstairs to the          courtyard.    Fletcher informed BJC that he could cease the questioning at any

time   and   BJC    said    that he   understood.        The officers did not threaten BJC and their tone was


conversational.        As the trial court found in paragraphs two and seven, which BJC does not

challenge,     BJC'   s    interaction   with    Fletcher   and     Voelker lasted 30- 40    minutes   and   was "   not




combative or confrontational             in   nature."    CP   at   43.   The challenged findings are supported by

substantial evidence in the record and the totality of the circumstances demonstrate that the trial

 court did not err in concluding that BJC' s confession was voluntary, and therefore, BJC' s
 statements were admissible.



             II. RCW 9A.44. 130 DOES NOT IMPAIR THE CONSTITUTIONAL RIGHT TO TRAVEL

         BJC argues that the trial court' s order requiring him to register as a sex offender must be

 reversed because the sex offender registration statute, RCW 9A.44. 130, violates the substantive

 due process rights of juveniles on its face and as applied to him. Specifically, BJC argues that the

 sex offender registration statute burdens his fundamental right to travel. We disagree.




                                                                7
No. 45833 -1 - II



          We     review    the constitutionality             of a statute     de    novo.      State v. Smith, 185 Wn. App. 945,

952, 344 P. 3d 1244,         review         denied, 352 P. 3d 187 ( 2015).               To demonstrate facial unconstitution-


ality, BJC must show that no set of circumstances exist in which RCW 9A.44. 130 could be applied

constitutionally.          City   of Redmond           v.   Moore, 151 Wn.2d 664, 669, 91 P. 3d 875 ( 2004).                          To


demonstrate that RCW 9A.44. 130 is unconstitutional as applied to him, BJC must show that the

statute   is   unconstitutional         in the   context of       his   actions or     intended    actions.    Moore, 151 Wn.2d at


668- 69. Both a facial and as -applied challenge require BJC to show that RCW 9A.44. 130 impairs

a constitutional right.            Smith, 185 Wn.             App.      at   952.     BJC argues that this statute burdens his


constitutional right to travel.


          The right to travel, including travel within a state, is a fundamental right under the United

States Constitution; impairing the right to travel cannot be deprived without due process of law.

Smith, 185 Wn.            App.    at   953; U. S. CONST.          amends.      V, XIV. A state law implicates the right to


travel    when     it "   actually deters such travel and where deterring travel is the law' s primary

objective."       Smith, 185 Wn.             App.   at 953.      A state law also implicates the right to travel when the


 law   uses a classification           to   penalize   the   exercise of       that   right.    Smith, 185 Wn.     App.   at   953.   BJC


 argues that RCW, 9A.44. 130 prevents him from traveling away from home for more than three

 nights. We have already rejected this argument in Smith. 185 Wn. App. at 953- 54.

           RCW 9A.44. 130 requires convicted sex offenders, including juvenile sex offenders, to

 register with     the    sheriff      for the county       of   the   person' s residence. "[         I] t is well established that the


 term ` residence' as used in RCW 9A.44. 130 means ` a place to which one intends to return, as

 distinguished from          a place of       temporary       sojourn or       transient    visit."'    Smith, 185 Wn. App. at 954

                            Pickett, 95 Wn.                       475, 478, 975 P. 2d 584 ( 1999)).                  No language in
  quoting State       v.                                App.
No. 45833 -1 - II




RCW 9A.44. 130 prevents BJC from traveling outside the state or within the state. Smith, 185 Wn.

App.    at    953.   The statute does not require BJC to provide notice of intent to travel from his

residence; the statute requires that he register only when he changes his residence or becomes

transient.      RCW 9A.44. 130( 4), ( 5).     Thus, RCW 9A.44. 130 is not unconstitutional on its face.


Smith, 185 Wn. App. at 954.

             BJC has not demonstrated that RCW 9A.44. 130 actually deters him from traveling or

penalizes      him for exercising his       right    to travel.    BJC' s facial constitutional and as -applied


challenges fail.


  III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FAILING TO LIMIT BJC' s SENTENCE

             Lastly, BJC argues that the sentencing court erred by not limiting his sentence to 150
percent of the term for first degree child rape, his most serious offense, because he argues that his

two    adjudications constitute a " single act" under         RCW 13. 40. 180( l)(a). We disagree.


             The issue is whether BJC' s adjudications for first degree child rape and first degree child

molestation constitute the " same criminal conduct" under RCW 9. 94A.589( 1)( a) for sentencing

 purposes.      A juvenile' s disposition for two or more offenses must run consecutively unless " the

 offenses were committed        through a    single act or omission."       RCW 13. 40. 180( 1)(     a).   In that case,


 the total sentence the trial court may impose is limited.to 150 percent of the term imposed for the

 most serious offense,      here first degree       child rape.'   RCW 13. 40. 180( 1)(    a).   The trial court ruled


 that because BJC' s two adjudications did not constitute the same criminal conduct, the 150 percent




  If the     offenses were not committed     through a " single act or omission,"         the total sentence may not
 exceed three hundred percent of the imposed sentence for the most serious offense.
 RCW 13. 40. 180( 1)( b).

                                                             9
No. 45833 -1 - II




limit in RCW 13. 40. 180( 1)( a) did not apply to the trial court' s sentence for BJC' s most serious

offense.     Because this decision involves a factual inquiry, we review the trial court' s application

of the facts to the law for abuse of discretion. State v. Kloepper, 179 Wn. App. 343, 357, 317 P. 3d

1088,      review   denied, 180 Wn.2d 1017 ( 2014). When the record supports only one conclusion on


the same criminal conduct issue, the trial court abuses its discretion at arriving at a contrary result,

but if either conclusion is supported adequately by the record, the trial court properly exercised its

discretion. State v. Graciano, 176 Wn.2d 531, 537- 38, 295 P. 3d 219 ( 2013).

            We   analyze    the   phrase " single   act   or     omission"   in RCW 13. 40. 180( 1)( a) in the same


manner as we analyze the phrase " same course of conduct" in the Sentencing Reform Act,6 because

both focus on the defendant' s objective criminal intent. State v. Contreras, 124 Wn.2d 741, 748,

880 P. 2d 1000 ( 1994). Two offenses against a single victim constitute the " same criminal conduct"


if they ( 1) involved the same criminal intent, (2) occurred at the same time, and (3) were committed
                          Kloepper, 179 Wn.                      356- 57; RCW 9. 94A.589( 1)(    a).   Both BJC and the
at   the   same place.                           App.       at




State agree that BJC' s offenses occurred at the same time and place and involved the same victim.

            To determine whether BJC' s two adjudications constitute the same criminal conduct, we


focus on whether defendant' s intent, viewed objectively, changed from one crime to the next and

whether       one   crime   furthered the   other.    State v. Grantham, 84 Wn. App. 854, 858, 932 P. 2d

 657 ( 1997).        We   construe ' the   phrase "   the    same      criminal   conduct"   in RCW 9. 94A.589( 1)( a)


 narrowly to disallow most claims that multiple offenses constitute the same criminal conduct.




 6
     Sentencing Reform Act of 1981, ch. 9. 94A RCW.
                                                                  10
No. 45833 -1 - II



Graciano, 176 Wn.2d           at   540.     The defendant bears the burden of proving that his adjudications

were part of the same criminal conduct. Graciano, 176 Wn.2d at 538.

         In Grantham, the defendant committed two separate rapes that we held were not the " same

criminal    conduct"     because he committed one rape before beginning the second, he had the

 presence of mind" to threaten the victim, he used new physical force to obtain compliance and

accomplish the second rape, and the victim asked him to stop and take her home between the two

rapes.   Grantham, 84 Wn.             App.    at.   859.    Under these facts, we held that the trial court properly

found that Grantham,          after   he   completed one act, "          had the time and opportunity to pause, reflect,

                       his   criminal                    or proceed   to   commit a    further   criminal act."         Grantham,
and either cease                           activity


84 Wn.     App.   at   859. Because Grantham chose to proceed, he formed a new intent to commit the


second act. Grantham, 84 Wn. App. at 859.

         Like Grantham, BJC " had the time and opportunity to pause, reflect, and either cease his

criminal activity or proceed to commit a further criminal act" between the commission of his
offenses.    Grantham, 84 Wn.              App.     at   859.   According to Fletcher' s testimony, BJC said that he

                             before                                because CC told him to stop        each      time.   Instead of
stopped one sex act                   beginning          another




 stopping, BJC re -positioned CC               and       decided to   commit    a   different   sexual   act.    The trial court,



under these facts, properly concluded that BJC' s offenses did not constitute the same criminal

 conduct. Therefore, the trial court did not abuse its discretion by declining to limit BJC' s sentence

 to 150 percent of the maximum sentence for his most serious offense, first degree child rape.




                                                                    11
No. 45833 -1 - II



                                                CONCLUSION


        We    affirm    BJC'   s   adjudications,   holding that the trial court properly admitted his

confession, the sex offender registration statute does not impair BJC' s fundamental right to travel,


and the trial court did not abuse its discretion in sentencing BJC.

        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.

                                                                    It   I




                                                             SUTTON, J.
 We concur:




 F.                 L..; .
      Or -
              1




        fi




 TJ.




                                                        12
