2014 OCT 28 Ail 10: 00

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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UNPUBLISHED OPINION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 court jury 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 [ of being in physical control of a 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 relevant to 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 court jury verdict. 

FACTS

I. BACKGROUND

In September 2011, Erickson legally parked his motorcycle on the side of a public street

and went into a bar. Anderson Durham later parked his car directly in front of the 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 try to " upright" the motorcycle. Although Erickson did not start the 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 over the

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 officer then asked Erickson some questions, Erickson did not respond. 

When the officers escorted Erickson to 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 of alcohol, 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). 

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No. 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 at the police station, Officer Graham again read Erickson his Miranda

rights. Erickson responded that he wanted an attorney and that he 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 for breath 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 went to a jury trial in municipal court. The City' s witnesses testified as described above. 

3 Anyone operating a vehicle in the State of Washington " is deemed to have given consent" to

breath alcohol tests if the arresting officer has reasonable grounds to believe the defendant has

been driving or was in actual physical control of a vehicle while under the influence. Former RCW

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). 

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No. 44794 -1 - II

A. TESTIMONY

During his direct testimony, 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' t getting much out ofit other than he

wanted an attorney. Um. 

CA: Okay, did you did you ask him if he 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: I just asked ifhe would perform voluntary field sobriety tests. Which all he

kept saying was that he wanted an attorney. And at that point we 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 would say is Ineed an attorney. 

CA: Okay. So did you try to ask the defendant questions at that point? 

W: Other thanjust ifhe had an attorney that he wanted me to contact. 

CA: Okay. So you um it' s fair to say you were not trying 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? 

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No. 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, 

talked to the attorney about what had just happened, and then left the room again to 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 of the roadway. 

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

at the start ofthe evening and, therefore, he could not have placed them in the motorcycle' s ignition

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. 

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No. 44794 -1 - II

B. JURY INSTRUCTIONS AND CLOSING ARGUMENT

The trial court instructed the jury on the statutory affirmative defense:. 

It is a defense to physical control while under the influence ifprior to being pursued

by law enforcement officer the person causes the vehicle to be moved safely offthe

roadway. In determining whether a vehicle is safely off the 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 that the 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.... But just 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: 49 p.m. and then that

call ended at 10: 09. That' s twenty minutes. That' s a long time. The defendant had

plenty oftime to talk to this attorney and ask questions, get advice 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 prepared to set up the machine. Everything is ready to 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 of physical 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 of the crime of being in physical control and

also find that he refused the breath test. 

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No. 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 argued that ( 1) the City had not proven its case because it had failed to prove that

he had the keys and there was no proof that 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 guilty ofphysical control and found by special verdict that he had refused to 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) there was insufficient evidence to find that he was not safely offthe roadway, and (2) 

the City improperly commented on his exercise of his 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 of a motor vehicle while under the influence of alcohol. A rational trier of

fact could have found Mr. Erickson failed to prove he was safely off the road by a

preponderance of the evidence. 

2. The City did not improperly comment on the exercise of the 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 of whether (1) there was sufficient evidence supporting the jury' s rejection ofErickson' s

affirmative defense, and ( 2) the City and its witnesses improperly referenced Erickson' s requests

for an attorney. 

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No. 44794 -1 - II

DISCUSSION

I. SUFFICIENCY OF EVIDENCE: AFFIRMATIVE DEFENSE

Erickson first argues that the superior court erred in ruling that a rational trier of fact could

have found that he failed to prove the affirmative defense by a preponderance 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 review the record before the municipal court; we review factual issues for substantial

evidence and we 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 of a vehicle while under the influence of or affected by intoxicating

liquor or any drug is a crime in the State ofWashington. 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, prior to 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 a challenge to the sufficiency of evidence based on an affirmative

defense ... , the inquiry is whether, considering the evidence in the light most

favorable to the city, a rational trier of fact could have found that the accused failed

to prove the defense by a preponderance ofthe evidence. State v. Lively, 130 Wn.2d

1, 17, 921 P.2d 1035 ( 1996). Proof of a defense by a preponderance ofthe evidence

merely means the greater weight ofthe evidence. State v. Harris, 74 Wash. 60, 64, 

132 P. 735 ( 1913). 

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No. 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 off the 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 over the motorcycle, it only remained safely offthe roadway without Erickson' s assistance. 

Durham testified that Erickson put a key in the motorcycle' s ignition before trying to upright it, 

that he did not voluntarily relinquish control over the motorcycle, and that he relinquished control

only after a woman physically prevented him from getting back on. This evidence would allow a

reasonable jury to conclude that although Erickson had initially moved the motorcycle safely off

the roadway, he regained control of it when he left the bar, tried to drive the 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 of the motorcycle while intoxicated. 

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No. 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 the vehicle off the roadway at the defendant' s request, that is not what 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 caused the vehicle to be moved offthe roadway even ifthe defendant did not personally

drive the vehicle off the roadway." 149 Wn.2d at 188 ( emphasis added). Erickson originally

parked the motorcycle off of the roadway safely, 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 say that

Erickson " caused" the vehicle to be removed safely off ofthe roadway as the defendant in Votava

did, and the evidence supports the jury' s rejection of this affirmative defense. 

5 In Mendoza Godoy, another person drove the intoxicated defendant to the parked vehicle, and

the defendant then sat alone in the vehicle while drinking a beer. 175 Wn. App. at 235. The Court

of Appeals affirmed the trial court' s refusal to give the affirmative defense instruction under these

circumstances. Mendoza Godoy, 175 Wn. App. at 238. 

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No. 44794 -1 - II

II. COMMENT ON RIGHT TO COUNSEL

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

of his right to counsel. 6 Even presuming, but not deciding, that the testimony and argument about

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 and the City' s argument were arguably direct comments

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 of showing the error

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

convinced beyond a reasonable doubt that any reasonable jury would have reached the same result

absent the error and when the untainted evidence is so overwhelming it necessarily leads to a

finding of guilt. 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 review the record before the municipal court; we review factual issues

for substantial evidence and we review legal issues de novo. May, 151 Wn. App. at 697; Jacke, 

96 Wn. App. at 211. 

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No. 44794 -1 - I1

As to the substantive offense, the facts here do not show that the City attempted to use

Officer Graham' s testimony about Erickson' s requests or access to counsel as substantive evidence

of that 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 only when others interfered. Also, because the City did

not argue that Erickson' s requests for counsel were inconsistent with the acts of an 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 probability that any comment on Erickson' s exercise of his right to 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 Medcalf v. 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 that the City prove that the defendant actually made a knowing and intelligent refusal. 

Medcalf, 133 Wn.2d at 299. 

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No. 44794 -1 - II

Because the evidence was sufficient to support the jury' s verdict and any mention of

Erickson' s exercise of his 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, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered. 

We concur: 

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