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                                                                                                                 DIVISION
                                                                                                       2015 AY 12 1111 8:
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         IN THE COURT OF APPEALS OF THE STATE OF WASHI NG                                                              ASHiNGT© N
                                                                                                       by
                                                    DIVISION II



 STATE OF WASHINGTON,                                                             No. 44998 -6 -II


                                         Respondent,


            v.



 TYRONE EAGLESPEAKER,                                                      UNPUBLISHED OPINION


                                         Appellant.


           MELNICK, J. —       A jury found Tyrone Eaglespeaker not guilty of burglary in the first degree

and rape in the first degree but guilty of rape in the second degree and two drug offenses.

Eaglespeaker appeals his rape conviction, arguing that the trial court erred by instructing the jury

on the inferior -degree offense of rape in the second degree, by admitting the victim' s 911 call and

statements to a police officer as excited utterances, by admitting statements Eaglespeaker made to

law enforcement officers after invoking his right to an attorney, by imposing discretionary legal

financial   obligations ( LFOs).        Eaglespeaker also argues that cumulative error entitles him to relief


In   a   statement of additional        grounds (   SAG),   Eaglespeaker argues that the trial court 'erred by

admitting photographs of text messages that the victim received on her cell phone.

           We hold that the evidence supported the instruction on rape in the second degree, that the


error in admitting the victim' s statements was harmless, that the admission of Eaglespeaker' s

statements       did   not violate   his Fifth Amendment    rights, and   that Eaglespeaker'   s   failure to   challenge
44998 -6 -II




his LFOs   at   sentencing   waived    his   right   to   challenge     them   on appeal.   We also find that the trial


court did not abuse its discretion by admitting the text message evidence and that cumulative error

does not entitle Eaglespeaker to relief from his convictions. We affirm the judgment and sentence. 1

                                                           FACTS


         On December 21, 2012, at approximately 11: 30 A.M., J. R.2 called 911 and stated that a few

days previously, Eaglespeaker, her friend'                 s   boyfriend, had sexually        assaulted   her.   Deputy

Christian Lyle responded, and J. R. told him that Eaglespeaker entered her house without

permission and attempted           to have   sex with     her.       J. R. knew Eaglespeaker because he was dating

her friend Nicole Nash.       J. R. showed Lyle some clothing that she said belonged to Eaglespeaker

as well as a credit card     in his   name.     Lyle photographed a series of text messages sent to J. R.' s

phone over the past two days that she attributed to Eaglespeaker.


         Detective Tim Garrity arrived a short time later and took a recorded statement from J.R.

Ruanna Johnson then arrived to help J.R. with her children. Johnson told Garrity that she was the

caretaker for Nash' s residence and that Eaglespeaker was staying there while Nash was out of

town. While the officers were investigating J. R.' s 911 call, dispatch received a hang -up 911 call

from Nash' s home.


         Johnson eventually let Deputy Gary Manning and Sergeant Jay Johnston into Nash' s home

after   they knocked   and   nobody     responded.         Dispatch had already advised Manning that the 911,

call he was investigating could be related to the call that Lyle was handling. Manning and Johnston




1 Appellant' s counsel refers to matters outside the record in the opening brief. The references are
inappropriate. See State      v.   Crane, 116 Wn.2d 315, 335, 804 P. 2d 10 ( 1991) ( matters outside the
record cannot be considered on appeal).


2 As a survivor of a sexual assault, and to protect her identity, we use J. R.' s initials.

                                                                 2
44998 -6 -II




began doing a protective sweep for anyone present. When Eaglespeaker emerged from a bedroom,
                              him for                                           if he had tried to                   911.   Eaglespeaker
Manning handcuffed                           officer   safety     and asked                                   call



admitted   that he had        after   hearing      someone        say " he had done something to                     someone."     Clerk' s


Papers ( CP) at 111.


          Garrity and Lyle arrived, and Manning told Eaglespeaker that Garrity would want to talk

to him about another incident. After telling Garrity that he had heard J. R. made up a story about

him, Eaglespeaker          said, "[   M] y father has        an   attorney,"    and " maybe        I   should call      my dad."     CP at


111.   Manning read Eaglespeaker his Miranda rights,3 and Eaglespeaker said he wanted to speak
to the officers.


          Eaglespeaker admitted that he frequently went over to J. R.' s home but added that he always

knocked before entering. He said that she had asked him to shower with her a few days ago but


that he had declined. He denied having sexual relations with her. Garrity asked Eaglespeaker for

his phone knowing that a cell phone and text messages were involved. Eaglespeaker directed him

to the bedroom, where Garrity found drugs and drug paraphernalia. Garrity arrested Eaglespeaker

and Lyle took him to jail.

          On the evening         of   December 23, Eaglespeaker                 asked      to   speak   to    a   deputy.   Eaglespeaker


                                        Mike Hepner, that he                        to                  his   charges.      When Hepner
told the responding         deputy,                                      wanted          work off




replied   that    he did   not   know why Eaglespeaker                  was   in jail, Eaglespeaker               responded " rape,"   and




Hepner     said   he   would pass       it   on   to   a   detective.    CP    at   114.    Eaglespeaker then added, without


prompting from Hepner,

          I did not rape her, she answered the door naked and wanted to have sex. I told her
          no because I have a girlfriend but agreed to finger bang her. I finger banged her for




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


                                                                     3
44998 -6 -II



         quite a while and then I went home and decided I wanted to have sex because she
         is so hot. I went back the next day and she again answered the door naked. I asked
         for sex and she said no but we can take a shower together. I did not want to take a
         shower I wanted to have sex so I said no and left.


CP at 114.


         The State charged Eaglespeaker by amended information with rape in the first degree,

burglary in the first degree, unlawful possession of a controlled substance, and use of drug
paraphernalia.            The trial court held a CrR 3. 5 hearing to determine the admissibility of

Eaglespeaker' s pretrial statements. At its close, the defense did not object to the admission of the

statements that Eaglespeaker made at the time of his arrest, but the defense did seek suppression

of his jail statements because law enforcement did not readvise Eaglespeaker of his Miranda rights

before he      made      them.    The trial court entered written findings of fact and conclusions of law to

support its ruling that with one exception, Eaglespeaker' s statements were admissible.4
          The State then moved to admit J. R.' s two- minute 911 call into evidence under ER

803( a)( 2), the     excited utterance exception          to the   hearsay   rule.   After listening to part of the call,

the trial   court granted        the State'   s motion,    ruling that the   passage of " a couple of      days" did not


affect   the   call' s   admissibility. Report      of   Proceedings ( RP) ( Apr. 5, 2013) at 6.


          During         trial, the   law   enforcement officers     testified to the    facts described   above.   Over


Eaglespeaker' s objection, the trial court allowed Lyle to testify about J. R.' s initial statements to

him under the excited utterance rule. Lyle added that J. R. said she had left a window open on the

night of the rape. Lyle testified that her front door showed no signs of forced entry.




4 The court excluded Eaglespeaker' s statement that he hung up before anyone answered his 911
call because he did not want to talk to anyone. The court concluded that this statement implicated
Eaglespeaker' s right to remain silent.



                                                                4
44998 -6 -II




           Johnson testified that after J. R. told her about the rape, she persuaded J. R. to call the police


because of J. R.' s concern that Eaglespeaker would return. Johnson added that while she was with


J. R., Eaglespeaker called. Johnson described the conversation:


           She   put   her   phone speaker phone and she said, "                    What do      you want    Tyrone ?" and
           then he'    s all, "   Why you talkin'    to   me   like   that ?" and then she said, "         Why, you know
           why,"   and    then he' s all, " I   didn' t do     nothin'     that   bad,"    and   then   she said, "   You call

           ripping my        pants off while     I' m screaming           no, not   that bad ?" and he'     s all, "   No, that
           wasn' t that bad."


RP ( May 13, 2013) at 143.

           Before J. R. testified, Eaglespeaker objected to the admission of the text messages J. R. had

received.      The defense argued that these messages were irrelevant because there was nothing to

show      that Eaglespeaker had         sent    them.     J. R. had told officers that when she recovered the phone


from Eaglespeaker, the text messages were erased. The trial court responded that J. R. would need


to authenticate the texts.


           The State then showed J. R. photographs of text messages from her cell phone that Lyle


took on December 21, 2012. J. R. explained that Eaglespeaker had been using her boyfriend Scott' s

cell phone while Scott was incarcerated and while she was exchanging texts with that phone. J. R.

added that the texts she received addressed events that were happening while Eaglespeaker had

the   phone and were "            things that only he       would         know."        RP (   May   14, 2013)    at    32.   The court


admitted photographs of the texts from December 19 and 20.


           The texts started with an exchange about Eaglespeaker helping J. R. sell her boyfriend' s

truck canopy.          J. R. testified that her boyfriend then called from prison and that the two of them


had   a   long   argument,         during   which   Eaglespeaker            came       to her house "    a couple      times" and left


because     of   the ongoing        argument.     RP ( May 14, 2013)              at   36. J. R. later texted Eaglespeaker that


she   felt " like throwing up" because              she was so upset with               her boyfriend.      RP ( May 14, 2013) at




                                                                      5
44998 -6 -II



36 -37. When Eaglespeaker did not respond, she sent another text asking why he was ignoring her.

Eaglespeaker             responded       that he had just      woken       up    and would "       be   over   in   a   few."   RP ( May 14,

2013)     at   38.       After some additional messages, J. R. texted Eaglespeaker that he could go back to

sleep if he       wanted.         He    responded, "     I   need   to   shower, [ what about you]?"                RP ( May 14, 2013) at

40.     J. R. answered that she always waited until her children were asleep, to which Eaglespeaker

replied, "      Okay,      well   if   you want me       to come         over   then   let   me   know."   RP ( May 14, 2013) at 41.

J. R.   replied, "       Sweet dreams."            RP ( May 14, 2013)           at   41. The messages continued:


               Eaglespeaker]:           Yeah, don' t let the meth bugs bite.

               J. R.]:    What' s up with you. You' re either really nice or really mean, confusing.

               Eaglespeaker]:            Really     mean,    but my       album' s     incredible....          Are you ready to
           hump?

                   No, but at least now I know that' s the only reason that you wanted to hang
               J. R.]:
           out, not surprising, happens a lot.

               Eaglespeaker]:            Okay,     you' re such an ass.          You make me feel like an animal or is
           it cuz I' m an Indian. Well call it what you want, that' s what normal people do. To
           me it seems there' s no mutual attraction. You brush me and push me away, tease
           me.   I' m man plus an addict, so you don' t have to treat me like I' m being put
           through a test a time....   Wish you felt like I did and not want me for the wrong
           reasons....            I' m leaving your phone on your doorstep, I' m frustrated.

               J. R.]:     Why does it have to revolve around sex? You' re being stupid right now.
           You' re totally tripping. Who cares if you' re an addict, who isn' t? ... I didn' t do

           anything to deserve this.... Real mature, I didn' t think you were that shallow.. .



               Eaglespeaker]:            I' m    I' m a man who has hung out with you for days
                                                  not shallow.

           and get no affection or attention hardly so naturally I feel like I' m just a reject... .
           If I can' t have it my way, I don' t want it at all... .

               J. R.]:     I' m   speechless basically. ...   You are being pretty shallow, shallow,
            shallow....           Waste your time elsewhere if [you] want. I[ t] won' t be my loss, that' s
           for damn sure.


RP ( May 14, 2013)                at   41 - 44.
44998 -6 -II



         Eaglespeaker then texted, " You up                still ?"   RP (   May     14, 2013)        at   44.    J. R.   replied, "   Yep,

kids just fell asleep."          5 - 14 RP 45.     J. R. testified that she fell asleep at around 3: 30 A.M. on

December 20. RP ( May 14, 2013) at 46. The next thing she knew, Eaglespeaker was standing in
her bedroom.         J.R. denied giving him permission to enter her home but said that she might have

left the back     window or       door   unlocked.       She testified that Eaglespeaker forced himself on top of

her and penetrated her vagina with his fingers. He left at about 6: 15 A.M.

         J. R. explained that she felt frightened but did not immediately call the police because she

had used drugs recently and feared that Child Protective Services ( CPS) might take her children.

J. R. had testified earlier that she had been granted a stay of prosecution stemming from recent drug

and theft convictions.


         J. R. then testified that when Eaglespeaker came to her home four or five hours later to

borrow her car, she let him in and let him use the car. J. R. went over to a friend' s house to tell her

about   the rape, but decided        not   to because Eaglespeaker'           s   friend   was       there.      J. R. did tell Johnson


by phone and in person about the rape, and she showed Johnson the texts from Eaglespeaker as
well. J. R. also told Nash. Nash and Johnson promised that they would make Eaglespeaker leave

the area.


         On December 20, J. R. received another text from Eaglespeaker while he was using her car.

The    message said, "      Okay,   I just feel like I     violated you,          sorry,   no   drama.        It' s not easy to be on

this   elevator      up   and   down, down, down."           RP (     May    14, 2013)          at   67.    J. R. and Eaglespeaker


exchanged several more            texts that evening.        After Eaglespeaker realized that Johnson was trying

to make him leave Nash' s residence, he called J. R. and told her that if she didn' t tell Johnson she

was    lying,   he   would call    CPS     and   Clark   County      Diversion. Johnson testified that she overheard


that call.




                                                                 7
44998 -6 -II



            That same evening, J.R. had a friend spend the night with her in case Eaglespeaker

returned.       She testified that she called the police on December 21 after Johnson told her that

Eaglespeaker had       not   left Nash'   s   home. After the State played her 911 call, J. R. explained that


she initially reported that Eaglespeaker tried to rape her because she did not realize that digital
penetration constituted rape.          On cross -examination, she reiterated that she did not immediately

call the police because she feared losing her children.

            At the State' s request, and over defense counsel' s objection, the trial court instructed the

            the               inferior -degree                           in the   second   degree.   The jury acquitted
jury   on         uncharged                        offense of rape




Eaglespeaker of rape in the first degree and burglary in the first degree but found him guilty of

rape   in the     second   degree   as well as   the   drug   charges.   The trial court sentenced Eaglespeaker to


119 months in prison and imposed $ 6, 150 in LFOs. Eaglespeaker appeals his rape conviction as

well as the discretionary LFOs imposed.

                                                        ANALYSIS


I.          INFERIOR -DEGREE INSTRUCTION: RAPE IN THE SECOND DEGREE


            Eaglespeaker argues that the trial court erred by instructing the jury on the inferior- degree

offense of rape in the second degree because no affirmative evidence existed that he committed

only that offense. 5 We disagree.




5 Although Eaglespeaker did not object to the inferior -degree instruction on this basis at trial, we
choose to address it on the merits. State v Kindall, 181 Wn. App. 844, 849, 326 P. 3d 879 ( 2014)
 We retain discretion under RAP 2. 5( a) to consider an issue raised for the first time on appeal.).


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44998 -6 -II



        A criminal defendant generally may be convicted only of crimes charged in the State' s

information.      State v. Corey, 181 Wn. App. 272, 275, 325 P. 3d 250, review denied, 181 Wn.2d

1008 ( 2014).         However, a defendant also may be convicted of an inferior -degree offense to a

charged crime.         State   v.   Fernandez- Medina, 141 Wn.2d 448, 453, 6 P. 3d 1150 ( 2000).      RCW


10. 61. 003 provides:


        Upon an indictment or information for an offense consisting of different degrees,
        the jury may find the defendant not guilty of the degree charged in the indictment
        or information, and guilty of any degree inferior thereto, or of an attempt to commit
        the offense.



        A trial court may instruct the jury on an uncharged inferior -degree offense when these

factors are met:


           1)   the statutes for both the charged offense and the proposed inferior degree
        offense ` proscribe   but one offense'; ( 2) the information charges an offense that is
        divided into degrees, and the proposed offense is an inferior degree of the charged
        offense; and ( 3) there is evidence that the defendant committed only the inferior
        offense."




Fernandez- Medina, 141 Wn.2d at 454 ( quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d

381 ( 1997)).     Eaglespeaker challenges the third factor, arguing that the evidence was insufficient

to establish that he committed rape in the second degree.


        In determining whether the evidence is sufficient to support an inferior -degree instruction,

we view the supporting evidence in the light most favorable to the instruction' s proponent, here

the State. Fernandez- Medina, 141 Wn.2d at 455 -56. Evidence in support of an uncharged inferior -


degree offense instruction must consist of more than the jury' s disbelief that the defendant

committed the superior charged offense and instead must affirmatively establish that the defendant

committed       the   inferior -degree   offense.   Fernandez- Medina, 141 Wn.2d   at   456.   We review de


novo a trial court' s decision whether to instruct the jury on an uncharged inferior -degree offense:

Corey, 181 Wn. App. at 276.


                                                          9
44998 -6 -II



          To support his claim of error, Eaglespeaker cites State v. Brown, 127 Wn.2d 749, 903 P. 2d

459 ( 1995).      Brown was charged with rape in the first degree committed by engaging in sexual

intercourse with forcible compulsion and by using or threatening to use a deadly weapon. Brown,

127   Wn. 2d     at   754; RCW 9A.44. 040( 1).               The inferior -degree instruction on rape in the second


degree    required     sexual intercourse by forcible compulsion but did not require the use or threatened
use of a    firearm. RCW 9A.44. 050( 1)(               a).   The victim testified that Brown and his accomplices


forced her to have sexual intercourse and that he held a gun to her head at one point during the

attack.   Brown, 127 Wn.2d            at   754. Brown testified that he and the victim engaged in consensual


sex for money. Brown, 127 Wn.2d at 754.

          On appeal, Brown argued that neither party offered evidence showing that he raped the

victim    but did     not   threaten to    use a    deadly   weapon, and   the Supreme Court    agreed.   Brown, 127


Wn.2d     at   754 -55.     The court reasoned that evidence tending to impeach the victim' s claim that a

gun   was      used    did    not   justify   the    inferior -degree instruction.     Brown,   127 Wn.2d at 755.


Impeachment evidence that serves only to discredit the State' s witness does not establish that only

the inferior -degree crime was committed. Brown, 127 Wn.2d at 755.


          The charge of rape in the first degree in this case required the State to prove that


Eaglespeaker engaged in sexual intercourse by forcible compulsion after a felonious entry into

J. R.' s home. The inferior- degree instruction on rape in the second degree required proof of sexual


intercourse by forcible compulsion but did not require proof of felonious entry. J. R. testified that

she did not consent to Eaglespeaker' s entry before he raped her, but she added that she might have

left her door unlocked, and her text messages suggested that Eaglespeaker had permission to come


to her house.         Eaglespeaker told officers that he often went over to J.R.' s house, that the doors

were always       locked,     and   that he   always     knocked first.    While in jail, he told the deputy that J. R.




                                                                  10
44998 -6 -II




met    him     at   the    door   on    December 20     and asked       him to have   sex.   A text message to J. R. and a


phone call contradicted his statement that this encounter was consensual, as he apologized for


having    violated         her    and conceded      her lack   of consent.    When viewed in the light most favorable


to the State, the evidence supporting the inferior -degree instruction was more than impeachment

evidence and supported the theory that Eaglespeaker engaged in sexual intercourse by forcible

compulsion           but   without a       felonious entry.        The trial court did not err by instructing the jury on

rape in the second degree.


II.       EXCITED UTTERANCE EVIDENCE


          Eaglespeaker argues next that the trial court erred by admitting J. R.' s 911 call and initial

statements          to the   police under       the   excited utterance exception         to the   hearsay   rule.   An excited


utterance is a " statement relating to a startling event or condition made while the declarant was

under    the    stress of excitement caused             by   the   event or condition."    ER 803( a)( 2). The trial court' s


determination that a statement falls within the excited utterance exception is reviewed for an abuse

of    discretion. State           v.   Strauss, 119 Wn.2d 401, 417, 832 P. 2d 78 ( 1992).             An abuse of discretion


occurs where a trial court' s decision is manifestly unreasonable or based on untenable grounds or

reasons. State v. Magers, 164 Wn.2d 174, 181, 189 P. 3d 126 ( 2008).


              The excited utterance exception is based on the idea that


               under       certain      external   circumstances       of physical    shock,   a   stress    of nervous

              excitement may be produced which stills the reflective faculties and removes their
              control."      The utterance of a person in such a state is believed to be " a spontaneous
              and sincere response to the actual sensations and perceptions already produced by
              the   external shock,"        rather than an expression based on reflection or self interest.
                                                                                                  -

State    v.    Chapin, 118 Wn. 2d 681, 686, 826 P. 2d 194 ( 1992) (                   quoting 6 J. Wigmore, Evidence §

1747,    at    195 ( 1976)) (          citations omitted).    Consequently, the critical question in admitting excited

utterance evidence                is "' whether the statement was made while the declarant was still under the




                                                                      11
44998 -6 -II



influence of the event to the extent that [ the] statement could not be the result of fabrication,

intervening    actions, or   the   exercise of choice or   judgment. "' Brown, 127 Wn.2d at 758 ( quoting


Strauss, 119 Wn.2d at 416).


        The longer the time interval between the event and statement, the greater the need for proof

that the declarant did not engage in reflective thought. State v. Ramires, 109 Wn. App. 749, 758,

37 P. 3d 343 ( 2002).    The fact that the declarant is upset while making the statement is not enough

to make it an excited utterance, as the court explained in State v. Dixon, 37 Wn. App. 867, 873 -74,

684 P. 2d 725 ( 1984):


                  If Ms. M' s statement to the police were to be admissible as an excited
        utterance simply because she was " upset," virtually any statement given by a crime
        victim within a few hours of the crime would be admissible because many crime
        victims remain upset or frightened for many hours, and even days and months,
        following the experience.

Similarly, statements made to police after the declarant slept, bathed, and talked to a friend were

not spontaneous and were impossible to distinguish from statements routinely given to police by

crime victims. State v. Bargas, 52 Wn. App. 700, 704, 763 P. 2d 470 ( 1988).

        There is no dispute that J. R. was upset when she called 911 and when she first spoke to


Deputy Lyle. Nor is there any dispute that she made both communications approximately 30 hours

after the attack that she described. J. R. called 911 and spoke to Lyle after initially deciding not to

call the police because she was afraid she would lose her children. Before calling 911, J. R. tried

to tell a neighbor about the attack, succeeded in describing it to two friends, slept overnight, and

engaged in further interaction with Eaglespeaker. She ultimately decided that reporting the attack




                                                           12
44998 -6 -II



was    the only way to           protect   herself from Eaglespeaker.         The record shows that J. R. had ample


opportunity for reflective thought before she made the statements at issue. Consequently, the trial

court abused its discretion by admitting J. R.' s 911 call and initial statements to Deputy Lyle as

excited utterances.




          We will not reverse a conviction, however, if the evidentiary error did not prejudice the

defendant. State           v.   Thomas, 150 Wn.2d 821, 871, 83 P. 3d 970 ( 2004).         An evidentiary error is not

prejudicial unless, within reasonable probabilities, the outcome of the trial would have been

materially      affected        had the    error not   occurred.      Thomas, 150 Wn.2d       at   871.   The improper


admission of evidence is harmless if the evidence is of minor significance in reference to the

overall evidence. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P. 2d 1120 ( 1997).


          Here, J. R. testified about the details of the attack. Additionally, Eaglespeaker' s statements

and    text    messages          confirmed    much     of   what     she   described.   The   evidence    of guilt was


overwhelming, and the admission of the excited utterance evidence was harmless error.

III.      DEFENDANT' S STATEMENTS TO LAW.ENFORCEMENT


          Eaglespeaker argues here that the trial court erred by admitting statements he made to law

enforcement officers after             he   requested an    attorney. 6    Eaglespeaker does not assign error to the


trial court' s findings of fact supporting its suppression ruling, so those findings are verities on

appeal.       State   v.    Acrey,    148 Wn.2d 738, 745, 64 P. 3d 594 ( 2003).           We review a trial court' s




6 Eaglespeaker argues that he was in custody before this request but does not challenge the
admissibility of any prior statement. We assume that he was in custody when he made the request
at issue. See Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 ( 1995)
 interrogation is custodial when reasonable person would not feel at liberty to terminate
questioning and leave).



                                                                13
44998 -6 -II



conclusions of law pertaining to the suppression of evidence de novo. State v. Arreola, 176 Wn.2d

284, 291, 290 P. 3d 983 ( 2012).


          The Fifth Amendment          provides     that "[   n] o person shall be compelled in any criminal case

to be    a witness against      himself." U. S. CONST. amend. V; Miranda v. Arizona, 384 U.S. 436, 439,


86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 7 In Miranda, the United States Supreme Court adopted

a set of measures        designed to      protect a suspect' s        Fifth Amendment          right    from the "   inherently
                                                                                                             ti


compelling       pressures"     of custodial    interrogation.       384 U. S.   at   467.    These safeguards include a


warning that the suspect has the right to remain silent and the right to the presence of an attorney.

Maryland v. Shatzer, 559 U. S. 98, 103 -04, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 ( 2010).

           Under Miranda, if an accused indicates that he wishes to consult with an attorney before

speaking, there can be no questioning. 384 U.S. at 444 -45. An exception to this rule provides that

if the   accused makes an equivocal request               for   an   attorney, questioning      need not cease.        Davis v.


United States, 512 U. S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 ( 1994).                              A request for an


attorney is equivocal if a reasonable officer would understand only that the suspect might be

invoking the right to counsel. Davis, 512 U.S. at 459.

           After telling Deputy Manning that he had heard J.R. was making up a story about him,

Eaglespeaker       stated, "[   M] y father has    an   attorney"     and " maybe     I   should call   my dad."     CP at 111.


Manning        then   read   Eaglespeaker his Miranda           rights.   Eaglespeaker said that he understood his


rights and wanted to speak to the officers.




7 The Washington Supreme Court has held that article I, section 9 is equivalent to the Fifth
Amendment and should receive the same interpretation. State v. Templeton, 148 Wn.2d 193, 207-
08, 59 P. 3d 632 ( 2002).         Consequently, we decline Eaglespeaker' s invitation to apply a Gunwall
analysis      to determine      whether   the   state constitution offers greater protection              in this   regard.   See
State    v.   Gunwall, 106 Wn.2d 54, 720 P. 2d 808 ( 1986) (              setting forth factors to determine whether
state constitution provides broader protection than federal constitution).


                                                                14
44998 -6 -II




         The trial court concluded that Eaglespeaker' s statements about calling his father were

equivocal invocations of his Miranda rights. Eaglespeaker disagrees and argues that his statements

were comparable          to   others   found to be     unequivocal requests          for   counsel.    See, e. g., State v. Bell,

2007 -1124, P. 1 - 2 ( La. 2007), 958 So. 2d 1173, 1174 -75 ( "                    I' d rather wait until my mom get [ sic]

me a    lawyer. ");     McDaniel v. Commonwealth, 28 Va. App. 432, 433, 437, 506 S. E.2d 21, 22, 24

Va. Ct.   App.     1998) ( " I think I    would rather       have   an   attorney here to    speak    for   me. ").   We disagree


that Eaglespeaker' s          statements were equivalent            to these     requests    for   counsel.     Rather, we find


Eaglespeaker' s statements even more ambiguous than the statement that did not require the

cessation of   questioning in Davis: " Maybe I                should     talk to a lawyer."        512 U. S. at 462. We agree


with the trial court that Eaglespeaker' s Fifth Amendment rights were fully protected when the

deputy advised him of his Miranda rights after he made the equivocal statements at issue.

          We make an additional observation about Eaglespeaker' s statements to Deputy Hepner

while   in jail.   The term " interrogation" under Miranda refers not only to express questioning by

police but also to words or actions that are reasonably likely to elicit an incriminating response.

Rhode Island       v.   Innis, 446 U.S. 291, 301, 100 S. Ct. 321, 64 L. Ed. 2d 297 ( 1980). We agree with


the trial court that Eaglespeaker' s statements to Hepner were volunteered and were not made in

response to any         words or actions     likely    to   elicit an    incriminating     response.    We further agree that


all of the statements that Eaglespeaker made after being advised of his Miranda rights were

admissible in the State' s case -in- chief.


III.      CUMULATIVE ERROR


          Eaglespeaker         argues   that he   is   entitled   to   relief   due to   cumulative error.       The cumulative


error doctrine mandates reversal where the combined effect of several nonreversible errors denied

the defendant       a   fair trial. State   v.   Davis, 175 Wn.2d 287, 345, 290 P. 3d 43 ( 2012), cent. denied,




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134 S. Ct. 62 ( 2013).                Having identified only a single harmless error that occurred during

Eaglespeaker' s trial, we decline to grant relief under the cumulative error doctrine.

IV.          LFOs


             Eaglespeaker argues that the trial court erred by imposing discretionary costs without

determining his ability to pay those costs.

             The record shows that the trial court checked the box in the judgment and sentence showing

that it had found that Eaglespeaker has the ability to pay the LFOs imposed. Eaglespeaker did not

challenge this finding during sentencing so he may not do so on appeal. State v. Blazina, 174 Wn.

        906, 911, 301 P. 3d 492,                           by   344 P. 3d 680 ( 2015).           Our decision in Blazina, issued
App.                                          remanded




before Eaglespeaker' s sentencing, provided notice that the failure to object to LFOs during

sentencing          waives a related claim of error on appeal.              174 Wn.       App.    at   911. As our supreme court


noted, an appellate court may use its discretion to reach unpreserved claims of error. Blazina, 344

P. 3d   at   681.     We decline to exercise such discretion here.


V.           SAG ARGUMENTS


             Eaglespeaker argues in his SAG that the trial court erred by admitting the photographs of

the text messages on J. R.' s cell phone without requiring the State to properly authenticate them

under    ER 901.           We    review      the decision to    admit    this   evidence    for   abuse of    discretion. ' Magers,


164 Wn.2d at 181.


             Under ER 901(          a), "[    t] he requirement of authentication or identification as a condition


precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in
question       is   what   its   proponent claims."        This   requirement      is   met "'   if sufficient proof is introduced


to    permit a reasonable           trier    of   fact to find in favor    of authentication or          identification. "' State v.




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Bradford, 175 Wn.             App.   912, 928, 308 P. 3d 736 ( 2013) (       quoting State v. Danielson, 37 Wn. App.

469, 471, 681 P. 2d 260 ( 1984)), review denied, 179 Wn.2d 1010 ( 2014).


          In Bradford, Division One found sufficient evidence to support a finding that text messages

were what       the State     purported     them to be:      messages     that Bradford   wrote and sent.      175 Wn. App.

at   928 -29.     The content of the messages indicated that Bradford sent them because they were

consistent with his previous threats and comported with his obsessive behavior at the time.

Bradford, 175 Wn.             App.   at   929.    Their timing also showed that Bradford sent them, because the

messages disappeared when Bradford went to jail and reappeared upon his release. Bradford, 175

Wn. App. at 929 -30.

          Similarly, the court found sufficient authentification to support the admission of a

photographed           text   message     in State   v.   Thompson, 2010 ND 10, 777 N. W.2d 617 ( 2010).               As the


Thompson         court observed, "[        T] he proponent of offered evidence need not rule out all possibilities


inconsistent with authenticity or conclusively prove that evidence is what it purports to be; rather,

the proponent must provide proof sufficient for a reasonable juror to find the evidence is what it

purports   to be."       777 N.W.2d at 624; see also State v. Andrews, 172 Wn. App. 703, 709, 293 P. 3d

1203 ( because name used in text messages was name that defendant used, circumstantial evidence

supported       authentification          and admission of photographed           text   messages),    review denied, 177


Wn.2d 1014 ( 2013).


          Here, the record shows that J. R. received the text messages at issue from her boyfriend' s

phone after she lent the phone to Eaglespeaker. Her boyfriend was incarcerated and unable to use

his   phone      when     J. R.   received       these    messages.    The text messages corresponded to some of


Eaglespeaker' s statements to law enforcement about his interaction with J. R., and they included a

reference       to "   leaving    your phone on your         doorstep."    RP ( May 14, 2013)    at   43.   J. R. testified that




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she found the phone in a bag on her doorstep with some baby formula that Eaglespeaker bought

for her   after   the   attack.   The trial court did not abuse its discretion by finding sufficient evidence

that the photographs of the text messages were what the State purported them to be: photographs

of text messages from Eaglespeaker.


          We affirm the defendant' s judgment 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:




                                         C'_
          Johanson, C. J.




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