                                                                                     COURTFILED




                                                                                              OF APPEALS
                                                                                           DIVISION Ii
                                                                                   2014 DEC I,   AM 8: 30
                                                                                   S TAT

                                                                                   BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II



    STATE OF WASHINGTON,                                                  No. 44052 -1 - II

                                     Respondent,                   UNPUBLISHED OPINION

          v.



    SHERRY NIELSEN,

                                      Appellant.




         BJORGEN, J. —        Sherry Nielsen appeals her convictions of forgery and making a false

statement to a public servant. Nielsen also appeals her exceptional sentence for her forgery

conviction, based on a finding that the presumptive sentence was clearly too lenient in light of

her long history of unscored misdemeanor offenses. She contends that her convictions must be

reversed because the trial court erred in admitting statements she made to police officers before

they   administered      the Miranda' advisements.    She also challenges her exceptional sentence,


arguing that the sentencing court violated her jury trial rights by increasing her punishment based

on a fact not found by the jury.



1
    Miranda    v.   Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
No. 44052 -1 - II




        We reverse Nielsen' s conviction for forgery, because the trial court did not determine

whether the interrogating police officers denied her request to leave the room before she was

advised of her Miranda rights. We also hold that the proper remedy is to remand for a new trial.

We affirm Nielson' s conviction for making a false statement to a public servant, because any

error regarding that conviction was harmless beyond a reasonable doubt. Because we reverse the

forgery conviction, we do not reach the challenge to the exceptional sentence imposed for that
conviction.



                                              FACTS


        In June 2011, Michael Miller received a bill for water service at a house he owned in the

city of Vancouver. Miller had left the Vancouver house vacant, stopped making payments on it,

and was negotiating with a bank to surrender a deed in lieu of foreclosure. When Miller

contacted the Vancouver utilities department, he learned that his former tenant, Nielsen, had

activated water service at the address. Miller informed city officials that Nielsen did not have

permission to live at the house.


        Vancouver police officer Ed Prentice visited the house and interviewed Nielsen. Nielsen

told Prentice that she had permission from the bank to live at the house and showed him a 2008

rental agreement between her and Miller, as well as records of an online discussion with Miller

 concerning the possibility of Nielsen taking over the house. Prentice decided that he did not
 have sufficient basis to take further action and advised Miller to go through the usual eviction

 process.




         Miller subsequently received a call from the Vancouver utilities department informing




                                                  2
No. 44052 -1 - II



him that Nielsen had again requested water service at the Vancouver house and presented various


documents, including the documents described by Prentice and a 2012 lease agreement

purportedly bearing Miller' s signature. Miller called the Vancouver police and reported what

had occurred, informing them that he had no such agreement with Nielsen and asking them to

investigate.


        After speaking with Miller and obtaining a copy of the documents Nielsen submitted to

the utilities department, police officers James Watson and Bill O' Meara, in uniform, went to the

house to contact Nielsen. A guest initially answered the door, but Nielsen, who wore a

nightgown and, due to a recent surgery, an arm brace, eventually came to the door and let the

officers in. Watson asked Nielsen' s guest to leave and the two officers questioned Nielsen in the

kitchen for about 15 to 30 minutes.


        When confronted with Miller' s accusation, Nielsen told Watson that she had lived at the

house continuously since 2007 and produced the 2008 rental agreement. Watson demanded

something more recent, and Nielsen produced the records of her online discussion with Miller.
Watson testified at trial that at that point he administered the Miranda advisements to Nielsen.

According to Watson' s testimony, Nielsen continued to speak with the police officers, giving

arguably inconsistent accounts of her residence at the house and answering some questions

evasively. At that point, Watson testified that he placed Nielsen under arrest on suspicion of

forgery, handcuffed her, and drove her to jail. Nielsen testified at the CrR 3. 5 hearing that
Watson did not read her the Miranda advisements until he arrested her.

         At some point during the interview, Nielsen asked to leave so she could change into

 regular clothes, but the officers did not allow her to do so. Watson gave inconsistent testimony

 on this point at the CrR 3. 5 hearing, first saying he told Nielsen she could not leave prior to

                                                   3
No. 44052 -1 - II




arresting her, then correcting himself and claiming that she did not ask to change clothes until

after he placed her under arrest. Nielsen testified at the CrR 3. 5 hearing that she " kept asking" if

she could go, and " kept asking" if she could change clothes, but Watson refused. Verbatim

Report of Proceedings ( VRP) at 60. Nielsen also testified that she first requested to leave to

change clothes about 10 minutes into the interview and that one of her requests occurred right

before she was placed under arrest.


        The State charged Nielsen with forgery and making a false or misleading statement to a

public servant. On the forgery count, the State alleged as aggravating factors that Nielsen' s

 prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive

sentence   that   is clearly too lenient," that Nielsen " has committed multiple current offenses and


 her] high   offender score results   in   some of   the   current offenses   going   unpunished,"   and that



  t]he failure to consider the [ Nielsen' s] prior criminal history, which was omitted from the

offender score calculation ...     results in a presumptive sentence that is clearly too lenient."

Clerk' s Papers ( CP) at 50 -51.


        Nielsen argued prior to trial that the aggravating factors raised factual issues that the trial

court had to submit to the jury in a bifurcated procedure. The court declined to do so.

         The jury returned guilty verdicts on both counts. The court ordered an exceptional

 sentence of 14 months, less time served, on the forgery count based on a finding that Nielsen' s

 history of "prior unscored misdemeanor offenses results in a presumptive sentence that is clearly
 too lenient."    CP at 136. The court sentenced Nielsen to 364 days, less time served, on the

 charge of making a false statement, and with 180 days suspended. Nielsen timely appeals.




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No. 44052 -1 - II



                                                     ANALYSIS


                                          I. CUSTODIAL INTERROGATION


        Nielsen argues that the trial court erred in admitting statements she made before Watson

administered the Miranda advisements, because she made the statements under custodial


interrogation. We agree that the trial court erred in admitting those statements, but for different

reasons.




        After ruling on the admissibility of a statement a defendant made to police, a trial court

must



        set       forth in writing: ( 1) the   undisputed   facts; ( 2) the disputed facts; ( 3) conclusions
        as to the disputed facts; and ( 4) conclusion as to whether the statement is admissible
        and the reasons therefor.



CrR 3. 5(   c).    We consider unchallenged findings of fact entered by a trial court after a CrR 3. 5

hearing verities, but review de novo the trial court' s conclusion as to whether a suspect was in

custody. State v. Lorenz, 152 Wn.2d 22, 36, 93 P. 3d 133 ( 2004).

A.         The Trial Court' s Determination of Custody

           A person questioned by law enforcement officers after being " taken into custody or

otherwise deprived of his freedom of action in any significant way" must first "be warned that he

has a right to remain silent, that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney, either retained or appointed."

Miranda      v.    Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). If the warnings


 are not given, any statements elicited are inadmissible for certain purposes in a criminal trial.

 Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 ( 1994).
           The requirement that police administer Miranda warnings does not attach, however, until

  there has       been   such a restriction on a person' s    freedom   as   to   render   him `in custody.'   Oregon


                                                              5
No. 44052 -1 - II



v.   Mathiason, 429 U. S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 ( 1977).                         Whether someone is in


custody depends on all of the circumstances surrounding the interrogation, but "the ultimate
inquiry is simply whether there [ was] a ` formal arrest or restraint on freedom of movement' of
the degree      associated with a       formal   arrest."      California v. Beheler, 463 U. S. 1121, 1125, 103 S.

Ct. 3517, 77 L. Ed. 2d 1275 ( 1983) ( quoting Mathiason, 429 U. S.                         at   495); State v. Daniels, 160


Wn.2d 256, 266, 156 P. 3d 905 ( 2007).

           In   determining     whether a suspect        is " in custody," a court engages in an objective inquiry


in the sense that it should not consider the " subjective views harbored by either the interrogating

                                                             Stansbury,   511 U. S.   at   323. The United States
officers or      the   person   being   questioned."




Supreme Court has articulated the test as follows:

            Two discrete inquiries are essential to the determination: first, what were the
                                                       the     interrogation;       and     second,     given   those
           circumstances          surrounding
           circumstances, would a reasonable person have felt he or she was not at liberty to
           terminate the interrogation           and   leave.    Once the scene is set and the players' lines
           and actions are reconstructed, the court must apply an objective test to resolve the
           ultimate inquiry: was there a formal arrest or restraint on freedom of movement of
           the degree associated with formal arrest."


 J.D.B.    v.   North Carolina,           U. S. ,        131 S. Ct. 2394, 2402, 180 L. Ed. 2d 310 ( 2011)


     quoting Thompson v. Keohane, 516 U. S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 ( 1995))
     internal   quotation marks, alteration, and             footnote   omitted).   Thus, a reviewing court considers

 the situation from the suspect' s point of view, but does not consider undisclosed

 contemporaneous beliefs of either the suspect or the officers about the nature of the

 interrogation.


            In holding that the brief detention and questioning of a motorist did not amount to
 custodial interrogation, even though a motorist in such a situation is not free to leave, the United


                                                                    6
No. 44052 -1 - II



States Supreme Court distinguished on two grounds such stops from the kind of police station

interrogations that gave rise to the Miranda rule. Berkemer v. McCarty, 468 U. S. 420, 437 -40,

104 S. Ct. 3138, 82 L. Ed. 2d 317 ( 1984). First, the Court noted that " detention of a motorist


pursuant       to a traffic stop   is presumptively temporary        and   brief," and, second, that " circumstances


associated with the typical traffic stop are not such that the motorist feels completely at the

mercy     of   the   police ...   most importantly, [because] the typical traffic stop is public, at least to

some   degree."        Berkemer, 468 U.S. at 438.


          The fact that the interrogation takes place in the suspect' s residence does not establish

that the suspect was not in custody. See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed.

2d 311 ( 1969) (        suspect surrounded    by four    officers   in his bedroom   was   in custody). In State v.


Dennis, 16 Wn.           App. 417,   558 P. 2d 297 ( 1976), we held an interrogation custodial under


circumstances similar but not identical to those presented here. One officer, invited into the

apartment by one of the suspects, accused the suspects of possessing drugs and questioned them
in their kitchen. Dennis, 16 Wn. App. at 419. Although the officer apparently told the suspects

they were free to leave, one suspect testified that she asked the officer to go into the living room,
                        Dennis, 16 Wn.                 420. We held that " the    atmosphere was ...    dominated
 but he   refused.                         App.   at




 by the officer' s unwelcome presence and his insistence on remaining in a position where he
 could monitor and thus restrict the occupants' freedom of movement within their home."

 Dennis, 16 Wn. App. at 421 -22.

           Here, two uniformed officers confronted Nielsen and accused her of a crime. They asked

 Nielsen' s guest to leave. At some point during the interview, Watson refused Nielsen' s request

 to step into another room to change out of her night clothes. In these circumstances, Watson' s
 denial of Nielsen' s request to leave bears directly on whether a reasonable person would have

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No. 44052 -1 - II




felt he or she was at liberty to terminate the interrogation and leave. Under Thompson, 516 U.S.
at 112, the determination of when that occurred is material to determining when Nielsen was in

custody.


        As noted, after holding a hearing under CrR 3. 5, the court is under a duty to

        set       forth in writing: ( 1) the     undisputed   facts; ( 2) the disputed facts;. (3) conclusions as to
        the disputed facts; and ( 4) conclusion as to whether the statement is admissible and the
        reasons therefor.


CrR 3. 5(   c).    A trial court' s failure to comply with the duty to make a record imposed by CrR 3. 5

amounts     to     error, "   but such error is harmless if the court' s oral findings are sufficient for

appellate review."            State   v.   France, 121 Wn.   App.    394, 401, 88 P. 3d 1003 ( 2004). Here, the trial


court' s oral ruling does not establish whether Nielsen asked to leave before Watson advised her
under Miranda.


        In its order on the CrR 3. 5 hearing, the trial court listed the following as a disputed fact:

        At some point during the interaction the defendant asked to change clothes and officer
        Watson told her she could not. The defendant testified this happened during the
        conversation in the kitchen. Officer Watson testified it happened after he placed the
         defendant under arrest and handcuffed her.


 CP at 106. The order' s conclusions did not mention these disputed circumstances or indicate

whether it credited Watson over Nielsen on the timing of Nielsen' s request to leave.

           The conclusions of law, however, strongly signal that the court did not deem the request

 to leave to play any role in determining when custody began. The conclusions stated in full:
           1. The defendant invited Officer Watson into her home to speak with her and
           Officer Watson told the defendant' s friend to leave the kitchen while he spoke with
           the defendant. This action was not equivalent to a custodial arrest.
           2. Therefore, the conversation between the defendant and Officer Watson did not
            amount to custodial interrogation.
            3. The Court need not reach the issue of Miranda warnings and their application to
            custodial interrogation based on the above -findings and conclusions.


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No. 44052 -1 - II



CP at 107.


          Conclusions 1 and 2 plainly rely on only Nielsen' s invitation to Watson and Watson' s

request that the friend leave in concluding that the interview was not a custodial interrogation.

These conclusions do not imply that the court credited Watson' s testimony over Nielsen' s on the

issue of the request to leave. Rather, they disclose the court' s view that it was unnecessary to

decide when Watson refused Nielsen' s request to leave in determining when the situation

became custodial. In this the trial court erred, since, as concluded above, the determination of

when Watson refused Nielsen' s request is material in determining when custody began. Because

the court erred in omitting this material consideration in its determination of custody, it also

erred in admitting Nielsen' s statements from this interview.

B.        Harmless Error


           Whether this error merits reversal is a separate question. The erroneous admission of

statements obtained in violation of Miranda is subject to constitutional harmless error analysis:

the " error is presumed to be prejudicial, and the State bears the burden of proving that the error

was    harmless."       State   v.   Nysta, 168 Wn.      App.     30, 43, 275 P. 3d 1162 ( 2012), ( citing      State v.

 Guloy,    104 Wn. 2d 412, 425, 705 P. 2d 1182 ( 1985)),                   review denied, 177 Wn.2d 1008, 302 P. 3d

 180 ( 2013).     A constitutional error is harmless " if the appellate court is convinced beyond a

 reasonable doubt that any reasonable jury would have reached the same result in the absence of
                 Nysta, 168 Wn.                     43 ( citing   Guloy,   104 Wn.2d    at   425).   If the " untainted
 the   error."                          App.   at




 evidence ...      is   so   overwhelming that it necessarily leads to           a   finding   of guilt,"   the error does not


 warrant reversal. Guloy, 104 Wn.2d at 426.

           1.    Forgery
No. 44052 -1 - II



        Turning first to forgery, a necessary element of that offense is acting with intent to injure
or defraud. RCW 9A.60. 020. Nielsen argued that, while the State may have proved she

submitted a fake rental agreement to the utilities department, she submitted it so that she would

receive the bill in her name. Thus, Nielsen contended that the only intent the State had proved

was her intent to take responsibility for the water bill herself, not intent to injure or defraud

anyone.




        In arguing that Nielsen acted with intent to injure or defraud, the State relied principally

on evidence that Nielsen deceived both the utilities department and Miller in attempting to

establish water service and remain at the house. However, the State then bolstered its argument

by referring to the arguably evasive and inconsistent statements Nielsen made to Watson during
the interview at the house. These statements had been introduced through Watson' s trial

testimony.

          These arguably evasive and inconsistent statements by Nielsen, however, are among

those which the court erred in admitting. Evidence tending to show evasiveness or contradictory

statements in one setting may support a claim of fraudulent intent in another. At the least, we

 cannot say beyond a reasonable doubt that any reasonable jury would have reached the same

 result in the absence of the error. Nysta, 168 Wn. App. at 43. The error was not harmless in the

 forgery conviction.

          2. False Statement

          To commit the crime of making a false statement to a public servant, one must knowingly

 make a false or misleading material statement to a public servant. RCW 9A.76. 175. The

 charging document expressly based this charge on Nielsen' s statements the day that Prentice
 interviewed her, which occurred over two weeks before her interview with Watson. In its

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No. 44052 -1 - II




closing argument about this offense, the State relied on Nielsen' s statements to Prentice, but did

not bring up the interview with Watson. Instead, the State' s argument summarized strong,

unambiguous evidence that Nielsen' s statement that she was renting a room from Miller was

false, that she knew it was false, and that it was material. The error in admitting statements from

the interview with Watson was harmless beyond a reasonable doubt in its effect on the

conviction of making a false statement to a public servant.

        3. Remedy

        In State v. Bourgeois, the court examined whether the erroneous admission of testimony

required a new      trial.   133 Wn.2d 389, 403, 945 P. 2d 1120 ( 1997). The court held that an error in


admitting evidence that does not result in prejudice to the defendant is not grounds for reversal.
Bourgeois, 133 Wn.2d at 403 ( citing Brown v. Spokane County Fire Prot. Dist. No. 1, 100

Wn. 2d 188, 196, 668 P. 2d 571 ( 1983)).        The court looked to the harmless error test to determine

prejudice. Bourgeois, 133 Wn.2d at 403.


        Here, we hold that the trial court erred in admitting evidence of Nielsen' s statements and

that the error was not harmless under the proper standard. Therefore, consistently with

Bourgeois, we reverse Nielsen' s conviction of forgery and remand for a new trial.

                                        II. THE EXCEPTIONAL SENTENCE


        Nielsen argues that whether a standard sentence is " clearly too lenient" under the RCW

 9. 94A.535( 2)( b) aggravating factor is a factual determination for the jury. Br. of Appellant at

 12 -14. Nielsen' s exceptional sentence, however, was imposed only on her forgery conviction.

 Because we reverse that conviction, we do not reach Nielsen' s challenge to the exceptional

 sentence.




                                                       11
No. 44052 -1 - II



                                          CONCLUSION


        We reverse the defendant' s conviction for forgery and remand for a new trial on that

charge. We affirm her conviction for making a false statement to a public servant.

        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.




                                                                           14,   cd1
                                                             N, A. L. J.


I concur:




MAXA, J.




                                                   12
No. 44052 -1 - II




          LEE, J. ( concurring in    part / dissenting    in   part) —   I concur with the majority in so far as the

majority has determined that the trial court' s written order on the CrR 3. 5 hearing was erroneous.

However, my concurrence is based exclusively on the trial court' s violation of the plain language
of CrR 3. 5 by failing to set forth in writing its conclusion to the disputed fact of whether Nielsen
asked to change clothes before or after she was placed under arrest by Officer Watson and read

her Miranda warnings.


          I dissent from the majority' s determination that the error was not harmless as to the forgery
conviction.      Any error in the trial court' s CrR 3. 5 order was harmless because even if Nielsen' s
statements to Officer Watson were improperly admitted and excluded, I am convinced beyond .a

reasonable doubt that a jury would have found Nielsen guilty of the forgery charge based on the
overwhelming untainted evidence. I would affirm Nielsen' s convictions.

A.        TRIAL COURT' S WRITTEN CRR 3. 5 ORDER

          Under CrR 3. 5 trial courts are required to enter a written order regarding the admissibility

 of a   defendant'   s statements.      Specifically, CrR 3. 5( c) states:

                                                          forth in writing: ( 1) the   undisputed   facts; ( 2)
           After the   hearing,   the   court shall set

           the disputed facts; (   3) conclusions as to the disputed facts; and (4) conclusion as to
           whether the statement is admissible and the reasons therefor.


 Here, the trial court' s order identifies disputed facts, including when Nielsen asked to change her

 clothes.   However, the trial court never entered a conclusion resolving this disputed fact. Under

 the    plain   language   of   CrR 3. 5(   c),   the trial court was required to enter a written finding or .

 conclusion as to the facts that it identified as disputed. It did not. Therefore, in so far as the trial

 court' s order violated the requirements of CrR 3. 5, it was erroneous.



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No. 44052 -1 - II



B.        HARMLESS ERROR


          The majority concludes that Nielsen' s statements to Officer Watson were improperly
admitted and       that the   error was not    harmless.     Majority     at   9 -10.   I respectfully disagree that the

error was not          harmless.    The majority improperly focuses on the potential prejudice from the

admission of the statements rather than on the strength of the other untainted evidence the State

presented.        Considering all the untainted evidence the State presented at trial, I am convinced

beyond a reasonable doubt that, even if Nielsen' s statements to Officer Watson were improperly

admitted, any error was harmless.

          Constitutional errors are harmless if the reviewing court is convinced beyond a reasonable

doubt that any reasonable jury would have reached the same result in absence of the constitutional

error.    State    v.   Guloy,    104 Wn.2d 412, 425, 705 P. 2d 1182 ( 1985), cert. denied, 475 U. S. 1020


 1986).      We                                                         evidence"       test to      determine whether a
                        apply the " overwhelming         untainted




constitutional error        is harmless.     Guloy,   104 Wn.2d    at   426. "   Under the ` overwhelming untainted

evidence' test, the appellate court looks only at the untainted evidence to determine if the untainted

 evidence   is    so    overwhelming that it necessarily leads to         a   finding   of guilt."    Guloy, 104 Wn.2d at

 426.


           Here, the majority asserts that the admission ofNielsen' s statements to Officer Watson was

 not harmless because Nielsen' s statements were " arguably evasive and inconsistent" and evidence

     tending to show evasiveness or contradictory statements in one setting may support a claim of

 fraudulent intent in            another."   Majority   at   10.   But the salient question is not whether the


 improperly admitted evidence was prejudicial to the defendant or if the improperly admitted
 evidence    may have        gone    toward proving     an element of     the State' s    case.   Rather, when applying

 the constitutional harmless error standard, we must carefully examine all of the other evidence

                                                              14
No. 44052 -1 - II



presented at trial and determine whether the untainted evidence necessarily leads to a finding of

guilt.    In this case, I would conclude that even if Nielsen' s statements to Officer Watson were

improperly admitted, all of the State' s other untainted evidence necessarily leads to a finding of
guilt as to the forgery charge, rendering any error harmless.

          At trial, Jamie Swenson, a customer service representative from the utility department,

testified that Nielsen gave her documents allegedly showing that she was authorized to live in

Miller'   s    house.   These documents included a copy of a 2008 rental agreement and an online

conversation between Nielsen and Miller


          Lisa Eruhow- Hagen, a senior customer service representative at the utilities department,

also testified that Nielsen told her she was authorized to live in Miller' s house. Nielsen presented

Eruhow -Hagen with a copy of a 2008 rental agreement, an online conversation between Nielsen

and Miller, and a 2012 rental agreement to support Nielsen' s assertion that she was authorized to

live in Miller' s house.


              Officer Edward Charles Prentice testified that, when he contacted Nielsen on June 11,

2012, Nielsen told him that            she was    renting the house.        At first, Nielsen stated that she was not


paying rent, but she later stated that she was paying rent to the bank. Officer Prentice also testified
that Nielsen presented him with a 2008 rental agreement and an online conversation between

Nielsen and Miller as proof that she was renting the house from Miller.

              Miller testified that Nielsen       moved out of       the   house in 2009.   He also testified that the


 water    had been      shut off   to the house   since   he   moved out     in 2011. When he was shown the 2008


 rental agreement, the online conversation between Nielsen and himself, and the 2012 rental

 agreement, Miller testified that he had not seen or signed any of the documents.



                                                                15
No. 44052 -1 - II




         To convict Nielsen of forgery, the State was required to prove that Nielsen (1) falsely made,

completed or altered a written instrument or ( 2) possessed, uttered, disposed of, or put off as true

a   forged document. RCW 9A. 60. 020( 1)(        a), (   b). The State must also prove that Nielsen acted with


the intent to injure or defraud. RCW 9A.60. 020( 1).

         Here, the untainted evidence demonstrates that Nielsen told two employees of the utilities

department that she was authorized to live in Miller' s house and that she supported her assertion

by presenting the two rental agreements and an online conversation between Nielsen and Miller to

utility company employees. The untainted evidence also demonstrates that Nielsen told the same
        and   gave   Officer Prentice the 2008       rental   agreement   and   the   online conversation.   This
story


untainted evidence, along with Miller' s testimony that he had not seen nor signed the two rental

agreements or the online conversation, overwhelmingly establishes that Nielsen presented the

forged the 2012 rental agreement to Eruhow -Hagen in order to get the utility company to provide

water   to the house.    Therefore, there was overwhelming evidence to support that the 2012 rental

agreement was a       forgery   and   that Nielsen   knew the document      was a     forgery. The majority does

not appear to dispute this.


          And, Nielsen did not argue that she did not forge the 2012 rental agreement or that she did

not   know the document         was   forged.   The ultimate fact at issue was whether she acted with the


 intent to injure or defraud. Here, the State presented untainted evidence establishing that Nielsen

 was not permitted to live in Miller' s house and that she forged several documents, including the

 2012 rental agreement, in order to have the water turned on so she could continue living there.

 And, the State presented untainted evidence through Eruhow- Hagen' s testimony that Miller was

 liable for the water bill if Nielsen failed to pay. Nielsen' s conduct in presenting forged documents

 to continue living in Miller' s house without his permission and imposing a financial obligation on

                                                             16
No. 44052 -1 - II



Miller         without   his   consent   is injurious to Miller.      Thus, the overwhelming untainted evidence

showed that Nielsen intended to injure Miller by using the forged 2012 rental agreement to get the

water turned on in Miller' s house so she could continue to live there without permission.


               In my opinion, the State presented overwhelming untainted evidence that necessarily leads
to   a   finding    of guilt on   the    forgery   charge.   Therefore, I respectfully disagree with the majority' s

conclusion that, if Nielson' s statements to Watson were improperly admitted, the error was not

harmless.


               Accordingly, I concur with the majority' s determination that the trial court' s CrR 3. 5 order

was erroneous in so far as the trial court' s order did not comply with the requirements of CrR

3. 5(    c).    However, I dissent from the majority' s determination that, if Nielsen' s statements were

improperly admitted, the error was not harmless. I would hold that any error was harmless, and I
would affirm Nielsen' s convictions.




                                                                 17
