                                                                           FILED 

                                                                        JUNE 19,2014 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


 STATE OF WASHINGTON,                          )
                                               )         No. 31094-9-III
                      Respondent,              )
                                               )
        v.                                     )
                                               )         OPINION PUBLISHED
 EDWARD W. TERRY,                              )         IN PART
                                               )
                      Appellant.               )

       SIDDOWAY, C.J. - During Edward Terry's criminal trial for theft of a vehicle and

related charges, the trial court invited jurors to propose questions. One juror question

accepted by the trial court and posed to the deputy who arrested Mr. Terry was whether

Mr. Terry ever questioned or expressed surprise at being arrested. The deputy answered

that Mr. Terry did not ask, and in closing argument, the prosecutor reminded the jurors of

that answer and argued that Mr. Terry did not ask because "[he] knew that he had stolen a

vehicle and he was going to get caught." Report of Proceedings (RP) at 329. Mr. Terry's

lawyer did not object to the juror's question on constitutional grounds nor object to the

prosecutor's argument. For the first time on appeal, Mr. Terry argues that the testimony

and argument violated constitutional protections against self-incrimination and his right

to due process.
No.31094-9-Ill
State v. Terry


        An error of manifest constitutional proportions occurred here, including as a result

of the court-posed question. The error was not harmless as to most of the counts charged.

It requires a new trial on all of the challenged convictions other than his conviction for

resisting arrest. 1

        Given that disposition, we do not reach Mr. Terry's remaining assignments of

error other than his request that we order all of the charges against him dismissed on the

basis of allegedly insufficient evidence. The evidence against him was sufficient. We

reverse the convictions of theft of a vehicle, possession of a stolen vehicle, and

trespassing, and remand for a new trial on those counts.

                      FACTS AND PROCEDURAL BACKGROUND

        Edward Terry was arrested after he was followed from the scene of a one-car

accident on a county road near Dayton. The accident was witnessed by Angelia and

Gordon Smith, who were standing outside at around 7 a.m. when they saw an

approaching truck round a comer at a high rate of speed, spin out on gravel, hit the bank

on the side of the road, and tlip over. The driver crawled from under the truck and ran

through a wheat field up a nearby hill, away from the crash site. Mr. Smith saw the




       Mr. Terry's judgment and sentence included his conviction of an assault
        I
committed in March 2012 that he does not challenge.

                                              2

No. 31094-9-111
State v. Terry


individual "tum[ ] around in kind of a swinging motion, looked like he threw something."

RP at 172.

       Ms. Smith immediately called her OnStar service, which conveyed her report of

the accident to 911. Although she and her husband were as much as a quarter of a mile

away from where the truck flipped over, they described the driver to the OnStar

representative who answered their call as between 5 feet 6 inches and 6 feet tall, wearing

dark clothing, with long dark hair, wearing a hoodie or a cap, and jeans.

       Columbia County Deputy Sheriff Richard Loyd responded to the report of the

accident and spoke to Mr. Smith, who had walked to the truck to make sure no one else

was inside. Mr. Smith told Deputy Loyd which direction the driver had run. He also

explained that the farm on which they were standing was his, that he was familiar with

the terrain over the hill, and that he thought they could probably catch up with the driver.

The deputy took Mr. Smith up on his offer of help and the two went looking for the

driver in the deputy's sports utility vehicle.

       Two miles from the crash site, Mr. Smith and Deputy Loyd saw Mr. Terry

walking slowly. Deputy Loyd knew Mr. Terry from prior contacts. Mr. Terry is 6 feet

2 inches tall and at the time had very short hair.

       The deputy approached Mr. Terry and ordered him to stop and get on the ground.

Mr. Terry refused and made a contemptuous finger gesture at Mr. Smith and the deputy.

Deputy Loyd then approached Mr. Terry with his gun drawn. When he was close enough

                                                 3

No.31094-9-III
State v. Terry


to satisfy himself that Mr. Terry was not armed, the deputy put away his sidearm and

drew his taser, again telling Mr. Terry to get on the ground and put his hands behind his

back or he would be "tased." RP at 228. In what testimony suggests was a sardonic tone,

Mr. Terry responded, '''Oh, a taser'" and renewed the finger gesture, although this time

using both hands. Id. He then turned his back on the deputy and Mr. Smith, dropped his

pants, and, as Mr. Smith would later testify, "mooned both of us." RP at 179. That done,

he pulled up his pants, dropped to the ground, and put his hands behind his back.

       The deputy attempted to handcuff Mr. Terry, telling him to turn his head away; he

later explained to the jury that when handcuffing an individual who is prone, officers

prefer to be out of the individual's line of sight. Mr. Terry did not comply, answering,

according to the deputy, "that was all I was going to get." RP at 229. The officer then

walked around to Mr. Terry's other side. He placed a handcuff on Mr. Terry's left wrist

but, when he reached for his right arm to cuff his second wrist, Mr. Terry tried to push up

against the deputy, roll over, and bite him. Deputy Loyd told Mr. Terry he was resisting

arrest, which Mr. Terry denied. Deputy Loyd then used a pressure compliance technique

and Mr. Terry relented and allowed him to finish handcuffing him. The deputy would

later testify that the basis for the arrest was trespass.

       Deputy Loyd took Mr. Terry to the sheriffs department. During the booking

process, Ralph Frame, who owned the truck in which Mr. Terry had been driving, called

the department to report that his truck had been stolen. He had left it parked in front of

                                                4

No. 31094-9-III
State v. Terry


his shop the night before with the keys inside, and in the morning it was gone. It turned

out that Mr. Frame's shop was a quarter mile from where Mr. Terry lived with his mother

and was 10 to 12 miles from the crash site.

       After booking Mr. Terry and traveling to speak to Mr. Frame, Deputy Loyd

returned to the scene of the crash to further investigate. He was unable to find the keys to

the truck either in the truck or in the area ofthe field where Mr. Smith thought he had

seen Mr. Terry swing his arm as if to throw something. He saw footsteps leaving the

crash site and going up into the field. Hoping to better tie Mr. Terry to the stolen truck,

the deputy attempted to follow the path of the footprints through wheat fields, a pea field,

and an access road that lay between where the truck rolled and where he arrested Mr.

Terry. Using a GPS (global positioning system) device, he tracked his steps, later

producing a topographical map that showed where he had been able to follow the

footprints and where, on several occasions, he lost them. He took pictures of the tracks

and later obtained pictures of Mr. Terry's shoe tread, taken at the jail.

       Mr. Terry was eventually charged with theft of a vehicle, possession of a stolen

vehicle, trespassing, and resisting arrest.

       At trial, Mr. Smith and Deputy Loyd testified that when Mr. Terry was

encountered and arrested, Mr. Smith had identified him as the individual he had seen

climbing out of the truck. Although Mr. Terry proved taller than Mr. Smith initially

believed and Mr. Smith's description of his hair and clothing did not prove accurate, Mr.

                                              5

NO.31094-9-III
State v. Terry


Smith expressed confidence in his identification from the fact that it was early in the

morning and he and his wife had seen no one else around. He testified that from his and

Deputy Loyd's first sighting of Mr. Terry he felt sure from his appearance and location

that he was the individual who crawled out of the truck and ran up the hill. He admitted

that he had been too far away to see facial features and that he could not positively

identify Mr. Terry at the time of trial.

       Deputy Loyd described the map he had created tracking footsteps from the crash

site to where he and Mr. Smith encountered Mr. Terry and testified that the tracks made

through the field were made by the shoes worn by Mr. Terry at the time of his arrest.

       The trial court allowed jurors to propose questions during the trial. When given

the opportunity to propose questions after Deputy Loyd's testimony, a juror wrote, '''Did

he, Eddie Terry, ever ask or wonder why he was arrested? Was he surprised he was

arrested?'" RP at 292. Mr. Terry's counsel objected on hearsay grounds and that the

question called for speculation by the deputy. The court overruled the objections and

posed the questions. The deputy answered "No" when asked if Mr. Terry asked or

wondered why he was arrested. RP at 294. In response to the question about whether

Mr. Terry was surprised, the deputy said, "I don't know ifhe was surprised or not." ld.

       During closing argument, the prosecutor referred to the juror's question and

Deputy Loyd's response:




                                             6

No. 31094-9- III
State v. Terry


              One more item I want to talk about in regards to resisting arrest, and
       actually applicable, ah, to all the charges here is: when Deputy Loyd was
       asked, did the defendant ask why he was being arrested? No. He knew.
       He knew that he had stolen a vehicle and he was going to get caught. He
       knew that he possessed that vehicle and wrecked it. He knew that he
       trespassed. That's why he didn't ask the question.

RP at 329.

       The jury found Mr. Terry guilty as charged. He appeals.

                                        ANALYSIS

                   1. Unconstitutional use ofMr. Terry's postarrest silence

       Mr. Terry contends that his rights under the United States and Washington

Constitutions were violated, first, when the trial court posed a juror's questions to Deputy

Loyd that invited a response from the deputy that Mr. Terry never asked why he was

being arrested, and second, when the prosecutor then argued in closing that Mr. Terry's

failure to ask about his arrest was probative of guilt. Mr. Terry argues that both were

impermissible comments on his postarrest silence, in 'violation of constitutional

protections against self-incrimination and requirements of due process.

       The State argues that "[a] reasonable interpretation is that the juror question

applies to the pre-arrest time period when Mr. Terry was first being approached by

Deputy Loyd," so that only constitutional protections against compelled testimony are

implicated, not the right to due process. Br. ofResp't at 24 (emphasis added). Whether

the testimony and argument were a comment on pre arrest rather than postarrest silence


                                              7

No. 31094-9-111
State v. Terry


can make a difference after the United States Supreme Court's decision in Salinas v.

Texas,       U.S. _,133 S. Ct. 2174,186 L. Ed. 2d 376 (2013).

         In Salinas, a three-member plurality of the Supreme Court held that if an

individual voluntarily submits to an interview by police and reaches a point at which he

or she chooses not to speak based on Fifth Amendment rights, 2 he or she must

affirmatively invoke those rights. Otherwise, the State may offer and the jury may

consider the fact that a defendant failed or refused to speak to law enforcement in

circumstances where an innocent person would reasonably be expected to speak. As

explained by the Court, "[P]opular misconceptions notwithstanding, the Fifth

Amendment guarantees that no one may be 'compelled in any criminal case to be a

witness against himself; it does not establish an unqualified 'right to remain silent.'"

133 S. Ct. at 2182-83.

         The petitioner in Salinas agreed to speak to officers investigating a murder, but

balked when the officer asked whether a ballistics test would tie shell casings found at the

crime scene to the petitioner's shotgun. At trial, the officer was permitted to testify to the

petitioner's suspicious silence in response to that question and the prosecutor was

permitted to argue that the petitioner's reaction suggested guilt. The plurality decision in




        Made applicable to the states through the Fourteenth Amendment as recognized
         2
in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

                                               8

No. 31094-9-III
State v. Terry


Salinas held that the testimony and argument was unobjectionable because the petitioner

was speaking to the investigating officer voluntarily and "it would have been a simple

matter for him to say that he was not answering the officer's question on Fifth

Amendment grounds. Because he failed to do so, the prosecution's use of his

noncustodial silence did not violate the Fifth Amendment." Id. at 2180. 3 Since '''no

ritualistic formula is necessary in order to invoke the privilege [against self-

incrimination],'" id. at 2178 (quoting Quinn v. United States, 349 U.S. 155, 164, 75 S.

Ct. 668, 99 L. Ed. 964 (1955)), courts faced with the admissibility of prearrest silence

after Salinas have examined the defendant's conduct to see ifan invocation of Fifth

Amendment rights was either express or implied. See, e.g., United States v. Okatan, 728

F.3d 111 (2d Cir. 2013) (while defendant did not say "Fifth Amendment" or "privilege

against self-incrimination," his expression of a desire to speak with a lawyer sufficed to

invoke the privilege).




       3 Two justices (Thomas, 1., and Scalia, 1.) expressed their disagreement with any
limitation on the State's right to comment on a defendant's silence or failure to testify.
They characterized Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106
(1965), which held that the Fifth Amendment prohibits a prosecutor or judge from
commenting on a defendant's failure to testify, as '''lack[ing] foundation in the
Constitution's text, history, or logic'" and establishing a principle that "should not be
extended." Salinas, 133 S. Ct. at 2184 (Thomas, 1., concurring in judgment) (quoting
Mitchell v. United States, 526 U.S. 314, 341, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999)
(Thomas, J., dissenting)).

                                              9

No. 31094-9-III
State v. Terry


       The Washington Constitution includes its own provision against self-incrimination

but it provides no greater protection; the Washington Supreme Court has held that it

'" envisions the same guarantee as that provided in the federal constitution.'" State v.

Mecca Twin Theater & Film Exch., Inc., 82 Wn.2d 87, 91, 507 P.2d 1165 (1973)

(quoting State v. Moore, 79 Wn.2d 51,57,483 P.2d 630 (1971)); In re Pers. Restraint of

Ecklund, 139 Wn.2d 166, 172 n.6, 985 P.2d 342 (1999) (the federal and state

constitutional provisions "are given the same interpretation").

       Commenting on postarrest silence raises a second constitutional concern,

grounded in due process. Warnings under Miranda 4 given upon arrest "constitute an

'implicit assurance' to the defendant that silence in the face of the State's accusations

carries no penalty," making it fundamentally unfair to then penalize the defendant by

offering his silence as evidence of guilt. State v. Easter, 130 Wn.2d 228,236,922 P.2d

1285 (1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d

353 (1993); Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)). For

the government to comment on post-Miranda silence is to "[break] its promises given in

the Miranda warnings and violate[ ] due process of law." State v. Burke, 163 Wn.2d 204,

213, 181 P.3d 1 (2008).




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

                                             10 

No. 3lO94-9-1I1
State v. Terry


       The State recognizes that controlling case law is more protective of a defendant's

postarrest silence when it argues that we should regard the juror's question as addressed

to the prearrest time period. But its argument that the juror was interested in prearrest

events is grounded more in hope than in reality. The juror's questions, as handwritten by

the juror and read by court, asked if Mr. Terry ever "ask[ed] or wonder[ ed] why he was

arrested" or was "surprised that he was arrested." Clerk's Papers at 120 (emphasis

added); RP at 292. The questions followed Deputy Loyd's testimony that he ordered Mr.

Terry to stop and drop immediately upon encountering him, drew his gun when Mr. Terry

did not comply, undertook to handcuff him, and then read Mr. Terry his Miranda rights,

in response to which Mr. Terry said he understood his rights. The deputy also testified

that Mr. Terry "immediately told me he didn't want to talk to me," although that answer

was stricken upon objection. RP at 231. In short, the jury had not heard testimony about

any meaningful prearrest period to which the juror's questions could have been directed.

We are dealing, then, with testimony and argument involving postarrest silence.

       The State next argues that because Mr. Terry failed to object to the juror's

question on constitutional grounds and did not object at all to the prosecutor's argument,

he may not raise the due process issue for the first time on appeal. Ordinarily, we will

not review an error to which no objection was made in the trial court. RAP 2.5(a). This

includes error involving an improper reference to a defendant's postarrest silence; an




                                             11 

No. 31094-9-III
State v. Terry


exception exists, however, for "manifest error affecting a constitutional right." RAP

2.5(a)(3); Burke, 163 Wn.2d at 224 (Madsen, J., dissenting).

       The Washington Supreme Court has distinguished between "comments" and

"references" to a criminal defendant's silence, recognizing that "[b10th are improper, but

only the former rise to the level of constitutional error," and that what are merely

improper references "are not reviewable for the first time on appeal." Burke, 163 Wn.2d

at 225 (citing State v. Romero, 113 Wn. App. 779, 790-91, 54 P.3d 1255 (2002)). The

distinction "focus[es] largely on the purpose of the remarks." ld. at 216 & n.7 (collecting

examples). A "comment" occurs when the State uses a defendant's silence as substantive

evidence of guilt or suggests the silence was an admission of guilt. State v. Gregory, 158

Wn.2d 759,838, 147 P.2d 1201 (2006) (quoting State v. Lewis, 130 Wn.2d 700, 707, 927

P.2d 235 (1996)).

       In Romero, this court suggested a two-part analytical framework for determining

whether a State agent's direct or indirect comments during trial on a defendant's silence

amount to constitutional error. The first step asks whether the comment was "direct," in

the sense examined in Lewis, which is to ask whether the witness effectively stated or

expressed an opinion that the defendant's silence was evidence of gUilt. See Lewis, 130

Wn.2d at 706. A direct comment is automatic constitutional error.




                                             12 

No. 31094-9-111
State v. Terry


       If the comment was not direct, Romero suggested three questions, drawn from

earlier Washington cases, from which to determine whether the State was seeking to

capitalize on an inference of guilt in a manner violating the defendant's rights:

       First, could the comment reasonably be considered purposeful, meaning
       responsive to the State's questioning, with even slight inferable prejudice to
       the defendant's claim of silence? Second, could the comment reasonably
       be considered unresponsive to a question posed by either examiner, but in
       the context of the defense, the volunteered comment can reasonably be
       considered as either (a) given for the purpose of attempting to prejudice the
       defense, or (b) resulting in the unintended effect of likely prejudice to the
       defense? Third, was the indirect comment exploited by the State during the
       course of the trial, including argument, in an apparent attempt to prejudice
       the defense offered by the defendant?

Romero, 113 Wn. App. at 790-91 (citations omitted). Answering "yes" to any ofthe

questions means the indirect comment is an error of constitutional proportions. Id. at

791.

       The second question suggested by Romero must be answered "no" here because

Deputy Loyd's answer was directly responsive to the court's question; he volunteered

nothing more. A necessary variant of the first question and the third question must both

be answered "yes," however.

       The State argues that the first question must be answered "no" because it did not

pose the question about silence-the court did. As a result, it argues, constitutional error

was avoided. We disagree. Romero did not consider the possibility oftestimony that is

responsive to ajuror- or court-posed question that invites a prejudicial inference or


                                             13 

No. 31094-9-111
State v. Terry


implication of guilt. The fact that the question was posed by the court makes it uniquely

problematic and requires that the first question be modified in the circumstances present

here.

        Before Mr. Terry's trial, the State agreed to invite jurors to ask questions. It is a

practice that is standard and acceptable in civil trials, see CR 43(k), but that is

discouraged in criminal trials because of the risks of harm it presents. A comment to

former Washington Pattern Jury Instruction (Criminal) 4.66, which was to be given when

jurors posed questions in criminal trials, stated that the instruction should not be given

unless a juror expressed a desire to question a witness and that it was '''advisable that a

judge should not encourage jurors to ask questions.'" State v. Monroe, 65 Wn. App. 245,

251, 828 P .2d 24 (1992 ) (quoting 11 WASHINGTON PRACTICE: PATTERN JURY

INSTRUCTIONS: CRIMINAL 4.66 cmt. (1977) (WPIC». The Monroe court agreed with

authors of the pattern instructions in discouraging the practice, stating that "we believe

the active solicitation ofjuror questions is inappropriate." Id. at 254. State v. Munoz, 67

Wn. App. 533,538,837 P.2d 636 (1992) reiterated disapproval of actively soliciting juror

questions, recognizing that "[p]otentially serious problems could arise from juror

questions." Following Monroe and Munoz, the authors of the Washington pattern

instructions withdrew WPIC 4.66 (1977). The comments to the withdrawn instruction

state that "[g]iven the concerns expressed by the Court of Appeals, the committee




                                               14 

No. 31094-9-111
State v. Terry


recommends trial courts not raise the issue unless a juror inquires." 11 WASHINGTON

PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL 4.66, at 130-31 (3d ed. 2008).

       Having nonetheless exercised its discretion to invite juror questions in Mr. Terry's

trial, the trial court read an instruction that described for jurors how and when they could

write out and submit their questions. It included the following explanation, modified

from WPIC 4.66 (1977):

              I will review the question-actually, I have to, ah, excuse you across
      the hall, then I review the questions with the lawyers outside your presence,
      ah, to make sure they're . .. in allowable form and don't violate some
      technical rule ofevidence, and /'II review it to make sure it's legally
      proper. There are some questions I won't ask.... It will often be the case
      that a lawyer has not asked a question because it's legally objectionable or
      because a later witness may be addressing that subject.

RP at 151-52 (emphasis added). Given the highlighted language, the instruction

implicitly communicated to the jurors that any question the judge accepted and posed

would be "in allowable form," would not violate any technical rule of evidence, and

would be "legally proper."

       It is reasonable to assume that the juror who asked whether Mr. Terry wondered

why he was being arrested thought it was a good question, since if Mr. Terry was

unsurprised it would tend to prove guilt. When the question was accepted by the court

and posed to Deputy Loyd, it received institutional imprimatur in the eyes of the jurors.

A leading treatise has recognized that among the risks of permitting jury questions is that

"the jurors will attach inordinate weight to the witnesses' answers to the jurors' questions

                                             15 

No. 3lO94-9-III
State v. Terry


and slight the testimony elicited by the parties." 1 MCCORMICK ON EVIDENCE § 8

(Kenneth S. Broun ed., 7th ed. 2013). Whether we view the State as one of the

gatekeepers ofjury questions posed in a criminal trial or analyze this as a problem of

independent trial court error, the outcome is the same. Cj Griffin v. California, 380 U.S.

609,85 S. Ct. 1229, 14 L. Ed. 2d lO6 (1965) (treating the trial court's instructions on

permissible inferences from silence and the State's argument as equally problematic).

We conclude that where ajuror-proposed, court-posed question in a criminal trial invites

a comment on a defendant's silence, a fourth question must be added to the second step

of the Romero analysis: has the State acquiesced in a question by the trial court that

results in a responsive comment that even slightly and prejudicially infers or implies guilt

from a defendant's silence? If the answer is yes, as it is here, then an issue of

constitutional error is raised that must survive constitutional error review.

       The answer to the third Romero question provides further support for the manifest

constitutional character of the error in this case. The State not only acquiesced in a

question that elicited testimony prejudicially inferring or implying guilt, it then

highlighted that inference or implication and encouraged the jury to rely upon it. It

cannot be seriously contended that the prosecutor's closing argument was merely a

passing reference that was not relied upon by the State as evidence of guilt. The State's

exploitation of Deputy Loyd's indirect comment on Mr. Terry's silence presents further

constitutional error.

                                              16
No. 31094-9-111
State v. Terry


       The question that remains is whether the error was harmless. A constitutional

error is harmless only if the reviewing court is convinced beyond a reasonable doubt that

any reasonable jury would reach the same result absent the error and where the untainted

evidence is so overwhelming that it necessarily leads to a finding of guilt. Burke, 163

Wn.2d at 222; State v. Emery, 174 Wn.2d 741,757,278 P.3d 653 (2012) (constitutional

harmless error standard applies to direct constitutional claims involving prosecutors'

improper arguments).

       As to the three crimes that are alleged to have preceded the deputy's encountering

Mr. Terry, the comments were not harmless. Mr. Smith lost sight of the driver of the

truck after he crested the first hill, and his and his wife's initial description of the driver

did not match Mr. Terry. Deputy Loyd did not testify to any forensic training or

expertise in matching footprints to a particular shoe and he admitted he was unable to

locate an unbroken footprint trail between the crash site and the location where he and

Mr. Smith encountered Mr. Terry. The evidence was not sufficiently overwhelming to

necessarily lead to a finding of guilt and there is a real risk that the jury attached special

significance to the response to, and argument from, the juror's question..

       As to the resisting arrest charge, however, the error was harmless. Deputy Loyd's

and Mr. Smith's testimony as to what transpired during the course of the arrest was

consistent and undisputed and included both men's testimony that the deputy accused Mr.

Terry of resisting during the course of the arrest. Mr. Smith testified first, telling the jury

                                               17 

No. 31 094-9-II1
State v. Terry


that "the Officer said, 'You're resisting arrest.' [Mr. Terry] said, 'No, I'm not.' At one

time I saw him try and bite the Officer, so I kind of figured that was resisting in my

mind." RP at 179. The deputy's recollection was that he told Mr. Terry "to stop

resisting." RP at 230. Given Mr. Smith's testimony that Mr. Terry was aware of the

perception that he was resisting arrest and denied it, the State's comments do not present

the same problem with respect to the resisting arrest charge. There was no question of

Mr. Terry's identity with respect to that charge, either; the testimony was undisputed and

overwhelming.

       We affirm the conviction of resisting arrest. We reverse the convictions of theft of

a vehicle, possession of a stolen vehicle, and trespassing, and remand for a new trial on

those counts. In light of that disposition, we need not reach Mr. Terry's remaining

assignments of error, which address matters that might not arise in a new trial or, if they

do, will involve a different record.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with the rules governing unpublished opinions. RCW

2.06.040.

                               II. Sufficiency o/the evidence

       Mr. Terry requests more than a new trial, however; he argues that insufficient

evidence was presented at trial to support his convictions of all but the charge of resisting




                                             18 

No. 31094-9-111
State v. Terry


arrest. He asks that we remand with directions to dismiss those charges. He makes two

principal arguments.

       His first-which, if successful, would be fatal to all three of the challenged claims

(theft, possession of a stolen vehicle, and trespass)-is that there was insufficient

evidence that he was the individual seen crawling out of Mr. Frame's truck by the

Smiths.

       His second pertains only to the charge of possessing a stolen vehicle; he argues

that even ifthere is sufficient evidence that he was in possession of a stolen vehicle, the

evidence was insufficient to establish his knowledge that it was stolen.

       An insufficient evidence claim admits the truth of the evidence as well as all

reasonable inferences that can be drawn from the evidence. State v. Salinas, 119 Wn.2d

192,201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally

reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P .2d 99 (1980) .. On appeal, we will

defer to the trial court regarding issues of conflicting testimony, credibility of witnesses,

and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d

850 (1990). A conviction will be reversed only when no rational trier of fact could have

found that the State proved all of the elements of the crime beyond a reasonable doubt.

State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005).




                                              19 

No.31094-9-III
State v. Terry


                 A. 	  The identification of Mr. Terry as having been in
                 possession of Mr. Frame's truck near the Smiths' farm

       The only witnesses who saw the individual crawl out of the stolen truck following

the accident were Angelia and Gordon Smith. Being able to place Mr. Terry in the truck

was essential not only to the theft and possession of stolen property charges but also to

the trespassing charge, since Mr. Terry was not on the Smiths' land when he was

arrested.

       Immediately after seeing Mr. Frame's truck skid and roll, Ms. Smith got into her

own truck and used its OnStar service to report the accident. While speaking with the

OnStar representative, she saw the driver crawling out of the truck. She testified at trial:

       And the next thing, I look up and I see this guy in our wheat field and he is
       hoofing it. I don't think I've ever seen anybody run that fast in my life. He
       was like a gazelle going up this hill. And trust me, I have Arabian horses
       and we go up these hills on these horses and they're ready to stop when
       they get to the top.

RP at 162. Asked at trial to describe the man that she saw, she testified, "He was tall and

slender, wearing a hoodie or a cap or something, jeans, ah-like I said, I was a little bit

away, so I didn't-I got a good look that he was tall and slender and man can he run."

Id. She testified that his age was "hard to gauge. He wasn't too old. He definitely

wasn't my age. Ah, but I'd have to guess-he didn't look like a teenager, you know."

Id.

       When asked to describe the person he saw, Mr. Smith testified:



                                             20 

No. 31 094·9·1II
State v. Terry


       [1]t was, ah, a male individual, appeared to be Caucasian, five and a half to
       six feet tall, slender build, wearing dark clothing. Couldn't wear-tell if it
       was really black hair or dark hair or wearing some kind of a hat. Ah, and
       literally, ah, climbed out of the vehicle as 1 said before, and then
       immediately started running perpendicular up the hill, which is a very steep
       hill. These are Palouse hills-it's farming country. Ah, and he was going
       at a high rate of speed, and I just was totally amazed. And that's really the
       only visual 1 got at that point.

RP at 173. Mr. Smith was later asked whether the description he had provided to OnStar

matched Mr. Terry's appearance when he and the deputy tracked him and encountered

him in the field, and testified:

       A. 	 Ah, pretty accurate. Actually, ah, he was a little taller than I thought,
            and, ah, was a slender male individual, and, ah, pretty much what­
            what 1 conveyed to OnStar.
       Q. 	 Did you note anything about his clothing?
       A. 	 Ah, other than it was, ah, jean jacket, dark shoes-I mean, dark pants,
            ah, shoes-boots, ah, not really.
       Q. 	 Was that what you conveyed to OnStar as far as clothing; was that
            consistent with the-
       A. 	 -Yes-
       Q. 	 -person that you saw in the field?

RP at 178.

       Compensating to some extent for the Smiths' distance from the scene of the

accident and their inability to get a better look at the driver was Mr. Smith's familiarity

with his land and surrounding areas and his confidence, reasonably explained, that he and

the deputy would be able to track the driver. Mr. Smith's ability to anticipate the route

the driver would follow, the timeliness of the pursuit, and the early hour and absence of

anyone else seen in the vicinity were all facts that the jury was entitled to consider.

                                             21 

No. 31094-9-III
State v. Terry


       In addition to Mr. and Ms. Smith's testimony, the State offered evidence of

Deputy Loyd's work in locating the path followed by the driver after the fact. There was

no question that Mr. Terry was the individual encountered and arrested in a wheat farm

two miles from the accident scene. The deputy's testimony that he was able to find a

broken trail of footprints matching Mr. Terry's shoe from the location ofthe arrest back

to the truck, if believed by the jury, tended to prove that Mr. Terry had been the driver of

the truck.

       Finally, the State presented evidence that Mr. Terry lived within a quarter mile of

where Mr. Frame's truck had been stolen and was encountered 10 to 12 miles down the

road from his home, early in the morning, and within a couple of miles of where someone

had crashed the truck and taken off on foot.

       While neither of the Smiths was able to make a positive identification ofMr. Terry

at trial, the evidence that the State did present was collectively sufficient to persuade a

rational trier of fact that it was Mr. Terry who was driving the truck at the time that it

crashed.

                  B. 	    Additional evidence required to prove theft and
                               possession of stolen property

       Mr. Terry's remaining challenge to the sufficiency of the evidence is that even if

the State presented evidence that he was driving the truck when it rolled, his mere

possession ofthe truck at that time is not evidence that he stole it or knew it was stolen.


                                               22 

No. 31 094-9-III
State v. Terry


       As he points out, Deputy Loyd conceded there are several reasons individuals may

leave the scene of an accident, testifying, '''Usually when people flee the scene of a

collision, there's something else going on-maybe they're intoxicated, don't have

insurance, have warrants for their arrest, a myriad oflhings.'" Br. of Appellant at 15

(quoting RP at 226). Mr. Terry points out that since he invoked his Miranda rights

immediately after being cuffed and read the rights, and because he chose not to testify at

trial, the fact that he did not offer his own innocent explanation could not be used against

him. See State v. Mace, 97 Wn.2d 840, 650 P.2d 217 (1982) (conviction vacated where

the prosecutor impermissibly relied on defendant's postarrest silence as evidence

defendant had no explanation for possessing stolen property).

       Finally, he points out that even the trial court characterized the State's evidence

supporting the theft charge as tenuous. 5



       5 When Mr. Terry moved to dismiss all of the State's charges at the conclusion of
the evidence, the trial court said:
       Looking at the evidence most favorably in light of the non-moving party,
       the State in this instance, ah, given the fact that the, ah-it's undisputed that
       the vehicle was still at its usual, ah, location of parking, ah, at the Frame
       residence, ah, the evening before-8:30, 9 o'clock before, and was gone by,
       ah-ah,7 o'clock the next morning it was discovered missing, ah, by Mr.
       Frame. Ah, I realize that is tenuous, but it is a sufficiently short length of
       time, ah, upon which a jury could reasonably infer that it was Mr. Terry, ah,
       who took the vehicle, ah, and-and so, without the owner's permission.
       And-and-and that was the closest case you have as far as insufficient
       evidence.
RP at 297.

                                             23 

No. 31094-9-III
State v. Terry


       RCW 9A.56.140(1) defines possession of stolen property in part as "knowingly"

receiving, retaining, possessing, concealing, or disposing of stolen property "knowing

that it has been stolen." An individual's possession of recently stolen property increases

the likelihood that the possessor has guilty knowledge but is insufficient, standing alone,

to prove he or she knew the property was stolen. State v. Couet, 71 Wn.2d 773, 775, 430

P.2d 974 (1967). Possession of recently stolen property coupled with slight corroborative

evidence is sufficient to prove gUilty knowledge, however. State v. Womble, 93 Wn.

App. 599, 604, 969 P.2d 1097 (1999). Corroborative evidence can include damage

consistent with theft, such as a broken ignition; fleeing when stopped; and the absence of

a plausible explanation for legitimate possession. State v. L.A., 82 Wn. App. 275, 276,

918 P.2d 173 (1996); Womble,93 Wn. App. at 604.

       Anticipating that the State will point to Mr. Terry's flight, he argues that cases

relying on flight as corroborating evidence sufficient to prove guilty knowledge deal with

flight from a law enforcement officer, which he argues was not the case here. See L.A.,

82 Wn. App. at 276; State v. Hudson, 56 Wn. App. 490, 784 P.2d 533 (1990). Yet proof

that a driver fled a stolen car after an accident has a tendency to make it more probable

that the driver was aware the car was stolen regardless of whether a law enforcement

officer was present. Cf ER 401 (defining relevant evidence). His flight was relevant

evidence.




                                             24 

No. 31094-9-III
State v. Terry


       Additional corroborative evidence exists in the fact that Mr. Terry was living with

his mother within a quarter mile of where Mr. Frame's truck was parked with the keys

inside. His mother also testified that on the night of the theft she got up several times to

use the bathroom and noticed that her son was not sleeping on the sofa; she testified that

she thought he was sleeping in a trailer outside but an inference could be drawn from her

testimony that the sofa was where he usually slept.

       Mr. Terry attacks the proximity of his mother's home and Mr. Frame's shop as

corroborative because Dayton is a small town and its environs are rural, with "everyone

liv[ing] close to everyone else." Br. of Appellant at 14 n.l. It is corroborative, however,

because the fact that Mr. Terry lived close to where the truck was left unlocked with the

keys inside has a tendency to make it more likely that Mr. Terry was the thief than if

nothing placed Mr. Terry within the vicinity of the unlocked truck.

       The proximity of Mr. Terry's residence to the stolen truck, his mother's testimony

that she did not see him the night of the theft, and his flight from the accident scene are

sufficient corroboration, when added to evidence of the short time frame between the

theft of the truck and Mr. Terry's possession of it, to support the jury's verdict that he

was guilty of theft.

       We affirm the conviction of resisting arrest. We reverse the convictions of theft of

a vehicle, possession of a stolen vehicle, and trespassing, and remand for a new trial on

those counts. In light of that disposition, we need not reach Mr. Terry's remaining

                                             25 

No. 31094-9-III
State v. Terry


assignments of error, which address matters that might not arise in a new trial or, if they

do, will involve a different record.




WE CONCUR: 



                      --rJ'   '




Antosz, J.P. T.




                                             26 

