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

THE STATE OF WASHINGTON,                                 No. 74263-9-1

                              Respondent,

                 V.                                      UNPUBLISHED OPINION


B.D. 08/21/97,

                             Appellant.                  FILED: May 22, 2017

        SCHINDLER, J. — A.I. appeals his conviction in juvenile court of reckless

endangerment and malicious mischief in the third degree. A.I. contends the court erred

in ruling statements to the police were knowing, intelligent, and voluntary. Because

substantial evidence supports the findings and the conclusion that A.I. knowingly,

intelligently, and voluntarily waived the right to remain silent, we affirm.

                                                FACTS

        On November 4, 2014, at approximately 11:30 p.m., Alina Cislaru and her

boyfriend Constantin Gogu were sitting in the front seat of his Kia Spectra parked in



          RCW 13.50.050(2) states, "The official juvenile court file of any alleged or proven juvenile
offender shall be open to public inspection, unless sealed pursuant to RCW 13.50.260." Because the
juvenile court entered an order sealing the juvenile record under RCW 13.50.260, we use initials in the
caption and throughout the opinion. See also Gen. Order 2017-1 of Divisions I, II, and III, In Re Changes
to Case Title (Wash. Ct. App.), http://www.courts.wa.gov/appellate trial courts/?fa=atc.oenorders
orddisp&ordnumber=1-021&div=1.
No. 74263-9-1/2

front of her house. Streetlights illuminated the area and the dome light in the car was

on.

       While talking to Gogu, Cislaru noticed a car drive down the street and then heard

"gunshots." The first shots hit the back passenger-side window of the Kia. The glass

shattered inside the car. Gogu pulled Cislaru's head down and shielded her with his

body "as the guns fired." The second round of gunshots hit but did not shatter the front

windshield.

       After the shooting stopped and Cislaru heard the car drive away, she lifted her

head and saw a red minivan speeding up the hill. Cislaru called 911. Dispatch reported

a "red van""shot windows out of their vehicle."

       Approximately two minutes later, Renton Police Officer Randy Jensen saw a red

minivan that matched the description of the drive-by shooting. A.I. was sitting in the

driver's seat. His older brother 1.1. was in the front passenger seat and his older cousin

V.L. was in the back passenger seat of the van. Officer Jensen pulled over the van.

Renton Police Patrol Sergeant Craig Sjolin and other officers arrived to assist. Officer

Jensen's patrol car was equipped with a video recording system and he was "wear[ing]

a wireless microphone" on his front breast pocket.

       Officer Jensen ordered A.I. to step out of the minivan first and directed him to

walk backward with his hands on his head to a grassy area. The patrol car video

recorded the following:

              OFFICER JENSEN: Do you want to go ahead and step out of the
       vehicle, please? Just turn around. Right now you might be the vehicle
       we're looking for. Go ahead and walk backward to us, okay? Start
       walking backward to us. ... Go ahead and keep walking back nice and
       slow. Keep walking backward. Keep walking backward. Anybody else in
       your car?


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No. 74263-9-1/3


       Officer Jensen placed A.I. in handcuffs. Sergeant Sjolin read A.I. his Miranda2

rights. And because A.I. "stated that he was seventeen years old," Sergeant Sjolin also

advised A.I. of the juvenile warnings. Meanwhile, Officer Jensen ordered 1.1. and V.L.

out of the minivan. Sergeant Sjolin placed V.L. under arrest.

      Cislaru identified the red minivan as the vehicle that drove by and fired shots at

the Kia. The police found two BB3 guns in the minivan. Several BBs were found in the

"[f]ront passenger area where the carpet of the floorboard meets the passenger door

frame."

      Officer Jensen talked to A.I. Initially, A.I. denied any knowledge about"BB guns

or any shooting." But A.I. later admitted he "had been a passenger, shooting out

windows, and then switched with the driver." Officer Jensen drove A.I. and 1.1. home.

      On February 18, 2015, the State charged A.I. in juvenile court with reckless

endangerment in violation of RCW 9A.36.050 and malicious mischief in the second

degree in violation of RCW 9A.48.080(1)(a). On April 15, the court entered an order

extending jurisdiction in juvenile court beyond Al's 18th birthday.

      The CrR 3.5 and fact-finding hearing began on August 11, 2015. The defense

requested the court hear testimony on whether the statements A.I. made to the police

were admissible before hearing testimony in the fact-finding hearing.

      [W]hat !would suggest is that we — we take testimony regarding the [CrR]
      3.5 [hearing]. Then we take testimony regarding trial issues, and have
      them separate so we don't have to be making different objections.




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



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No. 74263-9-1/4

       Sergeant Sjolin and Officer Jensen were the only witnesses who testified in the

CrR 3.5 hearing. The court admitted into evidence the wireless microphone and patrol

car recordings. The audio and video systems recorded "some interaction between

police" and A.1., 1.1., and V.L., including a statement Sergeant Sjolin made to V.L. While

placing V.L. in handcuffs, V.L. told Sergeant Sjolin,"`[M]y hand was recently broken,

sir,' "and Sergeant Sjolin replied, "[I]t 'might get broken again.'"

       Officer Jensen testified that because dispatch reported a drive-by shooting, the

police treated the stop as "high-risk" until after placing the occupants of the van in

custody.

       Officer Jensen testified that after conducting a search of the van, he talked to

V.L. Officer Jensen then talked to A.I. while he was in handcuffs seated in the backseat

of Officer Jensen's patrol car. Officer Jensen testified that before talking to him, he

confirmed A.I. had been informed of his Miranda rights.4 A.I. speaks Romanian and

English.

       A.I. told Officer Jensen he was driving and "had no idea what anybody else in the

car was doing."

       I remember [A.I.] was the driver. He told me that he was out driving
       around with his — the other two gentlemen because he was practicing to
       get his driver's license. I remember initially the gist of our conversation
       was that he was solely driving, had no idea what anybody else in the car
       was doing when it pertained to the — the pellet guns and shooting out the
       windows.

In response, Officer Jensen said V.L. told him the "truth"—that "[y]ou guys were out

shooting the BB guns and shooting windows"—and A.I. should not lie about what


       4Officer Jensen testified, in pertinent part:
       Q.      So, why did you not Mirandize [A.11?
       A.      Another officer had — told me that they had.


                                                  4
No. 74263-9-1/5

happened. A.I. denied using BB guns to shoot at car windows. The patrol car video

recorded the following exchange:

               OFFICER JENSEN: .. . I'm going [to]just talk to you one time.
      Just like I've already talked to your cousin. All right, I'll — I'll
      ([un]intelligible) just don't say anything yet. I'm going to ask one time. I
      already know the answer; I've already got[the] truth out of your cousin.
      You guys were out shooting the BB guns and shooting windows. Right?
              [A.I.]: No.
              OFFICER JENSEN: No?
              [A.I.]: No.
              OFFICER JENSEN: Nobody was?
             [Al]: No.
              OFFICER JENSEN: How come he said that somebody was?
              [A.I.]: I can't, because 1— I was driving ([un]intelligible).
              OFFICER JENSEN: Oh, so the other guys did?
              [A.I.]: Uh, I don't know, man.
              OFFICER JENSEN: You don't know?
              [A.I.]: No.
              OFFICER JENSEN: You were just driving and didn't see what was
      going on?
              [A.I.]: Well, 1— I was just driving, and I want to make a license.
              OFFICER JENSEN: You want to make a license?
              [A.I.]: Yes.
              OFFICER JENSEN: I don't understand.
              [A.I.]: 1— I want to drive — I was practicing to drive.
              OFFICER JENSEN: Oh, you were practicing driving. Okay. So,
      you're just out to save your own rear-end right now and let — let your
      cousins tell us the truth, and be respectful and honest and be a man, but
      you're going to lie and continue to lie when you even have BB guns and
      BBs all over the place and you're driving a van just like the people
      described to us.

      At some point after Officer Jensen said the police found BB guns and BBs in the

van, A.I. told Officer Jensen that he "was responsible for everything, and nobody else

was." Officer Jensen did not believe A.I. and urged him to tell the truth.

      So, are — do you want to man up and talk tell me the truth, or are we
      done talking? Because it doesn't say "stupid" across my forehead. I've
      been a cop long enough. I've been an adult long enough. I can read right
      through lies. If — if we're done talking, then fine, I've got other work I can
      go do. But, if you want to start owning up to what you guys were doing
      and start taking responsibility, this is your one opportunity.


                                             5
No. 74263-9-1/6



       In response, A.I. asked Officer Jensen, TN I tell the truth. Then what?" Officer

Jensen told A.I. that he was not going to make any promises but "if you tell the truth,

we'll treat you a lot nicer, we'll work with you."

       Then you tell me the truth, and we go from there. I'm not going [to] make
       you promises. I'm not going to tell you, oh, if you tell me this and that, I'm
       going to let you go, because I can't do that. What I'm going to tell you is if
       you tell the truth, we'll treat you a lot nicer, we'll work with you with what
       we can because you're trying to man up and be respectful, but that's up to
       you. I just don't want to waste any more of my breath. I've got a coffee in
       there that's getting cold. So, if you want to talk to me and tell me the truth,
       I'm happy to stand here and listen to you. If not, I want to get back to my
       coffee.

       A.I. told Officer Jensen that he used a BB gun and "shot out the window." A.I.

said he "had been a passenger, shooting out windows, and then switched with the

driver."

       Officer Jensen testified he had a "relatively easy conversation" in English with

A.I. and A.I. never said he did not understand or requested an interpreter. Officer

Jensen testified that A.I. did not express any confusion about the Miranda warnings and

never requested an attorney nor indicate that he did not want to talk to Officer Jensen.

Officer Jensen testified that he did not hear Sergeant Sjolin say anything to V.L. when

he placed V.L. in handcuffs.

       If I heard it, and I thought it was an inappropriate threat to actually harm
       somebody without cause, I would absolutely report it. Even if it was a
       sergeant who said it, I would report it to my sergeant or his — our
       commander.

       Sergeant Sjolin testified that A.I. told him that he was 17 years old. Sergeant

Sjolin said he read Miranda rights to A.I. from his "officer code book, including the

juvenile section." Sergeant Sjolin also testified he "always" gives Miranda warnings to a



                                               6
No. 74263-9-1/7

suspect to ensure the defendant has "a clear understanding of the rights that are

afforded them." Sergeant Sjolin testified he and A.I. communicated in English and A.I.

did not request an interpreter or an attorney, did not express any confusion about his

rights, and stated he understood his rights.

       Sergeant Sjolin testified that he did not have an independent recollection of

making the statement to V.L. about his hand. But Sergeant Sjolin said he was

frustrated and impatient because the "felony stop... was not textbook."

       Sergeant Sjolin testified that after V.L. made the comment about his hand,

Sergeant Sjolin did not "know the context of why" he said, "[L]et's not break it again," but

there was a "possibility" V.L. was resisting.

      [T]his gentleman —... somebody I took into custody — had made the
      comment about the — his hand. And I'd said something, well, let's not
      break it again. . . . I don't know the context of why I said that except to say
      that it — it's [a] possibility that maybe some — he was being resisted (sic)
      at the time I was putting the cuffs on. And so, I'm giving a warning about,
      you know, if you continue to resist, this could go bad.

       At the conclusion of the CrR 3.5 testimony, the defense argued the State did not

meet its burden of proving A.I. knowingly, intelligently, and voluntarily waived his right to

remain silent. The defense attorney argued there was no record that A.I. waived his

Miranda rights and the totality of the circumstances showed A.I. was a "[y]oung man"

with "limited experience, limited English."

       The defense attorney admitted A.I. is "speaking English. He's responding

appropriately," but "it's not developed English. I want to make a license is what he first

tells the officer. Then they — eventually they understand what that means." The

attorney argued that "on a totality of circumstances," the statement Sergeant Sjolin




                                                7
No. 74263-9-1/8

made to V.L. "certainly could be interpreted as a threat," and then telling A.I. that "they

will be nicer to him if he does tell the truth" created a "coercive environment."

              And then later when [Officer] Jensen is talking to him, saying how
       they will be nicer to him if he does tell the truth. So, we have the — we
       have the — sort of the — the you cooperate with us, we're going to be
       nicer to you, having been in a situation where they've got guns drawn on
       him. One of the individuals is claiming he has a broken arm, and they tell
       him he might get his arm broken again. It's a coercive environment.

The attorney conceded there was "no conclusive proof" that A.I. heard the comment

Sergeant Sjolin made to V.L. about his broken hand but argued there was "a reasonable

inference" A.I. heard the comment.

       The court addressed the defense argument that the statements were not

knowing, intelligent, and voluntary because A.I. was a young man with limited English

proficiency and the statements were coerced.

      In this instance[AI]contends that his statements were not voluntary for
      three fundamental reasons. First, the Respondent's youthful age. He was
      17 years old at the time that this incident occurred. Second, English is not
      Respondent's native language. And, third, the statements made to
      Respondent's cousin [V.L.] were in the nature of a threat and, therefore,
      coerced [A.I.] to make the statements. The — the threat — the, quote,
      "threat" should be considered in the context of the Officer later telling [AI]
      that — that they would be a lot nicer if he told the truth.

       The court found the testimony of Sergeant Sjolin that he read A.I. his Miranda

rights and A.I. had no difficulty understanding his rights credible.

             At the time that [A.I.] was placed in handcuffs, he was in police
      custody for purposes of[Miranda]. [Sergeant] Sjolin read [A.I.] his
      [Miranda] rights. He read those rights off of his code book, which included
      the — and he included the juvenile section. The Sergeant had no difficulty
      direct — excuse me.
             [Sergeant] Sjolin had no difficulty communicating with [A.I.];
      however, he did note a slight accent. [A.I.] indicated that he understood
      his rights; he did not request an attorney; he did not express any
      confusion or a need for an interpreter.




                                             8
No. 74263-9-1/9

       By contrast, the court did not find Sergeant Sjolin's explanation about the

comment made to V.L. credible, "[r]ather[,] the Court does consider the comment to be

at best a form of sarcasm and potentially a threat." But the court found there was no

evidence A.I. heard the comment Sergeant Sjolin made to V.L.

               However, there was no evidence that Respondent[Al] heard the
       comment made by [Sergeant] Sjolin. Rather the evidence is that the
       suspects were separated and that[Al.] was with Officer Jensen, who
       testified that he did not hear the Sergeant make that comment. In fact,
       Officer Jensen testified that had he heard a fellow officer or a sergeant
       make such a comment that was threatening in nature, he would have
       reported it to a higher authority. Additionally, the Court notes that initially
       Respondent[Al]denied any knowledge of the BB guns or pellets after
       this threat was allegedly made to his cousin and then later admitted to his
       involvement in the shootings.

       The court rejected the defense argument that Officer Jensen's statement to A.1.

that" 'we'll treat you a lot nicer'"was coercive.

      The alleged coercive statement that the police officer would be a lot nicer
      to [A.I.], strictly in the greater context in which it was made, that is, no
      promises could be made by the officer and he couldn't release him if he
      just told the truth, no reasonable person could consider this statement to
      be coercive in nature.

       The court concluded the totality of the circumstances established A.I. knowingly,

intelligently, and voluntarily waived his Miranda rights.

              Addressing first [Ai]'s age, there is no evidence that the
       Respondent was unable or had difficulty understanding the [Mirandal
       warnings given to him because of his age, education, or any other mental
       or physical challenges. In fact, the evidence showed that [A.I.]
       communicated well with the police officers other than some awkward
       phraseology such as, quote, "I am going to make a license," end quote,
       when he intended to say, I am going to get a license. The evidence
       established that[Ai.] did not express any confusion or misunderstanding
       about the [Miranda] warnings and was able to communicate with the
       officers who were able to understand him.

             Here, the totality of the circumstances demonstrates that[Ai.]
       understood his [Mirandal rights and voluntarily, knowingly, and intelligently


                                              9
No. 74263-9-1/10

      waived them. When the officers first confronted [A.I.], he responded in
      English to questions asked in English. When the officer advised him of his
       Miranda rights at the scene in English, he responded in English that he
      understood them. [Ai.] never invoked his rights nor did he ever ask for an
      interpreter.
              The events after [A.I.]'s waiver of his [Miranda] rights further
      demonstrate his English comprehension. When the officers asked
      questions in English about the events of that evening,[A.I.] was able to
      appropriately answer in English. When the officers were discussing his
      fate in English,[AI]was able to understand the trouble he was facing and
      attempted, in English, to minimize his involvement. There is no indication
      that[Al]did not comprehend English sufficiently to understand what the
      officers were saying, particularly when they advised him of his Miranda
      rights and obtained his waiver of those rights.

             For the foregoing reasons this Court concludes that [A.I.]'s
      statement made to the Renton Police officers of his involvement in
      shooting BB guns at car windows were made knowingly, intelligently, and
      voluntarily to law enforcement and are, therefore, admissible.

      The court entered lengthy and detailed CrR 3.5 findings of fact and conclusions

of law. The written findings of fact and conclusions of law state,"There is no evidence

that the respondent was unable or had difficulty understanding the Miranda warnings

read to him due to age, education, or any other physical or mental challenges." The

court concluded the statements A.I. made to the police "regarding his involvement

shooting BB guns at parked cars were made knowingly, intelligently and voluntarily to

law enforcement and were therefore admissible."

       Officer Jensen, Sergeant Sjolin, and Cislaru testified in the fact-finding hearing.

Cislaru testified about the shooting and damage to the cars at her home. Cislaru

testified that in addition to the damage to the Kia, her Mazda was parked in the street

and damaged. Cislaru said the cost to repair the windows of the Kia and the Mazda

was approximately $540. Cislaru also testified that the Volvo and the Mercedes parked

in the driveway were damaged.



                                            10
  No. 74263-9-1/1 1

         The court found A.I. guilty of reckless endangerment.

               Based on this Court's findings of fact, the Court concludes that the
        State has proved beyond a reasonable doubt that on November 4, 2014,
        the respondent acted recklessly as he knowingly and intelligently shot BB
        gun pellets and did further participate with others at shooting BB gun
        pellets at car windows. A person is guilty of a crime if it is committed by
        the conduct of another for which he is legally accountable.

         But because Cislaru testified that "the Mercedes and the Volvo could not have

  been shot at the same time as the Kia and the Mazda due to the location of the

  damage," the court found A.I. guilty of the lesser included crime of malicious mischief in

  the third degree.

                Here, the Court finds that the respondent acted knowingly and
         intentionally when shooting the BB gun at car windows.

               A person acts maliciously when there is evil intent, wish or design
        to vex, annoy or injure another person. Malice may be inferred in an act
        done in willful disregard of the rights of another, or an act wrongfully done
        without just cause or excuse. RCW 9A.04.110. Here, the act of randomly
        shooting BB guns at car windows is an act done with willful disregard of
        the rights of others and without just cause or excuse.

               The State has proven beyond a reasonable doubt that on
        November 4, 2014, the respondent caused damage to the property of
        another, that this act was made knowingly and maliciously and it occurred
        in King County, Washington. The State has not proved that the
        respondent caused $750 in damage. Accordingly, the Court finds the
        respondent guilty of Malicious Mischief in the Third Degree as a lesser
        included of the crime charged in Count I.

         The court entered the order of disposition on November 3, 2015. The court

  imposed 6 months of supervision and 20 hours of community restitution. The order of

. restitution required A.I. to pay $586.37 for the damage to the Kia and Mazda. The court

  scheduled an administrative hearing to seal the juvenile record for May 2016. The court

  entered an order sealing the record on August 12, 2016.




                                              11
No. 74263-9-1/12


                                         ANALYSIS

       A.I. asserts the court erred in finding that Sergeant Sjolin read him his Miranda

rights and the juvenile warnings and that he knowingly, intelligently, and voluntarily

waived his rights. "The rule in Washington is that challenged findings entered after a

suppression hearing that are supported by substantial evidence are binding, and, where

the findings are unchallenged, they are verities on appeal." State v. O'Neill, 148 Wn.2d

564, 571,62 P.3d 489(2003). Substantial evidence is evidence sufficient to persuade a

fair-minded rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644,

870 P.2d 313(1994). If the findings are supported by substantial evidence, we review

de novo whether the findings of fact support the conclusions of law. State v. Mendez,

137 Wn.2d 208, 214, 970 P.2d 722(1999); State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d

1280 (1997).

Miranda Warnings

       It is well established that before conducting a custodial interrogation, the police

must advise a suspect(1)the right to remain silent and provide notice that anything said

to the police might be used against him,(2)the right to consult with an attorney prior to

answering any questions and have the attorney present for questioning,(3) counsel will

be appointed for him if requested, and (4) he can end questioning at any time. Miranda

v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In In re

Gault, 387 U.S. 1, 55, 87S. Ct. 1428, 18 L. Ed. 2d 527(1967), the United States

Supreme Court held the constitutional privilege against self-incrimination under Miranda

applies with equal force to juveniles.




                                             12
No. 74263-9-1/13

        Finding of fact 20 states Sergeant Sjolin read A.I. his Miranda rights "from his

department issued code book, including the juvenile warnings because the respondent

stated that he was seventeen years old." A.I. argues substantial evidence does not

support finding of fact 20 because Sergeant Sjolin did not have an independent

recollection that he read the warnings to A.I. But without objection, Sergeant Sjolin

referred to the police report to refresh his recollection and testify that he read A.I. his

Miranda rights and juvenile warnings.5 See ER 612(a witness may use a writing to

refresh his memory while testifying).

       Q.      And Sergeant [Sjolin], I'm handing you what has been marked
               State's Exhibit 10.
       A.      Okay.
       Q.      Do you recognize that document?
       A.      Yes. It's a copy of my report.
       Q.      And would looking at that report help refresh your recollection as to
               [Miranda]that night?
       A.      Yes, it does.

       After reviewing his police report, Sergeant Sjolin testified that he read A.I. the

standard juvenile Miranda warnings from his officer codebook.

       A.      ... I talked to [A.I.] at the scene, and I read him [Miranda] warnings
               from my officer code book, including the juvenile section.
       Q.      Okay. And how did you know to read the juvenile section?
       A.      Well, his date of birth. And I'm not good with math, but I think I note
               in there that he was 17 years old.

        Q.     Okay. Did you read the [Miranda] warnings in accordance with all
               your trainings and experience?
       A.      Yes, I did. And it was directly off that notebook. We get it every —
               it's updated periodically, and it always has the most current aspects
               with regard to — to [Miranda]. And it's embossed on the back of
               our laminated officer code books.
        Q.     To your knowledge and — and understanding, is that the standard
               [Miranda] warnings that are read by everybody in your police
               department?

        5 The record also shows that before questioning A.I., Officer Jensen confirmed A.I. had been
given Miranda warnings.


                                                   13
No. 74263-9-1/14

       A.     It is the standard [Mirandal warnings read by all officers in our
              police department.
       Q.     Okay. And was — were the juvenile warnings also on that code
              book?
       A.     They — they are.

       A.I. also argues Sergeant Sjolin's testimony is not credible. A trial court's

credibility determination will not be overturned on appeal. State v. Swan, 114 Wn.2d

613, 666, 790 P.2d 610 (1990). Although the court found Sergeant Sjolin's explanation

about the comment he made to V.L. nofcredible, by contrast, the court expressly found

Sergeant Sjolin's testimony that he read A.1. his Miranda warnings and rights and that

A.I. waived those rights credible.

Waiver

       A.I. contends the court erred in concluding he knowingly, intelligently, and

voluntarily waived his Miranda rights. Whether a juvenile knowingly and voluntarily

waived his Miranda rights is determined by the "totality of the circumstances"

surrounding the confession, including the juvenile's age. Fare, Acting Chief Prob.

Officer v. Michael C., 442 U.S. 707, 724-25, 99S. Ct. 2560,61 L. Ed. 2d 197(1979);

State v. Jones, 95 Wn.2d 616, 625, 628 P.2d 472(1981). The Court in Fare addressed

the totality-of-the-circumstances determination for juveniles.

      [T]he determination whether statements obtained during custodial
      interrogation are admissible against the accused is to be made upon an
      inquiry into the totality of the circumstances surrounding the interrogation,
      to ascertain whether the accused in fact knowingly and voluntarily decided
      to forgo his rights to remain silent and to have the assistance of counsel.
       Miranda v. Arizona, 384 U.S., at 475-477.
              ... The totality approach permits—indeed, it mandates—inquiry
      into all the circumstances surrounding the interrogation. This includes
      evaluation of the juvenile's age, experience, education, background, and
      intelligence, and into whether he has the capacity to understand the




                                             14
No. 74263-9-1/15

       warnings given him, the nature of his Fifth Amendment[61 rights, and the
       consequences of waiving those rights.

Fare, 442 U.S. at 724-25.

       The Supreme Court in Fare specifically identifies the "special concerns" that must

be considered with juveniles, such as "age and experience." Fare, 442 U.S. at 725.

The Court held:

       There is no reason to assume that... juvenile courts, with their special
       expertise in this area[,      be unable to apply the totality-of-the-
       circumstances analysis so as to take into account those special concerns
       that are present when young persons, often with limited experience and
       education and with immature judgment, are involved. Where the age and
       experience of a juvenile indicate that his request for his probation officer or
       his parents is, in fact, an invocation of his right to remain silent, the totality
       approach will allow the court the necessary flexibility to take this into
       account in making a waiver determination. At the same time, that
       approach refrains from imposing rigid restraints on police and courts in
       dealing with an experienced older juvenile with an extensive prior record
       who knowingly and intelligently waives his Fifth Amendment rights and
       voluntarily consents to interrogation.

Fare, 442 U.S. at 725-26.

       Here, the court addressed the specific concerns that must be considered for a

juvenile. The conclusions of law state, in pertinent part:

               The question about whether a person waived their rights under
       Miranda, must be examined looking at the particular facts and
       surroundings of each case. North Carolina v. Butler, 441 U.S. 369[, 99 S.
       Ct. 1755,60 L. Ed. 2d 286](1979). In determining whether the confession
       was voluntary, courts consider the totality of the circumstances
       surrounding the interrogation. State v. Rupe, 101 Wn.2d 664, 6791,683
       P.2d 571](1984). Some factors considered by Washington law that go to
       the totality of the circumstances include the respondent's physical
       condition, his age, mental abilities, physical experience and police
       conduct. State v. Aten, 130 Wn.2d[]640[, 927 P.2d 210](1996). Other
       factors include the crucial element of police coercion, length of
       interrogation, location of the interrogation, continuity, the respondent's



       6   U.S. CONST. amend. V.


                                              15
No. 74263-9-1/16

       maturity, physical and mental condition and health and whether the
       respondent was advised of his rights. State v. Unga, 165 W[n].2d 95[, 196
       P.3d 645](2008). Among the most significant factors that the Courts look
       at are the police tactics employed, the respondent's mental and physical
       state and intelligence level. See Rupe. A confession that is the result of
       police intimidation, coercion or deception is inadmissible. State v.
       Vanfnlov, 25 W[n].[ ]App. 464[, 610 P.2d 380](1980).

              In this instance, respondent contends that his statements were not
       voluntary for three fundamental reasons. First, the respondent's youthful
       age: the respondent was seventeen years old on the date of incident.
       Second, English is not the respondent's native language. Third, the
       statements that were made to [V.L.] were threatening in nature, and
       should be taken in the context of Officer Jensens'[sic] later statement that
       the respondent would be treated nicer if he told the truth.

       A.I. contends the court did not take his age or language barrier into account in

determining whether he knowingly, intelligently, and voluntarily waived his right to

remain silent. The record does not support his argument. The court concluded neither

A.I.'s age nor his "language barrier" prevented him from knowingly, intelligently, and

voluntarily waiving his right to remain silent.

              Addressing first, the court examines the respondent's age. There is
       no evidence that the respondent was unable or had difficulty
       understanding the Miranda warnings read to him due to age, education, or
       any other physical or mental challenges. In fact, the evidence showed
       that the respondent conversed well with law enforcement officers other
       than with some awkward phraseology such as "I am going to make a
       license" when he intended to say "I am going to get a license." The
       evidence established that the respondent did not express any confusion or
       misunderstandings about the [Mirandal warnings and was able to
       communicate with the officers.

              With respect to the language barrier, some of the same analysis
       applies. Language difficulties encountered by a respondent are
       considered whether there has been a valid waiver of[Miranda] rights.
       State v. Teran, 71 W[n].[ ]App. 668[, 862 P.2d 137](1993)(Court reviews
       under totality of the circumstances). Here, the totality of the
       circumstances show that the respondent understood his Miranda rights
       and voluntarily, knowingly and intelligently waived those rights. When the
       officers first confronted the respondent, he replied in English to questions
       asked in English. When he was asked if he understood his Miranda


                                              16
No. 74263-9-1/17

       rights, he replied in English that he did understand. The respondent never
       invoked his rights or requested an interpreter.

               The events after the respondent's waiver of Miranda rights further
       demonstrate his English comprehension. When the officers asked
       questions in English about the events of that evening, the respondent was
       able to verbally answer. He was able to discuss his fate, understand the
       trouble he was facing and attempted, in English, to minimize his
       involvement. There is no evidence that he did not comprehend English
       sufficiently to understand what the officers were saying, particularly when
       the officers read him his rights and when he waived those rights.

       Substantial evidence supports the court's findings. The unchallenged findings

establish A.I. was 17 years old, Officer Jensen was able to communicate easily with A.I.

in English, and at one point, A.I. said he wanted to"'make a license'" as opposed to

"'obtain'"a license, but otherwise, "all statements were easily understood in English."

The audio recording shows A.I. clarified that his use of"make a license" meant he was

"practicing to drive" to obtain a driver's license. Officer Jensen and Sergeant Sjolin also

testified that A.I. never expressed any confusion about his Miranda rights.

       For the first time on appeal, A.I. contends the court erred by failing to analyze

under J.D.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. Ed. 2d 310

(2011), whether A.I. acted as a "reasonable child" in evaluating whether he waived his

Miranda rights. J.D.B. does not support his argument.

       In J.D.B., the Court addressed "the question of whether the age of a child

subjected to police questioning is relevant to the custody analysis of Miranda." J.D.B.,

564 U.S at 264. The Court held a "reasonable child" standard applies in analyzing

whether a 13-year-old child was in custody. J.D.B., 564 U.S at 271-77, 265. The Court

held that "so long as the child's age was known to the officer at the time of police

questioning, or would have been objectively apparent to a reasonable officer, its



                                             17
No. 74263-9-1/18

inclusion in the custody analysis is consistent with the objective nature of that test."

J.D.B., 564 U.S at 277. The Court remanded to consider—but did not define—a

reasonable child standard for purposes of the custody analysis. J.D.B., 564 U.S at 281.

The Court expressly notes that the issue of whether the child's statements were

voluntary was not before it. J.D.B., 564 U.S at 268 n.3.

Coercion

       A.I. also contends the statements he made to the police were coerced. A.1.

claims the court erred in finding the police followed procedure by separately removing

each suspect from the van, the police removed him from the car at gunpoint, and points

to Sergeant Sjolin's threat to V.L. Courts apply a totality-of-the-circumstances test to

determine if an individual confessed as a product of police coercion. Unqa, 165 Wn.2d

at 100-01.

       Under a totality-of-the-circumstances test, a confession induced by threats or

promises that overbear the defendant's will constitutes coercion and must be excluded.

Unqa, 165 Wn.2d at 101-02. A court considers factors relating to the interrogation itself,

including the length, location, and continuity of the interrogation. Unqa, 165 Wn.2d at

101. An appellate court reviews a trial court's finding that the confession was voluntary

and not coerced for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 133,

942 P.2d 363(1997).

       The record supports finding that the police separately removed each occupant

from the van. Findings of fact 9 and 10 state:

       9. [All was ordered out of the van and walked backwards towards
           police.
       10. After the respondent was ordered out of the van, [1.1.] and [V.L.] were
           taken out of the van one at a time.


                                             18
No. 74263-9-1/19



       The record supports finding that Officer Jensen ordered A.I. to "step out of the

vehicle" and "walk backward" toward the police officers. After A.I. "came back and was

secured," 1.1. and V.L. got out of the van at the same time.

       After the first person came back and was secured, he had mentioned that
       his — I think he said his brother was in the car. So when we went to call
       out the passenger, two people came out of the vehicle at the same time.

Officer Jensen ordered V.L. to "stay right there" while he took 1.1. into custody. Sergeant

Sjolin then placed V.L. in custody and handcuffed him.

       The record does not support the argument that the police pointed guns at A.I.,

1.1., or V.L. Below, defense counsel argued,"[W]e got a kid in handcuffs, seeing the

guns drawn, if not pointed at him, at least pointed in his general direction." The court

ruled there was no evidence a gun was "pointed in his direction."

       The court found A.I. did not overhear the statement Sergeant Sjolin made to V.L.

Findings of fact 16, 17, and 18 state:

       16. There is no direct evidence that[AI]overheard this statement.
       17. Officer Jensen did not hear the statement.
       18. There was testimony that per procedure, the respondent and [1.1]
           would have already been removed from the area when [V.L.] was
           brought back.

       Substantial evidence supports the court's finding that because A.I. and his

brother 1.1. "would have already been removed from the area when [V.L.] was brought

back," there was no evidence that Ai "overheard" the statement Sergeant Sjolin made

to V.L. Although the audio from Officer Jensen's recording device contains the threat

Sergeant Sjolin made to V.L., Officer Jensen testified he did not hear Officer Sjolin "tell

[V.L.] that his [hand] might get broken again." Sergeant Sjolin testified he did not yell or




                                             19
No. 74263-9-1/20

broadcast the comment he made to V.L. Sergeant Sjolin said, "I was just speaking to

the person I was dealing with and taking into custody."

        For the first time on appeal, A.I. claims Officer Jensen used coercive methods by

telling him to "man up" and "tell the truth" and threatening to impound the van. "As a

general rule, appellate courts will not consider issues raised for the first time on appeal."

State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995); RAP 2.5(a)("The

appellate court may refuse to review any claim of error which was not raised in the trial

court."). An appellant waives a suppression issue if he or she failed to move for

suppression on the same basis below. State v. Garbaccio, 151 Wn. App. 716, 731, 214

P.3d 168(2009)("Because [the defendant]'s present contention was not raised in his

suppression motion, and because he did not seek a ruling on this issue from the trial

court, we will not consider it for the first time on appeal."). Because A.I. did not seek a

ruling on this issue from the trial court, we will not consider it for the first time on appeal.

RAP 2.5(a); State v. Mierz, 127 Wn.2d 460,468, 901 P.2d 286 (1995); State v. Baxter,

68 Wn.2d 416, 422-23, 413 P.2d 638 (1966).7




         7 Nonetheless, as previously discussed, the record supports finding that based on the totality of
the circumstances, the questioning was not coercive. The record also shows Officer Jensen did not
threaten to impound the van. The patrol car video recording contains the statement of an unidentified
officer saying the police are going to impound the van. But Officer Jensen states that because Al's
parents do not have a car to drive "[u]ntil the van gets back," he will do what he can to expedite returning
the minivan to Al's parents.


                                                     20
No. 74263-9-1/21

       Because substantial evidence supports the court's findings and the determination

that A.I. knowingly, intelligently, and voluntarily waived his Miranda rights, we affirm.




WE CONCUR:




                                             21
