      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                No. 73531-4-1
                      Respondent,
        V.                                      DIVISION ONE
                                                                             c=4    (I)
 NAVARONE GREGORY RANDMEL,                      UNPUBLISHED OPINION          cr•
                                                                              C:3
                                                                                    CD
                      Appellant.                FILED: November 14, 2016            '71        "7,
                                                                                               r
                                                                                     cn 1-1-   rl
                                                                                               "
       LEACH, J. — Navarone Randmel appeals his convictions for possessiob ofHr-
                                                                        c) —
stolen vehicles, resisting arrest, and obstructing a law enforcement officer.fHeT:;-:

claims the trial court's inclusion of definitional terms in the "to-convict" jury

instruction added elements that the State did not prove. Also, he challenges the

admission of statements he made during a custodial interrogation and the State's

reference to his silence during that interrogation. We reject each of these

arguments.

      This court recently decided that including the definition of "possession" in a

to-convict instruction did not require the State to prove any additional elements or

"false alternative means" created by adding that definition. Because Randmel did

not unequivocally invoke his right to remain silent, the Fifth Amendment did not

prohibit the officer from questioning him further. The Washington Constitution

does not provide broader protections in this context. Thus, Randmel did not invoke

his right to remain silent, and the prosecutor could reference his statements in

closing argument.
No. 73531-4-1/2



       We affirm Randmel's convictions. But because the trial court failed to make

an individualized inquiry into Randmel's ability to pay before imposing discretionary

legal financial obligations (LF05), we remand for resentencing.

                                     Background

       Bellingham police officers arrested Randmel after a series of car thefts in

December 2014 and January 2015. Officers testified that they twice found

Randmel behind the wheel of stolen cars and stopped him. Both times the suspect

ran away, and both times the police tracked him with a police dog but did not find

him.

       The third time, the dog caught him. Officer Joel Douglas read Randmel his

Mirandal rights. Randmel acknowledged that he understood his rights and that he

was willing to talk. Randmel then told the officers that he ran away because he

was scared, that he did not know the car had been reported stolen, and that he

had gotten the car from a friend's house. Randmel was taken to a hospital for

treatment for dog bites.

       Officer Jeremy Woodward went to the hospital to question Randmel.

Douglas told Woodward that Randmel had agreed to speak. Woodward then

asked Randmel about the previous car thefts. Woodward testified that he asked

Randmel to "tell me basically where he ran" in those incidents because Woodward

wanted to know if his "dog was doing his job properly." Randmel responded that

"he would rather not say."


       1 Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                         -2-
No. 73531-4-1/ 3


       Woodward then said to Randmel, "[Mow aboutldescribe where we tracked

and you can tell me whether or not we were correct." Woodward then described

the two previous tracking incidents. Randmel told him it sounded about right and

that Woodward had a good dog. Woodward then asked if Randmel had been

hiding in a tree during the second track. Randmel again responded that "he would

rather not say but that he has been known to climb trees.'"2

       Randmel testified that he did not know anything about the first two stolen

cars and had been at home sleeping both nights. He testified that he had not

stolen the third car—only taken a pair of boots out of it—and that he ran when the

police came because he had taken the boots.

       The State charged Randmel with three counts of possessing a stolen

vehicle, two counts of resisting arrest, and one count of obstructing a law

enforcement officer.

       The trial court held a CrR 3.5 hearing to determine the admissibility of the

statements Randmel made to Woodward at the hospital. The State asserted that

Randmel "never made an unequivocal statement asking that all questioning should

cease." Randmel's counsel did not challenge this statement. The trial court found

that Randmel made the statements after a voluntary, knowing, and intelligent

waiver of rights and admitted the statements.




      2 Randmel testified that when Woodward asked about the previous
incidents, Randmel thought they were discussing the night he was arrested.
                                       -3-
No. 73531-4-1 / 4


       The jury found Randmel guilty as charged. The trial court imposed on

Randmel over $2,000 in discretionary LF0s. It later found Randmel indigent for

purposes of pursuing an appeal. Randmel appeals.

                                Standard of Review

       We review constitutional questions de novo.3 We also review de novo a

trial court's conclusions of law after a CrR 3.5 hearing.4

                                      Analysis

Sufficiency of the Evidence

       Randmel first contends that because the State included the definition of

"possession" in its to-convict instruction, the law of the case doctrine required the

State to prove each of the five methods of possession. Since the State did not

present evidence about two of the methods, he claims that this court must reverse

his conviction.

       In State v. Tyler,5 this court rejected this argument on identical pertinent

facts. We followed the United States Supreme Court decision in Musacchio v.

United States6 that "'when a jury instruction sets forth all the elements of the

charged crime but incorrectly adds one more element, a sufficiency challenge

should be assessed against the elements of the charged crime, not against the

erroneously heightened command in the jury instruction.'"7

       3State v. Castro, 141 Wn. App. 485, 490, 170 P.3d 78 (2007).
       4State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017 (2008).
      5 195 Wn. App. 385,          P.3d      (2016), petition for review filed, No.
93770-2 (Wash. Oct. 27, 2016).
      6     U.S.     , 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016).
      7 Tyler, 195 Wn. App. at 395 (quoting Musacchio, 136 S. Ct. at 715).

                                         -4-
No. 73531-4-1 / 5



       Tyler controls the outcome in this case. A jury unanimously convicted

Randmel of possessing a stolen vehicle, a single-means crime. The trial court's

inclusion of the definition of "possession" in the to-convict instruction did not

obligate the State to prove every method of possessing a stolen vehicle. The State

presented evidence sufficient for the jury to find that Randmel possessed a stolen

vehicle. We therefore reject Randmel's claim.

Right against Self-Incrimination

       Next, Randmel asserts that the trial court violated his right against self-

incrimination under both the Fifth Amendment to the federal constitution and article

1, section 9 of the Washington Constitution. Randmel's challenge raises several

issues, which we address in turn.

       First, the State asserts that Randmel waived his challenge to admission of

self-incriminating statements by failing to make this challenge at the CrR 3.5

hearing. We disagree.

       In general, this court may decline to address issues a party raises for the

first time on appea1.8 But this court will consider for the first time on appeal a claim

of a "manifest error affecting a constitutional right."9 An error is "manifest" if it

resulted in "actual prejudice," meaning that it had "practical and identifiable

consequences" at trial."




       8 RAP 2.5(a).
       9 RAP 2.5(a)(3).
       19 State v. Kalebauqh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015).

                                          -5-
No. 73531-4-1 / 6



       As the error Randmel claims—violation of his right against self-

incrimination—is plainly constitutional, we need only to ask whether that error is

"manifest." We find that it is. The admission of the statements Randmel made

after responding to a question from Woodward that he "would rather not say" had

"practical and identifiable consequences." At trial, Randmel asserted an alibi

defense. The statements he made after purportedly invoking his right to remain

silent contradicted that alibi by implying his presence at the first two incidents of

car theft and the ensuing dog trackings. The State's argument that the other

evidence against Randmel was overwhelming does not persuade us. There was

a strong likelihood that Randmel's statements influenced the jury's weighing of the

evidence as to the first two counts of possessing a stolen vehicle. We conclude

that this claim is appropriate for our review.

       Next, the State claims that the record is inadequate for this court to review

Randmel's self-incrimination claim. The State does not support its argument with

authority, nor does it explain what more context for Randmel's statements this

court needs to decide whether Randmel's rights were violated. And although, as

the State concedes, the trial court should have made written findings after the CrR

3.5 hearing, that error is harmless because the trial court's oral findings are

sufficient for our review."




       11 CrR   3.5(c); State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998).
                                         -6-
No. 73531-4-1 /7



       We therefore review the merits of Randmel's Fifth Amendment claim. First,

Randmel asserts that he unequivocally invoked his right to remain silent and the

trial court therefore erred in admitting his ensuing statements. We disagree.

       The state and federal constitutions protect a defendant's rights against self-

incrimination.12 Under both, the State may not use a defendant's statements made

during a custodial interrogation unless the defendant was informed of certain

rights.13 The defendant can waive those rights as long as the waiver is knowing,

voluntary, and intelligent.14 Any time after this waiver, the defendant can stop an

interrogation by invoking those rights.15 This invocation must be unequivocal.16

Under the federal constitution, officers do not need to stop questioning to clarify

equivocal or ambiguous invocations.17 An invocation is unequivocal if the

defendant makes it in an "objectively clear way,"15 or if "a 'reasonable police officer

in the circumstances' would understand it to be an assertion of the suspect's

rights."19 "This test encompasses both the plain language and the context of the




       12U.S. CONST. amend. V; WASH. CONST. art. 1, § 9.
      13 In re Pers. Restraint of Cross, 180 Wn.2d 664, 682, 327 P.3d 660 (2014);
Miranda, 384 U.S. at 444.
      14 State v. Piatnitsky, 180 Wn.2d 407, 412, 325 P.3d 167 (2014), cert.
denied 135 S. Ct. 950 (2015).
      15 Cross, 180 Wn.2d at 682.
      16 Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed.
2d 1098 (2010).
      17 Berphuis, 560 U.S. at 375.
      18 Piatnitsky, 180 Wn.2d at 412.
      19 Cross, 180 Wn.2d at 682 (quoting Davis v. United States, 512 U.S. 452,
459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)); Piatnitsky, 180 Wn.2d at 412-13.
                                          -7-
No. 73531-4-1 / 8


suspect's purported invocation." 20 For the relevant context, a court looks at what

came before the invocation, not the defendant's responses to further questioning.21

       Randmel concedes he initially waived his rights. But he asserts that he later

unequivocally invoked them by saying he "would rather not say" in response to two

questions that implied he was present for previous crimes. He likens his

statements to the defendants' statements in In re Personal Restraint of Cross22

and State v. Gutierrez,23 who said, respectively, "I don't want to talk about it" and

"[I] would rather not talk about it" after police advised them of their rights. The

defendant in Cross said he did not want to talk about "it" immediately after being

read his rights. He had not spoken with the police about the incident as Randmel

had. The Supreme Court found that any reasonable officer would have understood

"it" to refer to the murders.24 Likewise, in Gutierrez, the defendant said he would

rather not talk about "it" immediately after being read his rights and asked about

the drugs in front of him.25 In both cases, the defendants made their statements

immediately after being advised of their rights and before answering any other

questions.




       20 Cross, 180 Wn.2d at 682-83.
       21 See Smith v. Illinois, 469 U.S. 91, 92, 105 S. Ct. 490, 83 L. Ed. 2d 488
(1984); Piatnitsky, 180 Wn.2d at 418.
       22 180 Wn.2d 664, 675, 327 P.3d 660 (2014).
       23 50 Wn. App. 583, 586, 589, 749 P.2d 213 (1988). "[W]e draw no
distinctions between the invocations of different Miranda rights ." Piatnitskv, 180
Wn.2d at 413.
       24 Cross, 180 Wn.2d at 684.
       25 Gutierrez, 50 Wn. App. at 586.

                                         -8-
No. 73531-4-1 / 9


      Cross and Gutierrez are distinguishable. In contrast to the officers in those

cases, a reasonable officer here would not interpret Randmel's statements as

declining to answer any more questions. Randmel told Officer Douglas he was

willing to speak about the stolen vehicle. He never told either officer that he did

not want to talk about the stolen vehicles or that he wanted to stop talking

altogether; he said only that he did not want to respond to certain questions about

being tracked by dogs. To his second such demurral, he added coyly that "he has

been known to climb trees." Before these equivocal statements, he answered

questions about the vehicle he was arrested for stealing.

      Thus, Randmel did not unequivocally invoke his right to remain silent. His

statements that he would "rather not say" were at best equivocal. Under the federal

constitution, an interrogating officer need not stop questioning at an equivocal

invocation of the right against self-incrimination.26 Federal constitutional law

therefore did not prohibit the trial court from admitting Randmel's statements.

       Next, Randmel asserts that even if his statement that he would "rather not

say" was equivocal, article 1, section 9 of the Washington Constitution required

Woodward to stop questioning him, except to clarify his statement.27

       "Whenever a claim of right is asserted under the Washington Constitution,

the first step is to determine if the asserted right is more broadly protected under

the state constitution than it is under federal constitutional law."28 Randmel asks


       26 Davis, 512 U.S. at 461-62; Cross, 180 Wn.2d at 683.
       27 See Davis, 512 U.S. at 461-62; Cross, 180 Wn.2d at 683.
       28 State v. Earls, 116 Wn.2d 364, 374, 805 P.2d 211 (1991).

                                        -9-
No. 73531-4-1 / 10


this court to apply the six-factor analysis from State v. Gunwal1.29 He asserts this

analysis shows that article 1, section 9 of the Washington Constitution provides

broader protections than the Fifth Amendment when a suspect equivocally invokes

his right to remain silent.39

       The State denies any need for this analysis. It relies on the Washington

Supreme Court's statement in State v. Earls31 that "the protection of article 1,

section 9 is coextensive with, not broader than, the protection of the Fifth

Amendment." The court in Earls declined to apply a Gunwall analysis to decide

whether, "as a matter of state law, an otherwise valid waiver of constitutional rights

is vitiated if police officers do not inform a suspect of the efforts of an unretained

attorney to contact hirn."32

       Division Two of this court recently relied on the quoted language from Earls

in State v. Horton,33 when it declined to perform a Gunwall analysis. In Horton, the

court considered whether an officer should have stopped questioning and inquired

about the defendant's intent when the defendant equivocally invoked his right to

counse1.34 The defendant made an argument similar to Randmel's. He asserted




       29106 Wn.2d 54, 720 P.2d 808 (1986).
      39 Article 1, section 9 states, "No person shall be compelled in any criminal
case to give evidence against himself, or be twice put in jeopardy for the same
offense." The Fifth Amendment states, in relevant part, "No person . . . shall be
compelled in any criminal case to be a witness against himself."
      31 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991).
      32 Earls, 116 Wn.2d at 372-74.
      33 195 Wn. App. 202, 216-17,         P.3d     (2016), petition for review filed,
No. 93575-1 (Wash. Aug. 25, 2016).
      34 Horton, 195 Wn. App. at 215.

                                         -10-
No. 73531-4-1 / 11


that State v. Robtoy35 required the officer to stop all questioning except to clarify

his ambiguous invocation of his right to counse1.38 Division Two observed that

"Washington courts have consistently ruled . . . that the state constitutional

protections under article 1, section 9, and the federal constitutional protections

under the Fifth Amendment are the same."37 It decided that no Gunwall analysis

was required as the issue had been decided.38

       The Supreme Court's opinion in State v. Russe1139 directly contradicts the

State's position about the need for a Gunwall analysis here. As a result, we do not

find Horton or Earls determinative. Two years after Earls, the court in Russell

considered whether under article!, section 9 the trial court should have suppressed

physical evidence that was the "fruit" of a voluntary but "un-Mirandized"

statement.° The State contended, as it did in Horton and does here, that the court

did not need to do a Gunwall analysis because the Earls opinion squarely stated

that "the protection of article 1, section 9 is coextensive with, not broader than, the

Fifth Amendment."'" The Russell court rejected this argument. It observed that



       35 98 Wn.2d 30, 653 P.2d 284 (1982).
       36 Horton, 195 Wn. App. at 215-16. Division Two noted that this argument
echoed the dissent in Earls, which the majority there rejected.
       37 Horton, 195 Wn. App. at 217.
       38 Horton, 195 Wn. App. at 216. The Supreme Court has explicitly
acknowledged that "[a]s far as the Fifth Amendment is concerned, Davis states the
law, not Robtov." State v. Radcliffe, 164 Wn.2d 900, 906, 194 P.3d 250 (2008).
The court declined to address the defendant's argument that article I, section 9
affords broader protections than the Fifth Amendment because the defendant had
not raised the issue below. Radcliffe, 164 Wn.2d at 907.
       39 125 Wn.2d 24, 882 P.2d 747 (1994).
       40 Russell, 125 Wn.2d at 56-57.
       41 Russell, 125 Wn.2d at 57-58 (quoting Earls, 116 Wn.2d at 374-75).

                                         -11-
No. 73531-4-1 /12


the State quoted the language from Earls "out of context, thereby giving Earls an

overly expansive interpretation and running afoul of an important principle of

constitutional construction."42 It held instead that

        [a] determination that a given state constitutional provision affords
        enhanced protection in a particular context does not necessarily
        mandate such a result in a different context. State v. Boland, 115
        Wn.2d 571, 576, 800 P.2d 1112 (1990). Similarly, when the court
        rejects an expansion of rights under a particular state constitutional
        provision in one context, it does not necessarily foreclose such an
        interpretation in another context.(43]

Thus, the court explained, its statement in Earls does not mean that article I,

section 9 of the Washington Constitution and the Fifth Amendment are coextensive

in all contexts. The court then performed a Gunwall analysis for the issue before

it.44


        Accordingly, because no Washington court has performed a Gunwall

analysis to compare article 1, section 9 and the Fifth Amendment where a suspect

equivocally invoked his right to remain silent, a Gunwall analysis is necessary here.

As a result of the State's incorrect position, we do not have the benefit of its

Gunwall analysis.

        The Gunwall factors are "(1) the textual language; (2) differences in the

texts; (3) constitutional history; (4) preexisting state law; (5) structural differences;



        42 Russell, 125 Wn.2d at 58.
        43 Russell, 125 Wn.2d at 58.
        44 The court ultimately concluded "that the Gunwall factors do not support
extending greater protection through Const. art. 1, § 9 than that provided by the
federal constitution in th[at] context. . . . Policy considerations alone are
insufficient. . . to trigger an expansive reading of Const. art. 1, § 9." Russell, 125
Wn.2d at 62.
                                          -12-
No. 73531-4-1 /13


and (6) matters of particular state or local concern."45 Because the Supreme Court

has analyzed the same two provisions in other contexts, we need to analyze only

the fourth and six Gunwall factors here.46 We conclude that those factors do not

support a more expansive meaning for article 1, section 9 than the Fifth

Amendment when a suspect equivocally invokes the right to remain silent.

      The context does not change our consideration of the other four factors,

which the Supreme Court addressed in Russe11.47 We address them only briefly.

      The first two factors compare the text of the two provisions. Article I, section

9 states, "No person shall be compelled in any criminal case to give evidence

against himself." (Emphasis added.) The Fifth Amendment states, "[N]or shall

[any person] be compelled in any criminal case to be a witness against himself."

(Emphasis added.) Contrary to Randmel's assertions, the relationship between

these texts is well established: "this difference in language is without meaning."48

       The court in Russell found that the third factor did not support an

independent interpretation either, as the court "ha[d] not been presented with any

evidence suggesting that the framers of. . . 'model' state constitutions"—on which

the Washington Constitution is based—"intended any different result than that




       45Gunwall, 106 Wn.2d at 58.
      46 See State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) ("Since
Gunwall involved comparing the same constitutional provisions as those to be
examined here, we adopt its analysis of the first, second, third and fifth factors and
examine only the fourth and sixth factors as they apply to this particular case.").
      47 Russell, 125 Wn.2d at 58 (citing Boland, 115 Wn.2d at 576).
      48 Russell, 125 Wn.2d 60; see State v. Moore, 79 Wn.2d 51, 55-57, 483
P.2d 630 (1971); Earls, 116 Wn.2d at 376.
                                        -13-
No. 73531-4-1 / 14



reached under the federal constitution."49 Randmel's sole contention here is based

on the same textual differences the Supreme Court has repeatedly rejected.

       "Our consideration of th[e fifth] factor is always the same; that is that the

United States Constitution is a grant of limited power to the federal government,

while the state constitution imposes limitations on the otherwise plenary power of

the state."5° This factor thus "supports an independent state constitutional analysis

in every case."51

       The fourth factor considers "[p]reviously established bodies of state law,

including statutory law."52 The court noted in Gunwall that "[s]tate law may be

responsive to concerns of its citizens long before they are addressed by analogous

constitutional claims. Preexisting law can thus help to define the scope of a

constitutional right later established."53

       Randmel cites no preexisting .state law that supports broader protection

under article I, section 9. He cites neither Washington statutes nor common law

applying the Washington Constitution. He instead relies on Washington cases

interpreting the federal constitution. He correctly notes that between 1982, when



       49 Russell, 125 Wn.2d at 59; see Moore, 79 Wn.2d at 55-57; Earls, 116
Wn.2d at 376.
       513 State v. Foster, 135 Wn.2d 441, 458-59, 957 P.2d 712 (1998).
       51 Foster, 135 Wn.2d at 458.
       52
           Gunwall, 106 Wn.2d at 61.
       53 Gunwall, 106 Wn.2d at 61-62. For example, the Gunwall court noted
Washington's "long history of extending strong protections to telephonic and other
electronic communications," including a 1909 statute "which makes it a
misdemeanor for anyone to wrongfully obtain knowledge of a telegraphic
message" and was based on the prestatehood Code of 1881, which "extensively
regulated telegraphic communications." Gunwall, 106 Wn.2d at 66.
                                             -14-
No. 73531-4-1 /15



the Washington Supreme Court decided Robtoy, and 1994, when the United

States Supreme Court decided Davis v. United States,54 a suspect's equivocal

invocation of the right to counsel required officers to cease questioning except to

clarify the statement.55 Randmel is incorrect, however, that this is "preexisting

state law" that supports a broader application of article 1, section 9 than of the Fifth

Amendment. Robtoy based its holding on an extended discussion of Fifth Circuit

interpretation of the Fifth Amendment.56 Robtoy and its progeny thus interpreted

the federal constitution, not Washington's. The relatively brief existence of this

interpretation of federal constitutional law by Washington courts does not

constitute the "established bod[yJ of state law" that the court found to weigh in favor

of an expansive interpretation of the state constitutional provision in Gunwal1.57 It

is neither state law nor established.

       The cases Randmel cites from other states likewise have no bearing on the

fourth Gunwall factor, which concerns this state's case law; instead, they punctuate

the lack of such jurisprudence under this state's laws.5




       54 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
       55 Robtoy, 98 Wn.2d at 37. The Washington Supreme Court recognized in
Radcliffe that Davis had abrogated Robtoy. Radcliffe, 164 Wn.2d at 902; see also
Cross, 180 Wn.2d at 682.
       56 See Robtoy, 98 Wn.2d at 38-39.
       57 See Gunwall, 106 Wn.2d at 61, 66 (interpreting article 1, section 7).
       58 Randmel cites Gunwall, 106 Wn.2d at 67-68, for the proposition that other
states' constitutional decisions are relevant "in determining scope of protection
under article 1, section 9." But Gunwall quoted Colorado and New Jersey opinions
in discussing the sixth factor, matters of local interest, not in assessing this state's
preexisting law.
                                          -15-
No. 73531-4-1 / 16



        Finally, the sixth Gunwall factor asks, "Is the subject matter local in

character, or does there appear to be a need for national uniformity?"59

        Although in general "[s]tate law enforcement measures are a matter of local

concern,"69 the Russell court recognized the national character of the issue in this

case:

        [T]he specific exclusionary rule here at issue is peculiarly federal in
        nature. It is based on a federal case [Mirandal interpreting the federal
        constitution. Moreover, this court has not held that Miranda (or
        similar) warnings are required independently under the state
        constitution. Thus, this case involves a national issue to a greater
        extent than do many other issues of criminal law.[611

This analysis applies no differently here. The sixth factor thus weighs against an

independent interpretation of article I, section 9.

        We conclude that on balance Randmel shows no persuasive reason to

apply the protections of article I, section 9 more broadly than those of the Fifth

Amendment when a suspect equivocally invokes his right to remain silent. Neither

the text of the respective constitutions, state statutory law, nor judicial

interpretations of the state constitution warrants a broader application of article I,

section 9. This conclusion is in accord with the decisions of other Washington




          Gunwall, 106 Wn.2d at 62. The court noted in Gunwall that "[t]he
objective of national uniformity of rules regarding the availability of telephone
records and the use of pen registers, important as that may be, is outweighed in
this case by overwhelming state policy considerations to the contrary." Gunwall,
106 Wn.2d at 67.
       69 State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994).
       61 Russell, 125 Wn.2d at 61-62.

                                         -16-
No. 73531-4-1/ 17


courts, which have uniformly held that article 1, section 9 does not create a broader

right against self-incrimination than does the Fifth Amendment.62

References to Silence

       Woodward testified that Randmel told him he would rather not answer

questions. The State reminded the jury of that testimony in its closing argument:

       When Officer Woodward questioned Mr. Randmel, Officer
       Woodward described the other two K-9 tracks from the first incident.
       Like he said, he was asking, he wanted to know if his dog was not
       performing correctly on the first two pursuits for some reason. Mr.
       Randmel says he doesn't really want to describe or talk about that.
       Officer Woodward says, well, can I describe to you the two K-9 tracks
       and, basically, you can tell me if we got close. Mr. Randmel said that
       sounds about right. You have a good dog. If you are talking about
       the tree and everything that happened on those first two pursuits.

       Randmel contends that this was an improper comment on Randmel's

invocation of his right to remain silent.

       "Courts are appropriately reluctant to penalize anyone for the exercise of

any constitutional right."63 Thus, a prosecutor may not intentionally invite a jury to

infer guilt from a defendant's invocation of the right to remain silent.64 Washington

courts "distinguish[ ] between comments on silence and mere reference to silence,"

however.65

       As discussed above, Randmel did not invoke his right to remain silent.

Thus, the prosecutor's reference to his response to two of Woodward's questions



       62See Earls, 116 Wn.2d at 374-75; Russell, 125 Wn.2d at 62; Horton, 195
Wn. App. at 217; State v. Allenby, 68 Wn. App. 657, 662, 847 P.2d 1 (1992).
      63 State v. Burke, 163 Wn.2d 204, 221, 181 P.3d 1(2008).
      64 Burke, 163 Wn.2d at 222.
      65 Burke, 163 Wn.2d at 221.

                                            -17-
No. 73531-4-1/ 18



was not improper. In addition, Randmel did not object to the prosecutor's comment

at trial and does not identify any "practical and identifiable consequences" that the

trial court could not have cured with an instruction; he thus failed to preserve this

claim. For these reasons, we find no error in the State's references to Randmel's

demurrals.

Legal Financial Obligations

       Randmel asks that even if this court affirms his conviction, it remand for the

trial court to make an individualized inquiry into his ability to pay discretionary

LFOs. The trial court assessed Randmel $450 in court costs and $1,800 in court-

appointed attorney fees. The court waived the costs of appellate review, however,

because it found Randmel indigent.

       Under RCW 10.01.160(3), a trial court "shall not order a defendant to pay

costs unless the defendant is or will be able to pay them." When a trial court

imposes costs, "[t]he record must reflect that the trial court made an individualized

inquiry into the defendant's current and future ability to pay."66

       As the State concedes, the trial court did not conduct the inquiry that RCW

10.01.160(3) requires before it imposed discretionary LFOs on Randmel. The

record contains no discussion about Randmel's ability to pay the $2,000 in

discretionary LFOs that the trial court imposed. We therefore remand for the trial

court to make an individualized inquiry into Randmel's current and future ability to

pay whichever discretionary LFOs the court chooses to impose.


       66   State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015).
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Appellate Costs

         Finally, Randmel asks that this court use its discretion to deny any appellate

costs the State may request as prevailing party. The trial court found Randmel

indigent but made no finding about his future ability to pay.

         "The commissioner or clerk 'will' award costs to the State if the State is the

substantially prevailing party on review, 'unless the appellate court directs

otherwise in its decision terminating review."67 This court has discretion to

consider the issue of appellate costs when a party raises the issue in its brief.68

         In State v. Sinclair,68 this court used its discretion to deny appellate costs to

the State where the defendant remained indigent and this court saw "no realistic

possibility," given that the defendant was 66 years old and received a 280-month

prison sentence, that he would be able to pay .appellate costs.

         Here, because we are remanding for an inquiry about Randmel's future

ability to pay discretionary LF0s, we also remand for the trial court to make a

finding about his future ability to pay appellate costs. If the trial court finds that

Randmel likely has a future ability to pay these costs, it shall award them to the

State.




          State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP
         67
14.2), review denied, 185 Wn.2d 1034 (2016).
       68 Sinclair, 192 Wn. App. at 388-90, 393.
       69 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034
(2016).
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                                    Conclusion

       Because the State showed that Randmel possessed stolen vehicles on

three occasions and was not required to prove every different method of

possession, sufficient evidence supports Randmel's conviction. Because the

Washington Constitution does not provide broader protections than the federal

constitution when a suspect equivocally invokes the right to remain silent, the trial

court did not err in admitting statements Randmel made to Officer Woodward. We

affirm Randmel's convictions. But because the trial court did not conduct an

individualized inquiry into Randmel's ability to pay, we remand for resentencing as

to discretionary LFOs and for a determination about appellate costs.




WE CONCUR:




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