COURT Or^APPEALS DJV ^

STATE 01- YJASr.ir.ui'j,.

2013 APR 22 ft'fi 8*55

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

MARK LYMAN HOUGHTON,

Appellant.

No. 67856-6-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: April 22, 2013

Leach, C.J. — Mark Houghton appeals his convictions for first degree

arson and filing a false insurance claim. He contends that a fire investigator

failed to honor his request for counsel during an interview, that the prosecution

improperly commented on his right to remain silent, and that the deputy

prosecutor committed reversible misconduct. But the evidence at the

suppression hearing supports the trial court's conclusion that Houghton

knowingly and voluntarily waived his Fifth Amendment right to counsel. The trial

court's curative instruction obviated any potential prejudice resulting from the

improper references to Houghton's exercise of his constitutional rights, and

Houghton'sfailure to object precludes review of the alleged misconduct. We also

reject Houghton's challenge to the restitution order and the claims he raises in a

statement of additional grounds for review. We therefore affirm.

No. 67856-6-1/2

FACTS

Following an investigation into a suspicious boat fire, the State charged

Mark Lyman Houghton with first degree arson and filing a false insurance claim.

At trial, Charles Leahey testified that he and his family went for a stroll at the

Dockton Marine Park on Vashon Island during the late afternoon of Christmas

Day 2009. As the Leaheys walked down the ramp from the fixed pier to the

floating dock, they passed a large yellow sailboat. Charles heard faint music and

"rummaging kind of sounds" inside the boat. Other than this sailboat, only a few

small boats were at the marina, and the Leaheys did not see anyone else on the

dock.

A short time later, Charles's wife, Amy, noticed a large cloud of smoke

rising from the sailboat. Charles immediately ran back toward the boat while he

dialed 911. Amy called Charles's attention to a man, later identified as Mark

Houghton, who was walking away up on the fixed pier.

Charles yelled at the man several times before he stopped and turned

around. Charles determined that the sailboat belonged to Houghton and

informed him it was on fire. Houghton "kind of slumped" and walked slowly back.

Houghton resisted Charles's suggestions to try to extinguish any remaining fire.

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Meanwhile, the 911 operator asked Charles for the street address of the

marina. Houghton agreed to walk up to the marina office on the shore where he

could place a 911 call from a land line. According to Charles, Houghton

proceeded toward the office at "the same incredibly slow pace."

Houghton approached the first fire fighter to arrive on the scene, Brett

Kranjcevich, and identified his boat as the one with the fire. Houghton explained

that he worked as a general caretaker at the marina. The two walked to the boat,

where Kranjcevich observed smoke still escaping from inside. Houghton said

that he had had problems in the past with juveniles committing vandalism.

Kranjcevich testified that in his 30 years of experience, he had never seen

anyone as calm as Houghton "when their primary residence was on fire."

When fire fighter Chris Huffman arrived a short time later, Houghton told

him that juveniles might have started the fire in retaliation for a prior incident.

Houghton denied the presence of any gasoline on the boat. When fire fighters

entered the boat, they were able to put out the small, smoldering fire with an

extinguisher.

Inside the cabin, fire fighters detected the odor of gasoline and found

some canvas sailcloth, sail bags, and cushions that had burned or melted. They

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No. 67856-6-1/4

also found two punctured gasoline containers. One of the containers had the

name "Lyman" on it.

A nearby cardboard box contained several burned candles that appeared

to have acted as a delayed ignition device. Someone had pared down the

candles with a knife. Fire investigator Barry Pomeroy explained that shaving the

sides of the candles would cause them to start dripping hot wax onto the

surrounding materials within about 10 to 15 minutes. The spreading hot wax, in

turn, would likely create a larger flame. But the initial combustion had apparently

consumed all of the available oxygen in the space, extinguishing the fire before it

could ignite any pooled gasoline.

Houghton testified that at the time of the fire, he was living on the sailboat

and working as a volunteer dock host for King County in exchange for moorage.

Houghton had contracted with Dave Parker to purchase the boat for $15,000.

Over a period of 18 months, Houghton made six monthly payments and still

owed nearly $14,000. Houghton also owed nearly $200,000 for back child

support and student loans.

As part of the contract with Parker, Houghton purchased insurance from

State Farm that covered only the boat. In November 2009, Houghton filed a

claim with State Farm for various items stolen from the boat. When State Farm

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denied the claim for personal items, Houghton added personal property coverage

to the policy. The added coverage went into effect on December 22, 2009.

After the fire, Houghton filed a claim with State Farm for various personal

items destroyed in the fire, including bags of groceries, Christmas presents, and

a computer. Fire investigators did not see these items in the boat after the fire.

Houghton told Heidi Hellbaum, a State Farm investigator, that his ex-wife,

people involved with drugs, or vandals had started the fire. Houghton failed to

appear multiple times for a scheduled deposition, and State Farm eventually

denied his claim.

At trial, Houghton testified that he was moving things in and out of the boat

on the afternoon of December 25, 2009, getting ready to take a ferry to visit his

family for the holiday. While inside a storage area near the boat, Houghton

heard a loud "bang," which he described as the "distinctive noise ... of the teak

boards clacking down together." He then looked outside and saw a "guy jetting

down the dock." Houghton chased the man, who had a spider-web tattoo on his

neck, for a short distance and unsuccessfully attempted to take his picture.

Houghton stopped when he saw a gun tucked into the man's back pocket. The

man then ran off the dock and disappeared. Houghton turned and started

walking back towards the boat, where he encountered the Leaheys.

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Houghton acknowledged that until trial, he had not told anyone about the

man with the spider-web tattoo. He explained that he did not trust the police, fire

investigators, or insurance agents and that he wanted to wait and "see that they

were investigating seriously" before disclosing the information. Houghton

claimed that he had "reported a lot of people for dealing drugs" and feared that

the man with the tattoo was part of a retaliation effort.

The jury found Houghton guilty as charged, and the court imposed a

standard range sentence.

ANALYSIS

Waiver of Right to Counsel

Houghton contends that the trial court violated his Fifth Amendment right

to counsel when it admitted his recorded statement to Barry Pomeroy, a fire

investigator for the King County Sheriff's Office. After arriving at the marina on

the evening of the fire, Pomeroy spoke briefly with fire fighters and then asked

Houghton if he would give a recorded statement. Houghton agreed, and the two

went to the marina office at about 7:00 p.m.

At the beginning of the interview, Pomeroy advised Houghton of his

Miranda1 rights. Pomeroy explained that it was the fire investigation unit's

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

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No. 67856-6-1/7

practice to provide Miranda warnings before speaking to "any primary person

involved in a fire, either the victim or any associated witnesses that are primarily

involved in the incident." After acknowledging that he understood each of the

enumerated rights, Houghton said,

HOUGHTON: OK. M-, I wonder if I should just call my lawyer

or not. Should I call a lawyer? Huh-ha!

POMEROY: For, for a victim statement?

HOUGHTON: Huh, yeah, I, ok-, it's a vie-, that's what this is a

victim statement—?

POMEROY: Yeah.

HOUGHTON: OK, sure.

Houghton moved to suppress the recorded statement, arguing that

Pomeroy had ignored his unequivocal request for an attorney and had

mischaracterized the interview as a "victim statement." Following a hearing, the

trial court denied the motion to suppress, concluding that Houghton's waiver of

his Miranda rights was knowing, voluntary, and intelligent.2 We review the trial

court's decision after a CrR 3.5 hearing to determine whether substantial

2The trial court also denied Houghton's motion to suppress a second statement

that he gave to Pomeroy on the night of the fire and his statement to fire investigators

after his arrest. On appeal, Houghton does not challenge the admission of the two

later statements.

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No. 67856-6-1/8

evidence supports the findings of fact and whether those findings support the

conclusions of law.3

Houghton contends that Pomeroy failed to honor his request for counsel

and tricked him into waiving his Fifth Amendment right to counsel. The State

maintains that Miranda warnings were not required because Houghton was not in

custody during the initial interview with Pomeroy.4

The trial court's ruling on this issue is not completely clear. During its oral

ruling, the trial court found no evidence that Houghton was in custody during the

interview. But in its written CrR 3.5 findings and conclusions, the court

determined that "Miranda was applicable." For purposes of appeal, we will

therefore assume that Houghton was in custody during his interview with

Pomeroy. The State bears the burden of demonstrating a knowing, voluntary,

and intelligent waiver of Miranda rights.5

In order to invoke the right to counsel under Miranda, a suspect "must

unambiguously request counsel" during the custodial interrogation.6 Here,

3State v. Broadawav. 133Wn.2d118, 130-31, 942 P.2d 363 (1997).

4Miranda, 384 U.S. at 467 (procedural protections apply when suspect is subject

to "custodial interrogation").

5State v.Athan. 160 Wn.2d 354, 380, 158 P.3d 27 (2007).

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

(1994); see also State v. Radcliffe. 164 Wn.2d 900, 907, 194 P.3d 250 (2008).

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No. 67856-6-1/9

Houghton "wondered" whether he should call a lawyer and then asked Pomeroy,

"Should I call a lawyer?" The question was clearly equivocal and insufficient to

invoke the right to counsel under Miranda.7 Contrary to Houghton's suggestion,

an interviewer is not required to clarify a suspect's equivocal statement regarding

counsel.8

Houghton also claims that Pomeroy deceived him into waiving his right to

counsel by mischaracterizing the interview as a "victim statement" and

suggesting that he would be admitting guilt if he asked for an attorney. But

Pomeroy had essentially just arrived at the marina when he first interviewed

Houghton and knew only that the fire was suspicious. He had not yet examined

Houghton's boat, and there was no evidence that he had already concluded a

crime had occurred or that Houghton was a suspect. Under the circumstances,

nothing in the record suggests that Pomeroy's characterization of the interview

as a "victim statement" was inaccurate, misleading, or coercive. Moreover, after

being advised of his rights, Houghton reiterated that he wanted to tell Pomeroy

what had happened and acknowledged that he received no threats or promises.

7 See Davis, 512 U.S. at 455 ("Maybe I should talk to a lawyer" is equivocal

request for an attorney); Radcliffe, 164 Wn.2d at 907 ("[M]aybe [I] should contact an

attorney" is an equivocal request for an attorney).

8 Davis. 512 U.S. at 461.

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No. 67856-6-1/10

The record amply supports the trial court's conclusion that Houghton knowingly,

voluntarily, and intelligently waived his Miranda rights, including his right to

counsel.

Comment on Failure To Testify

Houghton contends that the deputy prosecutor committed reversible error

by commenting on his failure to testify at the suppression hearing. Several times

during cross-examination, the deputy prosecutor asked Houghton about the fact

that he did not testify at the suppression hearing. The trial court overruled the

defense objections but eventually directed the deputy prosecutor to "[m]ove on."

At the beginning of the lunch break, the trial court indicated that it now

considered the references to Houghton's failure to testify to be "questionable."

The court directed counsel to address the propriety of a curative instruction when

they returned from lunch. After the lunch break, the deputy prosecutor

acknowledged that a curative instruction was probably the "safest approach," and

defense counsel "agree[d] with that plan." The court then instructed the jury:

Members of the jury, first, I'm going to strike some testimony from

this morning. There was some testimony about—during the crossexamination, questions asked by Mr. Hamilton to Mr. Houghton

about a pretrial hearing that was held in this case about the

admissibility of the statement given to Inspector Pomeroy by Mr.

Houghton. That testimony is stricken. So you may not discuss

during your deliberations that pretrial hearing, the fact of the pretrial

hearing and what choice, if any, Mr. Houghton made during the

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No. 67856-6-1/11

pretrial hearing to testify or not testify. Is everyone clear on that

ruling?

Defense counsel did not object to the text of the instruction.

Houghton contends that the corrective instruction was deficient because

the court "did not tell the jury it could not use the testimony for any purpose." But

the instruction clearly identified the improper testimony, informed the jury that it

was stricken, and directed the jury not to discuss either the existence of the

pretrial hearing or Houghton's decision whether to testify at the hearing. Viewed

in context, the instruction clearly informed the jury that it could not consider the

stricken testimony for any purpose. Moreover, jury instruction 1 reinforced the

court's admonition by directing the jury "not to consider [evidence stricken from

the record] in reaching your verdict." Nothing in the record overcomes the

presumption that the jury followed these instructions.9

Prosecutorial Misconduct

Houghton contends that the deputy prosecutor committed reversible

misconduct on two occasions during trial. A defendant claiming prosecutorial

misconduct bears the burden of establishing that the challenged conduct was

both improper and prejudicial.10 Where, as here, the defendant fails to object, we

9See State v. Johnson. 124 Wn.2d 57, 77, 873 P.2d 514 (1994).

10 State v.Cheatam. 150 Wn.2d 626, 652, 81 P.3d 830 (2003).

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No. 67856-6-1/12

will not review the alleged error unless the defendant demonstrates the

misconduct was "so flagrant and ill intentioned that no curative instructions could

have obviated the prejudice engendered by the misconduct."11

During cross-examination, the deputy prosecutor asked Joe Van

Hollebeke, a King County Parks employee, whether he "trust[ed]" Houghton's

word after working with Houghton at the marina for about a year. Van Hollebeke

replied, "Not entirely." The deputy prosecutor referred briefly to the comment

during closing argument. Houghton argues that the deputy prosecutor

improperly elicited the witness's opinion of his credibility.12

At the conclusion of closing argument, the deputy prosecutor offered the

jury an "old quote":

Before justice can exist in the conduct and conscience of a

government, it must first reside in the hearts and souls of the

citizens. And that's you as you deliberate on this case asking for a

verdict that is just, and a verdict that is honest. And I ask you to

find him guilty for his deeds.

Houghton argues that the comments mischaracterized the role of the jury and

undermined the presumption of innocence.13

11 State v. Belaarde. 110 Wn.2d 504, 507, 755 P.2d 174(1988).

12 See State v. Boehninq. 127 Wn. App. 511, 525, 111 P.3d 899(2005) (flagrant

misconduct to ask one witness whether another witness is lying).

13 See State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012) (the jury's job

is to determine whether State proved the charged offense beyond a reasonable

doubt, not to "speak the truth" or "declare the truth").

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No. 67856-6-1/13

Van Hollebeke's statement about "trust" was not a direct comment on the

credibility of Houghton's trial testimony but rather a reference to the period when

he worked with Houghton at the marina. The deputy prosecutor's closing

remarks, viewed in context, did not undermine his earlier comments or the jury

instructions, which clearly and accurately set forth the State's burden of proof.

Moreover, the challenged conduct did not involve the type of inflammatory

or emotional appeal that results in incurable prejudice.14 The statements were

brief and isolated in the context of the entire trial and did not form part of an

overarching theme. Consequently, to the extent that the questioning and

comments were improper, a prompt objection and curative instruction would have

negated any potential prejudice.15 Houghton's claim of prosecutorial misconduct

therefore fails, and "our analysis need go no further."16

Restitution

For the first time on appeal, Houghton challenges the inclusion of certain

items in the restitution order. In particular, he contends that the record fails to

demonstrate a causal connection between his crimes and legal fees incurred by

county fire fighters and certain investigation costs incurred by State Farm.

14 See Emery. 174 Wn.2d at 763.

15 Emery. 174 Wn.2d at 764.

16 Emery, 174Wn.2d at 764.

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No. 67856-6-1/14

Houghton maintains that the matter must therefore be remanded for a restitution

hearing. We review the amount of a restitution order for an abuse of discretion.17

"If the defendant disputes facts relevant to determining restitution, the

State must prove the damages at an evidentiary hearing by a preponderance of

the evidence."18 But no hearing is required if the defendant acknowledges or

agrees to the amount.19 A failure to object to restitution constitutes an

acknowledgement or agreement to the amount.20

When the parties appeared for sentencing, both the deputy prosecutor

and defense counsel had already signed the order setting restitution. Although

defense counsel noted "as to form" next to his signature, he raised no objection

to restitution or to any aspect of the restitution order. The failure to object

deprived the sentencing court of any opportunity to correct errors and to create a

record that would permit meaningful appellate review.21 Under the

circumstances, we agree with the State that Houghton's failure to raise either a

17 State V.Griffith. 164 Wn.2d 960, 965, 195 P.3d 506 (2008).

18 State v. Kinneman. 155 Wn.2d 272, 285, 119 P.3d 350 (2005).

19 State v. Pockert. 53 Wn. App. 491, 498, 768 P.2d 504 (1989).

20 State v. Ryan. 78 Wn. App. 758, 762, 899 P.2d 825 (1995).

21 See State v.Moen. 129 Wn.2d 535, 547, 919 P.2d 69 (1996).

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No. 67856-6-1/15

general objection to restitution or a specific objection to the items now challenged

precludes appellate review.22

Statement of Additional Grounds for Review

In his statement of additional grounds for review, Houghton alleges the

following errors: (1) the trial court erred in refusing the defense's request for a

continuance on August 4, 2011; (2) the trial court erred in denying his request for

new counsel on August 19, 2011; (3) the deputy prosecutor and the police

conspired to conceal the fact that the State's witnesses "were obviously paid to

testify against me"; (4) the State withheld exculpatory and impeaching evidence

and committed other acts of misconduct; (5) the trial court's imposition of

restitution and legal financial obligations was arbitrary and unfair; (6) the State

conspired with the insurance company investigator to conceal the fact that the

boat suffered minimal damage; (7) the evidence of damage to the boat was

tainted by a defective chain of custody; (8) the State committed misconduct by

submitting a prejudicial psychological evaluation at sentencing; (9) an unreported

sidebar would demonstrate prosecutorial misconduct; (10) the insurance

22 See Ryan. 78 Wn. App. at 763 (restitution amounts not objected to are

deemed acknowledged); State v. Harrington. 56 Wn. App. 176, 181, 782 P.2d 1101

(1989) (failure to raise challenge to amount of restitution precludes appellate review);

see also State v. Branch, 129 Wn.2d 635, 651, 919 P.2d 1228(1996).

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No. 67856-6-1/16

company investigator committed perjury; (11) the police and insurance company

investigator failed to follow up on information about possible other suspects; (13)

the State violated the prohibition against double jeopardy by jailing him multiple

times before trial; (14) the police arrested him without probable cause, failed to

advise him of his Miranda rights, and tricked him into taking a polygraph test; and

(15) defense counsel's performance was constitutionally deficient.

All of Houghton's contentions rest on alleged evidence that is not part of

the designated appellate record. We therefore cannot consider his claims on

direct appeal.23 Houghton's attempts to incorporate materials and arguments

that he has apparently raised in a pending personal restraint petition also fail. A

party on appeal may not incorporate by reference arguments presented in other

23 State v.McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

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No. 67856-6-1/17

proceedings.24 Under the circumstances, Houghton's claim that the

accumulation of errors violated his right to a fair trial also fails.25

Affirmed.

%Qj^vdL9*<, A.

.1 L_^_

WE CONCUR:

'sp'Y^rv^,

24 See In re Guardianship of Lamb. 173 Wn.2d 173, 183 n.8, 265 P.3d 876

(2011) (party waives issues not fully argued in appeal briefs).

25 In re Pet, of Coe. 175 Wn.2d 482, 515, 286 P.3d 29 (2012).

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