                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 19, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 51367-6-II

                               Respondent,

        v.

 BRIAN K. TERWILLEGER,                                       UNPUBLISHED OPINION

                               Appellant.

       CRUSER, J. — Brian Terwilleger appeals from his convictions of third degree assault and

second degree malicious mischief, arguing that his convictions should be reversed because (1) he

was deprived of effective assistance of counsel when his attorney did not adequately investigate

and did not present a mental health defense, and (2) the trial court erred in admitting statements

that he made to police. Terwilleger raises additional arguments in a statement of additional

grounds (SAG).

       We decline to decide whether Terwilleger was deprived of effective assistance of counsel

because the record does not provide a sufficient basis on which to determine whether his attorney’s

performance was deficient. We further hold that the trial court did not err in admitting statements

that Terwilleger made to police because there was substantial evidence that he voluntarily waived
No. 51367-6-II


his Miranda1 rights and voluntarily made the statements. Finally, we hold that Terwilleger’s SAG

claims do not warrant reversal of his convictions.

         Accordingly, we affirm.

                                              FACTS

                                         I. THE INCIDENT

         During the morning hours of September 11, 2016, Terwilleger and his girlfriend, Alicia

Sackrider, had been visiting Sackrider’s uncle, Jeffrey Holloway, at Holloway’s residence.

Terwilleger and Holloway initially wanted to attend church that morning, but after some

disagreement between the three individuals, Holloway decided that he would go to the store in

town instead. Holloway began walking toward his car across the yard. Terwilleger, meanwhile,

was in his own car.

         Holloway reached his Chevy Blazer, placed his key inside the lock on the driver’s side

door, and then heard the sound of an engine revving. Immediately after hearing this noise,

Holloway was knocked off his feet by the impact of Terwilleger’s car, a Pontiac, hitting his Chevy

Blazer. Sackrider ran across the yard towards the two vehicles immediately after the collision.

Terwilleger was “yelling and cussing” and said that “it was an accident” and that his foot “got

stuck on the pedal.” 2 Verbatim Report of Proceedings (VRP) at 149.

         Holloway lost consciousness temporarily upon impact and sustained several minor injuries

as a result of the collision. The Chevy Blazer was damaged in the rear passenger quarter panel

and on the rear bumper. The damages to the Chevy were estimated to cost approximately $3,000

to repair.


1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                                 2
No. 51367-6-II


       Prior to this incident, Holloway and Terwilleger were acquainted with one another through

Sackrider and had spent time together on multiple occasions. The two men had a friendly

relationship and had never been involved in a disagreement with one another. Holloway believed

that the incident was bizarre and “out of nowhere.” Id. at 155.

       An Elma police officer was the first to arrive, and he detained Terwilleger in handcuffs in

the back of his patrol vehicle. Grays Harbor County Deputy Sheriff Jeremy Holmes, the primary

officer in charge of the investigation, was the second officer to arrive at the scene. Based on

Holmes’s observation of the tire marks leading to Terwilleger’s Pontiac and the tire marks from

the back tires of Holloway’s Chevy, Holmes believed that Terwilleger drove directly into

Holloway’s Chevy.

       After Holmes advised Terwilleger of his Miranda rights, Terwilleger indicated that he

understood his rights and agreed to speak with Holmes. Terwilleger then informed Holmes that

the clutch of his Pontiac had stuck, causing him to strike the Chevy. After seizing and securing

the vehicle, Holmes observed that the vehicle had an automatic transmission, and there was no

clutch. Terwilleger also informed Holmes that he was afraid for Sackrider’s safety because he was

worried “that she was going to be taken.” Id. at 87.

       During his conversation with Terwilleger, Holmes noted that Terwilleger “seem[ed] kind

of off” and that Terwilleger’s behavior led him “to question [Terwilleger’s] mental state at the

time.” Id. at 40. Despite some reservations regarding Terwilleger’s mental state, Holmes believed

that Terwilleger was coherent, that he understood the questions he was asked, and that he did not

appear to be under the influence of any substances.




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No. 51367-6-II


       A short time later, Terwilleger was transported to the jail, and Holmes read Terwilleger his

Miranda rights from an “advice of rights form.” Id. at 36. Terwilleger signed the advice of rights

form, selecting the box on the form that indicated he declined to speak with an officer.

       The next day, on September 12, 2016, Detective Richard Ramirez attempted a second

contact with Terwilleger while Terwilleger was in custody. After briefly introducing himself,

Ramirez read Terwilleger his Miranda rights from a department statement form. Terwilleger

agreed to give a statement to Ramirez by initialing the form.          During their conversation,

Terwilleger appeared to be coherent, and his answers to questions were responsive. Terwilleger

did not present any signs of impairment or confusion at that time. After Ramirez transcribed

Terwilleger’s statement, Terwilleger reviewed the document for any necessary corrections prior

to signing. Terwilleger then signed the document and initialed any areas where he and Ramirez

made corrections.

       Although Ramirez did not believe that Terwilleger was impaired or confused during their

conversation, he noted in his report that Terwilleger appeared to have “some mental health issues.”

Id. at 49. Ramirez observed that Terwilleger appeared “like he was having some kind of anxiety

problems, going on.” Id. at 48. Terwilleger “rocked a lot,” but Ramirez did not believe Terwilleger

was experiencing an anxiety attack during their conversation. Id. at 51. Whatever issues Ramirez

noticed in Terwilleger’s demeanor at the time were not so significant that Ramirez felt the need to

conclude the interview.

       However, Terwilleger did make some statements to Ramirez regarding “the Mexican Mafia

and them wanting to hurt [Sackrider]” that Ramirez believed could be considered “bizarre.” Id.

Terwilleger explained to Ramirez that he believed Holloway was “associated with the Mexican


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No. 51367-6-II


Mafia,” and the reason that he struck Holloway’s vehicle was because he believed that “the

Mexican Mafia was going to take [Sackrider] away and hurt her.” Id. at 114.

       Terwilleger admitted that there was no mechanical issue with his vehicle and that

“whatever happened was all him.” Id. at 116. Terwilleger elaborated that his plan was to “block

[Holloway’s] vehicle from leaving.” Id. at 114. When Terwilleger got into his vehicle, he made

a U-turn and “went towards” Holloway’s Chevy Blazer at a “normal rate of speed, but at the last

second, decided that he was going to ram the vehicle and accelerate it.” Id. Terwilleger claimed

that he did not know that Holloway was near his Chevy Blazer at that time. When Ramirez asked

why Terwilleger had initially informed Holmes that the collision occurred as a result of his clutch

sticking, Terwilleger said it was because he thought that Holmes was associated with the Mexican

Mafia as well.

                                   II. PRETRIAL PROCEEDINGS

       The State charged Terwilleger with one count of third degree assault and one count of

second degree malicious mischief. The third degree assault charge was predicated on an allegation

of criminal negligence under RCW 9A.36.031(1)(d).

       On October 17, 2016, defense counsel asked the trial court to continue the trial set for

November 1, 2016 because he “discovered last week that Mr. Terwilleger has dementia.” VRP

(Oct. 17, 2016) at 5. Defense counsel asked the trial court for additional time to obtain medical

records and to contact Terwilleger’s physician. Terwilleger, however, was opposed to continuing

the trial and did not want to sign a speedy trial waiver. The trial court determined that there was

good cause to continue the trial and granted defense counsel’s request for a continuance over

Terwilleger’s objection.


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No. 51367-6-II


       By November 21, 2016, defense counsel had not yet received all the medical records that

he requested from Terwillegar’s physicians, and he moved for an additional continuance. Defense

counsel also “request[ed] an order to evaluate Mr. Terwilleger’s sanity based on [his] interactions

with [Terwilleger] and statements [Terwilleger] made in the police reports.” Clerk’s Papers (CP)

at 24. Terwilleger did not agree with his attorney’s request for a continuance, and he asked the

trial court if he could represent himself. Terwilleger explained that he gave defense counsel the

name of his mental healthcare provider so that defense counsel could request records, but defense

counsel failed to submit a request until approximately a month after the initial continuance had

been granted. Terwilleger maintained that he did not wish to continue delaying his trial and that

he did not need the records because he was “very confident to stand trial.” VRP (Nov. 21, 2016)

at 15. The trial court agreed that there was good cause to order the continuance as well as the

competency evaluation, especially in light of Terwilleger’s request to waive his right to counsel.

       On January 6, 2017, Terwilleger submitted several pro se motions directly to the trial court,

including one in which he claimed that the statements he made to Ramirez while in custody should

be suppressed. Terwilleger argued that he previously invoked his right to silence with Holmes,

and he alleged that he made the statements when he was in a “dementia state of mind or . . . a

dementia ‘like’ state of mind known as delirium . . . when questioned at jail facility.” CP at 308.

Defense counsel informed the trial court that he discussed the pro se motions with Terwilleger,

that they decided they would proceed by entering an order for a competency evaluation, and that

defense counsel would pursue any remaining motions thereafter.             Terwilleger apparently

abandoned his request to proceed with self-representation.




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No. 51367-6-II


       Terwilleger also submitted a letter to the trial court on January 24, 2017, in which he asked

for “answers as to why [defense counsel] and [the State] have failed to investigate that the

defendant has a very serious case of [post-traumatic stress disorder (PTSD)] with a [sic]

overlapping issue from a traumatic brain injury [(TBI)].” Id. at 40. Terwilleger noted that defense

counsel did not seek an evaluation or investigate those issues, nor did defense counsel schedule an

appointment with any mental health experts. Terwilleger then stated that he doubted that defense

counsel intended to raise a mental health defense. He confirmed that “[t]his case does have a very

small amount of mental health issues,” though Terwilleger claimed the issues “do not effectthe

outcome of trial” and the medical records were unrelated to his “throttle sticking.” Id. at 40-41.

       Dr. Les Hutchins at Western State Hospital evaluated Terwilleger’s competence on

February 1, 2017. Terwilleger denied any history of psychiatric hospitalization or any prior

diagnosis of a mental health disorder, though he stated he was prescribed antipsychotic and

antidepressant medications while in custody.         Mental Health Division records showed that

Terwilleger had “five contacts with the King Regional Support Network” during a two-week

period in 2016 for “Major Depressive Disorder, recurrent, mild,” and three other “contacts” with

the Thurston/Mason regional support network between 2003 and 2008. CP (Jan. 5, 2018) at 5.

       In 2014, Terwilleger was involved in a motorcycle accident. Terwilleger reported that

following this accident, he suffered from memory issues, though he noted that the memory

problems could have also been caused by his alcohol and pain medication use following the

accident.    Terwilleger informed Dr. Hutchins that he had “a substantial history of

methamphetamine use and alcohol dependence,” though he denied any recent dependence on

substances. Id. at 6. There remained an open question regarding whether Terwilleger had been


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No. 51367-6-II


using or abusing alcohol and pain medication prior to the incident on September 11, 2016, and Dr.

Hutchins noted that Terwilleger’s “presentation at the time of the alleged events is as likely as not

the result of polysubstance abuse.” Id. at 7. Dr. Hutchins ultimately determined that Terwilleger

was competent to stand trial.

       Terwilleger sent additional letters to the trial court in early February, which the trial court

forwarded to counsel on February 9, 2017. Within these letters, Terwilleger explained that he was

experiencing “PTSD – TBI, lack of control, fear[,] confusion.” CP at 78. Terwilleger also printed

pages from websites discussing PTSD and Wernicke’s encephalopathy, in which he appeared to

notate which conditions and symptoms he was experiencing.

       Approximately one week later, on February 18, 2017, Terwilleger wrote to the trial court

regarding “10 motions” that he filed. Id. at 119. One of these motions was to “allow a [sic] expert

or third party witness/testimony.” Id. at 120. In particular, Terwilleger asked the trial court to

allow expert testimony from an individual that he identified as “‘Rachel,’ mental health

professional” from Columbia Wellness, regarding his mental health condition. Id. at 132.

       On February 21, 2017, Terwilleger was found competent to stand trial by an agreed order.

When the trial court began to address the trial schedule in light of the completed competence

evaluation, Terwilleger again reiterated his concern regarding waiving his right to speedy trial. He

argued that “my competency has been fine, and I have never, ever needed mental health

evaluation.” 1 VRP at 20.

       Terwilleger was released pretrial on March 31, 2017, and trial was scheduled to begin on

July 25, 2017. Terwilleger filed an omnibus response stating that the nature of defense was a

general denial. Terwilleger also declined to stipulate to continuous chain of custody.


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No. 51367-6-II


                                      III. CRR 3.5 HEARING

        The trial court held a CrR 3.5 hearing to determine whether the statements Terwilleger

made to Holmes and Ramirez were admissible. During this hearing, Holmes and Ramirez testified

consistently with the facts as stated above.

        Terwilleger did not recall his conversation with Holmes at the scene. Terwilleger attributed

his memory problems to “a traumatic brain injury with a motorcycle crash a little over three years

ago” and to the fact that he “went into a state of delirium, which is confusion brought on by the

PTSD.” 2 VRP at 58-59. Terwilleger only vaguely recalled filling out an advisement of rights

form once in jail and only vaguely recalled selecting the option that he did not want to speak with

law enforcement. Terwilleger also had no recollection “at all” of being interviewed by Ramirez.

Id. at 60.

        The trial court admitted the statements, noting that there was an absence of any evidence

demonstrating that Terwilleger was experiencing a state of delirium during either conversation.

Terwilleger’s lack of memory regarding the event, the trial court explained, was akin to “an

alcoholic blackout,” and just because Terwilleger did not remember the interviews did not mean

that the statements were not made voluntarily. Id. at 65. The trial court noted that there was also

“no evidence presented” regarding the traumatic brain injury or PTSD beyond Terwilleger’s own

testimony. Id. at 67. However, the fact that Terwilleger invoked his right to silence on one

occasion indicates he had the ability to understand his rights during the other occasions. Reviewing

the totality of the circumstances, the trial court was persuaded that the statements made to Holmes

at the scene and to Ramirez while in custody were voluntary. The trial court did not enter written

findings and conclusions following this hearing.


                                                 9
No. 51367-6-II


                                            IV. TRIAL

       Holmes, Ramirez, and Holloway testified consistently with the facts as stated above. In

addition, Kyle Hartley, the auto body shop manager who repaired Holloway’s Chevy, testified

regarding the extent of damage to Holloway’s vehicle following the collision.

       Holloway’s Chevy appeared to sustain the most damage to the rear bumper on the

passenger side. In total, the estimate for repair was valued at approximately $3,000. That total

included repairs to both the passenger’s and driver’s side rear quarter panels, the rear bumper, the

driver’s side rear door, and other minor parts. Hartley could not determine from observation alone

whether the damage on the driver’s side of the vehicle occurred as a result of the collision with

Terwilleger’s Pontiac. However, most of the repair and labor hours were spent on the passenger

side of the vehicle and very little time was spent on the driver’s side. The labor alone, which

amounted to 7.8 hours, cost just over $400. And the majority of the approximately $3,000 estimate

was attributed to the cost of repairing the quarter panel and bumper.

       The defense theory at trial was that the collision between Terwilleger’s Pontiac and

Holloway’s Chevy was an accident.         Terwilleger argued that he intended to park next to

Holloway’s Blazer when he accidentally accelerated and struck Holloway’s vehicle, not realizing

that Holloway was standing by his car at that time. Terwilleger did not present any expert

testimony related to his mental health condition nor did he otherwise attempt to present a mental

health related defense.

       The jury found Terwilleger guilty of third degree assault and second degree malicious

mischief.




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No. 51367-6-II


                                           V. SENTENCING

       Terwilleger’s offender score was 5, and his standard range sentence was 17 to 22 months

for the third degree assault conviction and 4 to 12 months for the second degree malicious mischief

conviction. Terwilleger asked the court to impose 17 months on the assault conviction and 12

months on the malicious mischief conviction.

       The State interjected by stating,

       [S]omething that the Court might want to know in taking everything into
       consideration is that Mr. Terwilleger did not want any kind of mental health
       defense. And again, [defense counsel] can correct me if I’m wrong on that. But I
       think that [defense counsel] was pursuing that early on.

VRP (Sept. 8, 2017) at 4 -5. Defense counsel then agreed and said, “That’s correct. That is an

accurate statement.” Id. at 5. However, when given the opportunity to address the trial court,

Terwilleger indicated that he wanted to raise mental health at trial. Terwilleger explained that his

PTSD “should have been part of [his] defense,” and he “submit[ted] paperwork on that.” Id. at 8.

       The trial court explained that although Terwilleger raised mental health issues in several

pro se motions, he would later “withdraw those motions.” Id. at 9. Terwilleger objected and stated

that he “[n]ever withdrew” the motions. Id.

       The trial court explained to Terwilleger that he failed to follow the appropriate procedures

necessary to present a mental health defense. The trial court explained,

       [I]t’s your choice on whether or not you’re going to claim some sort of mental
       incapacity as far as, you know, inability due to a mental disease or defect to commit
       the crime. So that was really a decision that you made. And so -- and not using
       that, then those items are not considered.

Id. at 13-14. Defense counsel did not present any mitigating evidence to support a lesser sentence.

The trial court sentenced Terwilleger to 20 months confinement on the third degree assault


                                                11
No. 51367-6-II


conviction and 12 months confinement on the second degree malicious mischief conviction.

Terwilleger appeals.

                                          DISCUSSION

                            I. INEFFECTIVE ASSISTANCE OF COUNSEL

A. LEGAL PRINCIPLES

       Criminal defendants have a constitutionally guaranteed right to effective assistance of

counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190 Wn.2d 104, 115,

410 P.3d 1117 (2018). To prevail on a claim of ineffective assistance of counsel, Terwilleger has

the burden of demonstrating both that (1) his counsel’s representation was deficient because it fell

below an objective standard of reasonableness and (2) that he was prejudiced by this deficient

performance. State v. Linville, 191 Wn.2d 513, 518, 423 P.3d 842 (2018). We need not address

both prongs of the test if Terwilleger’s showing on one prong is insufficient. State v. Emery, 174

Wn.2d 741, 755, 278 P.3d 653 (2012).

       To determine whether counsel’s performance was deficient, “[t]he court must engage in a

fact-specific inquiry into the reasonableness of an attorney’s actions, measured against the

applicable prevailing professional norms in place at the time.” In re Pers. Restraint of Yung-Cheng

Tsai, 183 Wn.2d 91, 99, 351 P.3d 138 (2015). Review of counsel’s performance is highly

deferential, and we will “strongly presume reasonableness” in order to “combat the biases of

hindsight.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017).

       The presumption of reasonableness may be rebutted when a criminal defendant

demonstrates “an absence of any legitimate trial tactic that would explain counsel’s performance.”

Id.   Counsel’s strategic decisions made after a complete investigation are “‘virtually


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No. 51367-6-II


unchallengeable’”; however, counsel’s strategic decisions made following a less than complete

investigation are reasonable only if the decision to limit the investigation was itself the product of

reasonable professional judgment. Id. (internal quotation marks omitted) (quoting Wiggins v.

Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)). A reasonable investigation

by defense counsel includes engaging the assistance of an expert where necessary to conduct an

adequate defense. Lopez, 190 Wn.2d at 116.

       If counsel’s performance was deficient, we next consider whether the deficient

performance resulted in prejudice. Id. “Prejudice exists if there is a reasonable probability that

‘but for counsel’s deficient performance, the outcome of the proceedings would have been

different.’” Id. (internal quotation marks omitted) (quoting State v. Estes, 188 Wn.2d 450, 458,

395 P.3d 1045 (2017)). A reasonable probability is one that is sufficient to undermine confidence

in the trial’s outcome, and it is a lower standard than a preponderance standard. Id.

       “[W]hen ‘the claim is brought on direct appeal, the reviewing court will not consider

matters outside the trial record.’” Linville, 191 Wn.2d at 525 (quoting State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995)). Where the defendant’s claim on appeal compels this

court to consider evidence or facts beyond the trial record, “‘the appropriate means of doing so is

through a personal restraint petition’” rather than a direct appeal. Id. (quoting McFarland, 127

Wn.2d at 335).




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No. 51367-6-II


B. DEFENSE COUNSEL’S ALLEGED FAILURE TO INVESTIGATE

       Relying on State v. Fedoruk, 184 Wn. App. 866, 339 P.3d 233 (2014), Terwilleger argues

that defense counsel’s performance was deficient because defense counsel was aware of

Terwilleger’s mental health issues yet failed to adequately investigate and did not present a mental

health defense. The State counters that defense counsel did not perform deficiently because

defense counsel acted in accord with Terwilleger’s desire not to present a mental health defense at

trial. We decline to decide whether defense counsel’s performance was deficient because the

record is insufficient to determine the extent of defense counsel’s investigation and whether there

was a tactical reason for his decision to limit investigation and to not present a mental health

defense.

       Terwilleger admits that the record regarding the actions his counsel took to investigate a

mental health defense is “imperfect.” Br. of Appellant at 16. Nevertheless, Terwilleger maintains

that the record is sufficient for review because it shows that defense counsel did not retain an

expert to conduct a mental health evaluation.

       In Fedoruk, there was sufficient evidence in the record regarding the extent of defense

counsel’s investigation to allow appellate review. After the State successfully moved in limine to

exclude testimony regarding Fedoruk’s mental illness during a CrR 3.5 hearing, Fedoruk’s counsel

moved for a 60-day continuance on the eve of trial to pursue a not guilty by reason of insanity

affirmative defense. Fedoruk, 184 Wn. App. at 875-76. Defense counsel informed the trial court

that “‘an issue has arisen that creates a requirement . . . to pursue a defense theory not previously

pursued.’” Id. at 881 (alteration in original). This court held that based on counsel’s statements,




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No. 51367-6-II


it was apparent that counsel had not previously retained a mental health expert and investigated a

mental health defense. Id.

       Here, the record reflects that defense counsel made some attempt to investigate a possible

mental health defense shortly after Terwilleger was arraigned. But there is no evidence regarding

which physicians defense counsel contacted, what information was contained in the medical

records that defense counsel received, whether defense counsel made any attempt to contact

potential mental health experts to conduct a forensic evaluation, and importantly, whether

Terwilleger agreed to participate in additional mental health evaluations after he was deemed

competent to stand trial. Indeed, Terwilleger objected to continuing trial at a hearing following

entry of the competence order, stating, “[M]y competency has been fine, and I have never, ever

needed mental health evaluation.” 1 VRP at 20.

       We cannot determine on this record whether counsel truly failed to investigate

Terwilleger’s mental health or to what degree. Nor can we determine whether counsel intended

to undertake an investigation of Terwilleger’s mental health but was instructed by Terwilleger,

who had been found competent to stand trial, not to do so.

C. COUNSEL’S FAILURE TO PRESENT A MENTAL HEALTH DEFENSE AT TRIAL, FAILURE TO PRESENT
EXPERT TESTIMONY AT THE CRR 3.5 HEARING, AND FAILURE TO PRESENT MITIGATION EVIDENCE
AT SENTENCING

       For the same reason that we are unable to determine whether counsel performed deficiently

by allegedly not investigating Terwilleger’s mental health, we are likewise unable to determine

whether counsel performed deficiently by not presenting a mental health defense at trial, expert

mental health testimony at the CrR 3.5 hearing, or mitigation evidence at sentencing. On this

record, we are unable to determine whether counsel had a reasonable strategic basis for foregoing


                                               15
No. 51367-6-II


a mental health defense. There is conflicting evidence in the record that could suggest that counsel

was following the direction of his competent client who did not wish to present evidence of his

mental health at trial.

        On this record, we are unable to determine whether counsel performed deficiently.

Because Terwilleger must show both deficient performance and prejudice, we have insufficient

information to decide this claim. See Emery, 174 Wn.2d at 755. Consequently, we decline to do

so.

                          II. VOLUNTARINESS OF TERWILLEGER’S STATEMENTS

        Terwilleger claims that the trial court erred when it admitted statements he made after he

received his Miranda warnings. Terwilleger argues that his mental health condition made him

incapable of both voluntarily waiving his Miranda rights and voluntarily making the statements

themselves. We hold that based on the totality of the circumstances, the trial court did not err

when it found that Terwilleger voluntarily waived his Miranda rights and that he voluntarily made

statements to police. Therefore, the trial court properly admitted Terwilleger’s statements.

A. LEGAL PRINCIPLES

        The Fifth Amendment of the United States Constitution provides that “[n]o person . . . shall

be compelled in any criminal case to be a witness against himself.” Article I, section 9 of the

Washington Constitution provides coextensive protection of this same right. State v. Unga, 165

Wn.2d 95, 100, 196 P.3d 645 (2008). To that end, custodial statements made by an accused

individual must be excluded unless the statements were preceded by a full advisement of rights

and the individual knowingly, intelligently, and voluntarily waived those rights. State v. Radcliffe,

164 Wn.2d 900, 905-06, 194 P.3d 250 (2008).


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No. 51367-6-II


       We will not disturb a trial court’s determination that a waiver of rights was voluntary if the

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

substantial evidence in the record supports the finding. State v. Athan, 160 Wn.2d 354, 380, 158

P.3d 27 (2007). Evidence is substantial “where there is a sufficient quantity of evidence in the

record 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).

       Courts must look to the totality of the circumstances to determine whether a statement was

compelled or whether it was made voluntarily. State v. DeLeon, 185 Wn.2d 478, 486, 373 P.3d

95 (2016). Circumstances relevant to determining voluntariness include

       the “crucial element of police coercion;” the length of the interrogation; its location;
       its continuity; the defendant’s maturity, education, physical condition, and mental
       health; and whether the police advised the defendant of the rights to remain silent
       and to have counsel present during custodial interrogation.

Unga, 165 Wn.2d at 101 (quoting Withrow v. Williams, 507 U.S. 680, 693-94, 113 S. Ct. 1745,

123 L. Ed. 2d 407 (1993)).

       During a CrR 3.5 hearing, the trial court determines whether “a statement of the accused”

is admissible. CrR 3.5(a); State v. Williams, 137 Wn.2d 746, 751, 975 P.2d 963 (1999). A trial

court must enter written findings and conclusions following a CrR 3.5 hearing. CrR 3.5(c). Failure

to enter written findings and conclusions is an error, but the error is harmless if the trial court’s

oral findings are sufficient to allow appellate review. State v. Grogan, 147 Wn. App. 511, 516,

195 P.3d 1017 (2008), modified on remand, 158 Wn. App. 272, 246 P.3d 196 (2010).

B. ANALYSIS

       Terwilleger assigns error to the trial court’s findings (1) that he voluntarily waived his

Miranda rights while speaking to police and (2) that the statements he made to police were

                                                 17
No. 51367-6-II


voluntary. Terwilleger also challenges the trial court’s conclusion that these statements were

therefore admissible. The trial court held a CrR 3.5 hearing, and it found that Terwilleger’s

statements were made voluntarily and that Terwilleger voluntarily waived his Miranda rights. The

trial court did not enter written findings and conclusions as required under CrR 3.5(c), but its oral

findings are sufficiently extensive to permit appellate review. See id.

        There was substantial evidence supporting the trial court’s findings. Terwilleger was fully

appraised of his rights prior to every police interview, he acknowledged his rights, and he agreed

to speak with the officers prior to giving his statements. Terwilleger reviewed the written

statement that Ramirez composed and approved its accuracy, initialing places where Ramirez

made any necessary corrections. Terwilleger also initialed the section of the statement wherein he

agreed to waive his Miranda rights. There was also no evidence that Terwilleger was coerced or

threatened by police.

        In addition, Terwilleger invoked his right to silence prior to the second interaction with

Holmes, indicating Terwilleger’s awareness of the rights he waived during the other two

interviews. Athan, 160 Wn.2d at 381 (holding that the defendant’s “subsequent invocation of his

Miranda rights supports a finding that he knowingly, voluntarily, and intelligently waived his right

to remain silent prior to that point”).

        Although both officers recognized that Terwilleger exhibited signs of mental health issues

and Terwilleger made statements that Ramirez believed were “bizarre,” the totality of the

circumstances supports the trial court’s finding that the statements were voluntary. 2 VRP at 51.

A defendant’s mental health condition is a relevant consideration, but it is not dispositive. State

v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). In Aten, our Supreme Court held that a


                                                 18
No. 51367-6-II


defendant’s waiver of rights and subsequent confession were voluntary although she claimed that

she had a “mental disability,” she was suffering from emotional distress, and she was impaired by

anti-anxiety medications. Id. Our Supreme Court noted that during questioning, the defendant

was “calm, subdued, purposeful and oriented to her surroundings and herself. She spoke clearly,

had no trouble expressing herself and showed no sign of being sedated.” Id.

       Similarly, here, although Holmes believed Terwilleger seemed “kind of off,” Holmes also

observed that Terwilleger was coherent and that Terwilleger understood the questions he was

asked. 2 VRP at 40. Ramirez believed that Terwilleger may have had anxiety or a different type

of mental health condition, but Terwilleger did not exhibit any signs of confusion or impairment

during the interview. Ramirez also perceived Terwilleger’s demeanor as coherent and responsive.

       Terwilleger testified that he was in a “state of delirium” and that he could not remember

providing either the statement to Holmes or the statement to Ramirez due to a prior traumatic brain

injury. Id. at 59. The trial court did not find this testimony credible and was not persuaded that

Terwilleger’s statements and waiver were rendered involuntary by evidence that Terwilleger had

no memory of the interactions. We defer to the fact finder on credibility issues following a CrR

3.5 hearing. State v. Broadaway, 133 Wn.2d 118, 134, 942 P.2d 363 (1997).

       Terwilleger also argues that the officers exploited his apparent mental health issues to

coerce his statements, rendering them involuntary. However, Terwilleger does not identify any

evidence in the record showing that the officers took improper advantage of his mental health

condition to elicit his responses. There is no indication in the record that Terwilleger’s “will was

overborne” by coercive or manipulative police tactics. Unga, 165 Wn.2d at 102.




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       Although Terwilleger may have exhibited some symptoms of a mental health condition,

substantial evidence supports the trial court’s finding that Terwilleger voluntarily made statements

to police, therefore substantiating the trial court’s conclusion that Terwilleger waived his rights.

See Athan, 160 Wn.2d at 380. Consequently, the trial court did not err in admitting Terwilleger’s

statements.

                                         III. SAG ISSUES

A. PRO SE MOTION FOR MENTAL HEALTH EXPERT TESTIMONY

       Terwilleger claims that the trial court erred when it declined to consider his pro se motions

requesting expert testimony from a mental health professional. Terwilleger submitted this motion

directly to the trial court while he was represented by counsel. A trial court is vested with the

discretion to decline to consider pro se motions filed by a defendant while the defendant is

represented by competent counsel. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 841, 226

P.3d 208 (2010) (citing State v. Bergstrom, 162 Wn.2d 87, 97, 169 P.3d 816 (2007)). Therefore,

we hold that the trial court acted within its discretion when it declined to consider Terwilleger’s

pro se motion.

B. CHAIN OF CUSTODY OF TERWILLEGER’S VEHICLE

       Terwilleger claims that because his Pontiac was “‘not entered into evidence,’” the vehicle

was “‘[t]ainted evidence’” that should not have been admissible at trial. SAG at 2. We hold that,

to the extent Terwilleger asserts there was a chain of custody issue, Terwilleger’s claim fails

because no physical objects related to the Pontiac were admitted into evidence and the photographs

depicting damage were properly authenticated.




                                                20
No. 51367-6-II


       The evidence related to Terwilleger’s Pontiac that was admitted at trial included

photographs that Holmes took during his investigation and the tow report that Holmes completed

following the incident. To admit photographic evidence, “the proponent must put forward a

witness ‘able to give some indication as to when, where, and under what circumstances the

photograph was taken, and that the photograph accurately portrays the subject illustrated.’” State

v. Sapp, 182 Wn. App. 910, 914, 332 P.3d 1058 (2014) (quoting State v. Newman, 4 Wn. App.

588, 593, 484 P.2d 473 (1971)). Here, Holmes authenticated the photographs. Holmes took the

photographs himself, and he confirmed that they were unchanged and an accurate depiction of

what he witnessed when he responded following the incident.

       Photographs are also not physical objects, and therefore they are also not typically the kind

of “not readily identifiable” and “susceptible to alteration by tampering or contamination”

evidence that “is customarily identified by the testimony of each custodian in the chain of custody

from the time the evidence was acquired.” State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682

(2002). Because no such evidence pertaining to Terwilleger’s Pontiac was admitted, we hold that

Terwilleger’s claim fails.

C. SUFFICIENCY OF THE EVIDENCE

       Terwilleger claims that the evidence was insufficient to prove that he caused over $750

worth of damage to Holloway’s vehicle as was necessary to sustain his second degree malicious

mischief conviction under RCW 9A.48.080(1)(a). We hold that the evidence was sufficient to

prove that he caused the requisite amount of damage.

       Evidence is sufficient to sustain a conviction if, after viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.


                                                 21
No. 51367-6-II


State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). In a sufficiency of the

evidence claim, the defendant admits the truth of the State’s evidence and the court views the

evidence and all reasonable inferences drawn from that evidence in the light most favorable to the

State. Id. at 265-66. Credibility determinations are made by the trier of fact and are not subject to

review. Id. at 266. Circumstantial and direct evidence is equally reliable. Id.

        The evidence here was sufficient to allow a rational trier of fact to determine that

Terwilleger caused over $750 worth of damage to Holloway’s Chevy. Terwilleger claims that the

testimony from the auto body expert proves that he caused only $400 worth of damage, but

Terwilleger misinterprets the record. The auto body expert testified that the cost of labor was

$400.   Most of labor hours were spent repairing the passenger side of the vehicle where

Terwilleger’s Pontiac collided with Holloway’s Chevy. The total cost of repair, including labor,

was valued at approximately $3,000, and most of the repairs were attributed to the cost of fixing

the rear quarter panel and bumper. Holloway’s Chevy sustained damage in this location following

the collision with Terwilleger’s Pontiac.

        There was some uncertainty raised by the auto body expert regarding whether a portion of

the total costs were associated with repairs made to the driver’s side of the vehicle that could not

be attributed to the collision with Terwilleger’s Pontiac. However, when the inferences are

considered in the light most favorable to the State, a rational trier of fact could find that Terwilleger

caused over $750 worth of damage to Holloway’s car. We hold that Terwilleger’s sufficiency of

the evidence claim as to his second degree malicious mischief conviction fails.




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                                         CONCLUSION

        We decline to decide whether Terwilleger was deprived of effective assistance of counsel.

We hold that the record is insufficient to determine whether Terwilleger’s counsel performed

deficiently when he allegedly failed to investigate and did not present a mental health defense. We

also hold that the trial court did not err when it admitted Terwilleger’s statements to Holmes and

Ramirez because substantial evidence supports the trial court’s finding that Terwilleger voluntarily

made statements to police after he voluntarily waived his Miranda rights. With respect to

Terwilleger’s SAG, none of the issues he raises warrant reversal of his convictions.

        Accordingly, we affirm.

        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.



                                                     CRUSER, J.
 We concur:



 MAXA, P.J.




 GLASGOW, J.




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