### FILED OCTOBER 11, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent, V. ANTHONYRAYAGUILAR, Appellant. 

### ) ) ) ) ) ) ) ) ) No. 33329-9-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, 

### J. -AnthonyAguilar appeals his conviction for unlawful possession ofa controlled substance. He argues hispostarrest statementto thepolicewas theresult ofa custodial interrogationwithout

### Miranda 1warnings andwastherefore inadmissible. He also argues, andthe State agrees, thatthetrial courterredinimposing $660 in discretionary legal financial obligations (LFOs) withoutmaking an adequate inquiry intohis ability topay. We disagree withMr. Aguilar's first argument, butremand for an individualized inquiry into Mr. Aguilar's ability topay discretionary LFOs.

1

### Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 33329-9-III State v. Aguilar
FACTS On March 11, 2015, Detective Roman Trujillo was driving in Kennewick, Washington, when he sawMr. Aguilar standing in the roadway andholding his cellular telephone toward the sky in an attemptto get a Wi-Fi signal. Mr. Aguilarwas blocking the roadway, so Detective Trujillo stopped his vehicle and spoke withMr. Aguilar. Detective Trujillo got Mr. Aguilar's name and asked dispatch to check for warrants. Detective Chris Bennett and OfficerWayne Meyer arrived at the scene. Dispatchthen told Detective Trujillo that Mr. Aguilar had a warrant for his arrest. Detective Trujillo and OfficerMeyer placedMr. Aguilarunder arrest and searched him incidentto arrest. Detective Trujillo found a hypodermic needle and a clearplastic "baggie" in Mr. Aguilar's coatpocket. The "baggie" contained a small amount ofa white crystal substance. Detective Trujillo held up the "baggie" and said, "[T]his looks like Meth." Clerk's Papers (CP) at41. Mr. Aguilarresponded, "Yes, it is, sir." CP at 41. At the time ofthese statements, Detective Trujillo had not givenMr. AguilarhisMiranda warmngs. Detective Trujillo sentthe "baggie"to the Washington State Patrol Crime Laboratory for testing. The white crystal substance contained methamphetamine.

2No. 33329-9-III State v. Aguilar


### The State charged Mr. Aguilarwith unlawful possession ofa controlled substance. Mr. Aguilar moved to suppress his statementto Detective Trujillo under CrR 3.5. 

### During the CrR 3.5 

### hearing, the State asked Detective Trujillo to whom he directed the statement. Detective Trujillo responded he "said it out loud," and also noted, "Obviously, [Mr. Aguilar] was standing there because I'm searching him. OfficerMeyer was standing there as well." Report ofProceedings (RP) (May 6, 2015) at 7. The State asked Detective Trujillo ifhe directed his statementto anyone specific, and Detective Trujillo responded, "It

### was a general remark." RP (May 6, 2015) at 7. Detective Trujillo also testified he did not intend to ask Mr. Aguilar questions about the methamphetamine. Finally, Detective Trujillo testified Mr. Aguilar did not appearto be underthe influence, did not appear to have difficulty understanding directions or questions, and was extremely pleasant and cooperative. The trial court found Detective Trujillo's statement was not designed or likely to elicit an incriminating response. The trial court further found Mr. Aguilar's statementto Detective Trujillo was made spontaneously and was not in response to a custodial interrogation or direct questioning from law enforcement. Accordingly, the trial court concluded the statement was admissible.

3No. 33329-9-III State v. Aguilar
The trial courtheld a bench trial on stipulated facts and found 

### Mr. Aguilar guilty ofunlawful possession ofa controlled substance. Thetrial courtthen imposed a $2,000 fine and $1,460 in other LFOs. The LFOs comprised $660 in discretionary costs, which included a $600 court-appointed attorney fee, and a $60 sheriffs service fee. Before imposing the discretionary LFOs, the trial court conductedthe following inquiry: [THE COURT]: How do you normally supportyourself, sir? DEFENDANTAGUILAR: I work, Ma'am. RP (May 11, 2015) at 5. Thejudgment and sentence containedthe following boilerplate language: "The defendant has the ability or likely future ability to paythe legal financial obligations imposed herein." CP at 11. Mr. Aguilar did not objectto the LFOs at the sentencing hearing. Mr. Aguilar appeals. ANALYSIS A. 

### POSTARRESTSTATEMENT Mr. Aguilar argues his postarrest statementto Detective Trujillo-inwhichhe admitted the substance inside the "baggie"was methamphetamine-was inadmissible because it was the result ofa custodial interrogation withoutMiranda warnings. The parties agree Mr. Aguilarwas in custody and had not receivedMiranda warnings. The issue is whether Detective Trujillo was engaged in "interrogation" for Miranda purposes when he held up the plastic "baggie" and said, "[T]his looks like Meth." 4No. 33329-9-III 

### State v. Aguilar
When determining whether officers are engaged in interrogation for purposes of requiring

### Miranda warnings, this court defers to the trial court's findings offact but reviews its legal conclusions from those findings de novo.2 

### In re Pers. Restraintof Cross, 180 Wn.2d 664,681,327 P.3d 660 (2014). Because neitherparty has assigned errorto any ofthe trial court's factual findings, we treatthe findings as verities on appeal and confine ourreview to whetherthe trial court derivedproper conclusions oflaw from its findings. Id. 

### Miranda warnings are necessary when a suspect in custody is subjectedto interrogation or its functional equivalent. 

### Rhode Islandv. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). "Interrogation" includes express questioning, but also includes any words or actions bythepolice thatthe police shouldknow are reasonably likely to elicit an incriminating response from the suspect. Id. at 301. The test for the latter category focuses primarily on the suspect's perceptions, ratherthan the officer's intent. Id. An important factor in determining whetherthe police should have known that their words or actions were reasonably likely to elicit an incriminating

2 Mr. Aguilar states that "[a] trial court's factual determinationthatremarks are not interrogation is reviewed underthe 'clearly erroneous' standard." Br. ofAppellant at 7 (citing 

### State v. Walton, 64 Wn. App. 410, 414, 824 P.2d 533 (1992)). 

### Cross abrogated 

### Walton's holding that the issue ofinterrogation is factual and subjectto a clearly erroneous standard. 

### See In re Pers. Restraintof Cross, 180 Wn.2d 664, 681 n.8, 327 P.3d 

### 5No. 33329-9-III State v. Aguilar
response is knowledge by the police that a defendant is unusually susceptible to a particular form ofpersuasion. Id. at 302 n.8. Conversely, incriminating statements that are not responsive to an officer's remarks are not products ofinterrogation. Cross, 180 Wn.2d at 685; State v. Bradley, 105 Wn.2d 898, 904, 719 P.2d 546 (1986). This includes statements that are the result of "subtle compulsion," which is different than "interrogation." Innis, 446 U.S. at 303. The United States Supreme Court addressed the "interrogation" necessary to triggerMiranda warnings inRhodeIslandv. Innis. In that case, the policereceived a telephone call from a taxi driver who hadjustbeen robbed by a man wielding a sawed-off shotgun. Innis, 446 U.S. at 293. The taxi driver identified Thomas Innis as the robber. Id. The police later arrested Mr. Innis, who was unarmed, and advised him ofhis Miranda rights. Id. at 294. Mr. Innis invoked his right to counsel. Id. The police then began driving him to the police station, with three officers accompanying him in the police car. Id. On the way to the station, the officers began discussing the missing shotgun from the robbery. Id. One officer stated thatthere were"'a lot ofhandicapped children running around in this area'" because a school was located nearby, and "'God forbid one
660 (2014). 6

### No. 33329-9-III State v. Aguilar


### ofthem might find a weapon with shells and they mighthurtthemselves."' Id. 

### at 294-95. The same officerthen stated, "'[I]t would be too bad ifthe little [girl] would pick up the gun, maybe kill herself."' Id. 

### at 295. Mr. Innis, apparently worried for the children, interrupted the officers and asked them to tum back so he could show them where the gun
was located. Id. 

### The court held Mr. Innis was not "interrogated" within the meaning ofMiranda. Id. 

### at 302. The court first held the officers did not expressly question Mr. Innis, given that the conversation was "nothingmore than a dialogue between the two officers" and did not invite a response from Mr. Innis. Id. 

### The court also held the officers' conversation was not reasonably likely to elicit an incriminating response from Mr. Innis. Id. 

### The court reasoned there was nothing in the record to suggestthe officers were aware that Mr. Innis was "peculiarly susceptible to an appeal to his conscience concerning the safety ofhandicapped children," nor was there any evidence the officers knew Mr. Innis
was unusually disoriented or upset at the time ofhis arrest. Id. 

### at 302-03. The court further reasoned that the entire conversation "consisted ofno more than a few offhand remarks," and the officers' comments were not particularly "evocative." Id. 

### at 303. The court acknowledged Mr. Innis was subjected to "subtle compulsion," butwas not interrogated. Id.

7No. 33329-9-III 

### State v. Aguilar
In contrast, Mr. Aguilarrelies on

### In re Pers. Restraintof Cross. In 

### Cross, Dayva Cross stabbed his wife and her daughters to death. 

### Cross, 180 Wn.2d at 675. Officers arrested Mr. Cross and tookhim to the police station. 

### Id. at 678. Atthe station, one of the officers tookpity on Mr. Cross and said, "'Sometimes we do things we normally wouldn't do, and we feel bad about it later."' 

### Id. at 679. Mr. Cross responded, "'How
can you feel good about doing something like this.'" 

### Id. The 

### Cross court concluded the officer's comment, while not express questioning,
was the"'functional equivalent ofquestioning."' 

### Id. at 686 (quoting

### Innis, 446 U.S. at 302). The court reasoned thatunlike the comments at issue in

### Innis, the officer spoke directly to Mr. Cross. 

### Cross, 180 Wn.2d at 686. Moreover, the officer could tell Mr. Cross was upset because ofthe murders, which hadjustoccurred that morning, and the officer's commentwas evocative in that it referred to the recentkillings, which were brutal, emotional, and involved Mr. Cross's family. 

### Id. Although the officer'sremark
was notphrased as a question, the court still held it reasonably elicited an incriminating response. 

### Id. The court further reasoned the officer's commentwas reasonably likely to elicit an incriminating response because it implied Mr. Cross committedthe murders, and all the possible responses to the officer's comment were incriminating-silence couldbe
8No. 33329-9-III State 

### v. Aguilar
evidence ofguilt, denial or feigning ignorance could cast doubt onhis character for honesty, orMr. Cross could respond as he did and essentially confess. Id. at 686. The court then held, "An officer's comment is designedto elicit an incriminatingresponse when a suspect's choice ofreplies to that comment are all potentially incriminating." Id. Here, Detective Trujillo did not expressly question Mr. Aguilar. Detective Trujillo testified he made the statement "outloud" andthat it "was a general remark,"ratherthan being directed at anyone specific. RP (May 6, 2015) at 7. Like inInnis, the remark did not invite a response from Mr. Aguilar. Detective Trujillo also testified he did not intend to ask Mr. Aguilar questions about the methamphetamine, which is relevant in determining whether a defendant was expressly questioned. See Innis, 446 U.S. at 301. The closer question is whether Detective Trujillo subjected Mr. Aguilarto the "functional equivalent" ofquestioning, i.e., whether he should have known that his remark was reasonably likely to elicit an incriminatingresponse. This case has more in
common withInnis than Cross. Important factors for theInnis courtwerethat the officers did not target Mr. Innis's particular susceptibilities norwas Mr. Innis unusually disoriented orupset. The Cross court relied on these same factors in holding thatMr. Cross was subjected to the functional equivalent ofquestioning-the officer could tell Mr. Cross was upset because ofthe very recentmurders, and hercommentwas evocative
9No. 33329-9-III State 

### v. Aguilar
in that it referred to the recentkillings, whichwere brutal and emotional and involved Mr. Cross's family. Here, however, Detective Trujillo testified Mr. Aguilar did not appearto be underthe influence, did not appearto have difficulty understanding directions or questions, and was extremelypleasant and cooperative. Further, and most importantly, like the comment inInnis and unlike the comment in Cross, Detective Trujillo did not speak directly to Mr. Aguilar. Because ofthis, the central reasoning on which the Cross courtrelied-that all ofthe possible responses to the officer's commentwerepotentially incriminating-does not apply in this case. Rather, becauseDetective Trujillo's remark was not directed atMr. Aguilar and did not invite a response from him, ifMr. Agularhad simply optedto remain silent it would not have been evidence ofguilt and would not have beenpotentially incriminating. Like in Innis, Mr. Aguilarmay have been subjectedto "subtle compulsion," buthe
was not "interrogated" for purposes ofrequiringMiranda warnings. B. UNPRESERVED ALLEGEDLFO ERROR Mr. Aguilar contends the sentencing court erred by orderinghimtopay $660 in discretionary LFOs without first making an adequate inquiry into his abilityto pay. 3 The

3Mr. Aguilar contends thatthe trial court imposed $2,660 in discretionary LFOs, consisting ofthe $2,000 fine, the $600 court-appointed attorney andthe $60 sheriffs service fee. See Br. ofAppellant at 4. However, this courtrecently held that a trial court 10No. 33329-9-III 

### State v. Aguilar
State concedes error and this court accepts the State's concession. Accordingly, we remand for the trial courtto make an individualized inquiry into Mr. Aguilar's ability to pay discretionary LFOs. 

### See State v. Hart, No. 47069-1-II, 2016 WL 4366948, at *6 (Wash. Ct. App. Aug. 16, 2016) (remanding for an individualized inquiry when the State conceded error). C. APPELLATE COSTS Mr. Aguilar also asks this courtto decline to impose appellate costs in its decision terminating review. Mr. Aguilarraises a variety ofarguments. An appellate court has discretion to require a convicted defendant to pay appellate costs to the State. 

### See RCW 10.73.160(1); RAP 14.2. Generally, "thepartythat substantiallyprevails on review" will be awarded appellate costs, unless the court directs otherwise in its decision terminating review.4 RAP 14.2. An appellate court's authority to award costs is "permissive," and a court may, pursuantto RAP 14.2, decline to award

may impose fines under RCW 9A.20.021 

### withoutinquiring into a defendant's ability to pay. 

### See State v. Clark, 191 Wn. App. 369, 375-76, 362 P.3d 309 (2015); 

### State v. Calvin, 176 Wn. App. 1, 25, 316 P.3d 496 (2013), 

### reviewgrantedinpart, 183 Wn.2d 1013, 353 P.3d 640 (2015). 4 "A 'prevailingparty' is any partythat receives somejudgmentin its favor. If neitherparty completelyprevails, the court must decide which, ifeither, substantially prevailed." 

### Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010) (citations omitted). Here, the State is the substantiallyprevailingparty because we affirmed the primary issue thatrelates to Mr. Aguilar's conviction. 11No. 33329-9-III State v. Aguilar

costs at all. State v. Nolan, 141 Wn.2d 620, 628, 8 P.3d 300 (2000). On June 10, 2016, this court issued a general order regarding defendants' requests to deny cost awards when the State substantiallyprevails on appeal. It directs defendants who want this court to exercise its discretion notto impose appellate costs to make their request, together with citations to legal authority and references to relevantparts ofthe record, either in their opening briefor in a motion pursuantto RAP 17. Mr. Aguilarhas complied with this particularrequirement in his opening brief. Ifinability to pay is a factor allegedto supportthe defendant's request, the general order also requires defendants to include in the appellate record the clerk's papers, exhibits, and the reports ofproceedings relating to the trial court's determination of indigency and the defendant's current or likely ability to pay discretionary LFOs. Mr. Aguilar designated his RAP 15.2(a) motion and the trial court's order ofindigency with the clerk'spapers.5 However, the general orderrequires defendants to file a report as to continued indigency withthis courtno laterthan 60 days afterthey file their opening briefs. Mr. Aguilar has not complied with this requirement. Because Mr. Aguilarhas not complied with the court's general order, we will not exercise our discretionto waive

5Mr. Aguilar's RAP 15.2(a) motion was based on the fact that the trial court had previously made an indigency finding, and Mr. Aguilarhas not designated any ofthese documents, or any other documents relating to his ability to pay LFOs, as part ofthe 12No. 33329-9-III State v. Aguilar appellate costs. Mr. Aguilar raises a number ofother arguments as to why this court should decline to impose appellate costs. He first argues that imposing appellate costs wouldviolate the trial court's order ofindigency granting him a right to appeal at public expense. However, while orders ofindigency entered pursuantto RAP 15.2 allow criminal defendants to pursue appeals atpublic expense, they do notpreventthe State from attempting to recoup costs ifthe defendant's appeal is unsuccessful. See generally State
v. Obert, 50 Wn. App. 139, 143, 747 P.2d 502 (1987) (holdingthat orders ofindigency do not prohibit cost awards against indigentparties because "once defendants enjoy full participation in the process ofappellate review, the Rules ofAppellate Procedure clearly allow the assessment against them ofreproduction and other costs as a reasonable expense necessary for review"). Mr. Aguilar also argues that the appellate cost system undermines the attorneyclient relationship and creates a conflict ofinterest because the Office ofPublic Defense only gets paid when its client loses. Theseproblems are possible, butMr. Aguilarhas not provided any legal authority, cited any empirical research, given any concrete examples where this has occurred in other cases, orprovided any evidence that the attorney-client appellate record. 13

### No. 33329-9-III State v. Aguilar relationship was undermined or a conflict ofinterest occurred in this case. See RAP I0.3(a)(6); West v. Thurston County, 168 Wn. App. 162, 187,275 P.3d 1200 (2012) (appellate courts do not consider "bald assertions lacking cited factual and legal support"). Mr. Aguilar also argues that countyprosecutors seek costs to punish defendants for exercising their constitutional rights to counsel and to appeal, as evidencedby the inconsistency at which they file costbills and the small portion ofappellate costs prosecutors' offices receive. This argument fails for the same reason as his previous argument. See RAP 10.3(a)(6); West, 168 Wn. App. at 187. Mr. Aguilar also argues that this court should not award appellate costs because of the problems State v. Blazina6

### recognized-compounding interest, retention oftrial court jurisdiction, difficulty reentering society, and no right to counsel for remission proceedings-applyequally to appellate costs. However, unlike RCW 10.01.160(3), which was at issue in Blazina, the statute authorizing appellate costs does notrequire an inquiry into the defendant's financial resources before appellate costs are imposed. See RCW 10.73.160; State v. Sinclair, 192 Wn. App. 380,389,367P.3d 612, review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016) (noting that while ability to pay is an important

6

### State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). 14No. 33329-9-III State v. Aguilar
factor that may be considered under RCW 10.73.160, it is not necessarilythe only relevant factor, nor is it necessarily an indispensable factor); State v. Wright, 97 Wn. App. 382, 384, 985 P.2d 411 (1999) (findingthat RCW 10.73.160 only requires an inquiry into ability to pay at the point ofcollection, and not when the recoupment order is made). This argument, while persuasive, is an appeal to this court's discretion, the exercise of which this court has already delineated in its general order. Mr. Aguilar also argues that imposing appellate costs on a defendant who lacks the ability to pay violates substantive due process because no legitimate state interest is advanced by imposing costs on defendants who cannotpay them. However, constitutional challenges to the imposition ofLFOs generallytum on a defendant's financial circumstances at the time ofrecoupment. State v. Mathers, 193 Wn. App. 913, 928, 376 P.3d 1163 (2016) ('" [i]t is at the point ofenforced collection
..., where an indigent may be faced withthe alternatives ofpayment or imprisonment, that he may assert a constitutional objection on the ground ofhis indigency"') (internal quotation marks omitted) (quoting State v. Curry, 118 Wn.2d 911,917, 829 P.2d 166 (1992)); State
v. Blank, 131 Wn.2d 230,241,930 P.2d 1213 (1997). Because recoupment has not begun, this court cannotyet assess those circumstances.

15No. 33329-9-111 

### State v. Aguilar Finally, Mr. Aguilar argues that in the eventthis court determines appellate costs
are appropriate, it should remandto the superior court for a fact-finding hearing regarding his ability to pay appellate costs. However, Division One has determined this is an inappropriate remedy for two reasons: (1) it "delegate[s] the issue ofappellate costs away from the courtthat is assigned to exercise discretion," and (2) "itwould also potentially be expensive and time-consuming for courts and parties." 

### Sinclair, 192 Wn. App. at 389. Because Mr. Aguilar has not complied with this court's general order and none of his othervarious arguments have merit, we tentatively award costs to the State as the substantiallyprevailing party on appeal. But should Mr. Aguilar file a declaration that comports with ourJune general order within 14 days ofthe filing ofthis decision, we give
our commissioner discretion to allow the late declaration and deny the State an award of costs. IfMr. Aguilar does not file a declaration within 14 days, the State thereafterhas 10 days to file a cost bill with this courtpursuantto RAP 14.4(a). CONCLUSION We affirm Mr. Aguilar's conviction, remand for the trial court to make an individualized inquiry into Mr. Aguilar's ability to pay discretionary LFOs, and award costs to the State as theprevailingparty, subjectto the conditions set forth above.

16No. 33329-9-III State v. Aguilar
A majority ofthe panel has determinedthis opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Lawrence-Berrey, J. WE CONCUR: 

## j

Fearing, C.J.

17