                                                                           3:lj9




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                  No. 73440-7-1
                     Respondent,
                                                  DIVISION ONE
       v.



ERICK WALKER,                                     UNPUBLISHED OPINION

                     Appellant.                   FILED: September 6. 2016


       Spearman, J. — Erick Walker challenges his conviction of four counts of

first degree assault, five counts of drive by shooting, and first degree

manslaughter. He argues that the trial court erred in admitting his custodial

statements. Walker also argues that the trial court erred in denying his motion to

suppress evidence obtained from the execution of search warrants, limiting his

cross examination, admitting demonstrative evidence, and allowing the jury to

consider the charge of first degree murder. Finding no error, we affirm.

                                       FACTS


       Ten shots were fired in Lake Stevens and Marysville on the night of June

1-June2, 2013. One of the shots struck and killed M.C. as she was walking on

the side of the road with several friends. The other shots were fired into homes
No. 73440-7-1/2


and parked cars. People were home and lights were on at each of the houses

that were shot.

       Several witnesses believed the shots were fired from a car. The girls

walking nearest M.C. stated that the shot was fired from a passing car. The girls

described the car as black or gray. One of the girls saw a flash from the

passenger side window.

        In Marysville, one witness reported seeing a dark car pass slowly by his

house shortly before a shot was fired. Another witness heard gunshots, dropped
to the floor, and looked through a screen door. He saw a car backing away from

a parked Saturn. The Saturn was rocking and appeared to have just been hit.
The other car drove away. From paint transferred in the collision, investigators

determined that the car that struck the Saturn was black. Broken car parts

collected at the scene appeared to be from the headlight of the striking car.
        Police initially recovered five bullets from the shootings, three from Lake
Stevens and two from Marysville.1 They did not recover the bullet that killed M.C.
No bullet casings were recovered from any of the sites.
        Analysis of the recovered bullets determined that they were all .30 carbine
caliber, a relatively uncommon ammunition usually fired by Ruger Blackhawk
revolvers, M-1 carbine rifles, or M-1 Enforcer handguns. An analyst concluded
that the same gun fired all three of the bullets recovered from the Lake Stevens
sites and that the same gun fired both of the bullets recovered from the


        1The police later recovered three more bullets and a partial bullet and submitted these
for analysis.
No. 73440-7-1/3


Marysville sites. But the analyst could not conclusively determine if all of the

bullets had been fired by the same gun or if two different guns had been used.

        A police officer contacted the local Cabela's Sporting Goods store. He

learned that the store had sold twelve of the relevant type of gun in about the

past year. Walker was one of the people who had purchased a .30 carbine

caliber gun at Cabela's. Police obtained a list of .30 caliber handguns registered

with Washington State. Walker was on the State register as the owner of a

Blackhawk. The Department of Licensing listed Walker as having an address

less than half a mile away from the site of the Marysville shootings. A search of

car registries revealed that Walker owned a black car, a 2006 Pontiac G6.
        Officers located Walker's Pontiac G6 at a parking lot and observed that

one ofthe headlights had recently been replaced. Behind the new headlight, the
car's front panel was damaged and had paint transfer consistent with the
accident with the Saturn.

        Police obtained a warrant to arrest Walker and a warrant to search his

home and car. In a custodial interview, Walker told detectives that on June 1 he

went to The Irishmen Pub in Everett after work. He gave different accounts of

where else he went that night, but eventually said that after leaving the pub he
drove around Lake Stevens, visited a friend, and went to Marysville. Walker

stated that he was the only one who had driven his car recently. He told the
detectives that he owned firearms and that he was the only one who had fired

them.
No. 73440-7-1/4


         In executing the search warrant on Walker's home, officers found live .30

carbine caliber ammunition, spent shell casings, and two Ruger Blackhawks.

Forensic analysis determined that all of the recovered bullets had been fired from

Walker's guns, four from the older model Blackhawk and four from the newer

model.

         Detectives learned that Walker's father had replaced the headlight on

Walker's car. The father had saved the damaged headlight and gave the part to

police. The pieces of headlight recovered at the site ofthe hit and run were from
Walker's car. The paint on Walker's car matched the paint transferred onto the

Saturn.

         Police obtained a surveillance video from a stretch of road near M.C.'s

shooting. The video shows a group of girls walk by shortly after 11:00 p.m. At
11:12 p.m., the video shows a dark colored car drive the same stretch of road in
the opposite direction. The dark car makes a U-turn and returns in the direction
the girls were walking. Forensic video analysis determined that the caron the
surveillance video was consistent with a 2006 Pontiac G6 and inconsistent with

all other models of cars analyzed.

          The State charged Walker with four counts offirst degree assault, five
counts ofdrive-by shooting, and first degree murder. He was convicted as
charged for the assaults and drive-by shootings. The jury could not reach a
verdict on first degree murder but found Walker guilty of first degree

manslaughter.
No. 73440-7-1/5


                                    DISCUSSION


Custodial Statements

      Walker first argues that detectives obtained his custodial statements in

violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966) and the trial court erred in denying the motion to suppress those

statements.

      A person who undergoes custodial questioning has the right not to

incriminate himself. State v. Radcliffe. 164 Wn.2d 900, 905, 194 P.3d 250 (2008)

(citing Miranda v. Arizona, 384 U.S. at 461). The State has the burden of
showing, by a preponderance of the evidence, that a suspect understands his
rights and has voluntarily waived them. Id at 905-06 (citing Edwards v. Arizona.
451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). The trial court's
unchallenged findings of fact are verities on appeal. State v. Broadawav, 133
Wn. 2d 118, 131, 942 P.2d 363 (1997). We review the trial court's challenged
findings of fact for substantial evidence and its conclusions of law de novo. State
v. Garvin, 166 Wn.2d 242, 207, P.3d 1266 (2009).

       The unchallenged findings offact establish that Walker made no

statements prior to his arrival at the sheriffs office. At the Sheriff's Office,
Detective Pince read Walker his Miranda rights. After Pince read the Miranda

warning, Walker asked "Well, is there an attorney present?" CP at 400-01; see
Verbatim Report of Proceedings (11/14/2013) at 36. Pince replied that there was
not, that he could get one, and that it would take a little while for an attorney to
arrive. CP at 400-01. Walker then asked the detectives what this was about. ]±
No. 73440-7-1/6


The detectives replied that they wanted to explain but they needed to know

Walker's decision as to whether he wanted to speak to them or not. Id Walker

said he was willing to talk to the detectives and agreed to a recorded interview.

|d Pince turned on the tape recorder and re-advised Walker of his rights. ]d.

Walker stated that he understood his rights and wanted to talk to the detectives.

Id Walker signed the Miranda waiver. Id See Ex. 167. The detectives did not

make any threats or promises that induced Walker to speak, jd
       The trial court concluded as a matter of law that Walker waived his rights

knowingly and voluntarily, that he did not unequivocally request an attorney, and
that the detectives did not act improperly in trying to determine whether Walker

waived his rights before engaging in conversation. CP at 402-03.
       Walker argues that the trial court erred in concluding that he did not
unequivocally invoke his right to an attorney. App. Br. at 32. To invoke a Miranda
right, a suspect must make an unequivocal request. In re Pers. Restraint of
Cross, 180Wn.2d 664, 682, 327 P.3d 660 (2014) (citing Miranda, 384 U.S. at
473-74). An invocation of Miranda rights is unequivocal if a reasonable officer in
the same circumstances would understand it as an assertion of the suspect's

rights. Id (citing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994)). Police are not required to clarify whether the suspect
 intends to assert the right. \j±

        Washington courts have found an unequivocal assertion of the right to
 counsel where the suspect stated that he needed an attorney or had to speak
 with his attorney. State v. Nvsta, 168 Wn. App. 30, 41-42, 275 P.3d 1162 (2012)
No. 73440-7-1/7


(holding that '"I gotta talk to my lawyer'" was an unequivocal request for an

attorney) (quoting Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93

LEd.2d 290 (1987)); State v. Pierce, 169 Wn. App. 533, 544, 280 P.3d 1158

(2012) (holding that '"I need a lawyer. I'm gonna need a lawyer because itwasn't

me'" was an unambiguous invocation of the right to an attorney). But merely

mentioning an attorney does not invoke the right. Radcliffe. 164 Wn.2d at 907-08

(citing Davis, 512 U.S. at 455) (holding that the statement "'maybe [I] should
contact an attorney'" was equivocal and did not invoke the suspect's Miranda

rights); State v. Gasteazoro-Paniaqua. 173Wn. App. 751, 755, 294 P.3d 857
(2013) (holding that "I guess I'll just have to talk to a lawyer about it" was an

equivocal statement).

       Walker made only one reference to an attorney during his custodial
interrogation. When advised of his right to counsel, he asked "Well, is there an
attorney present?" VRP (11/14/2013) at 36. Walker's question requested
information about whether there was an attorney on the premises. The detective

responded to this request by informing Walker that there was not an attorney
present, that the detective could get one, and that it would take a little while for
an attorney to arrive. Walker made no further reference to an attorney. We
conclude that Walker did not unequivocally assert the right to counsel.

       Walker argues, however, that his case is analogous to several federal and
out of state cases in which the suspect asked "Can I have a lawyer?" See, e^,

United States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005) (holding that the question

"'Can I have a lawyer?'" was an unequivocal request for an attorney);
No. 73440-7-1/8


Commonwealth v. Hilliard, 270 Va. 42, 52, 613 S.E.2d 579, 586 (2005) ("'Can I

get a lawyer in here?"'); Taylor v. State, 274 Ga. 269, 271, 553 S.E.2d 598

(2001) disapproved of by State v. Chulpavev. 296 Ga. 764, 770 S.E.2d 808

(2015) ("'Can I have a lawyer present when Ido that [tell you what happened]?'");
State v. Dumas, 750 A.2d 420, 424 (R.I. 2000) ("Can I get a lawyer?" may be an

unequivocal request for counsel). We reject Walker's argument. While "Can Iget
a lawyer?" may be a request for counsel, "Is there an attorney present?" is a
request for information. See Dumas, 750 A.2d at 424 (holding that "'Can Iget a
lawyer?'" may be an unequivocal request for counsel but "'Do Ineed a lawyer?'"
is a request for advice). The trial court did not err in concluding that Walker did
not unequivocally assert the right to counsel.

       Walker also argues that he did not knowingly waive his Miranda rights
because he did not understand why he was being questioned. Walker urges this
court to adopt the approach of Pennsylvania courts, which have held that a
suspect must have knowledge of the specific crime under investigation in order to
knowingly waive his rights. See, e^, Commonwealth v. Brown, 341 Pa. Super.
138, 142, 491 A.2d 189 (1985) (holding that a suspect must "have knowledge of
the particular transaction under investigation" to intelligently waive his rights).
       Neither the United States Supreme Court nor Washington courts have
adopted the Pennsylvania approach. In Colorado v. Spring, 479 U.S. 564, 107 S.
 Ct. 851, 858-59, 93 L.Ed.2d 954 (1987), the Supreme Court rejected the
 argument that a defendant's waiver of rights was not valid when the police failed
 to inform him that he would be questioned about a murder. Id at 575-76. The


                                           8
No. 73440-7-1/9


Spring court held that a waiver is knowing and intelligent when the suspect

understands the basic privilege to remain silent. ]d at 574. There is no

constitutional requirement that police inform a suspect of all information that

could be useful in deciding whether to waive that privilege. ]d at 576.

       Similarly, in State v. Owen, 13 Wn. App. 146, 534 P.2d 123 (1975), this
court rejected the argument that a suspect did not knowingly waive his Miranda
rights because he was never informed that he had struck a pedestrian and was
being held for negligent homicide. \_± at 148. We held that informing the suspect
ofthe nature ofthe charge under investigation is not a prerequisite for a valid
Miranda waiver. Jd See ajso State v. Cushing, 68 Wn. App. 388, 393, 842 P.2d
1035 (1993) (citing State v. McDonald, 89 Wn.2d 256, 264, 571 P.2d 930 (1977)
overruled on other grounds by State v. Sommerville, 111 Wn.2d 524, 530-31,

760 P.2d 932 (1988)), ("The test is whether a defendant knew that he had the
right to remain silent, not whether he understood the precise nature of the risks of
talking.").

        We reject Walker's argument that his waiver was not knowingly given.
BecauseWalker did not unequivocally request an attorney, and because he
knowingly and voluntarily waived his Miranda rights, we conclude that the trial
court did not err in denying Walker's motion to suppress his custodial statements.
Validity of Warrants

        Walker next argues that the trial court erred in denying his motion to
 suppress evidence obtained through executing search warrants. He contends
No. 73440-7-1/10


that the June 28 warrant to search Walker's home and car was not supported by

probable cause.

       A search warrant may only issue if the underlying affidavit shows probable

cause. State v. Jackson. 150 Wn.2d 251, 264, 76 P.3d 217 (2003) (citing State v.

Gore, 143 Wn.2d 288, 296, 21 P.3d 262 (2001)). Probable cause exists where

the affidavit includes facts sufficient to establish a reasonable inference that the

defendant is probably involved in criminal activity and that evidence of the
criminal activity is likely to be found in the place to be searched. Id (citing State
v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002)). The affidavit is examined in a

common sense manner. Id at 265. The facts in the affidavit are viewed in

combination, not standing alone. State v. Dunn. 186 Wn. App. 889, 897, 348
P.3d 791 (2015). rev, denied, 184 Wn.2d 1004, 357 P.3d 665 (2015) (citing State

v, Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992)). Whether the facts in the
affidavit support probable cause is a question of law that this court reviews de
novo. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008) (citing State v.

Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007)).

       Walker argues that the June 28 warrant affidavit only established probable
cause that he had been involved in a hit and run collision. He contends that the
search of his home was not justified because there was no reason to infer that
evidence of the hit and run would be found at his home.

        The June 28 affidavit describes the time and location of each of the

 shootings and the proximity of the sites to one another. The affidavit also
 contains the following facts: Two of M.C.'s friends stated that the fatal shot was


                                           10
No. 73440-7-1/11


fired from a dark colored car. A dark colored passenger car was captured on

video making a U-turn and driving in the direction of the girls shortly before M.C.

was shot. Several witnesses to other shootings believed the shot was fired from

a car. A witness saw a dark car slowly pass by shortly before shots were fired. A

car driving away from the site where shots had just been fired collided with a

parked car. The striking car was black and sustained damage to its headlight.
       The affidavit additionally states: Bullets recovered from five of the drive-by

shootings were all .30 carbine caliber. The Marysville bullets were fired by the
same gun, the Lake Stevens bullets were fired by the same gun, and all of the
bullets may have been fired by the same gun. Walker had recently bought a
Blackhawk revolver at Cabela's. The Washington State handgun registry listed

Walker as the owner of a Blackhawk revolver. Walker's facebook page showed

him with multiple firearms, including two .30 carbine caliber weapons.
       The affidavit continues with the following facts: The Department of

Licensing listed Walker as having a Marysville address about half a mile away
from the last drive by shooting. Walker was the registered owner ofa black
passenger car, a Pontiac G6. Police observed Walker's Pontiac G6 at a parking
lot. The car had recent damage consistent with the hit and run.

       From the facts in the affidavit, a reasonable person could infer that all of

the shots were fired from a black passenger car and that the same car was

involved in a hit and run collision. The facts lead to the inference that Walker's

 carwas probably the one involved. A reasonable person could also infer that
 evidence of the crime such as firearms, ammunition, casings, auto parts, and


                                          11
No. 73440-7-1/12


receipts showing Walker's location would likely be found in Walker's home or car.

We conclude that the June 28 warrant to search Walker's home and car was

supported by probable cause. The trial court did not err in denying Walker's

motion to suppress evidence obtained through execution of the June 28 warrant.

       Walker also argues that the July 2 warrants authorizing search of his cell

phone, phone records, and bank records were invalid. He first argues that the
supporting affidavits rely on custodial statements that were obtained in violation
of Miranda. He asserts that the custodial statements are fruit of the poisonous

tree and must be excised from the warrant affidavit. But as discussed above,

Walker waived his Miranda rights and his custodial statements were lawfully

obtained. The trial court did not err in considering Walker's custodial statements

in the warrant affidavits.

       Walker next argues that the July 2 warrants were overbroad. Awarrant is
overbroad if it fails to describe with particularity items for which probable cause

exists to search. State v. Keodara, 191 Wn. App. 305, 312, 364 P.3d 777 (2015)

rev. denied, 185Wn.2d 1028 (2016) (citing State v. Maddox. 116 Wn. App. 796,
805, 67 P.3d 1135 (2003)). The particularity requirement serves to prevent
exploratory searches, to limit the executing officer's discretion in determining
what to seize, and to prevent warrants issued on vague bases offact. State v.
Perrone. 119 Wn.2d 538, 545-48, 834 P.2d 611 (1992). A description generally

satisfies the particularity requirement "if it is as specific as the circumstances and
the nature of the activity under investigation permits." Id at 547 (citing United
 States v. Blum, 753 F.2d 999, 1001 (11th Cir. 1985)). However, where materials


                                          12
No. 73440-7-1/13


protected by the FirstAmendment are to be searched, the degree of particularity

demanded is greater than where the items to be searched are outside of First

Amendment protection. ]d

      Walker asserts that the July 2 warrant authorizing search of his bank

records was overbroad. The warrant authorized search of "[a]ny and all

bank/credit union account information . . . ." since the inception of Walker's

account. The State concedes that the warrant was overbroad but argues that any

error in admitting evidence obtained from Walker's bank records was harmless.
Walker does not address this argument.

       Admitting evidence obtained through an overbroad warrant is an error of
constitutional magnitude. Keodara, 191 Wn. App. at 317 (citing State v.
Contreras. 92 Wn. App. 307, 318, 966 P.2d 915 (1998)). The State has the
burden to show that the error was harmless beyond a reasonable doubt because

"'any reasonable jury would have reached the same result without the error."' ]d
(quoting State v. Jones. 168 Wn.2d 713, 724, 230 P.3d 576 (2010)).
       At trial, Detective Wells testified to the evidence obtained from the bank
records. The bank records showed that Walker purchased gas in Lake Stevens

at 12:09 a.m. on June 1, nearly 24 hours before M.C. was shot. The records also
showed transactions corresponding with receipts showing thatWalker made
purchases atThe Irishmen, Jimmy John's, and Gordito's between June 1and
June 4. Wells stated that the bank records reflected the date each transaction
was posted, not when it actually occurred. The receipt from The Irishmen showed



                                          13
No. 73440-7-1/14


that Walker was there the evening of June 1. The corresponding transaction on

the bank records was posted June 3.

      The State argues that the only relevant evidence obtained from the bank

records was that Walker was at The Irishmen. The State asserts that this

evidence was cumulative because Walker admitted going to The Irishmen on

June 1, a receipt admitted into evidence showed that he was there that evening,

and the bartender confirmed seeing Walker at the pub. We agree. The evidence

obtained from Walker's bank records had minimal relevance and was cumulative.

We conclude that, although the July 2 warrant for Walker's bank records was

overbroad, any error in admitting the evidence obtained from the warrant was

harmless.

      Walker next argues that the July 2 warrant authorizing search of his cell
phone was overbroad and evidence obtained through that warrant should have
been suppressed. The July 2 warrant for Walker's smartphone authorized search
for any inquiries orsearches concerning auto parts and collision repair; any
internet access or searches; any and all stored contacts including name and
telephone number; any and all digital images; any and all stored digital video
files; and any and all stored emails. These search items were not limited in
duration. The warrant also authorized search for stored data indicating the

location of the phone on June 1 and 2, 2013; call logs for June 1-28, 2013; and
stored text messages from June 1-28, 2013. CP at 379.
       The State concedes that those portions of the warrant that are unlimited in

duration are overbroad, but argues that the time-limited portions of the warrant


                                        14
No. 73440-7-1/15


are valid under the doctrine of severability. Walker argues that severability does

not apply.

       For severability to apply, five requirements must be met: (1) the warrant

must lawfully have authorized entry into the premises; (2) the warrant must

include one or more particularly described items for which there is probable

cause; (3) the part of the warrant that includes particularly described items

supported by probable cause must be significant when compared to the warrant
as a whole; (4) the searching officers must have found and seized the disputed
items while executing the valid part of the warrant; and (5) the officers must not

have conducted a general search in disregard of the warrant's scope. Maddox.

116Wn. App. at 807-09.

       Walker argues that the warrant to search his phone does not meet the
third requirement because the time-limited portions ofthe warrant are
insignificant as compared to the warrant as a whole. He argues that this is
especially true considering the more demanding standard that applies to items
protected by the First Amendment.

       In describing the "significance" requirement, the Maddox court considered
whether a warrant authorizes a general search so that even items described with
particularity are tainted by the unlimited language, id at 807-08. The Maddox
court cites to Perrone. id at 809. In that case, the warrant authorized a search
for a long list of items and combined valid and invalid items in the same phrases.
 Perrone, 119 Wn.2d at 543 (authorizing, for example, seizure of"photographs,
 movies, slides, video tapes, magazines or drawings of children or adults engaged


                                         15
No. 73440-7-1/16


in sexual activities or sexually suggestive poses"). The court held that the warrant

would require extensive editing to render it valid, there were no provisions that

were valid without such editing, and the warrant as written allowed the executing

officer so much discretion that it amounted to a general warrant. Id at 559-60.

       The warrant in this case is not like that in Perrone. Here, each provision is

clearly divisible from the other and the overbroad provisions are invalid because

of the impermissible duration of the search, not because of the nature of the
intrusion. See Maddox. 116 Wn. App. at 809 (applying severability where the

overbroad provisions concerned the "intensity and duration ofthe search" and
not the "intrusion per se") (quoting Andresen v. Maryland. 427 U.S. 463, 480, 96
S.Ct. 2737, 49 L.Ed.2d 627 (1976)). We conclude that the parts of the warrant

that describe with particularity items supported by probable cause are significant
and severability applies. Thus, evidence obtained from the valid portions of the
warrant was properly admitted. However, the trial court erred in denying the
motion to suppress as to evidence obtained from the overbroad portions of the
warrant. We thus consider whether admission of that evidence was harmless.

       The State introduced evidence from both the valid and the invalid portions

of the warrant. Detective Quick testified to the evidence recovered from Walker's

cell phone. He stated that on the night of June 1- June 2, no phone calls were
made between 9:41 p.m. and 2:04 a.m. Afew texts were sent and received in
thattime period. The texts concerned the possibility ofgetting something to eat.
 Quick stated that at 10:51 p.m. the phone's user conducted a Google Maps
 search for a housing area in Lake Stevens. There was no internet history on


                                          16
No. 73440-7-1/17


Walker's phone prior to June 18. Then, there were five visits to websites covering

the M.C. killing.

       The State concedes that the trial court erred in admitting the statements

concerning the Google Maps search, the lack of internet history, and the
websites covering M.C.'s death because these were obtained pursuant to

overbroad provisions of the warrant. The State contends that the error was

harmless because the lack of internet history was immaterial and the Google

Maps search and visits to websites reporting on M.C.'s death were cumulative.
We agree.

       At trial, the State introduced Walker's custodial statements, in which he
admitted driving around Lake Stevens on June 1, stated that he did not know the
streets there well, and stated that he used his phone to search for directions.
Walker also admitted using his phone to visit websites covering M.C.'s death.
Both the State and Walker introduced evidence that it could not be determined
whether the lack of internet history prior to June 18 was due to a setting on the

phone or due to the user deleting history.
        We conclude that evidence of the Google Map search and visits to news

websites was cumulative. And the evidence that there was no internet history on

the phone prior to June 18 was immaterial. Although the trial court erred in
 admitting evidence obtained from the overbroad warrant provisions, the error was
 harmless.

        Walker also appears to assert that the July 2 warrant authorizing search of
 his cell phone records was overbroad. However, he presents no argument

                                         17
No. 73440-7-1/18


concerning this warrant. In the absence of argument, Walker waives the issue.

RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809,

828 P.2d 549 (1992).

      We conclude that the June 28 warrant for Walker's home and car was

supported by probable cause. The July 2 warrant for Walker's bank records was
overbroad but, because the evidence obtained from those records was

immaterial, the error in admitting that evidence was harmless. The July 2 warrant

for Walker's cell phone contained overbroad provisions, but the evidence
obtained pursuant to those provisions was also immaterial and its admission was
harmless.


Limits on Cross Examination

       Next, Walker argues that the trial court erred in limiting his cross
examination. Adefendant's right to confront witnesses through cross examination
is protected by both the federal and state constitutions. State v. Darden. 145
Wn.2d 612, 620, 41 P.3d 1189 (2002). Cross examination serves to test the
perception, memory, and credibility of witnesses, id (citing State v. Parris, 98
Wn.2d 140, 144, 654 P.2d 77 (1982)). The rules ofevidence apply to cross
examination, id at 624. The trial court may limit the scope of cross examination if
the evidence sought is vague, argumentative, or irrelevant. Id at 620. We review
the trial court's decision on the scope of cross examination for abuse of
discretion, id at 619. We will not disturb the trial court's evidentiary ruling unless
the ruling is manifestly unreasonable or based on untenable grounds, hue



                                          18
No. 73440-7-1/19


Personal Restraint of Duncan. 167 Wn.2d 398, 402, 219 P.3d 666 (2009) (citing

Maverv.Sto Indus.. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)).

      Walker asserts that the trial court improperly limited his cross examination

of two State witnesses. On direct examination, David Northrop, the Marysville

crime lab supervisor, primarily testified to why the crime lab does not conduct

testing for gunshot residue. He also described the process of peer review and
stated that every case processed at the lab undergoes peer review. Walker
guestioned Northrop about whether errors occurred at the crime lab and how
errors occurred despite quality assurances such as peer review. Northrop

testified to mistakes that had occurred at the Marysville crime lab and of which he

had personal knowledge. Northrop stated that he was aware of rumors that
errors may have occurred at other crime labs but stated that he had no personal
knowledge of those cases. The court did not allow Walker to question Northrop
about specific instances of error at other crime labs about which Northrop had no
direct knowledge.

       Brian Smelser, a crime lab analyst, testified to ballistic evidence. Smelser
also summarized his experience and briefly stated that before joining the
ballistics department he had worked in biological analysis, including DNA. Walker
cross examined Smelser at length. Walker questioned Smelser about whether he
had followed proper procedures at the crime lab. Alarge part of Walker's cross
examination concerned DNA evidence, although there was no DNA evidence in
this case. The trial court upheld the State's objection to questions concerning an
 incident of DNA cross-contamination involving Smelser that allegedly occurred


                                         19
No. 73440-7-1/20


several years previously. The court held that the incident was remote in time,

concerned a different discipline, occurred when DNA analysis was a new field,

and was ultimately irrelevant to Smelser's current work analyzing ballistics.

       Walker confronted both Northrop and Smelser through cross examination.

The trial court's limits on the extent of Walker's cross examination were not

based on untenable grounds and were not manifestly unreasonable. We

conclude that the trial court did not abuse its discretion.

Demonstrative Evidence

       Walker next challenges the trial court's admission of demonstrative

evidence. At trial, Detective Wells testified that he conducted a demonstration to

determine if it was possible for a shot fired from the passenger window of
Walker's car to strike M.C. at the location of her entry wound. Wells stated that

he used the height difference between M.C.'s entry and exit wounds to calculate
the angle at which the bullet struck her. He had a detective drive Walker's caron
South Lake Stevens Road and had models, including one that was the same

height as M.C, represent the girls walking on the side of the road. Photos from
the demonstration show the relative location of an oncoming vehicle to

pedestrians on the side of the road. The photos also show that a shot fired from
the car could have struck a pedestrian of M.C.'s height at the indicated angle.
       Walker objected to the admission of the testimony and photographs,
arguing that the demonstration was merely speculative. After hearing argument
 on the issue, the trial court concluded that the demonstrative evidence was
 admissible. The trial court admitted the photos with the instruction that the photos


                                           20
No. 73440-7-1/21


did not depict the actual events of the crime charged, served only to illustrate

Wells's testimony, and would not go to the jury room with the substantive

evidence. Walker cross-examined Wells concerning possible differences

between the demonstration and the actual events. Wells acknowledged that

many facts about M.C.'s shooting were unknown, the demonstration did not
prove that the shot was fired from Walker's car, and the demonstration did not
rule out other possibilities.

         Walker argues that the trial court erred in admitting Wells's testimony and
the photos of the demonstration. He asserts that the Statefailed to show that the
demonstration was substantially similar to what occurred on the night M.C. was

killed. Walker also argues that the photos were unduly prejudicial and served no
purpose other than to appeal to the jurors' emotions.
         Demonstrative evidence is permitted "if the experiment was conducted

under substantially similar conditions as the event at issue." State v. Finch, 137
Wn.2d 792, 816, 975 P.2d 967 (1999) (citing Jenkins v. Snohomish County Pub.
Util.Dist. No. 1. 105 Wn.2d 99, 107, 713 P.2d 79 (1986)). Determining whether

the similarity is sufficient is within the discretion of the trial court. Jd If the
evidence is admitted, any lack of similarity goes to the weight of the evidence, id
We review the trial court's evidentiary ruling for abuse ofdiscretion and will only
disturb the ruling if it is manifestly unreasonable or based on untenable grounds.
 In re Duncan. 167 Wn.2d at 402. A ruling is manifestly unreasonable if it "'adopts
 a view that no reasonable person would take.'" Id (guoting Mayer, 156 Wn.2d at
 684).


                                             21
No. 73440-7-1/22


       Walker relies on several cases in which a videotaped reenactment of a

crime was held inadmissible due to the failure to establish that the video was

substantially similar to the actual events and the risk of prejudice from

inflammatory images. See, e.g.. State v. Stockmver. 83 Wn. App. 77, 920 P.2d

1201 (1996); Dunkle v. State of Oklahoma. 2006 OK CR 29, 139 P.3d 228

(2006); Eiland v. State. 130 Ga.App. 428, 203 S.E.2d 619 (1973)). The State

argues that Walker's cases concerning reenactments are inapposite. It asserts

that the demonstrative evidence in this case is analogous to that considered in

Finch. We agree with the State.

       In Finch, a shot fired from inside a residence through the bedroom window

struck and killed an officer who was outside the residence. Finch. 137 Wn.2d at

803. The State's theory was that the shot was intentional and premeditated, jd

During the investigation, police conducted a demonstration to show that the

suspect could have seen the officer through the bedroom window, id at 804.

Investigators attempted to recreate lighting conditions, placed officers in the

same positions as the officers who were at the scene, and used a video camera

to record what could be seen from the bedroom window, id The trial court

admitted the video and the investigators' testimony concerning the

demonstration, id at 815. The court ruled that the evidence was helpful to the

jury and that any differences in the conditions portrayed in the video and those
on the night of the crime went to the weight of the evidence and could be

adequately addressed through cross examination, id.




                                         22
No. 73440-7-1/23


       The Supreme Court upheld the trial court's ruling, id at 818. The Finch

court distinguished the video demonstration in that case from the video

reenactment in Stockmver. The video in Stockmver purported to reenact a fight

that culminated in a shooting.2 Stockmver, 83 Wn. App. at 82. The video in Finch

was not a reenactment of the crime and did not carry the same potential for

prejudice as the Stockmver video. Finch. 137 Wn.2d at 817. The Finch court held

that the demonstrative evidence was created in conditions substantially similar to

those on the night in question and that any differences were brought out during

questioning, id at 818. It further held that the probative value of the evidence

was not outweighed by prejudice to the defendant. Jd

       The present case is analogous to Finch. The photos and testimony

concern a demonstration that showed that the State's theory of the case was

possible. The photos do not reenact the shooting and their emotional impact is

minimal. Differences between the demonstration and the actual events were

addressed in cross examination. We conclude that the trial court did not abuse its

discretion in admitting the evidence.

First Degree Murder

        Next, Walker argues that the trial court erred in allowing the State to

submit the charge of first degree murder to the jury. A court must instruct the jury

on a party's theory of the case if there is sufficient evidence to support the theory.


        2 The video in Stockmver was ruled inadmissible based on factual inaccuracies, the
inability to adequately cross examine the editing and film speed, and the potential for prejudice.
Stockmver, 83 Wn. App. at 83.




                                                 23
No. 73440-7-1/24


State v. Williams. 132 Wn.2d 248, 259, 937 P.2d 1062 (1997) (citing State v.

Hughes. 106 Wn.2d 176, 191, 721 P.2d 902 (1986)). Evidence is sufficient if,

viewed in the light most favorable to the State, any reasonable trier of fact could

find guilt beyond a reasonable doubt. State v. Rich. 184 Wn.2d 897, 903, 365

P.3d 746 (2016) (citing State v. Green. 94 Wn.2d 216, 616 P.2d 628 (1980)).

       Direct and circumstantial evidence are equally reliable. Washington v.

Famsworth,      Wn.2d     , 374 P.3d 1152, 1156 (2016) (citing State v. Thomas.

150 Wn.2d 821, 874, 83 P.3d 970 (2004)). "'[Ijnferences based on circumstantial

evidence must be reasonable and cannot be based on speculation.'" Rich. 184

Wn.2d at 903 (quoting State v. Vasguez. 178 Wn.2d 1, 16, 309 P.3d 318 (2013)).
"'An inference is a logical conclusion or deduction from an established fact.'"
Lamohiear v. Skagit Corp.. 6 Wn. App. 350, 356, 493 P.2d 1018 (1972) (quoting

Martin v. Insurance Co.. of North America. 1 Wn. App. 218, 221, 460 P.2d 682

(1969)).

       Walker asserts that the evidence was not sufficient for the jury to

reasonably infer that Walker committed murder. He concedes thatthe State
proved that Walker fired shots in Lake Stevens and Marysville in the early
morning of June 2, but he asserts that there was no basis for a reasonable finder
of fact to infer that Walker fired the shot that killed M.C. We disagree.

       The State presented evidence that the shot that killed M.C. was fired from
a dark-colored car; Walker's car was in the vicinity; Walker drove by the girls,

made a U-turn, and returned in their direction; Walker's car was linked to one of
the other drive-by shootings; the eight bullets recovered were all fired from


                                          24
No. 73440-7-1/25


Walker's guns; no bullet casing was found at the scene of M.C.'s shooting or at

any of the other sites; all of the targets were unrelated and apparently random;

and each of the shootings involved a single shot at a single target. From these

facts a reasonable trier of fact could infer that Walker fired the shot that killed

M.C. The trial court did not err in instructing the jury in the charge of first degree

murder.

                            Statement of Additional Grounds

          In a statement of additional grounds, Walker first asserts that the trial court

erred in limiting his cross examination of Michael Cavenaugh. This court reviews

a trial court's evidentiary decisions for abuse of discretion. Duncan, 167 Wn.2d at

402.

          Cavenaugh lived in one of the houses shot in the early morning of June 2,

2013. In April 2013, Cavenaugh had reported to police that armed men

approached his house looking to collect a debt from a houseguest. The men,

who were white, arrived in a purple PT Cruiser. Walker, who is black, was not

one of the men who visited Cavenaugh's home in the April incident. During the

investigation after the June shootings, police found both a Marysville and a

Camano Island address associated with Walker. At the Camano Island address,

a purple PT Cruiser was visible. The PT Cruiser was registered to Walker's

father.

          The State moved in limine to exclude the April 17 incident as evidence

that another suspect committed the crime. The State argued that there were no

circumstances linking the two events and that evidence of the April 17 incident


                                             25
No. 73440-7-1/26


would be confusing and irrelevant. The trial court granted the motion over

Walker's objection. The court affirmed its ruling at trial.

        In making its decision, the trial court relied on State v. Downs. 168 Wash.

664, 667, 13 P.2d 1 (1932). The Downs court held that evidence of another

suspect is admissible if there is a "train of facts or circumstances as tend clearly

to point out some one besides the prisoner as the guilty party." id On the other

hand, acts that are "disconnected and outside of the crime itself are not

admissible as evidence of another suspect, id The trial court determined that

there was no evidence indicating a link between the April and the June incidents

and the earlier incident was not relevant to the June shooting.3

        The trial court did not abuse its discretion. The evidence of the April 17

incident did not clearly point to another suspect and was unrelated to the crime
charged. The trial court's decision is not manifestly unreasonable and is based
on proper grounds.

        Walker next argues that the State withheld exculpatory evidence in
violation of Bradv v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 LEd.2d 215

(1963). To establish a Bradv violation, Walker must show that (1) the evidence
was favorable to him, (2) the State suppressed the evidence, and (3) he was
prejudiced by the suppression of evidence. State v. Mullen, 171 Wn.2d 881, 895,



         3As a recent case from ourSupreme Court, State v. Franklin, 180Wn.2d 371, 381, 325
 P.3d 159 (2014) observed, "[t]he Downs test in essence has not changed: some combination of
facts or circumstances must point to a nonspeculative link between the other suspect and the
 charged crime[,]" in order for the evidence to be admissible. Here, Walker fails to establish the
 necessary link.



                                                  26
No. 73440-7-1/27


259P.3d 158 (2011) (guoting Stricklerv. Greene. 527 U.S. 263. 281-82. 119

S.Ct. 1936, 144 LEd.2d 286 (1999)).

       Walker asserts that the State suppressed a sketch of the car seen at the

site of M.C.'s killing. During an interview with Detective Thomas, one of the girls

walking with M.C. attempted to describe the car. M.H. described the car as an

older, small, compact, four-door, black car with a flat hood and stacked

headlights. Thomas tried to sketch her description on his note pad. Thomas

stated that the sketch was destroyed with his other notes and was never

delivered to the lead investigator or the prosecutor's office. Walker has not

shown that the sketch was favorable to him or that he was prejudiced by the

suppression. He thus fails to establish a Bradv violation.

       Walker also argues that the trial court erred in admitting his custodial

statements. But because Walker's counsel addressed this issue we do not

consider it further.4

       Affirmed.




                                                              >/7rr^^O\
WE CONCUR:




   VAA^dOM

         4 Walker also provides additional support for his counsel's arguments concerning the
validity ofthe search warrants, the limits on cross examination, and the admission of
demonstrative evidence. To the extent his arguments are relevant, they are essentially the same
as those raised by his attorney and do not change our resolution of those issues.


                                               27
