          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                           )    No. 79455-8-I
                                                    )
                             Respondent,            )    DIVISION ONE
                                                    )
                     v.                             )    UNPUBLISHED OPINION
                                                    )
 JOSEPH ANTHONY BALLOU,                             )
                                                    )
                             Appellant.             )
                                                    )

          HAZELRIGG, J. — Joseph A. Ballou seeks reversal of his conviction for one

count of possession of a stolen motor vehicle. He argues that his intoxication

prevented his ability to knowingly, intelligently, and voluntarily waive his Miranda1

rights.       He also argues that the trial court erred in admitting prejudicial prior

conviction evidence.            Because substantial evidence supports the trial court’s

finding that Ballou’s waiver was valid, and the court acted within its discretion in

admitting prior conviction evidence, we affirm the admission of his statements and

his conviction.




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


  Citation and pinpoint citations are based on the Westlaw online version of the cited material.
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                                                FACTS

        Daniel Perez Lopez was the owner of a 1988 Toyota Camry. The Camry

had been stolen from Perez2 in a previous unrelated incident, and it was returned

with its ignition system damaged and its radio missing. Perez had to use a flathead

screwdriver to start the car since the first vehicle theft.

        On the evening of October 3, 2017, Perez noted that the Camry was parked

and locked outside his residence. The following morning, Perez’s son noticed that

the car was missing. Perez called 911 and reported the car stolen.

        Later that afternoon, while conducting an area check, Deputy Daniel

Johnson observed a Toyota Camry in the parking lot of a church in Burien. He ran

the license plate and discovered that the vehicle had been reported stolen. As

Johnson approached the vehicle, he observed a man later identified as Ballou

asleep in the front seat. After backup officers arrived, Johnson approached the

car and announced “Police.” Ballou did not respond, so Johnson opened the

passenger door and announced “Police. Get out of the car.” Johnson assisted

Ballou from the car, handcuffed him, placed him in a patrol vehicle, and read him

his Miranda rights.

        After Ballou acknowledged that he understood his rights, he began to speak

to Johnson. Ballou said that his cousin picked him up in the Toyota Camry from a

nearby restaurant at around 10:00 pm the previous evening, gave him a ride to the

church parking lot, and left. Ballou then fell asleep in the car. Ballou said he


        2 Utilization of the patrilineal last name (the first of two family names) as a primary identifier

is a common naming convention in Latinx and Spanish-language dominant communities. Further,
Perez self-identified in this manner during his sworn testimony at trial, which was provided with the
assistance of a certified Spanish court interpreter, as such we will follow that practice here.


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thought it was odd that his cousin had a car. He also thought it was odd that the

ignition was “popped” and the radio was missing. Deputy Tanner Owens, the

second officer to arrive on the scene, asked Ballou whether he had been read his

rights and whether he wanted to speak. Ballou answered yes to both questions,

then gave Owens a brief overview of the same story he told to Johnson.

       Johnson observed that the ignition was damaged in a way that made it

possible to start the car without a factory key. The radio was missing and the

steering column appeared to be held together with tape. There was a bent coat

hanger in the back seat and a backpack in the front seat. Ballou acknowledged

that the backpack was his. The backpack contained pliers, screwdrivers, and nine

different car keys.3

       The trial court conducted a CrR 3.5 hearing to determine the admissibility

of Ballou’s statements to police. Ballou testified as follows:

                [DEFENSE COUNSEL]: And do you recall any contact—well,
       first of all, do you remember Deputy Johnson from your contact with
       him on August 4th?
                [BALLOU]: I don’t.
                [DEFENSE COUNSEL]: So you don’t recall him. Do you recall
       if he gave you [Miranda] warnings?
                [BALLOU]: I don’t because I was woken up in the car.
                [DEFENSE COUNSEL]: Okay. So when you woke up, what
       was your state of mind?
                [BALLOU]: I was groggy. I wasn’t really thinking anything.
                [DEFENSE COUNSEL]: Were you under the influence?
                [BALLOU]: Yes.
                [DEFENSE COUNSEL]: Do you recall any contact with
       Deputy Owens?
                [BALLOU]: I don’t.
                [DEFENSE COUNSEL]: Do you recognize him this morning?
                [BALLOU]: I didn’t.
                [DEFENSE COUNSEL]: So you don’t recall him reading you
       your [Miranda] warnings?

       3   Evidence of drug paraphernalia was excluded at trial.


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              [BALLOU]: I don’t.

       Following the hearing, the trial court entered findings of fact and conclusions

of law regarding Ballou’s motion to suppress his post-Miranda statements. In

pertinent part, the court found:

              16. Mr. Ballou has an extensive history of interactions with
       police, including numerous arrests, and the following convictions:
       Taking a Motor Vehicle Without Permission in the Second Degree
       (2015, 2013 x2, 2012, 2011); Residential Burglary (2013); Robbery
       in the First Degree (2009); Vehicle Prowl in the Second Degree
       (2013, 2012, 2011); Theft in the Third Degree (2013 x2, 2011, 2007);
       Attempt to Elude (2012); Assault in the Fourth Degree (2010); and
       Obstruction of Justice (2010). Experience related to arrests for the
       above offenses would tend to indicate that one is familiar with the
       arrest process and able to provide a knowing, intelligent, and
       voluntary waiver of Miranda rights.
              …
              17. Mr. Ballou argued that his waiver of his Miranda rights was
       not knowingly, intelligently and voluntarily given because he had just
       been awakened and was under the influence of drugs or alcohol.
       However, no evidence of intoxication was presented other than that
       he was sound asleep when contacted and the findings of drug use
       paraphernalia in his backpack. Accordingly, the Court determined
       that Mr. Ballou’s waiver was knowing, intelligent and voluntary.

Based on its findings of fact, the court concluded that Ballou’s waiver was knowing,

intelligent, and voluntary.    Over Ballou’s objection, the court also admitted

evidence concerning a prior conviction of Ballou in which he drove a stolen car

with a damaged steering column.

       At trial, Johnson and Owens testified regarding Ballou’s statements. Ballou

did not testify or present evidence at trial. The jury convicted Ballou as charged,

and he now appeals.




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                                    ANALYSIS

I.     Miranda Waiver

       Ballou argues that the trial court erred in admitting his statements to police

because he did not make a knowing, voluntary, and intelligent waiver of his

Miranda rights. This is so, he contends, because he was under the influence of an

unspecified substance and has no recollection of his arrest. We disagree.

       “The State bears the burden of showing a knowing, voluntary, and intelligent

waiver of Miranda rights.” State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007).

A trial court properly admits a defendant’s statements where the court’s findings

and the record support the court’s conclusion that the defendant was informed of

his Miranda rights and knowingly and intelligently waived those rights before

making the statements. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177

(1991). We examine the totality of the circumstances to determine if the waiver

was made voluntarily and with “‘full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.’” State v.

Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999) (quoting Moran v. Burbaine,

475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). Factors we may

consider include “the defendant’s physical condition, age, experience, mental

abilities, and the conduct of the police.” State v. Cushing, 68 Wn. App. 388, 392,

842 P.2d 1035 (1993). Intoxication does not automatically prevent a waiver of

Miranda rights, but evidence of intoxication is a factor to be considered in

determining the voluntariness of the waiver. Reuben, 62 Wn. App. at 625-26. “We

will not disturb a trial court’s conclusion that a waiver was voluntarily made if the




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trial court found, by a preponderance of the evidence, that the statements were

voluntary and substantial evidence in the record supports the finding.” Athan, 160

Wn.2d at 380.

       Here, substantial evidence supports the trial court’s finding that Ballou’s

waiver was knowing, intelligent, and voluntary. Even if Ballou was under the

influence of an unknown substance, there was no evidence that he was

significantly impaired. Ballou affirmatively stated that he understood his rights, and

his responses to police questions were cogent and detailed.           There was no

evidence that Ballou had difficulty understanding what was happening or

responding to questions. Ballou’s later assertion that he had no memory of these

events does not prove that his waiver was involuntary at the time he made it. See

State v. Reuben, 62 Wn. App. at 625 (defendant’s otherwise voluntary statement

not tainted by later claim of amnesia). Ballou’s waiver was valid under the totality

of the circumstances.

       Ballou notes that Johnson observed that he “seemed sleepy” and was slow

to respond to questions, and that Johnson speculated that Ballou may have used

a “downer” such as heroin. But being under the influence of a substance is not

necessarily synonymous with intoxication.        Moreover, Johnson provided this

testimony at trial, after the court had already made its CrR 3.5 ruling.

       Ballou, pointing to his own testimony at the CrR 3.5 hearing, further asserts

that substantial evidence does not support the trial court’s finding that “no evidence

of intoxication was presented other than that [Ballou] was sound asleep when

contacted and the finding of drug use paraphernalia in his backpack.” But the




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court’s oral ruling, which was expressly incorporated into its findings, noted that

Ballou’s claim was not corroborated by police testimony. It is apparent that the

trial court considered Ballou’s claim and found it unpersuasive. Any error in the

phrasing of this finding was harmless. “[A]n erroneous finding of fact not materially

affecting the conclusions of law is not prejudicial and does not warrant a reversal.”

State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).


II.    Admission of ER 404(b) Prior Bad Act Evidence

       Ballou argues that the trial court erred in admitting evidence that he had

previously been convicted of possession of a stolen motor vehicle with a damaged

steering column. We review the trial court’s application of a rule to admit or exclude

evidence for abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d

119 (2003).

       Evidence of a defendant’s prior bad acts is not admissible to show that the

defendant has a propensity to commit crimes, but it may be admissible for some

other proper purpose, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. ER 404(b); State v.

Gunderson, 181 Wn.2d 916, 921, 337 P.3d 1090 (2014). ER 404(b) must be read

in conjunction with ER 403. State v. Smith, 106 Wn.2d 772, 775, 725 P.2d 951

(1986). “ER 403 requires exclusion of evidence, even if relevant, if its probative

value is substantially outweighed by the danger of unfair prejudice.” Id. at 776

(emphasis omitted). “Before admitting evidence of other wrongs under ER 404(b),

a trial court must (1) find that a preponderance of evidence shows that the

misconduct occurred; (2) identify the purpose for which the evidence is being



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introduced; (3) determine that the evidence is relevant; and (4) find that its

probative value outweighs its prejudicial effect.” State v. Baker, 89 Wn. App. 726,

731-32, 950 P.2d 486 (1997). In close cases, prior bad acts evidence should be

excluded. State v. Wilson, 144 Wn. App. 166, 176, 181 P.3d 887 (2008).

        Here, the State sought to introduce the challenged prior conviction evidence

to establish that Ballou knew that the Camry’s damaged steering column was

indicative of theft. We disagree. After conducting the required ER 404(b) analysis

on the record, the trial court ruled that this evidence was admissible to show that

Ballou knew the Camry was stolen. In so ruling, the court stated that although

there is a danger of prejudice, the probative value of the evidence was “particularly

strong” given that knowledge is an element of possessing a stolen vehicle.4

        Ballou asserts that this evidence was irrelevant because the vehicle in that

case was described as having “damage to the steering column” whereas the

Camry in this case had a damaged ignition. We agree with the State that such

damage is functionally synonymous in older model cars. The fact that similar

damage existed in the Camry makes it highly relevant to show Ballou’s knowledge

that the car was stolen.

        He further contends that any probative value was substantially outweighed

by its prejudicial effect. We disagree. Although this evidence carried some risk of

prejudice, it did not include unnecessary details and was not highly inflammatory.

And the court properly gave an oral limiting instruction at the time the evidence


        4 A person commits the crime of possession of a stolen vehicle “if he or she [possesses] a

stolen motor vehicle.” RCW 9A.56.068. Although the statute does not codify a mens rea element,
the State must show that the defendant had actual knowledge the car was stolen. State v. Allen,
182 Wn.2d 364, 374, 341 P.3d 268 (2015).


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was admitted and again in a separate written instruction. Jurors are presumed to

follow instructions. State v. Mohamed, 186 Wn.2d 235, 244, 375 P.3d 1068 (2016).

The trial court did not abuse its discretion in admitting this evidence.

       Affirmed.




WE CONCUR:




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