                                                                        FILED
                                                                     AUGUST 21, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 33438-4-III
                     Respondent,              )         (consolidated with
                                              )         No. 35223-4-III)
       v.                                     )
                                              )
JOSEPH PATRICK SULLIVAN,                      )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )
                                              )
                                              )
In the Matter of the Personal Restraint of    )
                                              )
JOSEPH PATRICK SULLIVAN,                      )
                                              )
                     Petitioner.              )

       SIDDOWAY, J. — The State prosecuted Joseph Sullivan for resisting arrest and for

the third degree assault of a police officer, advancing the unusual theory that on the day

of the crimes Mr. Sullivan anticipated a police encounter, and his wife and others

gathered near the Grand Coulee Dam to see Mr. Sullivan stand up for his right to fish

without interference by local police. Mr. Sullivan admits that upon being contacted by a

Grand Coulee police officer and told he was trespassing, he asserted his right to fish and
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


demanded that a federal marshal be called. He denies striking the officer and claims he

only acted in self-defense, but the State persuaded the jury otherwise. He now raises 10

assignments of error and, in a personal restraint petition consolidated with the appeal,

asks for a reference hearing to determine when certain “no trespassing” or “restricted

area” signs were installed near the dam.

       We find no error, no abuse of discretion, and no basis for collateral relief. We

affirm the convictions and dismiss the petition.

                    FACTS1 AND PROCEDURAL BACKGROUND

       On April 24, 2014, around lunchtime, Joseph Sullivan went fishing on the

shoreline of the Columbia River below Grand Coulee Dam. Events occurring in the 10

days before his fishing outing are relevant to his convictions for resisting arrest and

assaulting a police officer and to the jurors’ weighing of some of the witness testimony.

       On April 14, the Washington Department of Fish and Wildlife adopted an

emergency rule that revised state recreational fishing regulation of an area from the

Grand Coulee Dam downstream to the State Route 155 bridge. That section of water had

been closed to public access and recreational fishing for over 13 years, for security

reasons following the events of September 11, 2001. The emergency rule was to become

effective the next day. On April 15, 2014, the public affairs officer for the United States


       1
        Since jurors believed the State’s case, we recount the evidence in the light most
favorable to the State.

                                              2
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


Bureau of Reclamation (BOR), which operates Grand Coulee Dam, sent electronic mail

to approximately 500 Grand Coulee Power Office employees of the BOR, notifying them

of the rule change.

       On August 20 and 21, 2014, Tyler Mellick, who worked as an electrician at the

dam, fished from an area of the shoreline affected by the state fishing rule change, but

that was also located on BOR property near the dam that the agency treated as secure and

posted as “restricted” or “no trespassing.” He was contacted on both days by Officer

Gary Moore of the Grand Coulee Police Department and told he could not fish in the

posted area. The Grand Coulee Police Department was under contract to provide law

enforcement services for the BOR.

       On the first occasion, Mr. Mellick disagreed with Officer Moore but left as

requested. The next day, however, he refused to leave, insisting he was within his rights.

He asked, if the officer was going to press the point, that someone with the FBI or a U.S.

Marshal, or someone else “with the authority of the federal government” be brought in.

Report of Proceedings (RP)2 at 513-14. Mr. Mellick was arrested and charged with

trespassing.

       On April 21—the same day as Mr. Mellick’s arrest—the BOR public affairs office

again sent electronic mail to the 500 or so Power Office employees, clarifying that on


       2
        Unless otherwise noted, citations to the report of proceedings are to the volume
containing the trial, beginning on April 15, 2015.

                                              3
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


both sides of the river, access under state and tribal fishing rules would permit fishing

from that part of the shoreline north of posted areas, but did not affect access restrictions

on the areas posted “‘Restricted Area No Unauthorized Personnel Beyond This Point’”

and “‘No Trespassing on Road or Riverbank’” on the west side of the river, and

“‘Restricted Area No Unauthorized Personnel Beyond this Point’” on the east side.

Ex. 72.

       At the time of Mr. Mellick’s arrest, he was well acquainted with the appellant,

Joseph Sullivan, and with Mr. Sullivan’s wife, Kathy Tesch. He had been living off and

on in a travel trailer that the couple allowed him to park on their property, near their

home. Mr. Mellick provided Mr. Sullivan with a copy of the BOR public affairs officer’s

original April 15 e-mail about the change in state fishing rules opening access below

Grand Coulee dam. Mr. Mellick denies that he ever told Mr. Sullivan about his arrest

before Mr. Sullivan was himself arrested and charged in the matter now on appeal.

       On April 24, when Mr. Sullivan traveled to the shoreline below the dam to go

fishing, he characterizes it as a coincidence that a handful of his friends and family were

watching from different vantage points when Officer Joe Higgs responded to a call that

Mr. Sullivan was fishing in a restricted area. At Mr. Sullivan’s trial, the State would

characterize the presence of so many observers as part of a “setup.” RP at 170.

       Mr. Sullivan was accompanied to the dam on April 24 by his wife, who had never

gone fishing with him before. They parked their pickup at the end of a service road, next

                                              4
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


to a gate on which was mounted a sign that said “No Trespassing on Road or Riverbank.”

RP at 577-78; Ex. 51. His wife stayed near the pickup with a pair of binoculars that she

occasionally used to watch him fish after he walked to the riverbank below.

       Mr. Sullivan was watched by Mr. Mellick, who stood next to a fence line

approximately 207 yards from where Mr. Sullivan was fishing. Mr. Mellick saw Ms.

Tesch in the parking lot above the posted gate and said hello. When he saw Officer

Higgs arrive at the dam site and head toward Mr. Sullivan, he called Mr. Sullivan on his

cell phone to tell him about the arriving officer.

       Mr. Sullivan was watched by Robert Fields, another employee at the dam, who

was a close friend of Mr. Mellick’s and an acquaintance of Mr. Sullivan. Mr. Fields

claimed he had no advance indication of any trouble that day, but when “word spread . . .

that there was a police presence outside,” he “went out to watch the circus.” RP at 466.

Like Mr. Mellick, Mr. Fields believed that there should be no restriction on fishing in the

area where Mr. Sullivan was fishing and was also of the belief that only federal law

enforcement, not Grand Coulee police officers, should have jurisdiction at the dam site.

       Finally, Mr. Sullivan was watched by Daniel Conant Sr. and his then 18-year-old

son, who arrived at the west side of the dam as Officer Higgs walked down through

riprap to contact Mr. Sullivan. The Conants were acquainted with Mr. Mellick and

joined him at the fence line where he was watching Mr. Sullivan and Officer Higgs’s

approach. Mr. Mellick admits telling the Conants, “this could get very interesting,” but

                                              5
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


denies suggesting that anyone should film what was about to happen. RP at 524. Mr.

Conant Sr. would later testify, however, that Mr. Mellick said “somebody might want to

film this, this could be good,” prompting both Mr. Conant and his son to pull out their

cell phones and start recording the events about to transpire between Mr. Sullivan and

Officer Higgs. RP at 567.

         The beginning of the younger Mr. Conant’s video, which was later posted on

YouTube, captured the end of the cell phone conversation Mr. Mellick was having with

Mr. Sullivan as Officer Higgs picked his way through riprap toward Mr. Sullivan on the

shore:

                MR. MELLICK: . . . he’s comin’ up, comin’ up right behind you, I
         got you. He’s comin’ up on your six. Allright, he’s got, he’s probably got
         about a hundred yards to go. Bye.

Ex. 60, at 0 min., 0 sec. through 0 min., 15 sec.

         We turn from explaining the presence of so many witnesses to recounting the

police encounter itself. It was a dam security officer who, upon seeing Mr. Sullivan

arrive and begin fishing in a restricted area by the dam, contacted the Grand Coulee

Police Department, which dispatched Officer Higgs. When Officer Higgs arrived, dam

security pointed out where Mr. Sullivan was fishing.

         After Officer Higgs worked his way down to the water and approached Mr.

Sullivan, he identified himself as a police officer and told Mr. Sullivan he was in a

restricted area and was not allowed to be there. Mr. Sullivan claimed he was allowed to

                                              6
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


fish there and presented the officer with the April 15 BOR public affairs e-mail about the

state fishing rule change. Officer Higgs reviewed it, but told Mr. Sullivan it was not the

whole story. He told Mr. Sullivan that the area where he was standing was posted as

restricted, pointing out the general direction of the signs. Mr. Sullivan asked for a fish

and wildlife officer. Deciding that he would issue a written trespass warning to Mr.

Sullivan at that point, Officer Higgs asked him for identification. Mr. Sullivan responded

by asking for a federal marshal—just as Mr. Mellick had, when he was contacted by

Officer Moore.

       Officer Higgs explained that law enforcement for the site was contracted to his

department and renewed his request for identification. He explained that Mr. Sullivan

was already trespassing and if he did not produce identification it would turn into

obstructing a law enforcement officer. When Mr. Sullivan continued to refuse to produce

identification, Officer Higgs told Mr. Sullivan he was under arrest for trespassing and

obstructing, and reached toward Mr. Sullivan’s arm to place him under arrest. Mr.

Sullivan responded by pulling his arm away and stepping to the officer’s side. Officer

Higgs told him not to pull away again, or he would be placed under arrest for resisting

arrest as well. When Officer Higgs reached for his arm again, Mr. Sullivan, who is a

martial arts grand master in the practice of Isshin-Ryu, an Okinawan style of karate,

moved forward and punched the officer in the left thigh, just above the knee.



                                              7
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       As Mr. Sullivan struck his leg, Officer Higgs grabbed the collar of Mr. Sullivan’s

jacket and turned, in an effort to pin him to the ground. A struggle ensued, in the course

of which Officer Higgs lost his balance and both men ended up on the ground where they

struggled further. After a short time, Mr. Sullivan started to calm down, the men talked,

and they began to get up. Officer Higgs got in a position straddling Mr. Sullivan, so he

had some control, but Mr. Sullivan continued to resist the officer’s effort to pull his arm

into position for arrest. He relented only when Officer Higgs pulled out and threatened to

use his stun gun. At that point, Mr. Sullivan told Officer Higgs that he had friends who

were videotaping the two men. He allowed the officer to place him in handcuffs.

       As Officer Higgs gathered up items belonging to himself or Mr. Sullivan that had

fallen on the ground during their struggle, Mr. Sullivan apologized to the officer, telling

him he had PTSD3 and that sometimes when he gets pushed, “this type of stuff happens.”

RP at 286. The two men then proceeded to Officer Higgs’s patrol car, where the officer

read Mr. Sullivan Miranda4 warnings. On finishing, he asked Mr. Sullivan if he

understood his rights, to which Mr. Sullivan said something along the lines of, “[Y]ep, I

fucked up, and I’ll have to answer for it.” RP at 290.

       In May 2014, the State charged Mr. Sullivan with third degree assault in violation



       3
           Post-traumatic stress disorder.
       4
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              8
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


of RCW 9A.36.031(1)(g), which applies to assault of a law enforcement officer who is

performing his official duties at the time of the assault. At a CrR 3.5 hearing in February

2015, the trial court ruled that statements volunteered by Mr. Sullivan to Officer Higgs

before being read Miranda warnings were admissible, and that contrary to Mr. Sullivan's

denial, he had been read and waived his Miranda rights before making additional

statements to police.

       On March 31, 2015, the State moved to amend the information to add a charge of

resisting arrest. The amendment was granted over Mr. Sullivan’s objection.

       At trial, the State largely relied on Officer Higgs’s testimony, on six photographs

he claimed to have taken of a handful of “no trespassing” and “restricted area” signs on

the afternoon following his arrest of Mr. Sullivan, on surveillance video from two

security cameras at the dam, and on the cell phone video taken by Mr. Conant Jr.

       Anticipating that Mr. Sullivan’s wife and friends would support his version of

events, the State also called Mr. Mellick, Mr. Fields, Mr. Conant Sr. and Ms. Tesch

adversely. It questioned them about why they had been watching Mr. Sullivan fish on

April 24 as part of its theory that Officer Higgs had been set up.

       Mr. Sullivan testified on his own behalf, telling jurors he was cooperative with

Officer Higgs and it was when he politely asked why the officer was requiring

identification that the officer lunged at him, knocked him to the ground, and repeatedly



                                              9
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


bashed and ground his head into the sharp rocks. Mr. Mellick, Mr. Fields, and Ms. Tesch

supported Mr. Sullivan’s version of events.5

       Mr. Sullivan also relied on the security camera and cell phone videos, including

copies that his forensic expert had enhanced to zoom in on the actions of Officer Higgs

and Mr. Sullivan. As to the signs Officer Higgs claimed to have photographed on the day

of the arrest, Mr. Sullivan denied having seen them, his wife denied having seen any but

one of them, and Mr. Mellick and Mr. Fields testified that not all of them were in place

on the day of Mr. Sullivan’s arrest. Mr. Mellick and Mr. Fields testified that those along

the riverbank were only installed later.

       Finally, Mr. Sullivan denied ever making a serious apology to Officer Higgs. He

testified that Officer Higgs said to him, “[T]his is really stupid, going to jail for a fish,” to

which he answered, “I’m sorry I made you beat me up.” RP at 759. He characterized it

as a “smart ass comment” rather than an apology. Id.

       The jury found Mr. Sullivan guilty as charged. In a special verdict form, it found

that Officer Higgs had probable cause to arrest Mr. Sullivan for trespass, obstructing a

law enforcement officer, and third degree assault. Mr. Sullivan appeals.




       5
       Mr. Conant Sr., on the other hand, testified that he saw a struggle between the
two men but never saw the officer bash Mr. Sullivan’s head into the rocks or punch him.



                                               10
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


                                        ANALYSIS

       Mr. Sullivan makes 10 assignments of error. We address them in the order

presented.

I.     THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING THE STATE TO
       AMEND THE INFORMATION TO ADD A CHARGE OF RESISTING ARREST

       On March 31, 2015, the State moved to amend the information to add a charge of

resisting arrest. At the time of the motion, trial was scheduled to begin on April 8, 2015,

and the outside date for trial for speedy trial purposes was May 8, 2015. The court

allowed the amendment. Mr. Sullivan contends this was error.

       CrR 2.1(d) authorizes trial courts to permit amendment of an information “at any

time before verdict or finding if substantial rights of the defendant are not prejudiced.” A

defendant objecting to amendment bears the burden of showing prejudice. State v.

Brown, 74 Wn.2d 799, 801, 447 P.2d 82 (1968). A defendant who is misled or surprised

by an amendment is entitled to move for a continuance if needed to prepare a defense.

Id. We review a trial court’s decision to allow amendment for abuse of discretion. State

v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998).

       Mr. Sullivan’s original charge was for the assault of a police officer performing

his official duties. His defense, identified in December 2014, was self-defense and “an

arrestee’s resistance of excessive force” which he contended was justified. Clerk’s




                                              11
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


Papers (CP) at 11. Under these circumstances, it is hard for him to argue persuasively

that an added charge of resisting arrest was surprising and prejudicial.

       Mr. Sullivan nonetheless argues that there is an important difference between the

two charges, in that the lawfulness of Officer Higgs’s arrest was an element of the

resisting arrest charge but not the assault charge. Applying the proper analysis of

prejudice, the trial court found that the lawfulness of arresting Mr. Sullivan had been

close to the core of the parties’ preparation of trial for months.

       Mr. Sullivan also cites case law holding that a Hobson’s choice is presented when

a defendant must choose between his right to a speedy trial and his right to be represented

by adequately prepared counsel. But at the time of the State’s amendment, Mr. Sullivan

was over five weeks away from any speedy trial issue. There was ample time for a

continuance that would not compromise his speedy trial right. He did not request a

continuance, a choice that is “persuasive of lack of surprise and prejudice.” See State v.

Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982). No abuse of discretion is shown.

II.    NO ISSUE IS PRESENTED OF AMENDMENT OF A CHARGE FOLLOWING THE STATE’S
       CASE IN CHIEF

       Mr. Sullivan assigns error to the trial court allegedly allowing the State to amend

its information after resting its case in chief. Review of his citation to the record reveals

that his complaint has nothing to do with an amended charge.




                                              12
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


        In proceedings outside the hearing of the jury in the defense case, partway through

Mr. Sullivan’s testimony, the trial court questioned whether Mr. Sullivan was still

asserting self-defense, since he had denied striking Officer Higgs in the thigh at all.

Defense counsel answered that Mr. Sullivan had admitted pulling the officer’s finger,

which could constitute an assault. The prosecutor pointed out that the assault on which

the State intended to rely was the blow to the officer’s thigh. Asked by the trial court

whether the State’s reliance on only the one blow would change how the jury should be

instructed, defense counsel said he would speak with his client. The court said the issue

would be addressed the following Monday morning.

        That Monday, Mr. Sullivan filed a brief characterizing the State’s plan to rely for

assault solely on the blow to the thigh as an amendment to the information. He argued it

should not be permitted, since Officer Higgs had already testified that during the several

moments he struggled with Mr. Sullivan his finger was pulled and the two had wrestled

on the ground, both of which would constitute assaults. On appeal, the State explains that

it chose to rely solely on the blow to the thigh in order to avoid any argument on appeal

that this is a multiple acts case and Mr. Sullivan was deprived of his right to a unanimous

jury.

        The State’s election of a particular assault was reflected in jury instruction 11, the

to-convict instruction for assault in the third degree. It identified the first element the

State was required to prove as being, “That on or about April 24, 2014, the defendant

                                              13
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


assaulted Joseph Higgs on the thigh.” CP at 322. When the trial court asked the parties

for their exceptions to the instructions, Mr. Sullivan did not object to the giving of

instruction 11.

          The State’s tactical decision to avoid a unanimity argument on appeal by relying

on a specific act of assault was not an amendment to the information. Since no objection

was made in the trial court to instruction 11, it cannot be challenged on appeal. See RAP

2.5(a).

III.      MR. SULLIVAN’S CHALLENGE TO THE COURT’S RULING ON HIS HALFTIME MOTION
          WAS NOT PRESERVED, AND ANY ERROR IN REFUSING TO GIVE MR. SULLIVAN’S
          PROPOSED JURY INSTRUCTION 18 WAS HARMLESS

          Mr. Sullivan argues the trial court erred by failing to grant a motion to dismiss the

resisting arrest charge that he made after the State rested. The court took the motion

under advisement, and Mr. Sullivan proceeded by putting on further evidence. RP at 684.

He does not identify in his briefing when, in the record, the trial court ruled on the

motion. In any event, we do not review this assignment of error because Mr. Sullivan

waived a challenge to the sufficiency of the State’s case by continuing to put on evidence

on his own behalf. E.g., State v. Hobart, 34 Wn. App. 187, 659 P.2d 557 (1983). At this

point, he is only entitled to challenge the sufficiency of the evidence as a whole, which is

not the error he has assigned.6



        To head off a motion for reconsideration, we point out a fallacy in Mr. Sullivan’s
          6

characterization of the evidence. Mr. Sullivan argues that we should disregard the

                                                14
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       Mr. Sullivan also argues that the trial court erred in refusing to give his proposed

jury instruction 18, which states, “Defendant cannot be arrested for obstructing a law

enforcement officer by refusing to give law enforcement his identification.” CP at 174.

He cited a number of reported decisions for the nonpattern instruction; on appeal, he

places principal reliance on State v. Williams, 171 Wn.2d 474, 251 P.3d 877 (2011).

       Although Mr. Sullivan was not charged with obstructing, Officer Higgs testified

that he believed Mr. Sullivan’s refusal to provide identification constituted obstructing

and provided one of several grounds for arrest. In light of that testimony, it was possible

that the jury might rely on obstructing as the basis for the “lawful arrest” element of

resisting arrest. A trial court would abuse its discretion if it refused to specifically

instruct on a theory of defense that would prevent the instructions as a whole from



probable cause to believe criminal trespass had occurred because Officer Higgs “testified
that he was not going to arrest Mr. Sullivan for trespassing and only arrested him for
obstructing an officer after Mr. Sullivan refused to produce his identification.” Br. of
Appellant at 17. The false implication is that Officer Higgs did not believe that the
criminal trespass provided a basis for arrest.
       The officer knew the trespass provided a basis for arrest. His testimony is clear
that he knew he could arrest for the trespass but did not intend to if, as he reasonably
expected, Mr. Sullivan provided his name, accepted a trespass warning, and left. When
he did not, Mr. Sullivan’s refusal to provide identification became the reason for
proceeding to plan B: placing Mr. Sullivan under arrest. As the officer explained, “I
couldn’t give him a trespass warning without knowing who he was.” RP at 355. In the
officer’s view, “[A]t that point he was trespassing and he was obstructing.” Id.
(emphasis added). Elsewhere, he testified, “I informed him he was under arrest for
trespassing and obstruction and I reached forward to take control of his right arm.” RP
at 258 (emphasis added). Trespass alone provided a lawful basis for arrest.

                                              15
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


correctly apprising the jury of the law or prevent the defendant from arguing his defense

theory. State v. Ayala Ponce, 166 Wn. App. 409, 419, 269 P.3d 408 (2012) (citing State

v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984)).

       The trial court refused to give Mr. Sullivan’s proposed jury instruction 18,

questioning whether the case law on which Mr. Sullivan relied—case law largely

involving Terry7 stops—applied here, where Officer Higgs had probable cause to place

Mr. Sullivan under arrest and needed his identification to prepare a trespass warrant and

police report. That might be a reasonable distinction, given that a principal concern of

the Supreme Court in Williams was to prevent police officers from demanding

information without probable cause or even reasonable suspicion that a crime is being

committed. Williams, 171 Wn.2d at 485-86.8 And there has been no challenge to the

statutory duty under RCW 46.61.021(3) to provide identification when stopped for a

traffic infraction. On the other hand, in Williams there was probable cause to charge the

defendant with first degree theft in addition to the charge of obstructing a law


       7
           Terry v. Ohio, 392 U.S. 1, 16-19, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
       8
         The Court explained in Williams that it had required conduct in addition to pure
speech to establish obstruction of an officer in significant part “because of . . . concerns
that law enforcement officers, without probable cause or even reasonable suspicion that a
crime is being committed, may engage citizens in conversation, arrest them for
obstruction based upon false statements, and then search incident to the arrest. As we
said in [State v.] White of the stop and identify statute, such statutes cannot be used to
make an ‘end run’ around constitutional limitations on searches and seizures. [See]
White, 97 Wn.2d [92, ]106-07[, 640 P.2d 1061 (1982)].” Williams, 171 Wn.2d at 485-86.

                                              16
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


enforcement officer for providing a false name, yet the obstruction charge was still

reversed by the Supreme Court.

       We need not decide whether the distinction made by the trial court applies,

because any error was harmless in light of the jury’s special verdict finding that Officer

Higgs “ha[d] probable cause to arrest defendant for criminal trespass in the second

degree” and “ha[d] probable cause to arrest defendant for assault in the third degree.”

CP at 339. Mr. Sullivan’s criminal trespass and third degree assault both satisfied the

“lawful arrest” element of the resisting arrest charge. The State proposed special verdict

form A in order to establish jury unanimity on a valid basis for finding a “lawful arrest,”

and in light of this assignment of error, the special verdict served its purpose.9

IV.    THE TRIAL COURT DID NOT ERR BY USING A SPECIAL VERDICT FORM IN AN EFFORT
       TO AVOID A UNANIMITY ISSUE ON APPEAL

       The prior discussion largely answers Mr. Sullivan’s next assignment of error,

which is that the trial court erred by giving the jury special verdict form A, in order to

determine which of Officer Higgs’s reasons for arresting Mr. Sullivan the jurors

unanimously found to be supported by probable cause. Mr. Sullivan argues that the

instruction “confused the jury,” leading jurors to feel “that they were asked to find Mr.



       9
         See CP at 396 (“[T]he special interrogatory in this case was offered for appellate
purposes in case one of the underlying crimes to the resisting arrest is reversed for
insufficiency. If, for example, the court of appeals rules as a matter of law that defendant
did not have to provide his identification to Officer Higgs.”).

                                              17
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


Sullivan guilty of trespass and obstructing an officer.” Br. of Appellant at 19. No

citation to the trial record is provided for this claim of jury confusion.10 The jurors posed

no questions to the court during their deliberations and they returned their verdict in short

order: the court’s instructions and the exhibits were delivered to the jurors to begin their

deliberations at 4:30 p.m. on April 20, 2015, and counsel was notified that the jury had

reached a verdict at 10:30 a.m. the next morning. No error is shown.

V.     MR. SULLIVAN’S CONTENTION THAT EVIDENCE WAS IMPROPERLY ADMITTED
       UNDER ER 404(b) IS INADEQUATELY BRIEFED AND ANY ERROR WAS NOT
       PRESERVED

       Mr. Sullivan argues that the trial court improperly allowed the “bad acts and

opinions” of Mr. Mellick, Mr. Fields, and others to be admitted without conducting the

balancing required by ER 404(b). Br. of Appellant at 20. ER 404(b) provides that

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.” Such evidence may be

admissible for other purposes, see id., but in light of the potential for prejudice and juror

misuse of the evidence, a trial court must make several findings before admitting the


       10
           In support of a posttrial motion, Mr. Sullivan submitted a declaration of his
lawyer that contains hearsay he attributes to one of the jurors following the trial. Not
only is it inadmissible hearsay, but its substance, even if it had been attested to by the
juror himself, inheres in the verdict. “The individual or collective thought processes
leading to a verdict ‘inhere in the verdict’ and cannot be used to impeach a jury verdict.”
Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 272, 796 P.2d 737 (1990)
(quoting State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988)). We will not consider the
hearsay attributed to the juror.

                                              18
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


evidence for a permitted purpose. See, e.g., State v. Vy Thang, 145 Wn.2d 630, 642, 41

P.3d 1159 (2002) (identifying findings required).

       The State responds that Mr. Sullivan has failed to support his claims of error with

citation to the evidence or rulings he is complaining about, in violation of RAP 10.3(a)(5)

and (6). Its point is well-taken.11 The shortcoming presents more than a rule violation,

because “[a]n evidentiary error, such as erroneous admission of ER 404(b) evidence, is

not of constitutional magnitude” and cannot be raised for the first time on appeal. State v.

Powell, 166 Wn.2d 73, 84, 206 P.3d 321 (2009) (citing State v. Everybodytalksabout, 145

Wn.2d 456, 468-69, 39 P.3d 294 (2002), rev’d on other grounds, 161 Wn.2d 702, 166

P.3d 693 (2007)); RAP 2.5(a). Without an identification of the specific evidence Mr.

Sullivan is challenging and a record citation to the objection he raised in the trial court,

we cannot determine whether an objection was even made or, if one was made, whether it

was clear enough to preserve the error. Powell, 166 Wn.2d at 87 (Stephens, J.,

concurring) (review is allowed where the basis for an objection, although not specifically

stated, is readily apparent from the circumstances).




       11
         Instead of pointing this court to specific evidence, Mr. Sullivan’s brief includes
general complaints followed by long string citations: “(Vol 2, RP 279, 389, 435-439, 443,
446, 448, 450-456, 459-461, 465-66, 480, 484, 491-492, 501-507, 509-518, 538; Vol 4
RP 943) . . . (Vol 1, RP 26-42) . . .” and “(Vol 2, RP 404, 435, 446-447, 461, 484, 496,
503) (Also See Hrg. 3/31/15, RP 25).” Br. of Appellant at 20.


                                              19
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       Given the violation of the rules on appeal, we will consider whether the trial court

erred in ruling on the admissibility of only a few “bad acts” that we recognize the State

wished to explore. The first was Mr. Fields’s admission that he had been involved in a

fight with a Grand Coulee police officer roughly 10 years before Mr. Sullivan’s trial.

The State anticipated asking him about it. The trial court told the prosecutor that it was

concerned about admissibility and that it was “going to take this on a question-by-

question basis.” RP at 461. The prosecutor ultimately decided not to question Mr. Fields

about the fight. He did not attempt to present any other evidence of the incident.

       The second was Mr. Mellick’s trespass violation and arrest three days before Mr.

Sullivan’s arrest. It was the subject matter of extensive discussion in the trial court

because Mr. Mellick received a deferred sentence that had not yet been dismissed, and

the State was required to grant him transactional immunity as a condition to questioning

him about it. Mr. Mellick’s defense attorney in the pending trespass prosecution was

present for an extensive offer of proof outside the presence of the jury in order to

establish the terms of the immunity and explore some pending administrative proceedings

between Mr. Mellick and BOR.

       At the conclusion of the offer of proof, the trial court announced limited matters it

believed were relevant and that it would allow the State to explore. While Mr. Sullivan

raised an additional limit he thought should be imposed (with which the court did not

disagree), he made no objection to the court’s ruling. When the prosecutor questioned

                                              20
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


Mr. Mellick before the jury about the matters, Mr. Sullivan made no objection. Any

objection Mr. Sullivan had was not preserved.

VI.    THE TRIAL COURT DID NOT ERR IN DENYING MR. SULLIVAN’S POSTTRIAL MOTIONS
       TO DISMISS THE CHARGES FOR GOVERNMENTAL MISCONDUCT

       In posttrial motions, Mr. Sullivan included a motion to dismiss the charges against

him under CrR 8.3(b), for governmental misconduct. In order to succeed on a CrR 8.3(b)

motion to dismiss, the defendant must prove both governmental misconduct and

prejudice to his right to a fair trial by a preponderance of the evidence. State v. Rohrich,

149 Wn.2d 647, 654, 71 P.3d 638 (2003).

       Mr. Sullivan argued that the prosecutor had “stated to the juror and in an email . . .

that he basically only pursued these charges in order to prevent a civil suit filed by Mr.

Sullivan.” CP at 358. His evidence in support of the motion consisted of electronic mail

from prosecutor Kiel Willmore to Mr. Sullivan’s lawyer, and Mr. Sullivan’s lawyer’s

declaration as to a statement allegedly made by Mr. Willmore to a juror following trial.

       The electronic mail from Mr. Willmore was dated March 27, 2015, and addressed

pending trial preparation issues between the two lawyers. It ended with the following

paragraph:

       On a side note, I need to research some case law about the propriety of
       dismissing a case with an agreement by the defense that they won’t pursue
       a civil claim against another party. You told me that your client was not
       going to press a civil suit. You said that, however, with a little uncertainty
       in your voice. Perhaps the best thing to do with this case is dismiss it with



                                              21
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       an agreement no suits will be filed from Mr. Sullivan against any of the
       other parties involved.

CP at 366.

       A declaration of deputy prosecutor Willmore filed in response stated in relevant

part that Mr. Sullivan’s lawyer visited his office before trial “and asked whether the State

would be willing to dismiss the case with an oral promise (by him) that his client was not

going to file a civil complaint against the Grand Coulee Police Department.” CP at 419.

The declaration stated the prosecutor rejected that offer. It acknowledged that he later

sent the March 27 e-mail, and explained what happened thereafter:

       I subsequently researched the case authority on this issue and decided not to
       move forward with such an agreement. I discovered that release-dismissals
       are permitted but frowned upon by reviewing courts.
       . . . I never formally offered defendant a release-dismissal and there was
       never a counteroffer to my non-offer.

CP at 419. Mr. Willmore disputed all of Mr. Sullivan’s lawyer’s allegations about

posttrial statements between himself and a juror, as “incomplete, out of context, and/or

incorrect interpretations of what was said.” CP at 420.

       At the hearing on Mr. Sullivan’s posttrial motions the trial court heard argument,

and having reviewed the record, ruled:

       I think if—certainly if Mr. Willmore had threatened Mr. Sullivan with
       criminal charges in order to get him to waive any right to civil damages for
       violation of his constitutional rights, that would be wrong. I suspect that if
       Mr. Willmore had proposed a resolution or proposed to dismiss the charge
       in exchange for the same thing, that there might be some problems with
       that, too. But I don’t think that’s what happened in this case. I read the e-

                                              22
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       mails that counsel has cited and Mr. Willmore, I think at one point says,
       you know, in a perfect world, maybe the best thing would be if this all went
       away. But he specifically said in the letter, you know, I’m concerned about
       the—about the ethical implications of doing that, and he never makes that
       offer, he never makes that offer to Mr. Sullivan. I think the record is very
       clear that Mr. Willmore did not engage in misconduct in that way.

RP at 1104-05.

       We will overturn the denial of a CrR 8.3(b) motion to dismiss if the trial court’s

decision was manifestly unreasonable or based on untenable grounds. State v. Wilson,

149 Wn.2d 1, 9, 65 P.3d 657 (2003). The trial court’s ruling was reasonable and based

on tenable grounds.

VII.   MR. SULLIVAN DOES NOT DEMONSTRATE THAT THE STATE WITHHELD THE “BEST
       QUALITY” VIDEO IN VIOLATION OF HIS DUE PROCESS RIGHTS

       Mr. Sullivan argued at least twice in proceedings below that the State was

violating or had violated his right to due process under Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide the defense with better

quality video from the BOR security cameras.12 He raised it in a pretrial “Motion to

Interview USBR Employees and Discovery of USBR Surveillance Videos,” CP at 68,

and in his posttrial motions for a new trail and arrest of judgment.



       12
           A second argument—that the State withheld a BOR work order—cannot
effectively be advanced on direct appeal because the evidence on which Mr. Sullivan
relies is not supplemental evidence that can be added to the record under RAP 9.11. We
deal with that issue in Mr. Sullivan’s consolidated personal restraint petition, addressed
below.

                                              23
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       Under Brady, the prosecution has an affirmative duty to disclose evidence that is

favorable to a defendant. Brady, 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419, 432, 115

S. Ct. 1555, 131 L. Ed. 2d 490 (1995). “In order to establish a Brady violation, a

defendant must establish three things: (1) ‘[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching,’ (2) ‘th[e] evidence

must have been suppressed by the State, either willfully or inadvertently,’ and (3) the

evidence must be material.” State v. Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015)

(alterations in original) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct.

1936, 144 L. Ed. 2d 286 (1999)).

       “Evidence is material under Brady ‘if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Davila, 184 Wn.2d at 73 (internal quotation marks omitted) (quoting Kyles,

514 U.S. at 433-34. The defense has the burden to produce facts in support of its theory

of materiality; evidence of things that might have occurred is speculative for purposes of

the materiality inquiry. Id. at 81-82.

       If the means of obtaining the evidence is provided to the defense and with

reasonable diligence the defendant could have obtained it, there is no suppression and

hence no Brady violation. State v. Mullen, 171 Wn.2d 881, 896, 259 P.3d 158 (2011).

       In Mr. Sullivan’s discovery motion filed over two weeks before the scheduled trial

date and over three weeks before trial actually began, he admitted he had been provided

                                              24
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


by the prosecutor with “several DVDs containing a reproduction of a surveillance video

recording of the incident at issue in this case” but stated that Mr. Sullivan believed the

DVD’s poor quality reproduction “of such high level Homeland Security system is

suspect and withholds favorable . . . evidence.” CP at 71-72. He also represented that his

forensic expert believed that detail had been lost in the process of making the DVD

copies because of the compression of the video to a small file size. He sought the

opportunity to depose BOR personnel to determine whether a better copy was available.

          At the March 31 hearing on the motion, the prosecutor explained that he had

provided all the video he had obtained from the BOR. He stated that Mr. Sullivan could

press the issue with BOR but there was nothing further the State could do.

          An additional key concern of Mr. Sullivan at the March 31 hearing was whether

he would be able to lay a foundation for the video he had been provided, because BOR

was not cooperating. The trial court gave Mr. Sullivan the choice of a continuance,

affording him more time to compel BOR’s production of the witnesses or further video,

but Mr. Sullivan did not want a continuance. When the State agreed to a manner for

ensuring admission of the video Mr. Sullivan had already been provided, his counsel

agreed that the assurance that he could admit the video was a sufficient resolution of his

motion.

          The court’s order entered at the conclusion of the hearing, signed by both counsel,

stated:

                                               25
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


              IT IS ORDERED that: the (4) four videos given to the defense by
       Officer Higgs and the prosecution shall be admitted at trial during officer’s
       testimony that he was present in the videos and the videos represent the 4-
       24-14 incident. The defense shall contact Tyler Mellick, Patricia Conant
       and Robert Fields for a prosecution interview before trial.*

       *The State’s motion to continue trial is denied. The remainder of defense
       3-31-15 discovery motion withdrawn.

CP at 86.

       During trial, defense counsel argued to jurors in closing that the poor quality of the

video made it suspect, from which they should infer that Mr. Sullivan was telling the

truth about what happened.

       In his posttrial motions, Mr. Sullivan reprised the complaints about the video made

in the pretrial discovery motion. The declaration of counsel in support of the motion

repeated Mr. Sullivan’s belief that the poor reproduction was suspect and that favorable

evidence was being withheld. In support of the posttrial motion, he also filed a

declaration from his forensic expert, but the expert could only speculate about why the

quality of the videos was poor and why he suspected that the original might contain more

detail. The expert understandably could not speak at all to whether any better quality

video would be exculpatory or inculpatory.

       Having considered the parties’ submissions and the argument of counsel, the trial

court denied Mr. Sullivan’s motion for a new trial based on the asserted Brady violation,

stating,


                                              26
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       I went back and looked at the file and the difficulties that the parties had in
       getting all these additional tapes from the Bureau, the prosecution I think
       was very diligent in seeking to find all of this evidence, and if there was a
       problem with these videos we got from the Bureau, the problem is with the
       Bureau.

RP at 1105.

       In reviewing the trial court’s decision on the posttrial Brady motion, “the trial

court’s legal conclusions about materiality are reviewed de novo, but its underlying

factual findings are reviewed for substantial evidence in the record.” Davila, 184 Wn.2d

at 74-75. The trial court’s finding that the second “withholding” requirement for a Brady

violation was not met is supported by substantial evidence. Mr. Sullivan’s decision to

refuse the trial court’s offer of a trial continuance in order to obtain discovery from the

BOR is a further basis for finding no suppression.

       While not addressed by the trial court, Mr. Sullivan fails to demonstrate the first or

third elements of a Brady violation, either. He does not show that better video, if any

exists, would be favorable to him. Because he can only speculate about what might be

available, he does not establish materiality.

VIII. MR. SULLIVAN DOES NOT DEMONSTRATE PROSECUTORIAL MISCONDUCT

       Mr. Sullivan contends the prosecutor committed misconduct in numerous ways

during trial. A defendant claiming prosecutorial misconduct bears the burden of proving

the prosecutor’s conduct was both improper and prejudicial in the context of the entire




                                                27
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


record and the circumstances at trial. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126

(2008).

       The instances of prosecutorial misconduct alleged by Mr. Sullivan are that the

prosecutor (1) expressed his personal opinion of the evidence, (2) argued prior bad acts of

witnesses, (3) argued from a late amendment to the information, (4) took unfair

advantage of the low quality videos, (5) argued conspiracy, (6) mocked Mr. Sullivan in a

demeaning tone of voice, and (7) stated to jurors, during Mr. Sullivan’s testimony, that

Mr. Sullivan was closing his right fist. In almost every case, these contentions are stated

conclusorily, without identifying the statements about which Mr. Sullivan is complaining.

We are only able to discern the first, sixth and seventh statements that Mr. Sullivan

claims constitute misconduct. We will not consider the other contentions further.

       Mr. Sullivan’s first charge focuses on the prosecutor’s use of the words, “I don’t

think” during closing argument, as expressing his personal opinion. The prosecutor

argued as follows:

       I don’t think the defendant when he went down there intended to assault
       Officer Higgs. But that was the result. I don’t think he went down there
       thinking, I’m going to get in a fight with an officer today. At least not a
       physical one. But he did intend to engage Officer Higgs in a confrontation.

RP at 998-99 (emphasis added). The “I don’t think” statements are reasonably

understood as expressing the prosecutor’s opinion. But Mr. Sullivan does not explain

how they are prejudicial. They appear neutral, or perhaps even helpful to the defense.


                                              28
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       Importantly, Mr. Sullivan objected to the prosecutor’s statements, with the

following result:

              [DEFENSE COUNSEL]: Your Honor, I would object to personal
       opinions. “I think.”
              [PROSECUTOR]: I didn’t—I’m characterizing the defendant
       thinking that, not me thinking that the defendant thought that.
              THE COURT: Okay. Thank you for clarifying.

CP at 999. The jurors presumably accepted the prosecutor’s clarification. The defense

did not object further. As clarified, the prosecutor was not stating a personal opinion. If

jurors still harbored the impression that he had expressed a personal opinion, it is not

shown to be prejudicial.

       The next discernible statement Mr. Sullivan alleges constitutes prosecutorial

misconduct is the prosecutor’s alleged use of a demeaning tone in his rebuttal closing

argument. The following argument is at issue:

               [PROSECUTOR]: Please do note that the defendant left his
       remaining nine lures back in his truck. You saw how long it took Officer
       Higgs to walk that hundred yards or so to get to the defendant. It takes
       some time. And the defendant, he knows he’s going to be losing lures.
       And he just leaves the remaining nine back at his truck? Again, more
       evidence that he was just waiting for Officer Higgs to show up. Just
       waiting for that confrontation so that he could show he had a right, I’ve got
       a right, this is my right, I’ve got my buddies videotaping this. Officer
       Higgs testified to that. When he finally got the defendant on his knees, and
       they were wrestling around there, the defendant says, you’d better be
       careful, I’ve got two of my guys videotaping this.
               [DEFENSE COUNSEL]: Your Honor, I’d object the way he’s
       stressing and how vulgar type of language he’s using and also the way he’s
       describing it to the jury. He doesn’t have to be demeaning.
               THE COURT: But he has latitude in arguing the case, [counsel].

                                              29
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


              [DEFENSE COUNSEL]: He doesn’t have to talk like that, Judge.
              THE COURT: Well, I’m not going to sustain—
              [DEFENSE COUNSEL]: He acts like Mr. Sullivan talks like that,
       he doesn’t.
              THE COURT: At this point, the objection is overruled. Please
       continue.
              [PROSECUTOR]: Thank you, your Honor.

RP at 1038-39.

       Mr. Sullivan raised the same charge of the prosecutor mocking Mr. Sullivan in his

posttrial motions. At the hearing on those motions, the trial court rejected the alleged

mocking as a basis for relief, ruling, “The rebuttal, I am sorry, I was there, I don’t recall

the tone that you’ve asserted here . . . so I’m not going to find that there was improper

argument on rebuttal either.” RP at 1106.

       The trial court did not find the prosecutor’s tone improper in overruling defense

counsel’s objection at trial. It affirmed approximately six weeks later that it recalled no

objectionable tone. Mr. Sullivan presents no audio recording or any other reason for us

to reject the trial court’s assessment of the prosecutor’s tone.

       Lastly, Mr. Sullivan argues it was misconduct for the prosecutor to state for the

record during cross-examination that Mr. Sullivan closed his right fist during his

testimony. One of Mr. Sullivan’s theories of defense was that Mr. Sullivan’s arthritis

prevented him from making a fist with his right hand and Officer Higgs therefore must be

lying when accusing him of striking him with his fist. During Mr. Sullivan’s cross-

examination, the following exchange took place:

                                              30
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


               [PROSECUTOR] What’s a hip throw?
               [MR. SULLIVAN] Well, basically if you’re in close, you can throw
       them with your hip, or you can come up underneath, grab a jacket here,
       grab a hand here.
               [PROSECUTOR] Stop right there. Stop right there. For the record,
       your Honor, the defendant is closing—
               [MR. SULLIVAN] No.
               [PROSECUTOR] —his right fist.
               [MR. SULLIVAN] Take a look. It’s not a fist. This hand is here. I
       want to state that. A fist is here.
               [PROSECUTOR] Your Honor—Mr. Sullivan, I get to ask the
       questions for you. All right?
               [MR. SULLIVAN] I’m just saying, you’re saying it’s a fist.
               THE COURT: The record will reflect that Mr. Sullivan has made a
       demonstration involving his arms and his hands. The jury has seen—has
       seen it.
               [PROSECUTOR] Okay.
               THE COURT: Let’s leave it at that.

RP at 855-56. Mr. Sullivan’s attorney did not object. Instead, on redirect, he had Mr.

Sullivan further demonstrate to the jury the extent to which he could, and could not, close

his fingers.

       Shortly thereafter, and outside the presence of the jury, the trial court stated, “I did

not want to say this in front of the jury, but it appeared to me that Mr. Sullivan both

yesterday and today in demonstrating what had happened on the banks of the river on the

24th appeared to make what appeared to be a closed fist, he was closing his fingers down

over his hands.” RP at 859. Rather than object, defense counsel said, “I’m glad we got

that straightened out, Judge. The differences.” RP at 860.




                                              31
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       Where no objection is made to a prosecutor’s statements during trial, the

defendant is deemed to have waived any error unless the prosecutor’s misconduct “‘is so

flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could

not have been neutralized by a curative instruction to the jury.’” State v. McKenzie, 157

Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940

P.2d 546 (1997)).

       Here, the prosecutor merely stated for the record something he believed the

witness had done with his right hand while testifying—something that, if jurors saw it

and agreed, they were entitled to consider. Without agreeing with the prosecutor’s

characterization, the trial court properly stated, “The record will reflect that Mr. Sullivan

has made a demonstration involving his arms and his hands. The jury has seen—has seen

it.” RP at 855. It later instructed jurors, “It is important . . . for you to remember that the

lawyers’ statements are not evidence.” CP at 311. No flagrant or ill-intentioned conduct

is shown.

IX.    MR. SULLIVAN’S ALLEGATION THAT THE TRIAL COURT COMMENTED ON THE
       EVIDENCE IS INADEQUATELY BRIEFED AND WILL NOT BE CONSIDERED

       Mr. Sullivan accuses the trial court of commenting on the evidence. Article IV,

section 16 of the Washington Constitution provides: “Judges shall not charge juries with

respect to matters of fact, nor comment thereon, but shall declare the law.” “The purpose

of this provision is to prevent a jury from being influenced by knowledge conveyed to it


                                              32
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


by the trial judge as to the trial judge’s opinion of the evidence submitted.” State v.

Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990). A trial court improperly comments on

the evidence if it effectively removes “a disputed issue of fact from the jury’s

consideration.” State v. Becker, 132 Wn.2d 54, 65, 935 P.2d 1321 (1997). A challenge

to a court’s comment on the evidence is a manifest constitutional error that can be raised

for the first time on appeal. RAP 2.5(a)(3); State v. Levy, 156 Wn.2d 709, 719-20, 132

P.3d 1076 (2006).

       Citing 14 pages of the trial record, Mr. Sullivan conclusorily argues that the trial

court commented on the evidence. He does not identify the particular trial court

statement on which he relies or argue how the statement removed a disputed fact from the

jury’s consideration.

       RAP 10.3(a)(6) requires a brief on appeal to contain “argument in support of the

issues presented for review, together with citations to legal authority and references to

relevant parts of the record.” Our assiduous law clerk has reviewed each of the 14 pages

cited by Mr. Sullivan’s brief and found some that reflect only dialogue outside the

presence of the jury, others that reflect the trial court reminding witnesses to answer the

question asked, some that merely reflect rulings on objections, and one that contains no

statement by the trial court at all. The panel refuses to sift through a string citation of

pages to guess at which statement Mr. Sullivan had in mind and why he found it



                                              33
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


objectionable. Given the violation of RAP 10.3(a)(6), we will not consider this

assignment of error further.

X.     THE TRIAL COURT DID NOT ERR IN DENYING MR. SULLIVAN’S MOTION TO SUPPRESS
       HIS STATEMENTS MADE PRIOR TO RECEIVING MIRANDA WARNINGS

       Finally, Mr. Sullivan contends the trial court should have suppressed his

statements of apology that Officer Higgs said were volunteered before he read Miranda

warnings to Mr. Sullivan. Mr. Sullivan does not assign error to the finding that he

waived his Miranda rights and made voluntary statements thereafter.

       At the CrR 3.5 hearing, Mr. Sullivan argued that Officer Higgs’s statement to him

about it being stupid to go to jail over a fish was calculated to elicit an incriminating

response, in violation of a defendant’s right to remain silent.

       A suspect who is in custody but who is not being “interrogated” does not have

Miranda rights. State v. Warness, 77 Wn. App. 636, 639-40, 893 P.2d 665 (1995).

“Interrogation” is broad enough to include express questioning and its functional

equivalent, which the United States Supreme Court has defined as “‘any words or actions

on the part of the police . . . that the police should know are reasonably likely to elicit an

incriminating response from the suspect.’” State v. Wilson, 144 Wn. App. 166, 184, 181

P.3d 887 (2008) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L.

Ed. 2d 297 (1980)). “[T]he burden is upon the State to demonstrate . . . that such a

statement was ‘volunteered’ in the Miranda sense, i.e., that it was spontaneous and not



                                              34
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


prompted by questioning or other action calculated to elicit response.” State v. Boggs, 16

Wn. App. 682, 685-86, 559 P.2d 11 (1977).

       Whether an officer is engaged in “interrogation” for Miranda purposes is a mixed

question of law and fact. In re Pers. Restraint of Cross, 180 Wn.2d 664, 680-81, 327

P.3d 660 (2014) (citing United States v. Poole, 794 F.2d 462, 465 (9th Cir.1986)). We

defer to the trial court’s findings of fact but review conclusions from those findings de

novo. Id. at 681.

       The trial court entered written findings of fact and conclusions of law following

the suppression hearing. Mr. Sullivan does not assign error to any of what the trial court

designated as its findings of fact, which are verities on appeal. State v. Daniels, 160

Wn.2d 256, 261, 156 P.3d 905 (2007). Among them are findings that:

       2.6    After gaining control of the situation and placing defendant in
              handcuffs, defendant repeatedly apologized for his actions and
              denied medical treatment. Officer Higgs stated that defendant was
              being stupid and was going to jail over fish.
       2.7    Officer Higgs transported defendant to his vehicle where the officer
              read defendant his Miranda rights and asked if defendant understood
              them. Defendant responded, “I fucked up. I shouldn’t have done
              that.”
       ....

       2.11   At the police department, and still in custody, defendant repeatedly
              apologized for the incident and stated that he “starts to lose it” when
              he gets cornered.

CP at 428.



                                              35
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       Mr. Sullivan does assign error to a conclusion of law that he contends is a finding

of fact: the court’s conclusion 4.3,13 that “[b]y stating defendant was stupid for going to

jail over fish, Officer Higgs did not intend, nor did defendant understand them [sic] to be,

an attempt to elicit an incriminating response in violation of defendant’s right to remain

silent.” CP at 429. We treat a finding of fact mislabeled as a conclusion of law as a

finding of fact. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). The

“substantial evidence” that must support a court’s findings of fact is “evidence sufficient

to persuade a fair-minded, rational person of their truth.” State v. Cherry, 191 Wn. App.

456, 464, 362 P.3d 313 (2015) (citing Levy, 156 Wn.2d at 733).

       The evidence we review includes the fact found by the court, undisputed on

appeal, that Mr. Sullivan did not make a single sentence response to Officer Higgs but

instead, “repeatedly apologized for his actions.” CP at 428. Repeated apology is not a

response that would be expected from the officer’s comment; to apologize was even

nonresponsive. The officer’s statement was about the criminal charges and incarceration

to which Mr. Sullivan had exposed himself. The repeated apologies that the trial court

found had been made expressed remorse about the struggle with the officer before the

arrest. We conclude that the evidence was sufficient to persuade a fair-minded, rational



       13
        Mr. Sullivan mistakenly cites to this conclusion in its draft form, differently-
numbered in a set of proposed findings and conclusions. Br. of Appellant at 47 (citing
CP at 425).

                                              36
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


person that Officer Higgs did not intend, nor did Mr. Sullivan understand, the fish

comment as an attempt to elicit the repeated apologies that followed it.

       Moreover, even if the trial court’s suppression decision were in error, the

volunteered statements made by Mr. Sullivan were harmless beyond a reasonable doubt.

See Cross, 180 Wn.2d at 681 (noting application of the constitutional harmless error

standard). It is a verity on appeal that after being read and waiving his Miranda rights,

Mr. Sullivan said, “I fucked up. I shouldn’t have done that.” CP at 428. It is a verity on

appeal that he thereafter made further repeated apologies, and told Officer Higgs that he

“‘starts to lose it’” when he gets cornered. Id. The fact that he volunteered the same

type of apologies before being read his Miranda rights was merely cumulative of Mr.

Sullivan’s later, indisputably admissible statements.

       The judgment is affirmed.

                          PERSONAL RESTRAINT PETITION

       In a consolidated personal restraint petition (PRP) filed while the appeal was

pending, Joseph Sullivan seeks relief from personal restraint in the form of the disability

resulting from his convictions for resisting arrest and third degree assault. See In re Pers.

Restraint of Martinez, 171 Wn.2d 354, 363-64, 256 P.3d 277 (2011) (a conviction fully

served can impose a “disability” in terms of future consequences). Although not a model

of clarity, his petition appears to contend that his due process rights were violated by the

State’s withholding of material exculpatory evidence in the form of work orders for

                                              37
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


signage at Grand Coulee dam—work orders that Mr. Sullivan obtained following trial.

He appears to further contend that the work orders constitute newly-discovered evidence

that entitle him to a new trial. He asks us to remand to superior court for a reference

hearing at which additional evidence may be taken.

       The factual and procedural background of the convictions is generally recounted

above. Mr. Sullivan’s petition arises from a dispute over what signs were in place on the

date of Mr. Sullivan’s arrest that provided notice of restricted access to the area on the

Columbia River shoreline where Mr. Sullivan was fishing.

       The extent of the signage was in dispute pretrial and at trial. In a pretrial

discovery motion, Mr. Sullivan complained that he had been unable to interview BOR

employees about where, in the vicinity of the approach and area of his arrest, signs were

posted on the day of his arrest. He ultimately withdrew his request for an order

compelling discovery of the sign information when the trial court stated that any order

compelling the discovery requested would require a trial continuance.

       At trial, the arresting officer, Joe Higgs, testified to the location of six signs he

claims to have photographed on the afternoon of the arrest. As Mr. Sullivan’s PRP

acknowledges, “Mr. Sullivan and many others testified that those signs were not placed at

the locations until after the April 24, 2014 incident.” PRP at 3.14 All told, at least eight


       14
         Mr. Sullivan’s petition is not page-numbered. We refer to the third page of
textual material, excluding the cover page.

                                              38
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


witnesses testified about which signs they saw on April 24, 2014, or believed were in

place on that date. See RP at 253-54 (Higgs); RP at 220-21 (BOR security response force

operator Cullen Roland); RP at 228 (BOR security response force operator Corey

Anderson); RP at 542-49 (Tyler Mellick); RP at 465, 468-69, 472-75 (Robert Fields); RP

at 568-69, 572 (Daniel Conant Sr.); RP at 577-78 (Kathy Tesch); and RP at 738-39

(Joseph Sullivan).

       Mr. Sullivan also sought at trial to offer testimony from his investigator about her

observations of sign removal, placement, and replacement following his arrest, telling the

court that her testimony would establish that “[t]hey’re changing signs all the time.” RP

at 665. In an offer of proof, the investigator admitted she had no personal knowledge of

the signage in place on April 24, 2014. The court excluded her testimony about later sign

placement and replacement.

       Mr. Sullivan’s petition presents a federal Freedom of Information Act (FOIA)15

request that his investigator made to the BOR on September 9, 2014, well before trial,

and a BOR work order that was produced in response, following trial. The investigator

made the following request:

       Could you please tell me the procedure to request work orders for signage
       that was put up on the West bank below Grand Coulee?




       15
            5 U.S.C. § 552.

                                              39
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


       These signs were put up to designate off limits fishing area’s [sic].
       The dates I am looking for are between April 1, 2014 thru July 30, 2014.

PRP App. at A-3. The request was initially denied because the work order was in

progress and would not be prepared until complete. The investigator appealed, and the

final work order was produced thereafter, on July 31, 2015.

       The work order is dated April 30, 2014, and is entitled “Left Bank Fishing

Access - Purchase and Install Signs for Park Fence & Left Bank.” PRP App. at A-1

(some capitalization omitted). It states that it was completed on February 5, 2015. Id.

The sequence of work described is to “purchase or make signs;” “install signs along park

fence” with a reference to Lower VAC Park; and “install signs along left bank below

Lower VAC Park,” with a reference to installing “No access beyond this point signs”

every 50 feet if possible. PRP App. at A-1 (some capitalization omitted). The target start

and finish dates are April 30, 2014 and May 29, 2014, respectively. Id.

       Mr. Sullivan initially and unsuccessfully sought to supplement the record on

appeal with these FOIA documents. After his motion was denied by this court and the

Washington Supreme Court, Mr. Sullivan timely filed this PRP.

                                          Analysis

       The bar facing a personal restraint petitioner is high, and overcoming it is

necessary before we will disturb a settled judgment. In re Pers. Restraint of Fero, 190

Wn.2d 1, 14-15, 409 P.3d 214 (2018). To obtain relief through a PRP, a petitioner must



                                              40
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


show actual and substantial prejudice resulting from alleged constitutional errors, or for

alleged nonconstitutional errors a fundamental defect that inherently results in a

miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506

(1990). To avoid dismissal, the petition must be supported by facts and not merely bald

or conclusory allegations. Id. at 813-14; In re Pers. Restraint of Rice, 118 Wn.2d 876,

886, 828 P.2d 1086 (1992). A “petitioner must demonstrate that he has competent,

admissible evidence to establish the facts that entitle him to relief.” Id. As earlier noted,

Mr. Sullivan appears to argue a violation of his due process rights under Brady, and

newly-discovered evidence. We address the issues in turn.

                                   Brady violation claim

       Mr. Sullivan appears to argue constitutional error in the form of a due process

violation under Brady, contending that the State failed to produce evidence of the BOR

work order before trial. As outlined above, to establish a Brady violation, a defendant

must demonstrate three things: (1) the evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching; (2) the evidence must have

been suppressed by the State, either willfully or inadvertently; and (3) the evidence must

be material. Davila, 184 Wn.2d at 69.

       In the case of the BOR work order, Mr. Sullivan and the State disagree whether

the first element is demonstrated, although the State agrees that the work order is




                                              41
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


“marginally relevant.” Br. of Resp’t at 48. We need not decide whether the first element

is demonstrated, because the second and third are not.

       For purposes of the second element, suppression, Mr. Sullivan takes it as a given

that the State had constructive possession of evidence of the BOR work orders. “Brady

obligations not only include evidence in the prosecutor’s file but also include evidence in

the possession of the police and others working on the State’s behalf.” Mullen, 171

Wn.2d at 895. “[T]he prosecution is in a unique position to obtain information known to

other investigating agents of the government, it may not be excused from disclosing what

it does not know, but could have learned.” Davila, 183 Wn. App. 154, 169, 333 P.3d 459

(2014), aff’d, 184 Wn.2d 55, 357 P.3d 636 (2015). But while Brady obligations can

extend to some individuals beyond prosecutors and police, “at some point the connection

between the nondisclosure and the State becomes too remote for the underlying rationale

of Brady to apply.” Mullen, 171 Wn.2d at 901. The BOR was not engaged in

investigative activity when it replaced or increased signage at the dam. Mr. Sullivan does

not demonstrate that the federal BOR was acting as an agent of the Grant County

prosecutor, a state official.

       In addition, as previously discussed, if the means of obtaining the evidence is

provided and with reasonable diligence the defendant could have obtained it, there is no

suppression. Id. at 896. Mr. Sullivan was interested in the signage evidence before trial

and it, like the BOR’s video evidence, was a subject matter of his discovery motion heard

                                              42
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


on March 31, 2015. The trial court indicated it would issue court orders for the discovery

but a trial continuance would be necessary. Mr. Sullivan decided to forego the evidence.

       For the third element, materiality, we have previously explained that a petitioner

must show there is a reasonable probability that had the evidence been disclosed to the

defense, the result of the proceeding would have been different. Davila, 184 Wn.2d at

73. “The mere possibility that an item of undisclosed evidence might have helped the

defense or might have affected the outcome of the trial . . . does not establish

‘materiality’ in the constitutional sense.” In re Pers. Restraint of Lui, 188 Wn.2d 525,

566, 397 P.3d 90 (2017) (internal quotation marks omitted) (quoting State v. Kwan Fai

Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407 (1986)). Mr. Sullivan does not demonstrate

materiality. He was not charged with criminal trespass; only the fact that he could have

been charged with the crime was relevant to the resisting arrest charge. Witnesses

already disputed at trial which signage was in place at the time of Mr. Sullivan’s arrest,

so the evidence is cumulative. The new evidence demonstrates that signage on the

shoreline was at least replaced or increased, but it does not prove that the signage

described by state witnesses was not already in place. Even Mr. Sullivan’s witnesses

admitted that a sign reading, “No Trespassing on Road or Riverbank” was in place in the

area where Mr. Sullivan parked his pickup and walked down to the riverbank. Finally, as

the State argued in the trial below, even if Mr. Sullivan saw no signs, Officer Higgs



                                              43
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


informed him that he was in a restricted area and gave him the opportunity to leave,

which Mr. Sullivan refused to do.

       Because Mr. Sullivan does not demonstrate constitutional error, we need not

address whether he has demonstrated the actual and substantial prejudice required for

collateral relief.

                            Claim of newly discovered evidence

       Mr. Sullivan also appears to argue that the restraint is unlawful under RAP

16.4(c)(3), because “[m]aterial facts exist which have not been previously presented and

heard, which in the interest of justice require vacation of the conviction[s].” The court

reviews a claim of newly discovered evidence raised by a PRP under the same test as

newly discovered evidence asserted in a new trial motion. Fero, 190 Wn.2d at 15.

       To prevail on a claim of newly discovered evidence, a personal restraint petitioner

must show evidence that (1) will probably change the result of the trial, (2) was

discovered since the trial, (3) could not have been discovered before trial by the exercise

of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. Id. If

any of these factors is missing, the petitioner is not entitled to relief. Id.

       The work order arguably satisfies only the second element, and for reasons

discussed above, it fails the first, fourth, and fifth elements. What signage was present on

April 24, 2014, was already in dispute: the work order does not contradict the State’s

witnesses’ testimony about what signage was in place but is only evidence that more or

                                               44
No. 33438-4-III (consol. w/ No. 35223-4-III)
State v. Sullivan; In re Pers. Restraint of Sullivan


different signs were in place after its completion. The presence on the day of the arrest of

at least one sign reading "No Trespassing on Road or Riverbank" was not in dispute.

Evidence of the signage testified to by state witnesses was not necessary to probable

cause to arrest for criminal trespass, since Officer Higgs did not arrest Mr. Sullivan until

after he had informed him he was trespassing and was met with intransigence.

       Having demonstrated no basis for relief, the petition is dismissed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                       d}i;&htUt
                                                       doway,J. ~ ff·
WE CONCUR:



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Lawrence-Berrey, C.J.
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                                               45
