2014 OCT 28 

### Ail 10: 00 ST» 1° .;, i #i G

DE ' FY BY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF TACOMA,

v. DAVID ERICKSON, DIVISION II

Respondent,

Appellant. No. 44794 -1 - II

UNPUBLISHED OPINION

JOHANSON, C.J. — On discretionary review, David Erickson challenges the superior 

### court's affirmance of his municipal courtjury trial conviction for being in physical control of a motor vehicle while under the influence or effect of an intoxicant with a special verdict finding that he had refused a breath test requested 

### by law enforcement. He argues that he proved his 

### affirmative defenses and that the City of Tacoma ( City) and one of its witnesses improperly

commented on his requests for counsel. Because the evidence supports the verdict and the



### s " No person may be convicted [ofbeing in physical control ofa motor vehicle while under the influence or affected 

### by an intoxicant], 

### prior to being pursued by a law enforcement officer, the person has moved the vehicle safely offthe roadway." RCW 46.61. 504(2). In 2013, the legislature amended RCW 46.61. 504 to reflect changes in the law following the legalization of adult 

### marijuana use; these amendments did not alter any ofthe provisions relevantto this appeal. LAWS OF 2013, ch. 3, § 35. Accordingly, we cite to the current version of the statute throughout.No. 44794 -1 - II

references to Erickson' s requests for counsel were harmless beyond a reasonable doubt,we affirm 

### the superior court and the municipal courtjuryverdict. FACTS I. BACKGROUND In September 2011, Erickson legally parked his motorcycle on the side ofa public street 

### and went into abar. Anderson Durham laterparked his car directly in front ofthe motorcycle and went into a nearby restaurant. 

### Later that night, Durham saw Erickson return to his motorcycle, straddle it, put a key in 

### the ignition,and tryto "upright" the motorcycle. Although Erickson did not startthe motorcycle, he was unable to control the motorcycle when he attempted to " upright it," and it fell sideways into and damaged Durham' s car. After bystanders helped him right the motorcycle, Erickson again lost control of the motorcycle and it fell into Durham' s car. After this, a woman got on the 

### motorcycle and prevented him from getting back on it. Durham then saw Erickson lean overthe motorcycle, put something that looked like a key ring in his pocket, and walk away.

Durham called 911. Officers responded a short time later, and one of them arrested Erickson in a nearby bar. The arresting officer advised Erickson of his Miranda2 rights. When 

### the arresting officerthen asked Erickson some questions, Erickson did not respond. When the officers escorted Ericksonto the patrol car, he could not keep his balance and he had difficulty standing and walking. 

### Erickson's eyes were watery and droopy, his face was 

### flushed, he smelled strongly ofalcohol, and his speech was slurred; the officers believed he was

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 2No. 44794 -1 - II

intoxicated. When Tacoma Police Officer Matthew Richard Graham asked Erickson whether he had been drinking, Erickson responded that he wanted an attorney. Officer Graham also asked 

### Erickson if he would perform sobriety tests; Erickson again asked for an attorney, and Officer Graham stopped speaking with him. 

### Once they arrived atthe police station, Officer Graham again read Erickson his Miranda 

### rights. Erickson respondedthat hewanted an attorney andthathe had his attorney' s business card in his wallet. Within 5 minutes,the officers were able to put Erickson in contact with an attorney, 

### and Erickson spoke to the attorney while alone in a private room. About 10 to 15 minutes later, the officers heard Erickson fall to the floor and start screaming for help, asserting that the police had assaulted him. 

### After the officers picked up Erickson, they explained to counsel what had happened and left the room to allow Erickson to continue to speak to counsel privately. After 

### Erickson finished talking to counsel, the officers twice attempted to read him the implied consent 

### warnings3 forbreath alcohol tests; he responded by stating that he needed a cab ride home. When the officers asked Erickson for a breath test, he responded, " 

### Ah no, are you fucking stupid ?" 

### Clerk's Papers (CP) at 148. Erickson eventually passed out and was transported to the hospital. II. PROCEDURE 

### The City charged Erickson with physical control of a vehicle while under the influence; 

### the case wentto ajury trial in municipal court. The City's witnesses testified as described above.



### 3 Anyone operating a vehicle in the State ofWashington " is deemed to have given consent" to breath alcohol tests if the arresting officer has reasonable grounds to believe the defendant has 

### been driving orwas in actual physical control ofavehiclewhile underthe influence. FormerRCW 46.20. 308( 1) ( 2008). The implied consent warnings advise a defendant of the consequences should he refuse to take the test. Former RCW 46.20.308(2) ( 2008). 3No. 44794 -1 - II A. TESTIMONY



### During his directtestimony, Officer Graham testified about Erickson's numerous requests 

### for an attorney, mentioning these requests five times while testifying about his contact with Erickson before Erickson was advised of his Miranda rights. For example: City Attorney (CA)] : 

### Okay. And when you contacted [Erikson in the patrol car] what did you do? Officer Graham (W)]: I opened up the patrol vehicle. I contacted Mr. Erickson. 

### I noted that his eyes were watery, droopy. His face was very flushed with 

### color. Um I tried speaking with him. I noticed when he spoke the distinct overpowering odor of intoxicants were coming off of his breath. Um his speech was very slurred. 

### His head was kind of bobbling back and forth. Um, I even noted at one point he was 

### drooling. Um I you know I tried 

### asking him some questions. Ah wasn' tgetting much out ofit other than he wanted an attorney. Um. CA: 

### Okay, did you did you ask him ifhe had anything to drink? W: I attempted to ask him but all he would respond is that he wanted an

attorney. CA: 

### Okay, so did you try to pursue any questioning when he asked for an

attorney? W: 

### Ijustasked ifhe would perform voluntary field sobrietytests. Which all he kept sayingwas that he wanted an attorney. And atthat pointwe stopped. CP at 134 -

35 ( emphasis added).

per, After Graham testified about reading Erickson his Miranda rights, he further testified in

CA: Okay. And did the defendant indicate he understood that? W: All he wouldsay is I need an attorney. CA: 

### Okay. So did you try to askthe defendant questions at that point? W: 

### Other thanjust ifhe hadan attorney that he wanted me to contact. CA: 

### Okay. So you um it's fairto sayyou were nottrying to investigate any and

ask him questions about what happened? W: No. CA: And why was that? W: He had requested an attorney. CA: Okay. And then um did you get any information about an attorney that the

defendant wanted?
4No. 44794 -1 - II W: He advised that he had a business card in his wallet that had ah his attorney' s number on it. CP at 138 ( emphasis added). Officer Graham then testified that he made several attempts to contact the attorney and ultimately contacted counsel at the Department of Assigned Counsel. The officer then left the

room and shut the door to allow Erickson to talk on the phone with counsel. About 10 to 15 minutes later, as recounted above, Officer Graham heard a " loud thud" and then heard Erickson screaming for

### help." CP at 141. The officer reentered the room and Erickson " started scream- creaming that the police had assaulted him." CP at 141. Officer Graham put Erickson back in the chair, 

### talkedto the attorney aboutwhat hadjust happened, andthen leftthe room againto allow Erickson to continue to talk to counsel. 

### Officer Graham also testified about reading the implied consent warnings to Erickson and his subsequent refusal to give a breath test as described above. Officer Graham stated that he did not know if Erickson understood the implied consent warnings but that he did not ask for any clarification, ask to speak to a lawyer again, or otherwise indicate that he had not understood the warnings. Officer Graham also testified that when he arrived at the scene, the motorcycle was legally parked and was safely out ofthe roadway.

Erickson was the sole defense witness. He testified that he had given his keys to a friend 

### atthe startofthe evening and,therefore,he could nothave placedthem inthe motorcycle' signition when he damaged Graham' s car. He admitted, however, that he had been drinking that evening, that his memory was " 

### foggy" because he had been drinking, and that the motorcycle " tipp[ed]

over" at some point." CP at 182, 184.

5No. 44794 -1 - II B. JURY INSTRUCTIONS AND CLOSING ARGUMENT



### The trial court instructed thejury on the statutory affirmative defense:. It is adefense to physical control while underthe influence ifpriorto being pursued 

### by lawenforcement officerthe person causesthevehicleto be moved safely offthe roadway. 

### In determining whether a vehicle is safely offthe roadway you may consider the location of the car, the extent to which the defendant maintained control over the vehicle, and any other evidence bearing on the question. The 

### defendant has the burden of proving this defense by a preponderance of the evidence. CP at 206. 

### In its closing argument, after noting thatthe officers had twice attempted to read Erickson the implied consent warnings, the City argued, 

### And we're also asking you to find that the defendant refused to take the breath test.... And so to prove that we have to show that ah the defendant expressed or showed some positive unwillingness to do this test. So how do we know that? Um the officer said Officer Graham had the defendant in the police station and he was there for quite a long time. And he told you he read the implied consent warning two times. That was a long list of things.... Butjust to be sure he did read it two times. And then ah but prior to even reading the implied consent warning ah 

### Officer Graham because the defendant wanted to talk to an attorney,put him in touch with the attorney and put him on speaker phone. When the attorney is on speakerphone the officer leaves the room to give him privacy.... And the officer said that he put the defendant in touch with the attorney at 9:49p.m. and then that 

### call endedat 10:09. That'stwenty minutes. That'sa longtime. The defendant had 

### plenty oftime to talkto this attorney andaskquestions,getadvice or whatever he needed. And then after the officer read the implied consent warning two times um or then he asked the ah defendant are you going to take this breath test? The first time he gets this response of I want a cab. I need a cab. And then there' s he' s unresponsive. He doesn' t give an actual answer to the question yes or no. So the 

### officer gets [sic] he' s preparedto setupthe machine. Everything is readyto go and asked him again. Will you take the breath test? 

### And this time what does [he] say? No, are you f* * *



### ing stupid? I mean how much more do you need? There was no. So we have proved that the defendant is guilty ofphysical control while under the influence of intoxicating liquor. We' ve also proved that he refused the breath test.... 

### So we' re asking you to hold the defendant responsible for his actions on September 29th and find him guilty ofthe crime of being in physical control and also find that he refused the breath test.
6No. 44794 -1 - II

CP at 219 -

22 ( emphasis added). Erickson did not object to this argument. The City did not otherwise mention Erickson' s requests for counsel. 

### Erickson arguedthat (1) the Cityhad notproven its case because it had failed to prove that he had the keys and there was no proofthat he could have moved the motorcycle without starting it, and (2) he had established the affirmative defense to the charge because Officer Graham had testified that the motorcycle was legally and safely parked before the officers arrived. The jury 

### found Erickson guiltyofphysical control andfound by specialverdictthathe had refusedto submit to the breath test requested by law enforcement. C. APPEALS Erickson appealed his conviction to the Pierce County Superior Court. He argued, inter 

### alia,that (1) therewas insufficient evidence to findthat he was not safely offthe roadway, and (2) 

### the City improperly commented on his exercise ofhis Miranda rights. The superior court affirmed the conviction. It held, in part, 1. There was sufficient evidence to convict Mr. Erickson of being in physical control ofa motor vehicle while under the influence of alcohol. A rational trier of 

### fact could have found Mr. Erickson failed to prove he was safely offthe road by a preponderance ofthe evidence. 2. The City did not improperly comment on the exercise ofthe right to counsel; based on the facts ofthis case. CP at 266.

Erickson moved for discretionary review with this court. We accepted review in part on 

### the issues ofwhether (1) there was sufficientevidence supportingthejury's rejection ofErickson's 

### affirmative defense, and (2) the City and its witnesses improperly referenced Erickson's requests for an attorney.

7No. 44794 -1 - II DISCUSSION I. SUFFICIENCY OF EVIDENCE: AFFIRMATIVE DEFENSE 

### Erickson first argues thatthe superior court erred in ruling that a rational trier offact could 

### have found that hefailed to provethe affirmative defense byapreponderance ofthe evidence. We disagree. A. LAW AND STANDARD OF REVIEW

We review a municipal court' s decision according to the standards in RALJ 9. 1. 

### City of 

### Seattle v.May, 151 Wn.App.694, 697, 213 P.3d 945 (2009), aff'd, 171 Wn.2d 847, 256 P.3d 1161 2011). We reviewthe record before the municipal court; we review factual issues for substantial 

### evidence andwe review legal issues de novo. May, 151 Wn.App. at 697; City ofBellevue v.Jacke, 

### 96 Wn.App.209, 211, 978 P.2d 1116 ( 1999). Actual physical control ofavehicle while underthe influence oforaffected by intoxicating liquor or any drug is a crime in the State of Washington. RCW 46.61. 504( 1). But there is also a statutory affirmative defense to that crime. RCW 46. 61. 504(2). This affirmative defense provides, 

### No person may be convicted under this section if,priorto being pursued by a law enforcement
officer, the person has moved the vehicle safely offthe roadway." RCW 46.61. 504(2) ( emphasis added). Erickson was required to prove this affirmative defense by a preponderance of the evidence. State v. Votava, 149 Wn.2d 178, 187, 66 P.3d 1050 (2003). 

### When reviewing achallenge to the sufficiency ofevidence based on an affirmative defense ... , 

### the inquiry is whether, considering the evidence in the light most 

### favorable to the city,a rational trier offact could have foundthatthe accused failed to provethe defense byapreponderance ofthe evidence. State v.Lively, 130Wn.2d 1, 17, 921 P.2d 1035 ( 1996). 

### Proofofadefense by apreponderance ofthe evidence 

### merely means the greaterweightofthe evidence. State v. Harris,74 Wash. 60, 64, 132 P. 735 ( 1913).
8No. 44794 -1 - II



### City ofSpokane v. Beck, 130 Wn.App. 481, 486, 123 P.3d 854 (2005), review denied, 157 Wn.2d 1022 (2006). B. SUFFICIENT EVIDENCE Erickson argues that the evidence proved the affirmative defense beyond a reasonable 

### doubt because Officer Graham testified that the motorcycle was safely offthe roadway when he arrived at the scene.4 We disagree. Here, although Officer Graham testified that the motorcycle was safely off the roadway 

### when he arrived at the scene, a reasonable jury could have found that after Erickson reasserted control overthe motorcycle, itonlyremained safelyoffthe roadwaywithout Erickson's assistance. 

### Durham testified that Erickson put a key in the motorcycle' s ignition before trying to upright it, that he did notvoluntarily relinquish control overthe motorcycle, and that he relinquished control 

### only after awoman physically prevented him from getting back on. This evidence would allow a reasonablejury to conclude that although Erickson had initially moved the motorcycle safely off 

### the roadway,he regained control ofitwhen he leftthe bar,triedto drivethe motorcycle away, but

was prevented 

### by a bystander. And the motorcycle remained safely off of the roadway only because someone else had intervened. See City ofYakima v. Mendoza Godoy, 175 Wn.App. 233, 305 P.3d 1100 (to be entitled to this affirmative defense instruction, defendant had to present some

We note that Erickson does not argue that there was insufficient evidence to prove that he was in physical control ofthe motorcycle while intoxicated. 9No. 44794 -1 - II



### evidence that he or she in some way actively participated in moving or causing someone else to

move the vehicle off of the roadway),5 review denied, '178 Wn.2d 1019 (2013). Although under Votava, a defendant can assert the affirmative defense if another person 

### has moved thevehicle offthe roadwayat the defendant's request,that is notwhat happened here. 149 Wn.2d at 188. 

### Votava held "that a defendant who has been charged with being in physical

control of a vehicle while under the influence of alcohol is entitled to the defense ... if the 

### defendant causedthe vehicle to be moved offthe roadway even ifthe defendant did notpersonally drive the vehicle off the roadway." 149 Wn.2d at 188 ( emphasis added). Erickson originally 

### parked the motorcycle offofthe roadwaysafely, but he returned to it after consuming alcohol and attempted to move the motorcycle. In so 

### doing, he damaged another person' s vehicle. The 

### motorcycle was clearly not safe when Erickson was in control of it, and Erickson did not voluntarily cease his attempts to control the motorcycle. He stopped only when someone else, on her own initiative, prevented him from getting back on the motorcycle. Thus, we cannot saythat 

### Erickson "caused" the vehicle to be removed safely offofthe roadway as the defendant in Votava did, andthe evidence supports thejury's rejection ofthis affirmative defense.

5 In Mendoza Godoy, another person drove the intoxicated defendant to the parked vehicle, and the defendantthen sat alone in the vehiclewhile drinking abeer. 175 Wn.App.at235. The Court ofAppeals affirmed the trial court' s refusal to give the affirmative defense instruction underthese circumstances. Mendoza Godoy, 175 Wn.App. at 238. 10No. 44794 -1 - II II. COMMENT ON RIGHTTO COUNSEL



### Erickson next argues that the City or its witnesses improperly commented on his exercise 

### ofhis rightto counsel.6 Even presuming, but notdeciding,thatthe testimony and argumentabout Erickson's requests for and access to counsel were improper and that he has properly preserved 

### these issues for review, we hold that the testimony and argument were harmless beyond a reasonable doubt. Both the state and federal constitutions guarantee a criminal defendant the right to counsel. U.S. CoNST. amend. VI; WASH. CONST. art I, § 22. 

### Commenting on the defendant' s exercise of his right to counsel can be improper. United States ex rel. Macon v. Yeager, 476 F.2d 613, 616- 17 ( 3d Cir.), cert. denied, 414 U.S. 855 ( 1973). 

### Here, Officer Graham' s testimony andthe City' s argumentwere arguably directcomments on Erickson's request for or access to an attorney. See State v. Pottorff,138 Wn.App. 343, 346. 156 P. 3d 955 (2007) ( "A direct comment occurs when a witness or state agent makes reference to the defendant' s invocation ofhis or her right to remain silent. "). We review direct comments using the constitutional harmless error analysis in which the City bears the burden ofshowing the error

was harmless. Pottorff, 138 Wn. App. at 347. A constitutional error is harmless when we are 

### convinced beyond a reasonable doubtthat any reasonablejurywould have reached the same result absent the error and when the untainted evidence is so overwhelming it necessarily leads to a 

### finding ofguilt. State v. Romero, 113 Wn.App. 779, 794 - 95, 54 P.3d 1255 (2002).

6 Again, we review a municipal court' s decision according to the standards in RALJ 9. 1. May, 

### 151 Wn.App. at 697. We reviewthe record before the municipal court;we reviewfactual issues for substantial evidence and we review legal issues de novo. 

### May, 151 Wn. App. at 697; Jacke, 96 Wn.App. at 211. 11No. 44794 -1 - I1



### As to the substantive offense, the facts here do not show that the City attempted to use Officer Graham' stestimony about Erickson' s requests oraccess to counsel as substantive evidence ofthat crime or as evidence that would impeach his credibility. And there was ample uncontested evidence that Erickson was impaired (in fact, Erickson admitted he had been drinking),that he had 

### attempted to move the motorcycle, that he repeatedly dropped the motorcycle, and that he relinquished his control ofthe motorcycle onlywhen others interfered. Also, because the City did not argue that Erickson' s requests for counsel were inconsistent with the acts ofan innocent person, this evidence and argument did not undermine Erickson' s defenses ( that he did not have the 

### motorcycle key and his affirmative defense). 

### As to the special verdict, again, the City did not argue that Erickson's requests for and contact with counsel were inconsistent with Erickson' s innocence. Although the City argued that Erickson' s request for and access to counsel was evidence that he had the opportunity to make a knowing and intelligent decision about whether to refuse the breath test, this evidence is insignificant in light of the other evidence at trial. Specifically, the City presented evidence that the officers twice read him the implied consent warnings. But all the City had to prove was that 

### Erickson had the opportunity to make a knowing and intelligent decision; and the other evidence overwhelmingly demonstrates that this was the case here. Thus, we hold that there was no 

### reasonable probabilitythat any comment on Erickson' s exercise ofhis rightto counsel contributed to the substantive or special verdicts.

A defendant must have the " opportunity" 

### to make a knowing and intelligent decision about whether to refuse to take a breath test. 

### See Medcalfv. Dep 't ofLicensing, 133 Wn.2d 290, 299, 944 P.2d 1014( 1997); State v. Elkins, 152 Wn.App. 871, 876, 220 P. 3d 211 ( 2009). The law does 

### not require thatthe City prove thatthe defendant actually made a knowing and intelligent refusal. Medcalf,133 Wn.2d at 299. 12No. 44794 -1 - II Because the evidence was sufficient to support the jury' s verdict and any mention of Erickson' s exercise ofhis right to counsel was harmless beyond a reasonable doubt, we affirm the superior court and the municipal court verdict. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed forpublic record in accordance with RCW 2.06.040, it is so ordered.

We concur:

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