Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON, ) No. 81018-9-I

)

 Respondent, )

)

 v. )

) UNPUBLISHED OPINION

LIND, WILLIAM JAY, )

DOB: 01/24/1982, )

)

 Appellant. )

BOWMAN, J. — William Jay Lind appeals his jury conviction for third degree 

rape. He argues the trial court erred by admitting inculpatory custodial 

statements after he asked to speak with the officer “off the record.” Because 

Lind did not invoke his right to remain silent and the officer did not engage in 

deception or misrepresentation about Lind’s constitutional rights, we affirm.

FACTS

On the morning of August 8, 2018, 36-year-old Lind was working for a 

construction company remodeling a family’s house. The family’s 18-year-old

daughter J.L.S. had just returned home to live with her mother and stepfather 

after being away for about a month. J.L.S. woke up to find Lind entering her 

bedroom. He said he had to work on a closet. J.L.S. immediately got up and

went to the restroom. No one else was home. 

Lind made flirtatious and sexual advances to J.L.S. throughout the 

morning. Around 12:30 p.m., Lind attacked J.L.S. in her bedroom and raped her. 
No. 81018-9-I/2

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J.L.S. texted her sister and asked her to come pick her up. J.L.S. said

that it was an “emergency” and that she was “scared.” While driving away from 

the home, J.L.S. told her sister that Lind had raped her. They drove to the 

emergency room for a sexual assault examination. At the hospital, J.L.S.

reported the rape to medical staff and the police.

During the police investigation, Lind gave officers three statements, two of 

which officers recorded, after they advised him of his constitutional right to 

remain silent and right to an attorney. Before trial, the State moved to admit all of 

Lind’s statements to police. The court held a CrR 3.5 hearing. It considered 

testimony from the three officers who took statements from Lind. 

Deputy Robinson Interview

Snohomish County Sherriff’s Deputy Lucas Robinson testified that he read 

Lind Miranda1 warnings when he arrested Lind at his home and placed him in 

handcuffs. Deputy Robinson read from a preprinted card and told Lind:

“You have the right to remain silent. Anything you say can be used 

against you in a court of law. You have the right at this time to talk 

to a lawyer and have him present with you while you’re being 

questioned. If you cannot afford to hire a lawyer, one will be 

appointed to represent you before questioning if you wish. You can 

decide at any point to exercise these rights and not answer any 

questions or make any statements.”

Lind told the deputy he understood these rights and when asked if he 

wished to talk, “he immediately started talking.” Deputy Robinson testified that at 

no point in their conversation did Lind invoke his right to an attorney or invoke his 

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 
No. 81018-9-I/3

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right to remain silent. When they arrived at the jail, Deputy Robinson asked Lind 

if he would be willing to speak with a detective and Lind said, “ ‘Yes.’ ”

Detective Bittinger Interview

Detective Myles Bittinger testified that he then took custody of Lind and 

Lind agreed to speak with him at the jail. Detective Bittinger gave Lind a consent 

form for a recorded interview. A section of the form advised Lind of the same 

rights Deputy Robinson read to him earlier. Detective Bittinger read the form out 

loud as Lind followed along. Lind acknowledged that he understood his rights 

and said that he was willing to speak with the detective. Lind also signed the 

form both before he made any recorded statements and “at the conclusion of the 

interview.” Detective Bittinger testified that Lind expressed no confusion about 

his rights and did not invoke his right to counsel or his right to remain silent. 

Detective Bittinger used a department-issued Apple iPhone to record his 

interview with Lind. At one point, an incoming call interrupted the recording. 

Detective Bittinger stopped the recording and made a record of the interruption. 

Lind did not make any statements to the detective while the recorder was off.

Later, Lind asked the detective if he could “ ‘tell [him] something off the 

record.’ ” Detective Bittinger turned off the recorder on his iPhone and showed 

Lind that it was off. Lind then asked the detective if he thought Lind had “done 

it.” The detective said he did and asked Lind “how he thought [J.L.S.] was feeling 

right now.” Lind responded, “ ‘[O]h God, I am such a piece of shit.’ ”

Detective Bittinger told the court he did not restart the recording or readvise Lind of his rights because Lind “continued speaking,” which the detective 
No. 81018-9-I/4

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“took . . . to mean that [Lind] was satisfied with what had transpired and was 

comfortable asking me the question at that point.” Because of the “nature” of the 

unrecorded questions and statements, Detective Bittinger felt it important to note

them in his report.

Detective Bennett Interview

Detective David Bennett testified that he and Detective M. Flolid 

interviewed Lind at the sheriff’s office about three weeks later. The detectives 

used the same form Detective Bittinger used to advise Lind of his rights and to 

obtain Lind’s consent to a recorded interview. Lind again said he understood his 

rights to an attorney and to remain silent, did not invoke his rights, and agreed to 

a recorded interview.

Lind did not testify at the CrR 3.5 hearing. The trial court ruled that all of 

Lind’s statements were voluntary and admissible in the State’s case in chief.

2

It 

reasoned that the officers advised Lind of his rights at each interview and that

Lind expressed he understood his rights and did not invoke them. The court also 

determined that Lind’s request to talk “off the record” was not an unequivocal 

invocation of his right to remain silent. The court entered findings of fact and 

conclusions of law. 

A jury convicted Lind of third degree rape. Lind appeals.

 

2 The court redacted portions of each interview that it later admitted at trial.
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ANALYSIS

Lind argues the trial court erred by admitting statements he made after 

asking to speak to Detective Bittinger “off the record.” He also challenges 

several of the trial court’s findings of fact.

Findings of Fact

“We review challenged findings of fact for substantial evidence, that is, 

enough evidence to persuade a fair-minded rational person of the truth of the 

finding. We treat unchallenged findings as verities on appeal.” State v. Allen, 

138 Wn. App. 463, 468, 157 P.3d 893 (2007).3

Lind challenges three of the trial court’s factual findings: 

26. When the recorded interview was concluded, the Defendant 

asked Deputy Bittinger if he could speak with him “off the 

record." 

27. The deputy agreed and showed the Defendant that the 

recorder was no longer recording. 

28. The Defendant had previously been advised that anything he 

said could be used against him.

Substantial evidence supports each of these findings. Detective Bittinger 

testified that at the end of the recorded interview, Lind asked the detective if he 

could “ ‘tell [him] something off the record.’ ” Detective Bittinger turned off the 

recording on his iPhone and showed Lind that it was off. And all three 

interviewing officers told Lind before they asked any questions that “ ‘[a]nything 

you say can be used against you in a court of law.’ ” He received the same 

admonishment twice in writing. 

 

3 Citation omitted. 
No. 81018-9-I/6

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Admissibility of Custodial Statements

Lind argues the “erroneous admission of [his] apparent confession to rape 

was Miranda error that is not overcome by overwhelming untainted evidence.” 

We disagree.

The Fifth Amendment to the United States Constitution provides that no 

person “shall be compelled in any criminal case to be a witness against himself.” 

To counteract the inherent compulsion of custodial interrogation, police must 

administer Miranda warnings. Miranda, 384 U.S. at 467. Under Miranda, police 

must inform a person in custody before interrogation that he has a right to remain 

silent and to have a lawyer present. Miranda, 384 U.S. at 469-70. Once a 

suspect unambiguously invokes his right to remain silent, police may not 

continue an interrogation or make repeated efforts to “wear [him] down.” State v. 

I.B., 187 Wn. App. 315, 320, 348 P.3d 1250 (2015). But where an accused 

makes an ambiguous or equivocal statement about invoking his rights, officers 

need not ask clarifying questions or stop the interrogation. Berghuis v. 

Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010).4

We consider the totality of the circumstances when determining whether 

an accused unequivocally invoked his rights. See State v. Hodges, 118 Wn. 

App. 668, 671, 77 P.3d 375 (2003). This is an objective inquiry. Davis v. United 

States, 512 U.S. 452, 458-59, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). A

person unequivocally asserts his right to remain silent only where his invocation 

 

4 Berghuis applied the unambiguous/unequivocal invocation standard announced in 

Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) 

(determining whether the defendant invoked the right to counsel), to determine whether the 

defendant invoked the right to remain silent.
No. 81018-9-I/7

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is clear enough that “a reasonable police officer in the circumstances” would 

understand the statements to be an assertion of that right. Davis, 512 U.S. at 

459.

“[A] suspect does not invoke his or her right to remain silent merely 

by refusing to allow the tape recording of an interview, unless that 

refusal is accompanied by other circumstances disclosing a clear 

intent to speak privately and in confidence to others.” 

State v. Piatnitsky, 170 Wn. App. 195, 226, 282 P.3d 1184 (2012) (quoting 

People v. Samayoa, 15 Cal. 4th 795, 829-30, 938 P.2d 2 (1997), aff’d by

Samayoa v. Ayers, 649 F.3d 919 (9th Cir. 2011)), aff’d, 180 Wn.2d 407, 325 P.3d 

167 (2014); see also State v. O’Neal, 392 S.W.3d 556, 570 (Mo. Ct. App. 2013) 

(Defendant’s statement that “he was willing to tell his story, so long as it was not 

audio-recorded,” was not an invocation of his right to remain silent.); Jones v. 

State, 344 Ark. 682, 689-90, 42 S.W.3d 536 (2001) (Concluding that the 

defendant’s request to turn off the tape recorder was not an unequivocal 

invocation of his right to remain silent because “[h]e never indicated that he did 

not wish to talk, only that he did not wish what he said to be recorded.”).

Here, like the cases cited above, Lind asked only if he could tell Detective 

Bittinger something “off the record.” The detective showed Lind that he was no 

longer recording the conversation and Lind continued to speak. A reasonable 

officer under these circumstances would not believe Lind made an unequivocal 

assertion of his right to remain silent.

Citing United States v. Harris, 72 F. Supp. 3d 1332 (M.D. Ga. 2014), Lind

suggests that Detective Bittinger deceived him into speaking because Lind

clearly misunderstood that anything he said “off the record” could be used 
No. 81018-9-I/8

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against him. In Harris, the defendant was reluctant to continue talking to officers

because “ ‘all of the things I’m telling you are probably going to hurt me.’ ” Harris, 

72 F. Supp. 3d at 1335. He told officers he would only continue to talk “ ‘off the 

record.’ ” Harris, 72 F. Supp. 3d at 1335. Officers responded, “ ‘[S]ure.’ ” Harris, 

72 F. Supp. 3d at 1335. When Harris asked for a second confirmation that their 

conversation was “ ‘off the record,’ ” officers stated, “ ‘[O]kay, off the record.’ ” 

Harris, 72 F. Supp. 3d at 1335. The court suppressed the defendant’s 

statements because the officers led Harris to believe they would not use his 

statements against him, and “intentionally false representations directly 

contradicting a Miranda warning are never appropriate.” Harris 72 F. Supp. 3d at 

1337.

Harris’ comments suggested he believed only recorded statements would 

“ ‘hurt’ ” him, and the officers unlawfully fostered that belief. Unlike Harris, Lind 

did not suggest that he believed no one could use his “off the record” statements 

against him. And there is no evidence that Detective Bittinger engaged in any 

misrepresentation or deception. He did nothing to induce Lind to speak to him 

and did not foster a belief that their conversation would be secret or that no one 

would use Lind’s statements against him. The court did not err in admitting 

Lind’s statements.

Even so, any error by admitting Lind’s “off the record” statements was

harmless. We apply a harmless error analysis to erroneous admissions of 

statements obtained in violation of Miranda. State v. Reuben, 62 Wn. App. 620, 

626, 814 P.2d 1177, review denied, 118 Wn.2d 1006, 822 P.2d 288 (1991). We 
No. 81018-9-I/9

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presume constitutional error is prejudicial, and the State bears the burden of 

proving that the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 

P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1208, 89 L. Ed. 2d 321 

(1986). A constitutional error is harmless if we are convinced beyond a 

reasonable doubt that any reasonable jury would have reached the same result 

without the error. Guloy, 104 Wn.2d at 425. Under the “overwhelming untainted 

evidence” test, we look only at the untainted evidence to determine whether it is 

so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d 

at 426. Under this test, we will reverse a conviction where there is a reasonable 

chance that the use of inadmissible evidence was necessary to reach a guilty 

verdict. Guloy, 104 Wn.2d at 426.

Here, Lind admitted that he engaged in sexual intercourse with J.L.S. The 

sole issue at trial was whether the intercourse was consensual. J.L.S. testified 

that she did not consent to have sex with Lind. She told Lind “no” several times 

but he continued to assault her. 

Other evidence supported J.L.S.’ claim. Her sister testified that she 

received text messages from J.L.S. shortly after the rape stating that “something 

with the construction worker happened, something bad,” that J.L.S. needed to be 

picked up right away, that it was an “emergency,” and that she was “scared.” As 

they drove away from the house, J.L.S. told her sister that Lind raped her. They 

drove to the hospital, where a forensic nurse gave J.L.S. a sexual assault 

examination. The nurse testified that J.L.S. appeared to be sad, tired, and “just 

kind of numb.” J.L.S.’ description of the rape to medical staff was consistent with 
No. 81018-9-I/10

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her testimony at trial. Detective Bittinger also interviewed J.L.S. at the hospital.

J.L.S.’ account of the rape relayed to the detective was consistent with her 

testimony at trial.

Lind also made several statements during the recorded part of his 

interview that were similar to his “off the record” comment that “ ‘I am such a 

piece of shit.’ ” He told Detective Bittinger that if J.L.S. would have told him to 

stop, “it would’ve been over and I would’ve felt like a jackass and probably left.”

Referring to what he believed was consensual sex with a virtual stranger as a 

married man, Lind told officers he “feel[s] like a fucking tool” and “shouldn’t have 

done it in the first place.” Later, he repeated he “felt like an ass” after having sex

with J.L.S. because he “ma[d]e out with her” even though he “barely kn[e]w her 

name.” Finally, Lind confided that a member of his own family was a molestation 

survivor and the current accusation would ruin him. The court admitted all of 

these statements at trial.

5 Defense counsel argued to the jury that Lind’s 

statements showed he regretted cheating on his wife and feared he would “get in 

trouble for having sex on the job” with someone he had just met who was also 

“the homeowner’s daughter.”

The potentially tainted evidence was substantially repetitive of the 

untainted evidence. We are convinced a reasonable jury would have reached 

the same result regardless of Lind’s “off the record” statements. As a result, any 

error was harmless.

 

5 Lind also testified at trial.
No. 81018-9-I/11

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We affirm Lind’s conviction for third degree rape. 

 

WE CONCUR: