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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                              °
                                                         No. 70666-7-1
                      Respondent,
                                                         DIVISION ONE
               v.

                                                         UNPUBLISHED OPINION
 KIEL NOEL DENT,

                      Appellant.                         FILED: November 24, 2014


      Appelwick, J. — Dent appeals his conviction for forging an Oxycodone

prescription in violation of the Uniform Controlled Substances Act.1 He contends that the

trial court erred in admitting statements he made during a custodial interrogation prior to

receiving Miranda2 warnings. He argues that he would not have been convicted had the

statements been excluded. We affirm.

                                         FACTS


       On May 11, 2012, Officer Natalie D'Amico was dispatched to a Rite Aid store in

Redmond, Washington. A pharmacy technician from Rite Aid had called 911 to report

Kiel Dent as a possible suspect of prescription forgery. As Officer D'Amico walked into

the Rite Aid, a store employee behind Dent pointed to him as if he were the man the store



       1 Chapter 69.50 RCW.
       2 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 70666-7-1/2




reported. Dent was approaching the exit of the store. Dent matched the description the

pharmacy technician had provided over the phone. Officer D'Amico approached Dent,

who was on his phone at the time, and said, "Mr. Dent." Officer D'Amico was wearing a

police uniform. Dent stopped and looked at Officer D'Amico and put down his phone.

       Officer D'Amico then asked Dent to step outside of the store. Dent cooperated

and walked outside with Officer D'Amico. At Officer D'Amico's request, Dent sat down

on a bench outside of the store. Officer D'Amico remained standing. Officer D'Amico's

patrol car was parallel parked outside the store within 15 feet of the bench.

       Officer D'Amico asked Dent if he had any identification.       Dent handed Officer

D'Amico his Washington identification card (ID) that confirmed Dent's identity. Officer

D'Amico then asked Dent why he was at the Rite Aid. Dent responded that he had gone

there to fill his prescription for oxycodone. Dent explained that he had been in a car crash

and needed the oxycodone to help with the pain.         Officer D'Amico asked Dent what

injuries he suffered as a result of the crash. Dent was not able to provide an answer or

any additional details about the car accident.

       Officer D'Amico asked Dent how he obtained the prescription. Dent claimed that

he received it from a family friend. Officer D'Amico asked Dent ifthat friend was a doctor,

and Dent said, '"I thought so.'" Officer D'Amico asked Dent if he knew the name of the

person who provided the prescription. Dent responded that he did not know. But, Dent

said that he received the prescription from someone at a house somewhere between

Burien and White Center. According to Officer D'Amico, Dent was not in custody at the

time she asked him these questions.
No. 70666-7-1/3




       After Officer D'Amico finished questioning Dent, she waited for another patrol

officer to arrive to stay with Dent. Officer D'Amico then went back into Rite Aid to speak

with the technician, Kevin Christoph, who assisted Dent with the prescription and made

the initial 911 call.3 He said that he was suspicious about the prescription, because

oxycodone was misspelled and there was a forgery note on file for the doctor listed on

the prescription.   Christoph said that the forgery note requested that the doctor, Dr.

Andrew Graustein, be contacted to verify all prescriptions before filling the requests.

Christoph stated that he spoke with Dr. Graustein about the prescription and Dr.

Graustein confirmed that the prescription was invalid.

       After speaking with Christoph, Officer D'Amico called Dr. Graustein. Dr. Graustein

confirmed that he did not know Dent and did not write an oxycodone prescription for him.

After speaking with Dr. Graustein, Officer D'Amico walked back outside. Dent was still

sitting on the bench with the other officer standing in front of him. At that point, Officer

D'Amico arrested Dent and read him his CrR 3.14 rights.

       Dent was charged with violation of the Uniform Controlled Substances Act - forged

prescription, RCW 69.50.403(1 )(c).5

       Dent moved to have the statements he made to Officer D'Amico suppressed. The

trial court held a CrR 3.5 hearing in which Officer D'Amico testified to the questions she

        3 Officer D'Amico had returned Dent's ID to him before going back into Rite Aid. It
is unclear from the record exactly when Officer D'Amico returned the ID to Dent. The
record indicates only that Officer D'Amico returned the ID to Dent sometime between
originally asking for it and when she went back into Rite Aid.
        4 CrR 3.1 provides that all persons taken into custody must be immediately advised
of their right to a lawyer. However, unlike Miranda, it does not require advisement of the
right to remain silent. Compare CrR 3.1, with Miranda, 384 U.S. at 479.
        5 Dent was also charged with and convicted of identity theft in the second degree.
This charge was eventually vacated.
No. 70666-7-1/4




asked Dent and his responses prior to receiving Miranda warnings. Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Dent argued that his statements

should have been excluded, because he made them subject to custodial interrogation

without first receiving his Miranda warnings.       The trial court concluded that Dent's

statements were admissible, because "Miranda was not applicable as the defendant was

not in custody to the degree associated with formal arrest.       These statements were

voluntary." In reaching that conclusion, the court opined that under the circumstances—

Dent was sitting on a park bench and he was not handcuffed—there was no formal

custody or arrest. It further noted that Officer D'Amico conducted a limited investigation

and interrogation that was not custodial in nature. As a result, the trial court found that

Miranda did not attach until Dent was formally arrested.

      At trial, the State presented the forged prescription along with five witnesses

including Officer D'Amico; Rite Aid pharmacy technicians, Christoph and Margaret Lyons;

and Dr. Graustein.


      The jury found Dent guilty of Violation of the Uniform Controlled Substances Act -

Prescription Forgery. Dent appeals.

                                      DISCUSSION


       Dent argues his statements to Officer D'Amico should have been excluded,

because he was in custody and thus entitled to Miranda warnings.6 Additionally, he

argues that the admission of the statements was not harmless error.




       6 Dent assigns error to conclusions of law (a)(i)-(ix). These conclusions admitted
Dent's statements into the State's case-in-chief.
No. 70666-7-1/5




        Miranda warnings must be given whenever a suspect is subject to custodial

interrogation by a state agent. 384 U.S. at 467-68; State v. Heritage, 152 Wn.2d 210,

214, 95 P.3d 345 (2004). If police conduct constitutes a custodial interrogation without

Miranda warnings, statements made by the suspect during the interrogation must be

suppressed.    Miranda, 384 U.S. at 479. A person is in "custody" for the purpose of

custodial interrogation if, after considering the circumstances, a reasonable person would

feel that his freedom was curtailed to a degree associated formal arrest—an objective

test.   Heritage. 152 Wn.2d at 218.    The defendant must show some objective facts

indicating his freedom of movement or action was restricted or curtailed. State v. Lorenz,

152 Wn.2d 22, 36-37, 93 P.3d 133 (2004).            We review a trial court's custodial

determination de novo. jd. at 36. Statements admitted in violation of Miranda are subject

to harmless error analysis. State v. Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177

(1991).

        Dent argues that the circumstances surrounding his encounter with Officer

D'Amico illustrate that he was in custody when he answered her questions. While there

are objective facts supporting both the State's and Dent's arguments, overall, the facts

here indicate that neither Dent, nor a reasonable person in the same situation, would

have felt that his or her freedom was curtailed to a degree associated with formal arrest

prior to and during the questioning.

        Officer D'Amico initially asked to speak with Dent and did not command it.

Additionally, Officer D'Amico asked Dent to sit on a public bench in the middle of the day.

She did not demand it. Dent was not handcuffed, and he was not in a police car or another

confined space. There is no evidence in the record that Officer D'Amico ever touched
No. 70666-7-1/6




Dent or told him that he was required to stay and answer questions. Further, that Officer

D'Amico was wearing a police uniform, her squad car was in Dent's line of sight from the

bench, and she and the other officer were standing as Dent sat on the bench do not alone

result in Dent being in custody. In fact, courts have found defendants not to be in custody

for custodial interrogation purposes even within the confines of a law enforcement

building or with several law enforcement officers present.          See, e.g., Yarborough v.

Alvarado. 541 U.S. 652, 656, 665, 124 S. Ct 2140, 158 L. Ed.2d 938 (2004); Howes v.

Fields.        U.S.     132 S. Ct. 1181, 1185-86, 1188-89, 182 L Ed. 2d 17(2012).

          Officer D'Amico did not consider Dent in custody when she was asking him

questions. Officer D'Amico did ask for and take Dent's ID, but she returned it to Dent

after asking him questions but before going into Rite Aid. Officer D'Amico did not go back

into the store until another officer arrived. That Officer D'Amico purposefully waited for

the other officer to arrive before going back into Rite Aid, would signal to a reasonable

person that his or her freedom was curtailed at that point. That action signaled to Dent

that Officer D'Amico did not feel comfortable leaving him alone outside for fear that he

might leave—an indication that he was not free to go.          But, sequentially, this did not

happen until after Officer D'Amico had already asked Dent her questions and not until

after Dent had already provided the statements at issue.

          Dent was not in custody, at least until Officer D'Amico decided not to leave his side

until another officer arrived.     At that point he was no longer free to leave, but the

questioning was over. We do not believe that Dent's freedom of action was limited to a

degree associated with formal arrest during the questioning.
No. 70666-7-1/7




       However, even if Dent's statements were admitted in error, we find that the error

was harmless. A constitutional error is harmless ifwe are convinced beyond a reasonable

doubt that any reasonable jury would have reached the same result absent the error.

State v. Gulov, 104 Wn.2d 412,425, 705 P.2d 1182 (1985). We look at only the untainted

evidence to determine if the evidence is so overwhelming that it necessarily leads to a

finding of guilt, jd. at 426.

       Dent contends the admission of his statements was not harmless, because the

statements formed the overwhelming proof of the mens rea element of RCW 69.50.403.

RCW 69.50.403(1) states:

       It is unlawful for any person knowingly or intentionally:



               (c) To obtain or attempt to obtain a controlled substance, or procure
       or attempt to procure the administration of a controlled substance, (i) by
       fraud, deceit, misrepresentation, or subterfuge; or (ii) by forgery or alteration
       of a prescription or any written order.

(Emphasis added.)

       At trial, the State presented the prescription itself as evidence. Further, the jury

heard testimony from Lyons, Christoph, and Dr. Graustein. The prescription and the

testimony demonstrated that "oxycodone" was misspelled on the face of the prescription,

the amount and dosage of the drug were rather large, and there was a clinic listed on the

prescription that did not exist. Further Dr. Graustein testified about not knowing Dent nor

having ever treated Dent.

       Based on the untainted evidence, any reasonable jury would conclude beyond a

reasonable doubt that the prescription was forged.        Further, a reasonable jury would
No. 70666-7-1/8




conclude that Dent knowingly and intentionally attempted to obtain the oxycodone by

means of a false and forged prescription in light of the fact that his name was on the

prescription yet he had never met or been treated by the doctor who allegedly wrote it.7

Any potential error was harmless.

      We affirm.




WE CONCUR:




      7 Dent's statements were not even the State's strongest evidence that Dent acted
knowingly or intentionally. Nothing Dent said in his conversation with Officer D'Amico
unequivocally confirmed that he acted knowingly or intentionally whereas Dr. Graustein's
testimony confirmed that Dent had never been treated by the doctor who allegedly wrote
the prescription—a much more compelling piece of evidence.


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