                                                                                       FILED.
                                                                               COURT        F APPEALS
     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       2014 DEC : 2 AM 8: 58
                                                  DIVISION II
                                                                               STATE OF WASHINGTON
 STATE OF WASHINGTON,                                                          OYNo.   448 -      8 -II

                                                                                       D'      1` Y
                                    Respondent,




ANDREW STEELE,                                                           UNPUBLISHED OPINION


                                     Appellant.


          MELNICK, J —     Andrew Steele appeals from his conviction for unlawful possession of a


firearm in the first degree, possessing a stolen firearm, and possessing stolen property in the third

degree.    Steele argues that the police violated his Mirandal rights when they contacted and spoke

with him about a missing firearm and other items and the trial court abused its discretion by
                                               him for       Drug   Offender   Sentencing      Alternative ( DOSA)
categorically refusing to        consider                a




sentence. 2 We reject Steele' s claims and affirm his convictions and sentence.

                                                         FACTS


          While Officer Joshua Deroche ate dinner somebody broke into his truck. The suspect stole

a backpack containing Deroche' s uniform, badge, personal handgun, and several assault rifle

ammunition magazines. The handgun was loaded and operational.

                                  Andrew Steele                 his friend, James Baldwin.            Steele offered to
          The   following day,                        visited




show   Baldwin    a " secret."   Report   of   Proceedings ( RP) ( Mar. 19, 2013) at 124. Steele then showed


Baldwin a gun and a backpack. The backpack contained two rifle magazines, a pair of binoculars,

and a police    badge.    Steele claimed he had found the backpack and gun in some bushes in Fife.



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

2
    RCW 9. 94A. 660.
44840 -8 - II



Baldwin told Steele to turn in the items, but Steele refused, stating that he planned to sell the gun

and backpack. Baldwin contacted the police the next morning.

         Detective Stuart Hoisington visited Steele' s house, contacted Steele' s wife by phone, and

attempted      to   call   Steele'   s cell phone   twice.   The second time, Hoisington successfully contacted

Steele   by   phone.       Hoisington told Steele " there [ were]     some    missing items ...         and that his name


had   come     up in the investigation        as someone who might     be   able   to   help us   locate them." RP ( Mar.


19, 2013) at 35. Hoisington never told Steele that he had to meet with the police or that he would

be arrested if he failed to do so. Steele agreed to meet with police at a grocery store.

            Hoisington, accompanied by Detective Erik Timothy, went to meet Steele. Both detectives

were   in   plain clothes, although           their badges and weapons      were visible.         Several patrol cars were


stationed in the area, but not in sight.


            Steele arrived at the grocery store after the detectives and called Hoisington' s phone to tell

the detectives his location.             Steele met the detectives and admitted he had been in possession of

the   stolen    items, but that he       no   longer had them. Steele offered to show the police where he had


last seen the missing items, at a truck stop in Fife. The detectives frisked Steele and placed him in

Timothy' s unmarked car. Steele was not handcuffed or otherwise restrained during this time, and

Timothy' s car did not contain a partition or cage.

            Steele directed the detectives to the truck stop. He told the police the items were in a bush.

The detectives took turns searching the bushes, with one detective always staying in the car with

Steele. The search did not turn up the stolen property.

            Following the search, the detectives asked Steele if he would be willing to accompany them

to police headquarters and make a formal statement. Steele agreed to do so. At the station, Steele

received Miranda warnings for the first time. Steele stated that he understood his rights and wished




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44840 -8 -II




to   answer   the   police' s questions.              Steele never asked to leave or to speak to an attorney and never

invoked his right to remain silent.

         After he         gave    his   statement,          Steele   was placed        in    a   holding       cell.   Approximately 15 to 20

minutes      later, the     police asked         Steele if he         could get     the     gun and       badge back. Steele said that he


could " probably get the gun and badge back" within 48 hours and asked the police if there was a

reward for the recovery of the gun. RP ( Mar. 20, 2013) at 209.

                                                           PROCEDURAL HISTORY


         The State charged Steele with unlawful possession of a firearm in the first degree,

possessing a stolen firearm, and possessing stolen property in the third degree. Prior to trial, Steele
moved    to suppress " any and                all statements obtained             by   law enforcement             of the   defendant." Clerk' s


Papers ( CP)        at    10.     The court held a confession hearing pursuant to CrR 3. 5, at which Steele

testified that      he    understood          he did        not   have to    speak     with the detectives.               He explained that he


spoke with them because he was " actually trying to do what [he] believe[ d] was the right thing at

the time."      RP ( Mar. 19, 2013)                   at   78.     Steele testified that the detectives did not accuse him of


doing    anything wrong; "[             t]hey just said [ he] possibly knew where some missing items were" and
Steele   wanted          to "   clear   the   air."        RP ( Mar. 19, 2013),         at   80.     Steele further testified that he had


heard the Miranda warnings many times before and knew what his Miranda rights were.

          The trial        court entered written                  findings   of   fact that: ( 1) Steele voluntarily agreed to meet


with   the   detectives; (        2) Steele voluntarily agreed to show the detectives where he claimed to have

seen   the    stolen      items; ( 3) the detectives properly                    advised         Steele   of   his Miranda     rights; ( 4)   Steele


knowingly, voluntarily and intelligently waived those rights; and ( 5) the detectives did not coerce

 Steele into saying anything to the police.




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        Based on these findings of fact, the trial court entered the following written conclusions of

law:


        1.   The defendant    was   not   in " custody" for Miranda         purposes,   i.e.,   having his
        freedom curtailed to the degree associated with a formal arrest, until he was
        handcuffed and detained after his formal interview at the police station.


        2. Prior to that point, the defendant' s interaction with law enforcement was a
        voluntary, consensual, and cordial social contact that was free of coercion. .

        3. Once advised of his Miranda rights, the defendant knowingly, voluntarily, and
        intelligently waived those rights and spoke with law enforcement.

CP at 72. A jury returned guilty verdicts on all three counts.

        At his sentencing hearing, the State recommended a sentence of 159 months, the low end

of the sentencing range.       Steele   requested   a    DOSA       sentence.   The trial court denied Steele' s


request, explaining that:

                 I have a creed that I believe people can change you, but I also believe that
        people who    have   offender[ ] [   scores] that exceed nine shouldn' t get the benefits of
        leniency. Mr. Steele knew what his issues were. He knew when he asked for the
        last DOSA that if he didn' t      change   his   ways ...    he' ll be right back in the system.
                 With an offender score nine plus, if you want to be an addict and you want
        to use, then you need to find a way to do that without stealing from other people or
        victimizing   other people. You haven' t done that. I don' t feel an urge to give you
         a DOSA sentence to avoid a lengthy prison term.      The prison term is caused by
         your offender score, and those are items that you created for yourself.

RP ( Apr. 30, 2013)    at   391 - 92.   The court followed the State' s recommendation and sentenced


Steele to 159 months in prison. Steele timely appealed his conviction and sentence.

                                                   ANALYSIS


I.       MIRANDA RIGHTS


         Steele argues that the trial court erroneously admitted his pre- and post -Miranda warning

 statements in violation of his right against self -incrimination. The State argues that until the police




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44840 -8 - II



handcuffed Steele, he was not in custody and that the trial court correctly admitted the statements.

We agree with the State and affirm the trial court.

           A.       Standard of Review


           The Fifth Amendment to the United States Constitution3 and article I, section 9 of the

Washington Constitution4 guarantee a defendant' s right against self -incrimination. State v. Easter,

130 Wn.2d 228, 235, 922 P. 2d 1285 ( 1996). The two provisions are given the same interpretation.


Easter, 130 Wn.2d        at   235.     In order to effectuate these provisions, law enforcement must advise a

suspect of his Miranda rights whenever the suspect is subjected to a custodial interrogation by an

agent of     the State. State     v.   Sargent, 111 Wn.2d 641, 647, 762 P. 2d 1127 ( 1988).                 Here, the issue


involves custody.

           Whether a suspect is in custody is a mixed question of law and fact. State v. Solomon, 114

Wn.    App.     781, 787, 60 P. 3d 1215 ( 2002) (           citing Thompson v. Keohane, 516 U.S. 99, 112 -13, 116

S. Ct. 457, 133 L. Ed. 2d 383 ( 1995));                 cf.State v. Rankin, 151 Wn.2d 689, 709, 92 P. 3d 202 (2004)
 whether or not a suspect            is   seized   by   police   is   a mixed question of   law   and   fact). Accordingly,


we defer to the trial court' s findings of fact but review its legal conclusions de novo. This means

that unchallenged findings of fact are verities on appeal, and where substantial evidence supports

 challenged      findings   of   fact, those facts        are   binding   on appeal.   State v. Broadaway, 133 Wn.2d

 118, 131, 942 P. 2d 363 ( 1997).              Substantial evidence is evidence sufficient to " persuade a fair -

 minded, rational person of            the truth   of    the   finding." State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d

 313 ( 1994).      Yet, whether the facts indicate that the defendant was in custody is a legal question

 we review de novo. Solomon, 114 Wn. App. at 788 -89. We address both inquiries in turn.


 3"
      No   person ...   shall be compelled in any criminal case to be a witness against himself."

 4 " No person shall be compelled in any criminal case to give evidence against himself."

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44840 -8 -II



         B.        Factual Inquiry

         Steele does not challenge the trial court' s findings that he " voluntarily agreed to meet with

the detective" at the grocery store, that he affirmatively " called the detective" when he arrived, or

that he " voluntarily agreed to show the detectives where he claimed that he had last seen the stolen

police   property that        they   were    looking for."       CP      at   69, 70.     Unchallenged findings of fact are


verities on appeal. Broadaway, 133 Wn.2d at 131.

         Steele       challenges      the trial     court' s   conclusion          of   law that his " interaction with law


enforcement was a voluntary, consensual, and cordial social contact that was free of coercion."

CP at 72. This putative conclusion of law is actually a finding of fact, and we analyze it as such.

See Willener      v.    Sweeting,     107 Wn.2d 388, 394, 730 P. 2d 45 ( 1986).                     We hold that the finding is

supported by substantial evidence. The police never told Steele he had done anything wrong. The
police never told Steele that he had to meet with them, or that he would be arrested if he failed to

do so. Rather, Steele testified that he spoke with the police because he was " trying to do what [he]

believe[ d]            the                        the time"    and   that     he   wanted   to "   clear   the   air."   RP ( Mar. 19,
                was          right   thing   at




2013)    at   78, 80.    Therefore, as the trial court found and Steele did not contest, Steele voluntarily

agreed to meet with the detectives at the grocery store. On the day of the meeting, Steele came to

the parking lot and affirmatively contacted the police to let them know that he had arrived. Steele

affirmatively volunteered the location of the truck stop where he claimed the stolen items were
located, and offered to take the police there and show them.


          Steele did testify that the police knocked on his doors and windows during their initial
 attempt to contact him at his home, and that he feared the police would beat him up. But in light

 of the evidence that Steele voluntarily participated in the police' s search for the stolen items, a

 fair -minded, rational person could reject Steele' s bare assertion that he thought he would be beaten



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44840 -8 -II




up if he did not comply. See Hill, 123 Wn.2d at 644. We hold that the trial court' s findings were

supported by substantial evidence.

            Steele   also challenges       the trial   court' s   finding    that " [ alt   no point ...   did anyone engage in


any direct or implied threats, promises, or coercive conduct in order to get the defendant to ( a)

meet for an interview, (b) go to the truck stop to show the detectives where he claimed he had left

the   stolen     property,   or ( c) go   to the   police station    to give    a   formal taped interview." CP at 71. For


the same reasons described above, substantial evidence existed for the trial court to conclude that

the police did not coerce Steele into speaking with them. We hold that the challenged findings of

fact are binding on appeal.

            C.        Legal Inquiry

            Custody exists only if a reasonable person in Steele' s position would have believed that he
                                                          freedom                              formal              State v. Lorenz,
                     custody " with the loss                         associated with a                  arrest."
was    in   police                                   of



152 Wn.2d 22, 37, 93 P. 3d 133 ( 2004).

            Here, a reasonable person in Steele' s position would not have believed that he was in police

custody      during the      search   for the    stolen    items.    Steele voluntarily agreed to meet with the police,

affirmatively came forward to contact the police on the day of the meeting, and voluntarily agreed

to    show    the detectives      where     he   claimed     the    stolen   items   could     be found.     Steele had not been


accused of any wrongdoing and would not have been arrested if he had refused to cooperate.
 Steele' s freedom was not curtailed during his interactions with the police; instead, he cooperated

with    the investigation of        his    own accord,      because he        wanted    to do the    right   thing. We hold that


 Steele was not in custody until the detectives took him to the police station and gave him Miranda
 warnings. '




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44840 -8 -II




          Steele also argues that his pre- warning statements tainted his post- warning statement at the

police station.     We reject this argument because Steele' s pre -warning statements were voluntary

and not the product of custodial interrogation, and the trial court properly admitted Steele' s pre -

warning statements. We hold that the police did not violate Steele' s Miranda rights, and we affirm

his convictions.


II.       DOSA


           Steele argues that the trial court failed to exercise its discretion when it categorically denied

his request for a DOSA. The State argues that the trial court properly considered and rejected the

DOSA. We agree with the State and affirm the trial court.

           A.       STANDARD OF REVIEW


           The DOSA program authorizes trial judges to sentence eligible, non -violent offenders to a

reduced sentence, substance abuse treatment, and increased supervision in an attempt to help the

offender recover from addiction. State v. Grayson, 154 Wn.2d 333, 337 -38, 111 P. 3d 1183 ( 2005).

Whether to      give a   DOSA is   a   decision left to the trial judge'   s   discretion. Grayson, 154 Wn.2d at


335.      The trial court' s decision will not be disturbed on appeal unless the court' s decision is

                   unreasonable or     based   on untenable grounds or untenable reasons. '        State v. Dye,
      manifestly


 178 Wn. 2d 541, 548, 309 P. 3d 1192 ( 2013) (          quoting In re Marriage ofLittlefield, 133 Wn.2d 39,

46 -47, 940 P. 2d 1362 ( 1997)).


           Generally,    the DOSA sentencing decision is          not reviewable.     Grayson, 154 Wn.2d at 338


  citing RCW 9. 94A.585( 1);           State   v.   Bramme,   115 Wn. App. 844, 850, 64 P. 3d 60 ( 2003)).

 However, an offender may always challenge the procedure by which a sentence is imposed.
 Grayson, 154 Wn.2d at 338. Here, Steele asserts that the trial court failed to exercise its statutory

 discretion by categorically refusing to consider him for a DOSA.



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           B.           CONSIDERATION OF DOSA SENTENCE


           Although no defendant is entitled to an exceptional sentence below the standard range,

every defendant is entitled to ask the trial court for such a sentence " and to have the alternative

actually    considered."           Grayson, 154 Wn.2d                 at   342.    When a trial court categorically refuses to

consider a DOSA, or refuses to consider a DOSA for a class of offenders, the trial court fails to

exercise    discretion      and    is   subject      to   reversal.    Grayson, 154 Wn.2d        at   342. For example, when a


trial court denies a DOSA for the " primary reason" that the trial judge believes there is inadequate

                            the                    the    court commits reversible error.        Grayson, 154 Wn.2d at 342.
funding to       support           program,




           In Grayson, the trial court failed to consider the defendant' s individualized circumstances

on   the   record.       154 Wn.2d          at   342.     Rather, the only reason for denying the DOSA that the judge

articulated was          the judge'     s   belief that there       were    insufficient funds. Grayson, 154 Wn.2d at 342.


Here, in        contrast,   the judge took Steele'              s     particular    circumstances     into   account.   At Steele' s


sentencing hearing, the State pointed out that Steele had already had multiple opportunities to
engage in substance abuse treatment. The court reviewed notes from a previous conviction after

which Steele had also asked for a DOSA.


           After taking this information into account, the court stated that:

                        Mr. Steele knew what his issues were. He knew when he asked for the last
           DOSA that if he didn' t change his ways, and specifically the examiner said if he
            doesn' t stop hanging with people that get him to use once again and cause him to
            relapse,     he' ll be      right     back in the    system.          Those were prophetic words in 2007

            when they were spoken.

 RP ( Apr. 30, 2013)          at   391.          The court reviewed Steele' s history relating to addiction and crime,

 relied on that information, and made a determination on the record that Steele should not receive

 a   DOSA.        Although the court also stated that " I also believe that people who have offender[ ]

  scores]       that   exceed nine shouldn'             t get the benefits of leniency,"     there is no indication that Steele' s




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44840 -8 -II



offender score was    the primary   reason   the court   denied the DOSA. RP ( Apr. 30, 2013) at 391.


The court expressly relied on Steele' s failure to take advantage of prior treatment opportunities

and to heed the advice of his examiner in a previous case. We hold the trial court did not abuse its

discretion by denying the DOSA. Therefore, we affirm his convictions and sentence.

        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:




                      r   A.C.   al i

           irgen, A.C. J.




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