      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           )
STATE OF WASHINGTON,                       )        No. 75638-9-1
                                           )
                    Respondent,            )        DIVISION ONE
                                           )
            v.                             )
                                           )
NEGLIA MARIAN NETTLES,                     )        UNPUBLISHED
                                           )
                    Appellant.             )        FILED: November 14, 2016
                                           )                                      c=,        (.0c)
                                                                                  ••••,..•
                                                                                             rn
      Cox, J. — Neglia Nettles appeals her judgment and sentence, arguing that
                                                                                                -0
                                                                                             > 7.3
the trial court abused its discretion in denying her request fora Drug Offender    7, col


Sentence Alternative (DOSA). Because this record shows there was no such 2(Du"?

abuse of discretion, we disagree. Nettles also raises numerous evidentiary

challenges in a Statement of Additional Grounds dated April 14, 2016, but none

has merit. We affirm.

      On February 5, 2015, Nettles attempted to deposit a check at a Wells

Fargo bank. The check came from the account of a woman long deceased. The

bank teller found a hold on Nettles's account and, suspecting fraud, called the

police. Officer Joshua McKenzie responded to the call and stopped Nettles as

she was leaving the bank. He advised her that she was not under arrest but that

he needed to ask her some questions. During this conversation, Officer

McKenzie effectively blocked Nettles's exit and read Nettles her Miranda rights.

She acknowledged her rights and chose to answer his questions.
No. 75638-9-1/2


      Officer McKenzie briefly left to interview the bank manager. He also called

the co-owner of the account listed on the check. The co-owner, the deceased

woman's son, informed Officer McKenzie that his mother had passed away.

Officer McKenzie then returned to question Nettles who claimed to have met with

the deceased woman the day before. Officer McKenzie then arrested Nettles.

      The State charged Nettles with identity theft and forgery. While released

pending trial, Nettles failed to appear when required, and the court issued a

bench warrant. Also while on release, she tried again to pass a forged check.

      After a bench trial, the court found Nettles guilty of identity theft, forgery,

and bail jumping. She pleaded guilty to additional charges of identity theft and

forgery arising out of the offenses committed while on release.

      After trial and before sentencing, the Department of Corrections screened

Nettles for drug dependency. It reported to the court that Nettles drank alcohol

and used methamphetamine daily. When she attempted to quit using, she

became sick from withdrawal and relapsed to using in greater proportions to "get

the same effects as before." Addiction destroyed her ability to work and care for

her children. It made her a danger to others.

       Nettles requested a DOSA at her sentencing hearing. The trial court

denied Nettles's request, concluding there was no basis for a DOSA. Instead,

the court sentenced Nettles to 60 months of confinement on a conviction plus an

additional day of confinement as an exceptional sentence for others, followed by

community supervision.

      Nettles appeals.



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                                       DOSA

       Nettles argues that the trial court abused its discretion in denying her

request for a DOSA. We disagree.

       If the trial court considered the facts and concluded that a DOSA was

inappropriate, this court will not review its ruling.1 But the defendant may

challenge the procedure by which a sentence was imposed.2

       In determining whether to order a DOSA, the trial court engages in a two-

part inquiry.3 First, the court determines whether the defendant is eligible for a

DOSA based on meeting seven eligibility requirements under RCW

9.94A.660(1). Second, the court determines if a DOSA is appropriate for the

particular defendant. Nettles's eligibility for a DOSA is not disputed in this case.

       The issue in this case is whether the court, in its discretion, erred in

deciding that a DOSA was not appropriate.4

       Nettles argues that the court did not explain what factual or legal

requirements were absent from her request for a DOSA. She appears to argue

that eligibility for a DOSA necessarily means that a DOSA is appropriate. She is

mistaken.




           State v. Hender, 180 Wn. App. 895, 901, 324 P.3d 780 (2014).

       2   Id.

       3   Id. at 900.

       4   Id.



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No. 75638-9-1/4


        Nettles relies on State v. Grayson.5 That reliance is misplaced.

In that case, John Grayson was a long time drug dealer found guilty of delivering

crack cocaine.6 Prior to sentencing, he requested a DOSA.7 He was screened

and found eligible.5 But at sentencing, the trial court denied his request,

explaining that the State's lack of funding for the DOSA program was its "main

reason" for the denia1.9 When the State attempted to offer further reasons for the

record, the court interrupted, stating it had already decided against the DOSA "so

that's it."19

        Grayson argued on appeal that the court had inadequately considered

where a DOSA might have been appropriate." The supreme court agreed.12

While recognizing that the record contained "ample" grounds to deny the DOSA,

the supreme court determined that the trial court had not actually considered

whether the DOSA might be appropriate for Grayson.13 In declining to "articulate

any other reasons for denying the DOSA," the supreme court determined that the


        5   154 Wn.2d 333, 111 P.3d 1183 (2005).

        6   Id. at 336.

        7   Id.

        8   Id.

        9   Id. at 336-37.

        10   Id.

        11 Id.     at 337.

        12   Id. at 343.

        13   Id. at 342.



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No. 75638-9-1/5


trial court's denial was impermissibly categorical.14 It reversed and remanded for

a new sentencing hearing.

       Here, unlike in Grayson, the trial court did consider Nettles's request for a

DOSA and, looking to her particular circumstances and the facts of her case,

concluded a DOSA was not appropriate. In doing so, it did not abuse its

discretion.

       The court conducted an extensive sentencing colloquy with counsel for the

parties, taking notes while doing so. It first heard the State's request for an

elevated exceptional sentence for total confinement of 75 months. This was

based, in part, on a high offender score of 19, well over the 9 on the sentencing

grid. She had committed numerous offenses, including seven while released

pending trial in this case. The court also heard that Nettles had previously been

granted a DOSA that was revoked because she violated its attendant conditions.

The court also considered a letter from Nettles describing her circumstances and

also questioned her before imposing sentence.

       On this record, there is nothing to show any improper procedure in the

court exercising its discretion on the question whether a DOSA was appropriate.

We reject the argument to the contrary.

                    STATEMENT OF ADDTIONAL GROUNDS

       Nettles argues that the court relied on inadmissible evidence in a

Statement of Additional grounds pursuant to RAP 10.10. Specifically, she




       14   Id.



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No. 75638-9-1/6


challenges the trial court's use of Exhibits 1, 7, 10, and 11. None of these

arguments are persuasive.

       We review for abuse of discretion evidentiary issues.15 The trial court

abuses its discretion when its "decision is manifestly unreasonable or based

upon untenable grounds.'"16

      A court's decision is manifestly unreasonable if it is outside the
      range of acceptable choices, given the facts and the applicable
      legal standard; it is based on untenable grounds if the factual
      findings are unsupported by the record; it is based on untenable
      reasons if it is based on an incorrect standard or the facts do not
      meet the requirements of the correct standard.(171
      Nettles challenges the use of Exhibit 1, Officer McKenzie's police report,

because it was never admitted into evidence. But the State only used the report

to refresh Officer McKenzie's memory as to the bank manager's name. Thus,

admission of this exhibit was not required.

      ER 612 allows a witness to use a writing in order to refresh his memory if

the trial court ensures that (1) the witness's memory needs refreshing, (2)

opposing counsel has the right to examine the writing, and (3) the trial court is

satisfied the party has not coached his witness.15 A witness is coached if he

uses the notes to "supplant[] his own memory."19


       15   State v. Beadle, 173 Wn.2d 97, 118, 265 P.3d 863 (2011).

       16   Mayer v. City of Seattle, 102 Wn. App. 66, 79, 10 P.3d 408 (2000).

        In re the Marriage of Lawrence, 105 Wn. App. 683, 686 n.1, 20 P.3d
       17
972 (2001).

       18   State v. Little, 57 Wn.2d 516, 521, 358 P.2d 120 (1961).

       19   Id.



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No. 75638-9-1/7


       All three elements were met in this case. Nettles does not argue

otherwise.

       Nettles also argues that the trial court abused its discretion in relying on

Exhibit 7. She is correct that the court never admitted this exhibit. But there is

nothing to show the court relied on it.

       Nettles also argues that the trial court abused its discretion in admitting

Exhibit 10, a motion and declaration authorizing a bench warrant when Nettles

jumped bail. But Nettles did not provide Exhibit 10 to this court. She must

provide an adequate record.2° Because Nettles failed to do so, we do not review

this challenge.

                                 Miranda Warnings

       Nettles also argues that Officer McKenzie erroneously failed to re-advise

her of her rights under Miranda v. Arizona when he arrested and handcuffed her

30 minutes after his initial contact with her.21 She contends that the passage of

time rendered the Miranda warnings stale. We disagree.

       We review de novo a trial court's determination on the sufficiency of

Miranda warnings.22

       When police interrogate a person in custody, they must warn her of her

rights to silence and the presence of counse1.23 Police may only continue



       20   RAP 10.10(c).

       21 See   384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d. 694 (1966).
       22   State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004).

       23   Miranda, 384 U.S. at 469.

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No. 75638-9-1/8


interrogation if the person "unambiguously" invokes her rights.24 If police

continue to question the suspect after she invokes her rights, her statements may

be excluded at tria1.25 But if she makes a statement that is "ambiguous or

equivocal" or makes none at all, then she waives those rights and police may

continue interrogation.26

       Here, the State conceded that Nettles was in custody when Officer

McKenzie detained her in the bank, before formally placing her under arrest. It

also does not contest that Officer McKenzie's questions at that point constituted

interrogation. But Nettles responded to that interrogation and answered Officer

McKenzie's questions. Nettles thus failed to invoke her rights.

       The only remaining issue is whether the thirty minutes between the initial

detention and the formal arrest required fresh Miranda warnings. We have held

that "[w]here a defendant has been adequately and effectively warned of his

constitutional rights, it is unnecessary to give repeated recitations of such

warnings prior to the taking of each separate in-custody statement."27 It is also

unnecessary to repeat such warnings after a delay of three and a half hours or




        Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed.
       24
2d 1098 (2010) (internal citation omitted).

       25   State v. Putman, 65 Wn. App. 606, 612, 829 P.2d 787 (1992).

       26   Berohuis, 560 U.S. at 381 (internal citation omitted).

       27   State v. Fedorov, 181 Wn. App. 187, 191, 324 P.3d 784 (2014).



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No. 75638-9-1/9


longer.28 When a suspect remains in custody for that duration before facing

renewed interrogation, he is not entitled to fresh Miranda rights.29

       Here, Nettles faced a thirty-minute interlude between detention and arrest.

This duration did not render the original Miranda warnings stale. Nettles

remained in custody for the duration of that interlude. Thus, her original waiver of

her rights remained valid.

       Nettles submitted an additional Statement of Additional Grounds dated

April 21, 2016. Because the submission was untimely, we do not address the

arguments in that additional statement.

                               COSTS ON APPEAL

       Nettles also argues this court should deny any claim for appellate costs.

We agree.

       This court has discretion whether to require an adult offender to pay

appellate costs.3° We may exercise this discretion "during the course of

appellate review when the issue is raised in an appellant's brief."31 We have

previously recognized the importance of considering indigence in the exercise of




       28 Id.; see also United States v. Rodriquez-Preciado, 399 F.3d 1118, 1129
(9th Cir. 2005) (finding Miranda warnings remained valid after a sixteen hour
delay).

       28   Id.

       38   RCW 10.73.160.

     31 State v. Sinclair, 192 Wn. App. 380, 390, 367 P.3d 612, review denied,
185 Wn.2d 1034 (2016).



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No. 75638-9-1/10


such discretion.32 When the trial court has found a party indigent, this court will

presume that party remains indigent on appea1.33

       Here, the court found Nettles indigent at the time of sentencing. The

States has not demonstrated that this presumption is overcome by anything in

this record. As such, we conclude that an award of appellate costs should be

denied.

       We affirm the judgment and sentence and deny the award of costs to the

State on appeal.




WE CONCUR:



    4,
                  /


       32   Id. at 391.

       33   RAP 15.2(f).


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