### FILED 

### AUGUST 1, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Appellant,
v. TREVORR. MCCLURE, Respondent. ) ) 

### ) ) ) ) ) ) ) No. 34399-5-111

UNPUBLISHED OPINION

KORSMO,

### J. -TrevorMcClure challenges his conviction for first degree escape, arguingthat there was insufficient evidencethathewas "incustody" atthe time ofthe offense. We affirm. FACTS Mr. McClure was given a residential Drug Offender SentencingAlternative (DOSA) following conviction for possession ofa controlled substance. A warrantissued whenhe failed to complywiththeterms ofthe sentence. Hewas arrested onthe warrant and broughtto court on September25, 2015. Thetrialjudge found Mr. McClure in violation oftheterms ofthe sentence and sentencedhimto 18 days ofconfinement, with credit for the 16 days served. He also was orderedto re-enter inpatient drugtreatment atAmericanBehavioral Health SystemsNo. 34399-5-III State v. McClure (ABHS) upon completing his term ofconfinement at thejail. On September 27, Mr. McClure was released from thejailwith his belongings to the ABHS transport van along with two other inmates. When the van arrived at the ABHS treatment facility, Mr. McClure and one ofthe otherpassengers fled without entering the building. A charge offirst degree escape was filed and the matterproceededtojurytrial. The bus driver could not identify Trevor McClure, but did testify that two ofthe three passengers he drove to the facility fled ratherthan enterthe building. The ABHS transportation supervisortestified, after an unsuccessful hearsay objection, that no one named TrevorMcClure entered into treatment on or after September 27, 2015. Community Corrections Officer (CCO) Tonya Wicktestified that she knew Mr. McClure and identified him as the person in the courtroom. She also testified, over objection, that she had been advised that Mr. McClure did not report for treatment at ABHS. Atthe conclusion ofthe State's case, the defense moved to dismiss for insufficient evidence, raising several different arguments. Thetrial court deniedthe motion and the defense rested without calling any witnesses. Thejury found Mr. McClure guilty as charged. He timely appealedto this court. ANALYSIS In this appeal, Mr. McClure reprises the arguments made in his motion to dismiss. Specifically, he contends that the evidence was insufficient because it did not establish thathe was "in custody" when he was transportedto ABHS. He also challenges the 2No. 34399-5-III 

### State v. McClure
court's rulings on his hearsay objections. We first address the sufficiency claim before turning to the evidentiary argument. 

### Sufficiency of the Evidence A person commits first degree escape ifhe "knowingly escapes from custody or a detention facility while being detained pursuantto a conviction ofa felony." RCW 9A.76.l 10(1). In reviewing an evidentiary sufficiency challenge on appeal, the question presented is whetherthere is sufficient evidence to support the determinationthat each element ofthe crime was proven beyond a reasonable doubt. 

### Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); 

### State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id. at 221. Credibility determinations are for the trier offact and are not subjectto review. 

### State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The term custody is defined as "restraintpursuantto a lawful arrest or an order of
a court, or any period ofservice on a work crew." RCW 9A.76.010(2). In tum, restraint
means an "'act ofrestraining, hindering, checking, orholding back from some activity or expression,"' or a "means, force, or agency thatrestrains, checks free activity, or otherwise controls." 

### State v. Ammons, 136 Wn.2d 453,457,963 P.2d 812 (1998) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1937 (1986)).

3

### No. 34399-5-111 State v. McClure
Mr. McClure presents several arguments why he was not "in custody" in an effort to distinguish his case fromAmmons and State v. Breshon, 115 Wn. App. 874, 63 P.3d 871 (2003). He posits that he had served his 18-day sanction and that he was no longer in custody when sentto ABHS. He also argues that neither the ABHS transportation bus
nor the treatment facility were detention facilities. The latter contentions are irrelevancies in this action since thejurywas never asked to find that Mr. McClure escaped from a detention facility. Instruction 9 informed thejury: "Custody means restraintpursuantto a lawful arrest or an order ofa court or any period ofservice on a work crew." Clerk's Papers at 33. The theory ofthis case was thatMr. McClure was under the order ofthe courtto report to ABHS on September 27, 2015, and failed to do so, resulting in a first degree escape. Ammons and Breshon supportthat theory. InAmmons, the defendants were convicted offirst degree escape for failing to report to a work crew; they defended on the basis that they were not in custody while at work crew. 136 Wn.2d at 454-456. The court disagreed and determined that the defendants were "in custody" bothpursuantto a

·court order and by the assignment to the work crew. Id. at 460. Breshon involvedthe question ofwhether defendants ordered to report to a drug treatment facility were "in custody" despite a failure to report to the facility. 115 Wn. App. at 876-877. Division Two ofthis court concluded that the defendants were "in custody" pursuant to the court order to reportto the treatment facility. Id. at 878-879. 4No. 34399-5-111 State v. McClure
Breshon is factually on point and controls the argument here. Mr. McClure, however, argues thatthe record and order at issue inBreshon contained several features notpresent in this case, which he contends makes his case no different than a failure to complywith sentence conditions. He reads too much into theBreshon discussion. There the court was addressing arguments presented by theAmmons dissent that were being used to attemptto limit the scope oftheAmmonsholding. Id. at 879-881. Breshon rejected the arguments while pointing outthe notice given to the defendants concerning the risk offirst degree escape charges. Id. at 880. It restated theAmmonsholding:

Id. In any event, the majority did not require a detention separate from the restriction offreedom imposed by being in custody, even ifthat was custody from restraint arising from a court order. We, therefore, rejectthe argument that Breshon and Simmons were not detained because they were not at leastpartially confined.
Similarly here, Mr. McClure was ordered to enterABHS on September 27, 2015. He was released fromjailto the ABHS transport for that express purpose. He was under the restraint ofthe court order limiting his freedom to do anything otherthan report to ABHS that day. Accordingly, these circumstances demonstrate that he was in custody when deposited at the doorto the ABHS facility. His refusal to enter and flight therefrom
was sufficient evidence to establish that he escaped from "custody" and, therefore, supported thejury's determination thathe had committed first degree escape. The evidence was sufficientto supportthejury's determination. 5No. 34399-5-111 State v. McClure EvidentiaryRulings Mr. McClure also argues that the trial court erred in admitting allegedhearsay testimony, thus rendering the evidence ofidentity insufficientto supportthe conviction. The trial court did not abuse its discretion in admitting the evidence. 1 Familiarrules govern ourreview ofthis issue. Trial court rulings relating to the admission ofevidence are reviewed for abuse ofdiscretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004), abrogated inparton othergrounds by Crawfordv. Wash., 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Here, ABHS transportation and admissions manager SheliaNorris testified that she had not been working on September 27, 2015, but received e-mail notice from the lead driver that multiple patients had failed to report to the facility. She also testified that ABHS needed to report to funding agencies whether a patientreported ornot. The

1Even ifwe had agreed that the trial court erred in admitting the challenged testimony, Mr. McClure's remedy would be a newtrial, not dismissal ofcharges. E.g., State v. Hudlow, 182 Wn. App. 266, 270-271, 331 P.3d 90 (2014). In the case onwhich he relies, the hearsay evidence at issue was admitted for a limitedpurpose, but was improperly used on appeal as the sole substantive evidence supporting one element ofthe offense. State v. Green, 157 Wn. App. 833,852,239 P.3d 1130 (2010). Whenthe challenged evidence was considered only for its properpurpose, there was no other evidence on the element ofthe crime and dismissal was proper. Id. at 852-853. This situation is far different. The evidence admitted here did suffice. Ifit had been admitted in error, the remedy would be a retrial, not dismissal. Hudlow, 182 Wn. App. 266. 6

### No. 34399-5-111 State v. McClure


### defense raised a hearsay objection to the question ofwhether she knew ifMr. McClure had reported to the facility. The trialjudge overruled the objection, stating that it was "a basis-of-knowledge question." Report ofProceedings (RP) at 138. She then stated, without further objection, that she remembered he had not reported. Id. 

### The trial court correctly identified that the proper objection would have been "basis ofknowledge" (or "foundation") since the question asked for the witness to identify ifshe had the knowledge requested. 2 

### Understandably, counsel did not pursue this direction when the court correctly overruled the objection. It 

### did not call for a hearsay answer.3 

### Appellant also contends that the CCO, Ms. Wick, was erroneously allowed to provide a hearsay answer ("I was told he did not arrive") to the question "doyou know if he arrived at ABHS?" RP at 151-152. As he notes in his briefing, the trialjudge overruled the answer on the basis that the evidence was already properly admitted at trial.

2 

### The basis ofthat knowledge was the e-mail she had received from one ofher subordinates in the course ofher work. If

### a foundation objection had been raised, then Ms. Norris would have explained, in accordance with the business records foundation requirements, how and why ABHS documented a failure to report and to whom the information was conveyed. 3

### Arguably, the answer given to the following question both exceeded the scope of the question asked ("do you remember") and contained hearsay ("he did not arrive"), but proper foundation and hearsay objections would still have led to correct, admissible answers: (1) "yes," she did remember; and (2) an explanation for her basis ofknowledge (the business records). Forthe reasons stated above, defense counsel understandably would not pursue the topic and permit Ms. Norris to provide more fully informed testimony. 7

### No. 34399-5-III State v. McClure


### While the court's ruling probably should have been coupled with a limiting instruction telling thejurythat the answer, as phrased, was admitted on the basis ofMs. Norris' testimony and not as independentproofofthat fact, the question was one thatMs. Wick could properly have answered based on the respective business records since Ms. Norris already had testified that ABHS had the practice ofnotifying the funding agency when
someone did not report. Since the evidence was properly before the court through Ms. Norris, any cumulative repetition ofthe evidence through Ms. Wick was not prejudicial error. State
v. Todd, 

### 78 Wn.2d 362,372,474 P.2d 542 (1970) (improper admission ofcumulative evidence not prejudicial). Accordingly, we cannot say that the trial court abused its discretion in permitting the answer to stand as given. The evidence ofidentity was sufficient. The arresting officer and Ms. Wickboth identified the man in the courtroom as Trevor McClure, a person each knew. Ms. Wick tied together the documentary evidence for thejuryby hertestimony thatMr. 

### McClure
was on her caseload and was required to report to ABHS on September 27, 2015. Ms. Norris properly testified that ABHS records demonstrated that Mr. McClure did not report that day nor any day thereafter. The State did not need to prove thatMr. McClure actually signed the court order. It

### provided direct and circumstantial evidence that he
was the personnamed in the order and that the namedperson did not report to ABHS.

8No. 34399-5-III State v. McClure
The "hearsay" evidence was properly admitted. The evidence also supported the jury's determination that Mr. McClure did not report to ABHS as required and was guilty offirst degree escape. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Kors#',J. WE CONCUR:

Lawrence-Berrey, A.C
.. 

# £}dfaw~,!· Siddoway, J.

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