                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 25, 2018


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49882-1-II

                        Respondent,

        v.

 ADRIAN TROY ABRAM, III,                                      UNPUBLISHED OPINION

                        Appellant.

       SUTTON, J. — Adrian Troy Abram III appeals his convictions for attempting to elude a

police vehicle and first degree driving while license suspended or revoked. First, Abram argues

that the trial court erred by giving an expert witness instruction. Second, Abram argues that the

trial court erred by admitting evidence of Abram’s outstanding warrant as a motive for eluding.

Third, Abram argues that the trial court erred by allowing the State to elicit inadmissible hearsay

statements from a witness. Fourth, Abram argues that the prosecutor committed misconduct by

impermissibly commenting on his right to remain silent.

       First, we hold that the trial court did not err by giving the expert witness instruction.

Second, we hold that the trial court did err by admitting evidence of Abram’s outstanding warrant,

but that this error was harmless. Third, we hold that the trial court erred by admitting the hearsay

statements by the witness, but that Abram was not prejudiced by their admission. Fourth, we hold

that the prosecutor did not impermissibly comment on Abram’s right to remain silent, and thus,

his claim of prosecutor misconduct fails. Thus, we affirm.
No. 49882-1-II


                                              FACTS

                                        I. PRETRIAL FACTS

       On January 2, 2016, Abram was arrested after a high speed chase with two deputies, Deputy

James Maas and Deputy Tommie Nicodemus. Abram was subsequently charged with attempting

to elude a police vehicle and first degree driving while license suspended or revoked.

       Before trial, the State informed the trial court of a potential ER 404(b) issue and advised

the trial court that it intended to introduce evidence that Abram had an outstanding warrant when

he was pulled over by the deputies. Abram objected to this evidence on the grounds that the

evidence was not relevant. The trial court disagreed and ruled,

       Well, I do find that it is relevant. . . . The relevance is to show what may have been
       the mindset of Mr. Abram at the time that the officers were behind him, the fact he
       had an outstanding warrant.

               The prejudicial effect of that can be substantial if the jury hears that he has
       a warrant. But I think that can be limited by having it be described as a
       misdemeanor warrant rather than a felony warrant and not going into the nature of
       it being a reckless driving warrant. So that could be an outstanding misdemeanor
       warrant I think is accurate. I think that minimizes the prejudice to therefore the
       probative value of it. The relevance of it is not substantially outweighed by the
       danger of unfair prejudice. I will allow the admissibility of the fact that he had an
       outstanding misdemeanor warrant.

IV Verbatim Report of Proceedings (VRP) at 173. On January 4, 2017, Abram’s jury trial began.

                                          II. TESTIMONY

       Deputy Maas and Deputy Nicodemus testified at trial. Deputy Maas testified that he

completed the law enforcement academy, worked for several months with a field officer, and

completed the Pierce County Sheriff’s Department internal education requirements. He began his

career as a corrections deputy for Pierce County in 1996, and then worked as a patrol deputy since




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No. 49882-1-II


2007. As a patrol deputy, his main job is to respond to 911 calls and to work in traffic enforcement.

He explained that his training at the academy included training on the traffic rules and laws, safe

motor vehicle operations, how to drive a patrol vehicle, and pursuits.

       Deputy Nicodemus testified that he worked for the Pierce County Sheriff’s Department

since 1998, first as a corrections deputy and then as a patrol deputy. He testified that he completed

the law enforcement academy and field training. He has worked as a firearms instructor and as a

field training officer. Deputy Nicodemus also stated that he has worked in search and rescue,

marine services, the domestic violence unit, and as an investigator for Pierce Transit.

       On January 2, 2016, Deputy Maas was riding with Deputy Nicodemus on patrol duty.

Their vehicle was a fully marked police vehicle with lights and sirens. Maas witnessed a black

Jeep drive past them with no front license plate. The deputies began to follow the Jeep.

       Once the deputies began to follow the Jeep, it accelerated and quickly turned down a side

street. The deputies continued to pursue the Jeep down residential streets, as it accelerated to high

speeds and ran through red lights and intersections. At this point, the deputies activated their

emergency lights and notified dispatch that they were in pursuit of the Jeep. They then turned on

the siren and continued to pursue the Jeep.

       Both deputies testified that the Jeep was often driving at double the posted speed limit

down residential streets and side streets, and driving 70 miles per hour through a four way stop

and a second stop sign. The Jeep did not stop or slow down at any stop signs, red lights, or

intersections. The deputies testified that once the Jeep turned onto the freeway, the Jeep exceeded

100 miles per hour. Eventually, the deputies used their vehicle to nudge the Jeep, forcing it to spin

out and stop. Once the Jeep was stopped, the deputies contacted the occupants of the Jeep. The



                                                 3
No. 49882-1-II


Jeep’s driver was Abram, the two passengers were Abram’s girlfriend, Armita Sandoval, and their

three-year-old son.

       During direct examination, Deputy Maas testified about conversations that he had with

Sandoval and Abram at the scene of the traffic stop:

       [State]: Did you ask [Sandoval] about whether she observed police cars behind
       her?
       [Deputy Maas]: Yes.
       [State]: And what did she say?
               [Defense Counsel]: I’m going to object, Your Honor.
               The Court: Basis?
               [Defense Counsel]: Hearsay.
               The Court: Overruled.
       [Deputy Maas]: She stated that she knew that -- every time I would ask her a
       question, she would not answer it.
       ....
       [State]: Were there ever any cars between you and [Abram] during the majority of
       this pursuit?
       [Deputy Maas]: No.
       [State]: Did you challenge [Abram] about that?
       [Deputy Maas]: Yes. He just said he thought there was [sic] other cars; thought
       we were chasing the car chasing him and that guy just happened to take every turn
       and every direction that he took.
       [State]: Did you ever confront [Abram] about how close you were and there being
       no car between you?
       [Deputy Maas] Yes. And he would just decline to answer those ones.
       [State]: And did you ask [Abram] if he knew it was [the] police behind him?
       [Deputy Maas]: Yes.
       [State]: What did [Abram] say?
       [Deputy Maas]: He said he knew there were police behind him, but he thought we
       were trying to stop the other car.
       [State]: And I want to go back to [Sandoval]. Did she ever answer any of your
       questions initially?
       [Deputy Maas]: Initially she stated that they were at Safeway. He told her that he
       got in an argument with somebody; and when they left Safeway, we got behind
       him.


                                                4
No. 49882-1-II


       [State]: Did she ever mention there being another vehicle pursuing them besides
       you?
       [Deputy Maas]: No.

IV VRP at 221-23.

       Deputy Maas further testified that Abram said that while he and Sandoval were at a

Safeway, Abram got into an altercation with a person. After leaving the store, when the deputies

got behind him in his Jeep, he thought they were trying to stop the person who Abram had had the

altercation with. Abram told the deputies that he believed they were attempting to pull over the

person who was following him. Both deputies testified that no other vehicle was between Abram’s

vehicle and their vehicle.

       During redirect, Deputy Maas was again asked about his interaction with Sandoval:

       [State]: The defense just asked you about the passenger, [Sandoval]. In your report,
       did you -- well, let me ask . . . [d]id you ask her about whether she knew that there
       was a police car behind them?
       [Deputy Maas]: Yes.
       [State]: So I mean, if you can kind of look at your report and refresh your memory,
       to the best of your recollection, what exactly did she say about that?
       [Deputy Maas]: She stated that -- basically all she would say is that once they left
       Safeway, we got behind them and he just didn’t stop when we turned our lights on.

V VRP at 261.

       Both Deputy Maas and Deputy Nicodemus testified that Abram was driving in such a

manner and speed in an attempt to elude them. V VRP at 236, 273. Deputy Maas stated:

       [State]: Why would somebody turn their lights off during a pursuit, in your experience?
       [Deputy Maas]: My only thought for them to do be doing that would be hoping that it
       would make it so we would lose sight of them or quit chasing them.
       [State]: Does that increase the amount of danger of a collision with other vehicles when
       they turn their lights off?
       [Deputy Maas]: Yes[.]


                                                5
No. 49882-1-II



V VRP at 236. Deputy Nicodemus also opined that “[Abram] was definitely trying to avoid me”

and that despite the lack of pedestrian or vehicular traffic, Abram was not safely clearing

intersections. V VRP at 273.

       Both Sandoval and Abram testified. Sandoval denied telling the deputies anything related

to Abram’s driving. Abram denied being aware that the deputies were behind him until they forced

him to stop the vehicle.

                                     III. JURY INSTRUCTIONS

       Over Abram’s objection, the trial court gave the pattern jury instruction on expert

testimony, ruling:

       I will include the [expert testimony] instruction. I think that it may provide some
       information to the jury. While lay witnesses can testify about speed, I think that
       there’s some additional experience and training that law enforcement officers have
       in regard[] to these situations. So I will give that instruction.

VI VRP at 371.

       The trial court instructed the jury as follows:

              A witness who has special training, education, or experience may be
       allowed to express an opinion in addition to giving testimony as to facts.

               You are not, however, required to accept his or her opinion. To determine
       the credibility and weight to be given to this type of evidence, you may consider,
       among other things, the education, training, experience, knowledge, and ability of
       the witness. You may also consider the reasons given for the opinion and the
       sources of his or her information, as well as considering the factors already given
       to you for evaluating the testimony of any other witness.

Clerk’s Papers (CP) at 25; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 6.51, at 211 (4th ed. 2016) (WPIC).




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No. 49882-1-II


       The trial court also instructed the jury that to find Abram guilty of attempting to elude a

police vehicle, they must find that “he willfully fail[ed] or refus[ed] to bring his vehicle to a stop

after being given a visual or audible signal to bring the vehicle to a stop by a police officer, and

while attempting to elude a pursuing police vehicle [he drove] his vehicle in a reckless manner.”

CP at 27; RCW 46.61.024.

       Abram was convicted of attempting to elude a police vehicle and driving while license

revoked in the first degree. He appeals his convictions.

                                            ANALYSIS

                                       I. JURY INSTRUCTIONS

       Abram argues that the trial court erred by instructing the jury on expert witness testimony

because the two deputies who testified did not qualify as expert witnesses.1 We disagree.

A. LEGAL PRINCIPLES

       We review legal errors in jury instructions de novo. State v. Jensen, 149 Wn. App. 393,

398, 203 P.3d 393 (2009). However, absent a legal error, we review a trial court’s decision

regarding the specific language of an instruction and a trial court’s decision to give an instruction

for an abuse of discretion. Jensen, 149 Wn. App. at 399. An abuse of discretion exists when a

trial court’s exercise of its discretion is based upon untenable grounds or reasons; a decision is

based on untenable reasons if it is based on an incorrect standard. State v. Quaale, 182 Wn.2d

191, 196-97, 340 P.3d 213 (2014).



1
  Abram also argues that neither deputy presented any evidence that their speedometer was
properly calibrated that night. This argument goes to the admissibility of the testimony given by
the deputies regarding Abram’s speed. Because this testimony was not objected to, we do not
consider this argument. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000).


                                                  7
No. 49882-1-II


       A trial court has discretion to determine whether a witness is an expert in a particular

subject. ER 702. Under ER 702, a witness may be qualified as an expert by his knowledge, skill,

experience, training, or education. State v. Cheatam, 150 Wn.2d 626, 645, 81 P.3d 830 (2003).

When considering the admissibility of expert testimony under ER 702, we engage in a two-part

inquiry: (1) does the witness qualify as an expert, and (2) would the witness’s testimony be helpful

to the trier of fact. State v. Yates, 161 Wn.2d 714, 762, 168 P.3d 359 (2007). Practical experience

is sufficient to qualify a witness as an expert. Yates, 161 Wn.2d 765.

B. JURY INSTRUCTION

       The trial court’s to convict instruction for attempting to elude a police vehicle stated, “[a]

person commits the crime of attempting to elude a police vehicle when he willfully fails or refuses

to bring his vehicle to a stop after being given a visual or audible signal to bring the vehicle to a

stop by a police officer, and while attempting to elude a pursuing police vehicle he drives his

vehicle in a reckless manner.” CP at 27; RCW46.61.024. The court’s instruction defined “reckless

manner” as “a rash or heedless manner, indifferent to the consequences.” CP at 31.

       Because the trial court’s expert witness instruction, WPIC 6.51, is a legally correct

statement of the law, we review the court’s decision to give the expert witness instruction for an

abuse of discretion. Jensen, 149 Wn. App. at 399.

       Here, the deputies testified about their extensive training and experience related to their

jobs as patrol deputies in traffic enforcement, including safe motor vehicle operations during

pursuits. Both deputies testified about the Jeep’s excessive speed during their pursuit of it. They

testified that the Jeep was often driving at double the posted speed limit while driving on residential

streets and side streets, including driving 60 miles per hour on residential streets with posted speed



                                                  8
No. 49882-1-II


limits of 25 and 35, and driving 70 miles per hour through a four way stop sign and a second stop

sign. Once the Jeep turned onto the freeway, the Jeep exceeded 100 miles per hour on a roadway

with a posted speed limit of 60 miles per hour. They opined that the speed the Jeep was travelling

at was unsafe, particularly as it sped through stop signs, red lights, and intersections without

slowing down.     The deputies also opined that Abram was driving that night in such a manner as

to elude them.    Abram did not object at trial to the testimony of the deputies or to their

qualifications.

       Abram did object to the proposed expert witness instruction, arguing that neither deputy

was an expert. The trial court ruled,

       I will include the [WPIC] 6.51 instruction. I think that it may provide some
       information to the jury. While lay witnesses can testify about speed, I think that
       there’s some additional experience and training that law enforcement officers have
       in regard[] to these situations. So I will give that instruction.

VI VRP at 371. The trial court acknowledged that the testimony of the deputies regarding Abram’s

speed was lay opinion testimony.

       The trial court correctly ruled that the deputies’ practical experience and training in traffic

patrol duties, safe motor vehicle operations, and pursuit driving qualified them to state their

opinions as to the speed and manner of Abram’s driving during their pursuit of his vehicle. The

trial court also correctly ruled that the deputies’ opinions on the subject would be helpful to the

jury. Thus, the trial court had a tenable reason to give the expert witness instruction. Because the




                                                 9
No. 49882-1-II


trial court had a tenable reason, it did not abuse its discretion. Because the trial court did not abuse

its discretion, it did not err. Therefore, Abram’s argument fails.2

                          II. EVIDENCE OF THE OUTSTANDING WARRANT

       Abram argues that the trial court erred by admitting evidence of an outstanding warrant as

a motive to elude. Specifically, Abram argues that the trial court abused its discretion in finding

that the outstanding warrant was sufficiently probative because the State was required to prove

that he was aware of the warrant at the time the deputies pulled him over. We agree with Abram

that the trial court abused its discretion by admitting evidence of an outstanding warrant because

the prejudice of the evidence substantially outweighed its probative value. However, because the

outcome of the trial would not have been materially affected had the erroneous admission of the

evidence of the warrant not occurred, the error was harmless.

A. LEGAL PRINCIPLES

       We review a trial court’s interpretation of ER 404(b) de novo. State v. Gunderson, 181

Wn.2d 916, 922, 337 P.3d 1090 (2014). If the trial court interprets ER 404(b) correctly, we review

the trial court’s ruling to admit evidence for an abuse of discretion. Gunderson, 181 Wn.2d at 922.

An abuse of discretion exists when a trial court’s exercise of its discretion is based upon untenable

grounds or reasons; a decision is based on untenable reasons if it is based on an incorrect standard.

Quaale, 182 Wn.2d at 196-97. Here, Abram does not argue that the trial court interpreted ER

404(b) incorrectly, but argues that the trial court abused its discretion.



2
  Abram also argues that this instruction prejudiced him because it gave undue deference to the
testimony of the deputies. But the instruction given was proper and it did not accord undue
deference to the testimony of the deputies, and thus, we do not need to address the issue of
prejudice.


                                                  10
No. 49882-1-II


       Generally, evidence of a defendant’s prior bad acts is inadmissible to demonstrate the

accused’s propensity to commit the crime charged. ER 404(b); State v. Fisher, 165 Wn.2d 727,

744, 202 P.3d 937 (2009). However, ER 404(b) allows the introduction of prior bad acts for other

purposes, including to demonstrate motive or intent. Fisher, 165 Wn.2d at 744. Further, we read

ER 404(b) in conjunction with ER 403. State v. Mee, 168 Wn. App. 144, 154, 275 P.3d 1192

(2012). ER 403 requires the trial court to exercise its discretion by excluding relevant evidence

that would be unfairly prejudicial.

       Prior to the admission of ER 404(b) evidence, the trial court, on the record, must: (1) find

by a preponderance of the evidence that the bad act actually occurred, (2) identify the purpose of

admitting the evidence, (3) determine the relevance of the evidence to prove an element of the

crime, and (4) weigh the probative value against the prejudicial effect of the evidence. Gunderson,

181 Wn.2d at 923. Doubtful cases must be resolved in favor of exclusion. State v. Thang, 145

Wn.2d 630, 642, 41 P.3d 1159 (2002).

       It is well settled that the erroneous admission of evidence in violation of ER 404(b) is

analyzed under the lesser standard for nonconstitutional error. State v. Gresham, 173 Wn.2d 405,

433, 269 P.3d 207 (2012). The nonconstitutional error standard requires that we determine

whether, “‘within reasonable probabilities, had the error not occurred, the outcome of the trial

would have been materially affected.’” Gresham, 173 Wn.2d at 433 (internal quotation marks

omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).

B. ERRONEOUS ADMISSION

       Here, the State was required to prove that Abram willfully failed to stop when the pursuing

deputies signaled him to stop. RCW 46.61.024(1). The State argued that the evidence of the



                                                11
No. 49882-1-II


outstanding warrant was admissible to show Abram’s motive for evading the deputies. The State

argued that the evidence of the warrant was highly probative of Abram’s willful failure to stop and

that it could be reasonably inferred that he was afraid to stop because he believed that he would be

arrested for a reason unrelated to the traffic stop.      Prior to admitting testimony about the

outstanding warrant, the trial court heard the parties’ arguments and then conducted a balancing

test to weigh the probative value and the prejudicial effect under ER 401 and ER 403.

       However, no evidence was admitted at trial showing that Abram was aware of the warrant.

Because there was no evidence that Abram had any knowledge of the outstanding misdemeanor

warrant, the evidence of the warrant did not establish that he had a motive which caused him to

act. See ER 404(b). Without a showing that the warrant could have provided any such motive,

the evidence about the outstanding warrant did not have any probative value. Thus, the absence

of any probative value was substantially outweighed by the prejudicial effect from the admission

of the outstanding warrant. Consequently, because the probative value was outweighed by the

prejudice, the trial court abused its discretion in admitting the evidence of the outstanding warrant.

       Regardless, the error was harmless. The deputies were eyewitnesses to the incident and

they testified to Abram’s conduct during their pursuit of his vehicle. Further, Abram testified that

he was speeding, but explained that he was not fleeing from the deputies; rather, he was fleeing

from the person he believed was chasing him. Thus, within reasonable probabilities, the outcome

of the trial was not materially affected by the erroneous admission of the evidence which, in turn,

means that the error was harmless. Gresham, 173 Wn.2d at 433. Because the error was harmless,

Abram’s claim fails.




                                                 12
No. 49882-1-II


                                    III. HEARSAY STATEMENTS

       Abram next argues that (1) the trial court erred by admitting hearsay statements made by

Sandoval at the scene of the traffic stop to Deputy Maas because her statements were offered to

prove the truth of the matter asserted—that Abram was eluding the deputies and (2) the erroneous

admission of the hearsay statements forced him to call Sandoval as a witness to rebut her hearsay

statements, which prejudiced him. The State argues that Abram did not preserve the hearsay

objection he now complains of on appeal. We hold that Abram sufficiently preserved the hearsay

objections, and we agree that the trial court erred in admitting Sandoval’s hearsay statements.

However, we disagree that Abram suffered any prejudice. Thus, his claim fails.

A. LEGAL PRINCIPLES

       Under ER 801(c), “hearsay” is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

“Unless an exception or exclusion applies, hearsay is inadmissible.” State v. Hudlow, 182 Wn.

App. 266, 278, 331 P.3d 90 (2014); ER 802. We review de novo whether a statement is hearsay.

Hudlow, 182 Wn. App. at 281. We review the admission of evidence under a hearsay exception

for an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 854, 83 P.3d 970 (2004). We will

not disturb a trial court’s ruling that a statement falls under a hearsay exception unless we believe

that no reasonable judge would have made the same ruling. Thomas, 150 Wn.2d at 854. Improper

admission of hearsay is harmless if, within reasonable probability, the statement did not materially

affect the outcome of the trial. See State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997).

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The



                                                 13
No. 49882-1-II


confrontation clause bars the “‘admission of testimonial statements of a witness who did not appear

at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity

for cross-examination.’” State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009) (internal

quotation marks omitted) (quoting Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165

L. Ed. 2d 224 (2006).

B. PRESERVATION FOR APPEAL

       Preliminarily, the State argues that Abram did not object to the same hearsay statements

by Sandoval that he now challenges on appeal. However, our review of the record reveals that

Abram preserved the issue for our review and we address the merits of his claim.

C. SANDOVAL’S HEARSAY STATEMENTS

       Abram argues that the trial court erred by allowing the State to elicit hearsay statements by

Sandoval at the scene of the traffic stop during Deputy Maas’s testimony. We agree with Abram

that the trial court erred, but we hold that Abram fails to show prejudice.

       Deputy Maas testified that Sandoval told him at the scene of the traffic stop that when she

and Abram were at Safeway, Abram told her he got into an argument with another person and

when they left the store, “we got behind him”; she did not tell Deputy Maas that there was another

vehicle pursuing them. IV VRP at 223.

       Deputy Maas testified in relevant part:

       [State]: Did you ask [Sandoval] about whether she observed police cars behind her?
       [Deputy Maas]: Yes.
       [State]: And what did she say?
               [Defense Counsel]: I’m going to object, Your Honor.
               [The Court]: Basis?



                                                  14
No. 49882-1-II


              [Defense Counsel]: Hearsay.
              [The Court]: Overruled.
       [Deputy Maas]: She stated that she knew that -- every time I would ask her a
       question, she would not answer it.

IV VRP at 221.

       The State then elicited further statements about Sandoval’s statements to Deputy Maas at

the scene:

       [State]: And did you ask [Abram] if he knew it was [the] police behind him?
       [Deputy Maas]: Yes.
       [State]: What did [Abram] say?
       [Deputy Maas]: He said he knew there were police behind him, but he thought we
       were trying to stop the other car.
       [State]: And I want to go back to [Sandoval]. Did she ever answer any of your
       questions initially?
       [Deputy Maas]: Initially she stated that they were at Safeway. He told her that he
       got in an argument with somebody; and when they left Safeway, we got behind
       him.
       [State]: Did she ever mention there being another vehicle pursuing them besides
       you?
       [Deputy Maas]: No.

IV VRP at 223.

       Additionally, Deputy Maas testified as follows:

       [State]: The defense just asked you about the passenger, [Sandoval]. In your report,
       did you -- well, let me ask . . . [d]id you ask her about whether she knew that there
       was a police car behind them?
       [Deputy Maas]: Yes.
       [State]: So I mean, if you can kind of look at your report and refresh your memory,
       to the best of your recollection, what exactly did she say about that?
       [Deputy Maas]: She stated that -- basically all she would say is that once they left
       Safeway, we got behind them and he just didn’t stop when we turned our lights on.




                                                15
No. 49882-1-II


V VRP at 261.

        Abram argues that all of the statements that Deputy Maas attributed to Sandoval were

hearsay under ER 801(c) because they were offered and admitted to prove the truth of the matter

asserted—that Abram was eluding the deputies. We agree that the statements are hearsay because

they were offered to prove the truth of the matter asserted. Because we determined that the trial

court erred by admitting the hearsay statements by Sandoval, we next determine whether Abram

was prejudiced by their admission.

D. PREJUDICE

        Abram argues that being forced to call Sandoval as a witness to rebut the inadmissible

hearsay statements was prejudicial, and was not harmless error. Abram cites no authority to

support his claim that being forced to call a witness is prejudicial. Prejudice is evidenced by a

showing that the court’s error in admitting the inadmissible hearsay materially affected the

outcome of the trial.3 See Stenson, 132 Wn.2d at 709. There is no showing of prejudice here, and

this claim fails.

                      IV. COMMENT ON ABRAM’S RIGHT TO REMAIN SILENT

        Lastly, Abram argues that the State wrongfully elicited evidence from Deputy Maas that

Abram invoked his right to remain silent. We disagree.

        The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall

be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. Article



3
 Abram also argues that his right of confrontation was violated because the hearsay statements by
Sandoval were testimonial and he could not cross-examine her. Br. of App. at 20-21. However,
Abram was able to cross-examine Sandoval, his right of confrontation was not violated. VI VRP
at 328-32. Thus, this claim fails.


                                                16
No. 49882-1-II


I, section 9 of the Washington Constitution states that “[n]o person shall be compelled in any

criminal case to give evidence against himself.” CONST. art. 1, § 9. Both provisions guarantee a

defendant the right to be free from compelled self-incrimination, including a right to remain silent.

State v. Knapp, 148 Wn. App. 414, 420, 199 P.3d 505 (2009).

       When the defendant’s right to remain silent is raised, we must consider “whether the

prosecutor manifestly intended the remarks to be a comment on that right.” State v. Crane, 116

Wn.2d 315, 331, 804 P.2d 10 (1991). The Crane court noted that a prosecutor’s statement will

not be considered a comment on a constitutional right to remain silent if “standing alone, [it] was

‘so subtle and so brief that [it] did not naturally and necessarily emphasize defendant’s testimonial

silence.’” Crane, 116 Wn.2d at 331 (alterations in original) (internal quotation marks omitted)

(quoting State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978)). A remark that does not

amount to a comment on a criminal defendant’s right to remain silent is considered a “mere

reference” to silence and is not reversible error absent a showing of prejudice. State v. Lewis, 130

Wn.2d 700, 706–07, 927 P.2d 235 (1996). Thus, focusing largely on the purpose of the remarks,

we distinguish between “comments” and “mere references” to an accused’s prearrest right of

silence. State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008).

       Here, Abram argues that Deputy Maas’s testimony that Abram did not answer certain

questions that Deputy Maas asked him constituted an impermissible comment on his right to

remain silent. Specifically, Deputy Maas testified:

       [State]: Did you ever confront [Abram] about how close you were and there being
       no car between you?
       [Deputy Maas] Yes. And he would just decline to answer those ones.

IV VRP at 222-23.


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No. 49882-1-II


        The prosecutor did not follow up on the answer regarding Abram’s silence, nor did the

prosecutor refer to Abram’s silence during closing argument. Because this statement was so subtle

and brief, it did not emphasize Abram’s right to remain silent. The statement was a mere reference

and was not a comment on Abram’s right to remain silent. Because the statement was a mere

reference, it was not inappropriate. Thus, because the prosecutor did not impermissibly comment

on Abram’s right to remain silent, we hold that his claim of prosecutor misconduct fails. We

affirm the 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.



                                                    SUTTON, J.
 We concur:



 WORSWICK, P.J.




 BJORGEN, J.




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