                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            January 9, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 49198-2-II

                                Respondent,

         v.

 DOUGLAS MARVIN MACKEY,                                         UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — Douglas Marvin Mackey appeals his convictions for second degree

assault, fourth degree assault, unlawful imprisonment, and felony harassment. He argues that (1)

the trial court erred by admitting his inculpatory statement to police at trial, (2) his fourth degree

assault conviction violates his right to a unanimous jury verdict, (3) his second degree assault

and fourth degree assault convictions violate the double jeopardy prohibition, and (4) the

evidence is insufficient to support his conviction for unlawful imprisonment. We disagree with

Mackey’s arguments and affirm his convictions.

                                               FACTS

       On March 7, 2015, Mackey picked up his girlfriend, Mallory Anderson, and their son

from their home in Oregon and drove them to his residence in Vancouver. Later that evening,

Mackey and Anderson got into an argument. Mackey struck Anderson and pinned her to the

ground in the garage of his home, with his hands around her neck. Mackey then pushed his

thumbs over Anderson’s eyes, breaking a blood vessel in one of her eyes. The next day, Mackey

hit Anderson several times and held her up against a wall in the hallway of his home, squeezing
No. 49198-2-II


his hand around her neck. Later, Mackey threatened to kill Anderson, punched her in the back

multiple times, and pulled her by her hair.

         Anderson asked Mackey to take her and their son home on multiple occasions. Mackey

refused, stating that Anderson could not leave until her bruises were gone. Anderson did not

have any means of transportation and was afraid of what might happen if she tried to leave

Mackey’s home. After Mackey threatened to kill Anderson, she called her father who took her

and her son back to Oregon. Anderson had two black eyes and bruises on her arms and legs

when she left Mackey’s residence.

         On May 27, 2015, police made contact with Mackey and placed him under arrest.

Mackey was secured in a police officer’s patrol vehicle and the officer informed Mackey that he

was under arrest for an incident that occurred with Anderson in March. Mackey responded,

“That was months ago!” Clerk’s Papers (CP) at 104. Mackey had not been read his Miranda1

warnings at this point. The State subsequently charged Mackey with one count of second degree

assault for recklessly inflicting substantial bodily harm,2 one count of second degree assault by

strangulation or suffocation,3 one count of unlawful imprisonment,4 and one count of felony

harassment.5



1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
    RCW 9A.36.021(1)(a).
3
    RCW 9A.36.021(1)(g).
4
    RCW 9A.40.040.
5
    RCW 9A.46.020(1)(a)(i), (2)(b)(ii).



                                                 2
No. 49198-2-II


         Before trial, the trial court held a CrR 3.5 hearing to determine the admissibility of

Mackey’s inculpatory statement to police. At the hearing, Mackey argued that “our position . . .

simply is that it appears there were no Miranda warnings given, but I don’t know that they would

have had to be under that circumstance so I don’t think we’re contesting that he made that

particular statement.” 1 Verbatim Report of Proceedings (VRP) at 89. The trial court entered

findings and conclusions, determining that Mackey’s statement was admissible because it was

spontaneous and was not made pursuant to a custodial interrogation.

         At trial, witnesses testified to the above facts. Mackey requested an instruction on fourth

degree assault as a lesser included offense of the second degree assault by strangulation charge.

The State withdrew its Petrich6 instruction on that charge. Mackey did not object, and he did not

propose a Petrich instruction. The trial court did not provide the jury with a Petrich instruction.

         During closing argument, the State argued:

                 The assault two, strangulation, which is your Count 2, is a little more
         straightforward.
                 ....
         All you need is for the defendant to want to cut off her airway and to attempt to do
         so. And here we have a situation where she could not breathe, and this is—the
         situation that I’m talking about is the situation that occurred against the wall,
         downstairs, where the defendant picked her up, by her neck, with one hand, and her
         feet were off the ground.
                 ....
                 So again, there’s a lesser included on the strangulation count, and you only
         get to that if you first find not guilty of strangulation.

4 VRP at 458-59. The State argued that only the “wall incident” satisfied the second degree

assault by strangulation charge. See 4 VRP at 462.




6
    State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).


                                                   3
No. 49198-2-II


       The jury returned verdicts finding Mackey guilty of second degree assault, the lesser

included offense of fourth degree assault, unlawful imprisonment, and felony harassment. The

jury verdict forms specifically stated that the jury found Mackey “guilty of the crime of Assault

in the Second Degree” as charged in Count 01 and “having found [Mackey] not guilty of the

crime of Assault in the Second Degree in Count 02 as charged . . . find [Mackey] guilty of the

lesser included crime of Assault in the Fourth Degree.” CP at 80, 86 (boldface and capitalization

omitted). The jury also returned special verdicts finding that the crimes were aggravated

domestic violence offenses. Mackey appeals.

                                           ANALYSIS

                                     I. STATEMENT TO POLICE

       Mackey argues that the trial court erred by admitting his inculpatory statement to police

at trial because his statement was elicited during a pre-Miranda custodial interrogation. The

State argues that Mackey impliedly waived his right to contest his statement’s admissibility. We

determine that Mackey did not waive his right to contest the admissibility of his inculpatory

statement but nonetheless hold that the trial court’s unchallenged findings of fact support its

conclusion that Mackey’s pre-Miranda inculpatory statement was admissible at trial.

A.     Waiver

       As an initial matter, the State argues that Mackey impliedly waived his right to contest

the admissibility of his inculpatory statement to police because he withdrew his objection at the

CrR 3.5 hearing. We disagree.




                                                 4
No. 49198-2-II


       Although a CrR 3.5 hearing is mandatory, a defendant can waive it. State v. Nogueira,

32 Wn. App. 954, 957, 650 P.2d 1145 (1982). A CrR 3.5 hearing “may be waived if done so

knowingly and intentionally,” and waiver may be either express or implied. State v. Fanger, 34

Wn. App. 635, 637, 663 P.2d 120 (1983).

       At the CrR 3.5 hearing, Mackey stated, “Your Honor, our position . . . simply is that it

appears there were no Miranda warnings given, but I don’t know that they would have had to be

under that circumstance so I don’t think we’re contesting that he made that particular statement.”

1 VRP at 89. The trial court ruled Mackey’s statement admissible.

       The State fails to show that Mackey’s statements at the CrR 3.5 hearing amount to either

a withdrawal of his objection to the admissibility of the evidence or a knowing and intentional

waiver of the CrR 3.5 hearing. Mackey continued to argue at the CrR 3.5 hearing that his

inculpatory statement was inadmissible, and the trial court entered findings of fact and

conclusions of law. Accordingly, Mackey did not make a knowing or intelligent waiver of his

CrR 3.5 hearing, and we consider the merits of his argument.

B.     Admissibility of Statement

       Mackey argues that the trial court erred in admitting his inculpatory statement to police

because his statement was elicited during a pre-Miranda custodial interrogation. We disagree.

       We review a trial court’s ruling after a CrR 3.5 hearing to suppress evidence to determine

whether substantial evidence supports the trial court’s findings of fact and whether those

findings, in turn, support the trial court’s conclusions of law. State v. Russell, 180 Wn.2d 860,

866, 330 P.3d 151 (2014). Where, as here, findings of fact are unchallenged, they are considered




                                                 5
No. 49198-2-II


verities on appeal. State v. Lorenz, 152 Wn.2d 22, 30, 93 P.3d 133 (2004). We review the trial

court’s conclusions of law de novo. Russell, 180 Wn.2d at 867.

       “Miranda warnings must be given when a suspect endures (1) custodial (2) interrogation

(3) by an agent of the State.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). When

these conditions are present but Miranda warnings are not given, we presume that the suspect’s

self-incriminating statements are involuntary and that the statements must be excluded. 152

Wn.2d at 214; State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995).

       Miranda does not apply to statements that are made outside the context of a custodial

interrogation. State v. Sadler, 147 Wn. App. 97, 131, 193 P.3d 1108 (2008). A custodial

interrogation includes express questioning and any actions or words on the part of the police that

are reasonably likely to elicit an incriminating response from the suspect. State v. Wilson, 144

Wn. App. 166, 184, 181 P.3d 887 (2008). A suspect’s voluntary, spontaneous, and unsolicited

statements are not the product of a custodial interrogation. See State v. Kolesnik, 146 Wn. App.

790, 811, 192 P.3d 937 (2008). Moreover, there is no custodial interrogation where police

advise a suspect about the nature of his charges. United States v. Taylor, 985 F.2d 3, 8 (1st Cir.

1993); Enoch v. Gramley, 70 F.3d 1490, 1500 (7th Cir. 1995); United States v. Crisco, 725 F.2d

1228, 1232 (9th Cir. 1984).

       Here, the trial court found that, in May 2015, a police officer arrested Mackey but did not

provide him his Miranda warnings. The court found that Mackey was not asked any questions.

After he was placed under arrest, the officer informed Mackey that his arrest pertained to an

incident that occurred in March and involved Anderson. Mackey responded, “That was months

ago!” CP at 104. Based on these uncontested findings, the trial court concluded that Mackey’s



                                                 6
No. 49198-2-II


statement was admissible, reasoning that the statement was voluntary and spontaneous and that

no custodial interrogation had occurred.

        Mackey was not asked any questions, and the officer’s statement was not reasonably

likely to elicit an incriminating response from Mackey. Additionally, an officer’s advisement of

the charges a suspect faces does not, without more, constitute a custodial interrogation. Taylor,

985 F.2d at 8. Consequently, Mackey’s statement was voluntary and spontaneous and was not

solicited by the officer. Because Mackey’s voluntary, spontaneous, and unsolicited statement

was not the product of a custodial interrogation, Miranda does not apply. Therefore, the trial

court’s findings support its conclusion that Mackey’s pre-Miranda inculpatory statement was

admissible at trial.

                                     II. PETRICH INSTRUCTION

        Mackey argues for the first time on appeal that the fourth degree assault conviction

violates his right to a unanimous jury verdict because there were multiple acts that could have

supported the conviction, but the jury was not given a Petrich instruction and the State did not

elect which act supported the fourth degree assault charge. The State argues that Mackey waived

this argument on appeal. We agree with the State.

        Generally, we will not consider an issue raised for the first time on appeal. RAP 2.5(a);

State v. O’Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009). However, a defendant may raise an

objection not properly preserved at trial if it is a manifest constitutional error. RAP 2.5(a)(3);

O’Hara, 167 Wn.2d at 98. After determining that the error is of constitutional magnitude, we

then determine whether the error was manifest. O’Hara, 167 Wn.2d at 99.




                                                  7
No. 49198-2-II


          An error is manifest when there is actual prejudice. O’Hara, 167 Wn.2d at 99. In

ascertaining whether there was actual prejudice, we focus on whether “the alleged error actually

affected [Mackey’s] rights at trial.” State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125

(2007).

          A criminal defendant has a constitutional right to a unanimous jury verdict. WASH.

CONST. art. I, § 21; State v. Rodriguez, 187 Wn. App. 922, 936, 352 P.3d 200 (2015). When the

State presents evidence of multiple acts that could form the basis of one count charged, either the

State must elect which act it will rely upon for a conviction or the court must give the jury a

Petrich instruction, instructing the jury to agree on a specific criminal act to support the

conviction. State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009). If there is neither

an election nor a Petrich instruction, omission of the Petrich instruction violates the defendant’s

constitutional right to a unanimous jury verdict and is presumed to result in prejudice. See 166

Wn.2d at 893.

          During trial, the State presented evidence of three distinct assaultive incidents: one where

Mackey pinned Anderson to the ground and pressed his thumbs into her eyes, one where Mackey

held Anderson up against a wall by her neck, and another where Mackey threatened to kill

Anderson, punched her in the back multiple times, and pulled her by her hair. During closing

argument, the State provided:

                  The assault two, strangulation, which is your Count 2, is a little more
          straightforward.
                  ....
          All you need is for the defendant to want to cut off her airway and to attempt to do
          so. And here we have a situation where she could not breathe, and this is—the
          situation that I’m talking about is the situation that occurred against the wall,
          downstairs, where the defendant picked her up, by her neck, with one hand, and her
          feet were off the ground.


                                                   8
No. 49198-2-II


               ....
               So again, there’s a lesser included on the strangulation count, and you only
       get to that if you first find not guilty of strangulation.

4 VRP at 458-59. The State argued that only the “wall incident” could satisfy the second degree

assault by strangulation charge. See 4 VRP at 462. The trial court did not provide the jury with

a Petrich instruction.

       The jury returned its verdict, finding Mackey “guilty of the crime of Assault in the

Second Degree” as charged in Count 01. CP at 80 (boldface and capitalization omitted). The

jury also returned a verdict that stated: “having found [Mackey] not guilty of the crime of

Assault in the Second Degree in Count 02 as charged . . . find [Mackey] . . . guilty of the lesser

included crime of Assault in the Fourth Degree.” CP at 86.

       Although the State discussed the three assaultive incidents during closing argument, its

argument clearly and explicitly elected the act it was relying on for a conviction on the second

degree assault by strangulation charge.7 The State noted that the second degree assault by

strangulation charge, as well as the lesser included fourth degree assault, was based only on the

incident where Mackey held Anderson up against a wall by her neck. Accordingly, the State

elected the act on which the jury had to rely in reaching a conviction for either the second degree

assault or the lesser included charge. Because the State elected the act it relied on for the second

degree assault by strangulation charge, no Petrich instruction was required. Moreover, the jury

verdicts make clear that the jury reached a unanimous guilty verdict on the lesser included



7
 “[A]n election can be made by the prosecuting attorney in a verbal statement to the jury as long
as the prosecution ‘clearly identifie[s] the act upon which’ the charge in question is based.”
State v. Carson, 184 Wn.2d 207, 227, 357 P.3d 1064 (2015) (alteration in original) (quoting
State v. Thompson, 169 Wn. App. 436, 474-75, 290 P.3d 996 (2012)).


                                                 9
No. 49198-2-II


offense based on the act elected for the second degree assault by strangulation charge. Thus,

Mackey fails to raise a manifest constitutional error, and his argument is waived on appeal.

                                      III. DOUBLE JEOPARDY

       Mackey also argues that his second degree assault and fourth degree assault convictions

violate the prohibition against double jeopardy because the convictions may constitute the same

offense. We disagree.

       We review double jeopardy claims de novo. State v. Freeman, 153 Wn.2d 765, 770, 108

P.3d 753 (2005). Double jeopardy prevents a person from being “twice put in jeopardy for the

same offense.” WASH. CONST. art. I, § 9. While a defendant may face multiple charges arising

from the same conduct, the double jeopardy prohibition forbids a trial court from entering

multiple convictions for the same offense. Freeman, 153 Wn.2d at 770. To determine whether a

defendant’s multiple convictions for different degrees of assault are for the same offense, we

apply the unit of prosecution test. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 982, 329 P.3d

78 (2014).

       In applying the unit of prosecution test, we determine whether multiple assaultive acts

constitute one or more than one course of conduct. 180 Wn.2d at 985. In making this

determination, we consider: (1) the length of time over which the assaultive acts took place; (2)

whether the assaultive acts took place in the same location; (3) the defendant’s intent or

motivation for the different assaultive acts; (4) whether the acts were uninterrupted, or if there

were any intervening acts or events; and (5) whether there was an opportunity for the defendant

to reconsider his actions. 180 Wn.2d at 985. No one factor is dispositive, and the ultimate




                                                 10
No. 49198-2-II


determination of whether multiple assaultive acts constitute one course of conduct depends on

the totality of the circumstances. 180 Wn.2d at 985.

       Mackey’s second degree assault conviction arose from pinning Anderson to the ground in

the garage, hitting her and placing his hands around her neck. On this occasion, Mackey also put

his thumbs over Anderson’s eyes and broke a blood vessel in one of her eyes. On a different

day, Mackey hit Anderson several times and held her up against a wall in the hallway by her

neck, which gave rise to his fourth degree assault conviction. After each assault, Mackey

apologized to Anderson.

       Considering the totality of the circumstances, the two assaults do not constitute the same

course of conduct. The assaults occurred in different locations over the course of two days.

There were intervening daily events between the two assaults and Mackey apologized after each

occasion, which shows that Mackey had the opportunity to reconsider his actions. All of these

facts demonstrate that the acts giving rise to Mackey’s second degree assault and fourth degree

assault convictions constitute more than one course of conduct. Accordingly, the trial court did

not enter multiple convictions against Mackey for the same offense, and Mackey’s convictions

do not violate the prohibition against double jeopardy.

                               IV. SUFFICIENCY OF THE EVIDENCE

       Mackey also argues that insufficient evidence supports his conviction for unlawful

imprisonment because the State failed to prove beyond a reasonable doubt that Anderson was

restrained. We disagree.




                                                11
No. 49198-2-II


       A challenge to the sufficiency of the evidence to convict is a constitutional question that

we review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). To determine

whether sufficient evidence supports a defendant’s conviction, we must, after viewing the

evidence in a light most favorable to the State, consider whether any rational trier of fact could

have found the essential elements of the charged crime beyond a reasonable doubt. 184 Wn.2d

at 903. We must draw all reasonable inferences from the evidence in favor of the State and

interpret them strongly against the defendant. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d

245 (2007). We consider circumstantial evidence and direct evidence as equally reliable. State

v. Bowen, 157 Wn. App. 821, 827, 239 P.3d 1114 (2010).

       “A person is guilty of unlawful imprisonment if he or she knowingly restrains another

person.” RCW 9A.40.040(1). “Restrain” means to restrict a person’s movements without

consent and without legal authority in a manner which substantially interferes with his or her

liberty. RCW 9A.40.010(6). Restraint is without consent when it is accomplished by physical

force, intimidation, or deception. RCW 9A.40.010(6)(a). Restraint is substantial when there is a

“real” or “material” interference with another’s liberty, rather than a slight inconvenience. State

v. Washington, 135 Wn. App. 42, 50, 143 P.3d 606 (2006). The presence of an avenue of escape

“may help to defeat a prosecution for unlawful imprisonment unless ‘the known means of escape

. . . present[s] a danger or more than a mere inconvenience.’” 135 Wn. App. at 50 (quoting State

v. Kinchen, 92 Wn. App. 442, 452 n.16, 963 P.2d 928 (1998)).




                                                 12
No. 49198-2-II


       Mackey picked up Anderson and their son from their home in Oregon and drove them to

his residence in Vancouver. Anderson did not have any means of transportation. Over the

course of three days, Mackey assaulted Anderson on a number of occasions. Anderson asked

Mackey to take her and her son home multiple times, but Mackey refused and said that she could

not “leave until the bruises are gone.” 2 VRP at 161. Mackey threatened to kill Anderson, and

Anderson was afraid of what might happen if she called the police.

       Viewing the evidence in a light most favorable to the State, we conclude that a rational

trier of fact could find the essential elements of unlawful restraint beyond a reasonable doubt.

Mackey knowingly restricted Anderson’s movements by way of intimidation by assaulting her

on multiple occasions, refusing to let her leave his residence, and threatening to kill her. These

actions restricted Anderson’s movements in a manner that substantially interfered with her

liberty. That Anderson could have escaped Mackey’s residence does not defeat his unlawful

imprisonment conviction. Anderson’s means of escape for herself and her son were not

reasonable and presented more than a mere inconvenience. Moreover, Anderson did not believe

that she would be able to leave Mackey’s residence and was afraid of what might happen if she

attempted to call for help. Thus, the State presented sufficient evidence to support Mackey’s

conviction for unlawful imprisonment.

                                       V. APPELLATE COSTS

       Mackey argues that we should decline to impose appellate costs because he is indigent.

The State represents that it will not seek appellate costs in this case. We accept the State’s

representation and waive appellate costs.




                                                 13
No. 49198-2-II


        We affirm Mackey’s convictions.

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

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

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Bjorgen, C.J.




 Melnick, J.




                                                 14
