                                                                                        FILED
                                                                              COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE oPIVORHiNGToN
                                                                             7014   DEC : 2 AM 8: 57
                                                  DIVISION II
                                                                             STATE OF WA HIP4GTON
    STATE OF WASHINGTON,                                                                443 a:      II
                                                                             B   YNo.
                                                                                                M
                                                                                        D   1i" Y
                                       Respondent,                        UNPUBLISHE             OPINION


           v.




    DANIEL GARBER,


                                       Appellant.



          BJORGEN, A. C. J. —     Following a bench trial, the trial court found Daniel Garber guilty of

two counts of theft of a motor vehicle. 1 Garber appeals, asserting that the trial court erred by

failing to suppress .statements he had made while in police custody and by ordering him to forfeit

property that police officers had seized. Garber also argues that, absent his custodial statements,

there was insufficient evidence to support his convictions. We affirm.


                                                         FACTS


          On April 23, 2012, Matthew Cowan reported to police that his 1984 Oldsmobile Regency

had been stolen from a Lakewood Target store parking lot. A Target loss prevention officer

provided police with surveillance video footage that showed Cowan' s car being stolen. Two

days later, on April 25, Jamal Robinson reported to police that his 1975 Chevrolet Caprice had

been stolen from a carport of the Tacoma apartment complex where he lived. Robinson provided


police with surveillance video footage that showed the theft of his vehicle. Both the apartment' s


and Target' s video footage showed that a red Ford Fusion with black rims was present during the

thefts.




1
    The trial   court   found Garber   not   guilty   of possession of a stolen vehicle.
No. 44385 -6 -II




        On April 26, Garber' s father called the police regarding a Chevrolet Caprice that was

parked near where he lived. Garber' s father knew that the car did not belong to his son because

his son drove a red Ford Fusion. At some point, Garber had told his father that he was planning

to help fix the Chevrolet Caprice with his friend, Damien Hudson, who he referred to as " D
Shot"   Report   of   Proceedings ( RP) ( Nov. 6, 2012) at 23 -24.


        Lakewood Police Officer Jeff Hall and Pierce County Sheriffs Detective Shaun Darby,

were driving to Garber' s father' s residence when they saw a red Ford Fusion followed closely by

a green Nissan Quest. The officers ran license plate checks on the vehicles and found that the

Ford Fusion was registered to Garber and that the Quest van was reported stolen. After stopping

the vehicles, the officers arrested Garber and the driver of the Quest van.


        The State charged Garber by amended information with two counts of theft of a motor

vehicle and one count of possession of a stolen vehicle. The State also alleged that Garber

committed his offenses shortly after being released from incarceration and that his high offender

score would result in some of his current offenses going unpunished.

        Before trial, the defense moved to suppress statements Garber had made during a police

interrogation, and the trial court considered that motion as part of its hearing under CrR 3. 5. At

that hearing, Officer Hall testified that he had transported Garber to the Lakewood Police

Department and placed him in a holding cell before moving Garber to an interview room and

removing his restraints. Officer Hall stated that he had advised Garber of his constitutional

rights in writing and that Garber had agreed to waive those rights and to be interviewed by the

police. Officer Hall said that Garber did not appear to be intoxicated during the interview.

        Video footage of the police interview was played at the CrR 3. 5 hearing, in which Garber

 admitted   to his involvement    with   the Oldsmobile   and   Caprice thefts. Garber also admitted, in the


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No. 44385 -6 -II




footage that Hudson was also involved in the Oldsmobile and Caprice thefts. When asked on


cross examination at the hearing whether Garber appeared to be " nodding off' during the

interview, Officer Hall     stated, "   I observed that to be more of a sign of psychological defeat in the


interview   process."   RP ( Nov. 5, 2012)      at   48. Officer Hall explained Garber' s " psychological


defeat" to mean,


       physical signs he was giving up during the interview. In other words, put his head
       on the desk, put his hands around his face, covering his mouth during several
        instances. And those are all sometimes verbal or visual indicators of someone who
        is giving up in an interview process if he' s being interrogated.

RP ( Nov. 5, 2012) at 49.


        At the time of Garber' s interrogation, Officer Hall had recently seen a bulletin about a

shooting at the University of Puget Sound (UPS) involving an attempted car theft. Officer Hall

testified that, after Garber discussed dropping off Hudson near UPS around the same time as the

shooting, he " prob[ ed]"    Garber about the shooting to determine whether Garber had been

involved in the incident. RP ( Nov. 5, 2012) at 50. Officer Hall further testified that he did not


make any threats or promises to Garber to elicit Garber' s waiver of rights or to induce Garber' s

answers during the interrogation.

        Detective Darby testified at the CrR 3. 5 hearing consistently with Officer Hall. The

following exchange took place during Detective Darby' s cross -examination:

         Defense counsel]: And at one point on the tape you say to Mr. Garber, Here' s the
        deal, if D Shot is going to take you down, I can deal with that. What did you mean
        by that?
         Darby]: That means if D Shot is going to, I guess, implement [ sic] him in the
        crimes that D Shot has committed.
         Defense   counsel]:    What crime was that?
         Darby] : At that point alls [ sic] I had known is what Mr. Garber was telling me that
        he was involved in the auto thefts.
         Defense   counsel]:    You had some information on a shooting at UPS, is that correct?
         Darby] : Correct.

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No. 44385 -6 -II




        Defense         counsel] :   What information, specifically, did you have with regard to that
       shooting?
        Darby]: That during the evening of April 25th, an individual was interrupted by
       University of Puget Sound Security Officers as either prowling or attempting to
       steal a vehicle.   Those security officers contacted this individual, some sort of
       altercation occurred, and this individual ended up shooting at the security officers
       and then fleeing in a stolen vehicle.
        Defense counsel]: So it is unclear to me when you are talking about Mr. Garber

       going down with D Shot, if you' re talking about the stolen cars or the shooting case.
        Darby]: I don' t know if D Shot had anything to do with the shooting case.
        Defense         counsel]:    You say to Mr. Garber, You' re going to be with D Shot on that
       whole        thing   or you' re   going to   come clean.        From when I listened to the tape, it
       sounds like you' re referring to the UPS shooting, not the vehicle thefts, would you
       agree with that?

        Darby]:         Yes.
        Defense             So did you have any information that Mr. Garber was a suspect
                        counsel]:

       in the UPS shooting?
        Darby] : I had no information as to who the suspects were, but moments earlier Mr.
       Garber had confessed to me how he had been in the area of University of Puget
        Sound during the time the shooting occurred, and that he. had dropped D Shot off
        at    University of Puget Sound in the area where the shooting occurred. So I
             the

       began to suspect those two might actually be involved because the suspect was still
       outstanding from that shooting.
        Defense counsel]: What does it mean that Mr. Garber is going to be with D Shot
       on this whole thing, what does that mean?
        Darby]: That if D Shot is responsible for the shooting at UPS, that Mr. Garber
        could also be involved in it as well through his confession as he confessed to
        dropping D Shot off there.
         Defense counsel]: And at that point, you say to Mr. Garber that, you are going to
        come clean, is that correct?
           Darby] : I think I asked him if he was going to come clean.

RP ( Nov. 5, 2012) at 65 -67.


        Garber testified at the CrR 3. 5 hearing that he had been awake for eight days at the time

of his arrest due to his methamphetamine use. Detective Darby testified that he did not find any

methamphetamine on Garber. Garber further testified that he had slept in his holding cell before

police took him to an interview room. Garber stated that he had agreed to waive his rights and to

speak with police         because he "   was so   tired [ and]   ...   just   wanted   to get   it   over with."   RP ( Nov.


6, 2012)     at   13.   Garber said that he admitted his involvement in the car thefts because he was


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No. 44385 -6 -II




concerned that he would be charged with assault for the UPS shooting. The following exchange

then took place:


         Prosecutor]:    Did they make any promises?
          Garber]: No.
          Prosecutor]:   Did they threaten with anything?
          Garber]: No.
          Prosecutor]:  Did the officers ever say, if you cooperate with us, we won' t charge you
         with this shooting at UPS?
          Garber]: They were trying to implicate [ sic ` imply ?'] that.
         Prosecutor]: In what way?
          Garber]. If I came clean and told them what they wanted to hear about the two cars, that
         they wouldn' t charge me with it. But if I didn' t, they would charge me no matter what.

RP ( Nov. 6, 2012) at 13- 14.


         Following the CrR 3. 5 hearing, the trial court ruled that Garber' s custodial statements

were admissible and later entered findings of fact and conclusions of law. Garber waived his


jury trial right and the case proceeded to a bench trial. The trial court found Garber guilty of two

counts of motor vehicle theft and not guilty of unlawful possession of a stolen vehicle. The trial

court also ordered Garber to " forfeit any property seized by law enforcement in this matter."

Clerk' s Papers ( CP) at 47. Garber timely appeals.

                                                      ANALYSIS


                                               I. CrR 3. 5 RULING


         Garber first contends that the trial court erred by failing to suppress statements he made

during   the police   interrogation, assigning    error     to the trial    court' s   finding   that "[ n] o threats or


promises were made to the defendant" and to its conclusion that " Garber' s confession was


voluntary and not the result of coercion; based upon the totality of the circumstances Garber' s

will was not overborne."      CP   at   57 -58; Br.   of   Appellant   at   1.   We affirm the trial court' s CrR 3. 5


ruling denying Garber' s motion to suppress.


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No. 44385 -6 -II




           The Fifth Amendment to the United States Constitution requires police officers to inform

a suspect of his Miranda2 rights before questioning the suspect in a custodial setting. State v.

Heritage, 152 Wn.2d 210, 214, 95 P. 3d 345 ( 2004).                    We review de novo the validity of a

suspect' s waiver of Miranda rights and will uphold the trial court' s voluntariness determination

 if there is substantial evidence in the record from which the trial court could have found the

confession was       voluntary    by   a preponderance of        the   evidence."   State v. Aten, 130 Wn.2d 640,


664, 927 P. 2d 210 ( 1996);        see also State v. Broadaway, 133 Wn.2d 118, 130, 942 P. 2d 363

 1 997).


             Under Miranda v. Arizona, a confession is voluntary, and therefore admissible, if
             made after the defendant has been advised concerning rights and the defendant then
             knowingly, voluntarily and intelligently waives those rights. To be voluntary for
             due process purposes, the voluntariness of a confession is determined from a totality
             of the circumstances under which it was made.


Aten, 130 Wn.2d        at   663 -64 ( internal footnotes    omitted).      When examining the totality of the

circumstances surrounding a defendant' s confession, courts consider the location, length, and

continuity of the interrogation; the defendant' s maturity, education, physical condition, and

mental health; and whether the police had advised the defendant of his Fifth Amendment rights.

State   v.    Unga, 165 Wn. 2d 95; 101, 196 P. 3d 645 ( 2008).              Additionally, "[ t]he totality-of-the-

circumstances test specifically applies to determine whether a confession was coerced by any

express or      implied   promise or    by   the   exertion of   any improper influence."      Unga, 165 Wn.2d at


101 ( citing Broadaway, 133 Wn.2d at 132).

             A defendant' s custodial statements are not admissible at trial if police tactics manipulated

or prevented the defendant from making a rational, independent decision about giving a




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

                                                                 6
No. 44385 -6 -II




statement.    Unga, 165 Wn.2d at 102. However, a promise made by police during a custodial

interrogation, alone, does not render a defendant' s resulting confession involuntary; instead, the

relevant   inquiry is " whether   the defendant'   s will was overborne   by the promise." Unga, 165

Wn.2d   at   102 ( citing   Broadaway,   133 Wn.2d   at   132).   As our Supreme Court has explained:


                  A police officer' s psychological ploys such as playing on the suspect' s
        sympathies, saying that honesty is the best policy for a person hoping for leniency,
        or telling the suspect that he could help himself by cooperating may play a part in
        a suspect' s decision to confess, " but so long as that decision is a product of the

        suspect' s own balancing of competing considerations, the confession is voluntary."

Unga, 165 Wn.2d at 102 ( quoting Miller v. Fenton, 796 F.2d 598, 605 ( 3d Cir. 1986)).

        Garber does not argue that the interrogating officers failed to advise him of his Miranda

rights before he confessed to his involvements in the car thefts. Instead, he argues that Detective

Darby' s use of the UPS shooting as a means to induce a confession, coupled with his diminished

mental state from having smoked methamphetamine, rendered his confession involuntary. We

disagree.


        There was conflicting evidence presented at the suppression hearing regarding Garber' s

mental state at the time of the interrogation, which conflicting evidence we do not resolve in our

position as an appellate court. State v. Hughes, 118 Wn. App. 713, 722, 77 P. 3d 681 ( 2003).

Although Garber testified at the CrR 3. 5 hearing that he had been awake for eight days prior to

his arrest due to his methamphetamine use, he also testified that he had slept in his holding cell

before the interrogation began. Officer Hall testified that Garber did not appear to be intoxicated

during the interrogation, and Detective Darby testified that he did not find any

methamphetamines on Garber when he was arrested. Additionally, the State presented as

 evidence at the suppression hearing video footage of the police interrogation in which the trial

 court could evaluate whether Garber' s demeanor and responses to police questioning showed

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No. 44385 -6 -II




that his decision -making process was impaired due to his mental state. Accordingly, there was

substantial evidence before the trial court that Garber' s claimed methamphetamine use and


resulting lack of sleep did not affect the voluntariness of his confession. Under the totality of

circumstances test described in Unga, 165 Wn.2d at 101, the court did not err for these reasons in

concluding that Garber' s confession was voluntary.

         On the remaining question, whether Detective Darby' s interrogation tactics rendered

Garber' s confession. involuntary, the Unga decision is instructive. In that case, the juvenile

defendant, Unga, confessed to writing graffiti on the interior of a stolen car after a police

detective explicitly promised the defendant that he would not be charged with the graffiti to the

dashboard.     165 Wn.2d at 99. He was later charged and found guilty of vehicle prowling and

taking   a motor vehicle without permission.            Unga, 165 Wn.2d at 97. Unga appealed, arguing

that his confession should not have been admitted as evidence because it had been coerced by the

detective'   s promise.     Unga, 165 Wn.2d at 97. Our Supreme Court disagreed and affirmed

Unga' s juvenile verdicts of guilt, reasoning that, even if Unga reasonably believed that the

detective' s promise not to prosecute for the graffiti was a grant of immunity regarding all the

crimes related    to the    vehicle, '     Nile mere fact that an unfulfilled promise was made in exchange

for a person' s statement does not constitute coercion, rendering the statement involuntary. "'

 Unga, 165 Wn. 2d      at   105 ( quoting United States     v.   Flemmi, 225 F. 3d 78, 91 ( 1st Cir. 2000)). The


 Unga    court stated, "   Such a promise, like any other promise of leniency, is only one factor in the

 totality of the circumstances analysis and it must be considered in the context of all of the
 circumstances ...     the key is whether the promise made it impossible for the defendant to make a

 rational choice as   to    whether   to   confess."   165 Wn.2d at 105, 108.




                                                            8
No. 44385 -6 -I1




        On one hand, Unga differs from the circumstances of this appeal in that. Garber is not


claiming that the State prosecuted him for offenses which it promised it would not prosecute, in

exchange for his confession. On the other hand, a number of the circumstances that led the Unga

court to deem the confession voluntary are also present here. Garber is an adult who had been

released from incarceration shortly before his arrest and, as such, was familiar with the criminal

justice system. Thus, like Unga, Garber was clearly aware that he was being questioned as a

criminal suspect. Also like Unga, Garber was informed of his constitutional rights, including his

right to remain silent, to have an attorney present before and during questioning, and to stop

answering questions at any time during the interrogation. Garber acknowledged his

understanding of those rights but chose not to exercise them at any point in the interrogation

leading up to his confession. Additionally, as in Unga, there was no evidence that the

interrogating officers used any intimidation tactics or that they deprived Garber of any
necessities.




          Most importantly, unlike in Unga, Garber conceded at the suppression hearing that

Detective Darby did not make any express threats or promises in exchange for his interrogation
answers.    Although Detective      Darby' s    statement, "      You' re going to be with [Hudson] on that

whole   thing   or you' re   going to   come clean,"   is threatening, Garber' s concession supplies

substantial evidence     to   support   the trial court' s   finding   that "[ n] o threats or promises were made


to the defendant."     RP ( Nov. 5, 2012) at 66; CP at 57. Were we to deem this finding not

supported by the evidence, we would step troublingly close to reweighing evidence or making

 credibility determinations, tasks in the hands of the trial court, not us. State v. McCreven, 170
 Wn.   App.   444, 476 -77, 284 P. 3d 793 ( 2012), review denied, 176 Wn.2d 1015, 297 P. 3d 708


 2013).    For these reasons, we uphold the court' s finding that no threats or promises were made.

                                                              9
No. 44385- 6- 11




With that finding, the trial court' s conclusions that Garber' s confession was voluntary, not the

result of coercion, and that his will was not overborne, are well supported by the findings and

consistent with governing legal principles discussed above. Accordingly, we hold that Garber' s

confession was voluntary, and we affirm the trial court' s CrR 3. 5 ruling denying Garber' s motion

to suppress. 3

                                                     II. FORFEITURE ORDER


          Next, Garber contends that the trial court acted' without statutory authority when it

ordered him to forfeit property that had been seized by police following his arrest.4 We must
reject this contention, because the record is not sufficient for its review.

              In State v. McWilliams, we rejected the challenge to a sentencing court' s order to

   f] orfeit     all   property   seized. '    177 Wn.     App.    139, 151, 311 P. 3d 584 ( 2013), review denied,


179 Wn.2d 1020, 318 P. 3d 279 ( 2014). As part of the analysis, we noted that CrR 2. 3( e)


governed motions for the return of illegally seized property and that the defendant could make

                                            including             determination   of guilt. '   McWilliams, 177 Wn.
such a motion "` at         any time,                   after a




              151 ( quoting State           Card, 48 Wn.     App.    781, 786, 741 P. 2d 65 ( 1987)).   We further
App.     at                            v.




noted    that "[   a] lthough the State has the initial burden [ to show a possessory right to seized

property, CrR 2. 3(        e)]    contemplates that the defendant moves for the property' s return and that an




 3 Because Garber' s sufficiency of the evidence argument relies on the suppression of his
 confession, we need not reach it.


 4 As an initial matter, we reject the State' s argument that this issue is not properly before us due
 to Garber' s failure to object to the sentencing provision at issue below. It is well established that
   a] n appellant may challenge an illegal or erroneous sentence for the first time on appeal."
 State   v.    McWilliams, 177 Wn.            App.   139, 150, 311 P. 3d 584 ( 2013) (     citing State v. Ford, 137
 Wn.2d 472, 477, 973 P. 2d 452 ( 1999)),review denied, 179 Wn.2d 1020, 318 P. 3d 279 ( 2014);
 see also State v. Bahl, 164 Wn.2d 739, 744 -45, 193 P. 3d 678 ( 2008).

                                                                    10
No. 44385 -6 -II




evidentiary     hearing   ensues."    McWilliams, 177 Wn. App. at 151 ( citing State v. Marks, 114

Wn.2d 724, 735 -36, 790 P. 2d 138 ( 1990)).


        Garber has failed to         move   for the   return of seized   property   under   CrR 2. 3(   e),   and we are



therefore without the results of the evidentiary hearing that the rule would afford. Additionally,

although Garber specifically identifies in his appeal a possessory interest in the Ford Fusion, it is

unclear on this record whether the Ford Fusion remains within the possession of the State. For


these reasons, the record before us is insufficient to review Garber' s challenge to the forfeiture

order. See, e. g., Wash. Pub. Trust Advocates v. City ofSpokane, 120 Wn. App. 892, 898, 86 P. 3d

835 ( 2004) ( " If the    record is insufficient for review, we may decline review of a particular

issue. ")


            Accordingly, we affirm Garber' s convictions and resulting sentence.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                                     0"'
 We concur:




                                                             11
