FILED 


JUNE 19,2014 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31094-9-III 

Respondent, ) 

) 

v. ) 

) OPINION PUBLISHED 

EDWARD W. TERRY, ) IN PART 

) 

Appellant. ) 

SIDDOWAY, C.J. - During Edward Terry's criminal trial for theft of a vehicle and 

related charges, the trial court invited jurors to propose questions. One juror question 

accepted by the trial court and posed to the deputy who arrested Mr. Terry was whether 

Mr. Terry ever questioned or expressed surprise at being arrested. The deputy answered 

that Mr. Terry did not ask, and in closing argument, the prosecutor reminded the jurors of 

that answer and argued that Mr. Terry did not ask because "[he] knew that he had stolen a 

vehicle and he was going to get caught." Report ofProceedings (RP) at 329. Mr. Terry's 

lawyer did not object to the juror's question on constitutional grounds nor object to the 

prosecutor's argument. For the first time on appeal, Mr. Terry argues that the testimony 

and argument violated constitutional protections against self-incrimination and his right 

to due process. 
No.31094-9-Ill 

State v. Terry 

An error of manifest constitutional proportions occurred here, including as a result 

ofthe court-posed question. The error was not harmless as to most of the counts charged. 

It requires a new trial on all of the challenged convictions other than his conviction for 

resisting arrest. 1 

Given that disposition, we do not reach Mr. Terry's remaining assignments of 

error other than his request that we order all ofthe charges against him dismissed on the 

basis of allegedly insufficient evidence. The evidence against him was sufficient. We 

reverse the convictions oftheft of a vehicle, possession of a stolen vehicle, and 

trespassing, and remand for a new trial on those counts. 

FACTS AND PROCEDURAL BACKGROUND 

Edward Terry was arrested after he was followed from the scene of a one-car 

accident on a county road near Dayton. The accident was witnessed by Angelia and 

Gordon Smith, who were standing outside at around 7 a.m. when they saw an 

approaching truck round a comer at a high rate of speed, spin out on gravel, hit the bank 

on the side ofthe road, and tlip over. The driver crawled from under the truck and ran 

through a wheat field up a nearby hill, away from the crash site. Mr. Smith saw the 

I Mr. Terry's judgment and sentence included his conviction of an assault 

committed in March 2012 that he does not challenge. 

2 

No. 31094-9-111 

State v. Terry 

individual "tum[ ] around in kind of a swinging motion, looked like he threw something." 

RP at 172. 

Ms. Smith immediately called her OnStar service, which conveyed her report of 

the accident to 911. Although she and her husband were as much as a quarter of a mile 

away from where the truck flipped over, they described the driver to the OnStar 

representative who answered their call as between 5 feet 6 inches and 6 feet tall, wearing 

dark clothing, with long dark hair, wearing a hoodie or a cap, and jeans. 

Columbia County Deputy Sheriff Richard Loyd responded to the report of the 

accident and spoke to Mr. Smith, who had walked to the truck to make sure no one else 

was inside. Mr. Smith told Deputy Loyd which direction the driver had run. He also 

explained that the farm on which they were standing was his, that he was familiar with 

the terrain over the hill, and that he thought they could probably catch up with the driver. 

The deputy took Mr. Smith up on his offer ofhelp and the two went looking for the 

driver in the deputy's sports utility vehicle. 

Two miles from the crash site, Mr. Smith and Deputy Loyd saw Mr. Terry 

walking slowly. Deputy Loyd knew Mr. Terry from prior contacts. Mr. Terry is 6 feet 

2 inches tall and at the time had very short hair. 

The deputy approached Mr. Terry and ordered him to stop and get on the ground. 

Mr. Terry refused and made a contemptuous finger gesture at Mr. Smith and the deputy. 

Deputy Loyd then approached Mr. Terry with his gun drawn. When he was close enough 

3 

No.31094-9-III 

State v. Terry 

to satisfy himself that Mr. Terry was not armed, the deputy put away his sidearm and 

drew his taser, again telling Mr. Terry to get on the ground and put his hands behind his 

back or he would be "tased." RP at 228. In what testimony suggests was a sardonic tone, 

Mr. Terry responded, '''Oh, a taser'" and renewed the finger gesture, although this time 

using both hands. Id. He then turned his back on the deputy and Mr. Smith, dropped his 

pants, and, as Mr. Smith would later testify, "mooned both of us." RP at 179. That done, 

he pulled up his pants, dropped to the ground, and put his hands behind his back. 

The deputy attempted to handcuff Mr. Terry, telling him to turn his head away; he 

later explained to the jury that when handcuffing an individual who is prone, officers 

prefer to be out of the individual's line of sight. Mr. Terry did not comply, answering, 

according to the deputy, "that was all I was going to get." RP at 229. The officer then 

walked around to Mr. Terry's other side. He placed a handcuff on Mr. Terry's left wrist 

but, when he reached for his right arm to cuff his second wrist, Mr. Terry tried to push up 

against the deputy, roll over, and bite him. Deputy Loyd told Mr. Terry he was resisting 

arrest, which Mr. Terry denied. Deputy Loyd then used a pressure compliance technique 

and Mr. Terry relented and allowed him to finish handcuffing him. The deputy would 

later testify that the basis for the arrest was trespass. 

Deputy Loyd took Mr. Terry to the sheriffs department. During the booking 

process, Ralph Frame, who owned the truck in which Mr. Terry had been driving, called 

the department to report that his truck had been stolen. He had left it parked in front of 

4 

No. 31094-9-III 

State v. Terry 

his shop the night before with the keys inside, and in the morning it was gone. It turned 

out that Mr. Frame's shop was a quarter mile from where Mr. Terry lived with his mother 

and was 10 to 12 miles from the crash site. 

After booking Mr. Terry and traveling to speak to Mr. Frame, Deputy Loyd 

returned to the scene ofthe crash to further investigate. He was unable to find the keys to 

the truck either in the truck or in the area ofthe field where Mr. Smith thought he had 

seen Mr. Terry swing his arm as if to throw something. He saw footsteps leaving the 

crash site and going up into the field. Hoping to better tie Mr. Terry to the stolen truck, 

the deputy attempted to follow the path of the footprints through wheat fields, a pea field, 

and an access road that lay between where the truck rolled and where he arrested Mr. 

Terry. Using a GPS (global positioning system) device, he tracked his steps, later 

producing a topographical map that showed where he had been able to follow the 

footprints and where, on several occasions, he lost them. He took pictures of the tracks 

and later obtained pictures of Mr. Terry's shoe tread, taken at the jail. 

Mr. Terry was eventually charged with theft of a vehicle, possession of a stolen 

vehicle, trespassing, and resisting arrest. 

At trial, Mr. Smith and Deputy Loyd testified that when Mr. Terry was 

encountered and arrested, Mr. Smith had identified him as the individual he had seen 

climbing out ofthe truck. Although Mr. Terry proved taller than Mr. Smith initially 

believed and Mr. Smith's description of his hair and clothing did not prove accurate, Mr. 

5 

NO.31094-9-III 

State v. Terry 

Smith expressed confidence in his identification from the fact that it was early in the 

morning and he and his wife had seen no one else around. He testified that from his and 

Deputy Loyd's first sighting ofMr. Terry he felt sure from his appearance and location 

that he was the individual who crawled out of the truck and ran up the hill. He admitted 

that he had been too far away to see facial features and that he could not positively 

identify Mr. Terry at the time oftrial. 

Deputy Loyd described the map he had created tracking footsteps from the crash 

site to where he and Mr. Smith encountered Mr. Terry and testified that the tracks made 

through the field were made by the shoes worn by Mr. Terry at the time of his arrest. 

The trial court allowed jurors to propose questions during the trial. When given 

the opportunity to propose questions after Deputy Loyd's testimony, a juror wrote, '''Did 

he, Eddie Terry, ever ask or wonder why he was arrested? Was he surprised he was 

arrested?'" RP at 292. Mr. Terry's counsel objected on hearsay grounds and that the 

question called for speculation by the deputy. The court overruled the objections and 

posed the questions. The deputy answered "No" when asked if Mr. Terry asked or 

wondered why he was arrested. RP at 294. In response to the question about whether 

Mr. Terry was surprised, the deputy said, "I don't know ifhe was surprised or not." ld. 

During closing argument, the prosecutor referred to the juror's question and 

Deputy Loyd's response: 

6 

No. 31094-9-III 

State v. Terry 

One more item I want to talk about in regards to resisting arrest, and 

actually applicable, ah, to all the charges here is: when Deputy Loyd was 

asked, did the defendant ask why he was being arrested? No. He knew. 

He knew that he had stolen a vehicle and he was going to get caught. He 

knew that he possessed that vehicle and wrecked it. He knew that he 

trespassed. That's why he didn't ask the question. 

RP at 329. 

The jury found Mr. Terry guilty as charged. He appeals. 

ANALYSIS 

1. Unconstitutional use ofMr. Terry's postarrest silence 

Mr. Terry contends that his rights under the United States and Washington 

Constitutions were violated, first, when the trial court posed a juror's questions to Deputy 

Loyd that invited a response from the deputy that Mr. Terry never asked why he was 

being arrested, and second, when the prosecutor then argued in closing that Mr. Terry's 

failure to ask about his arrest was probative of guilt. Mr. Terry argues that both were 

impermissible comments on his postarrest silence, in 'violation of constitutional 

protections against self-incrimination and requirements of due process. 

The State argues that "[a] reasonable interpretation is that the juror question 

applies to the pre-arrest time period when Mr. Terry was first being approached by 

Deputy Loyd," so that only constitutional protections against compelled testimony are 

implicated, not the right to due process. Br. ofResp't at 24 (emphasis added). Whether 

the testimony and argument were a comment on pre arrest rather than postarrest silence 

7 

No. 31094-9-111 

State v. Terry 

can make a difference after the United States Supreme Court's decision in Salinas v. 

Texas, U.S. _,133 S. Ct. 2174,186 L. Ed. 2d 376 (2013). 

In Salinas, a three-member plurality ofthe Supreme Court held that if an 

individual voluntarily submits to an interview by police and reaches a point at which he 

or she chooses not to speak based on Fifth Amendment rights,2 he or she must 

affirmatively invoke those rights. Otherwise, the State may offer and the jury may 

consider the fact that a defendant failed or refused to speak to law enforcement in 

circumstances where an innocent person would reasonably be expected to speak. As 

explained by the Court, "[P]opular misconceptions notwithstanding, the Fifth 

Amendment guarantees that no one may be 'compelled in any criminal case to be a 

witness against himself; it does not establish an unqualified 'right to remain silent.'" 

133 S. Ct. at 2182-83. 

The petitioner in Salinas agreed to speak to officers investigating a murder, but 

balked when the officer asked whether a ballistics test would tie shell casings found at the 

crime scene to the petitioner's shotgun. At trial, the officer was permitted to testify to the 

petitioner's suspicious silence in response to that question and the prosecutor was 

permitted to argue that the petitioner's reaction suggested guilt. The plurality decision in 

2 Made applicable to the states through the Fourteenth Amendment as recognized 

in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). 

8 

No. 31094-9-III 

State v. Terry 

Salinas held that the testimony and argument was unobjectionable because the petitioner 

was speaking to the investigating officer voluntarily and "it would have been a simple 

matter for him to say that he was not answering the officer's question on Fifth 

Amendment grounds. Because he failed to do so, the prosecution's use ofhis 

noncustodial silence did not violate the Fifth Amendment." Id. at 2180.3 Since '''no 

ritualistic formula is necessary in order to invoke the privilege [against selfincrimination],'" id. at 2178 (quoting Quinn v. United States, 349 U.S. 155, 164, 75 S. 

Ct. 668, 99 L. Ed. 964 (1955)), courts faced with the admissibility ofprearrest silence 

after Salinas have examined the defendant's conduct to see ifan invocation of Fifth 

Amendment rights was either express or implied. See, e.g., United States v. Okatan, 728 

F.3d 111 (2d Cir. 2013) (while defendant did not say "Fifth Amendment" or "privilege 

against self-incrimination," his expression of a desire to speak with a lawyer sufficed to 

invoke the privilege). 

3 Two justices (Thomas, 1., and Scalia, 1.) expressed their disagreement with any 

limitation on the State's right to comment on a defendant's silence or failure to testify. 

They characterized Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 

(1965), which held that the Fifth Amendment prohibits a prosecutor or judge from 

commenting on a defendant's failure to testify, as '''lack[ing] foundation in the 

Constitution's text, history, or logic'" and establishing a principle that "should not be 

extended." Salinas, 133 S. Ct. at 2184 (Thomas, 1., concurring in judgment) (quoting 

Mitchell v. United States, 526 U.S. 314, 341, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) 

(Thomas, J., dissenting)). 

9 

No. 31094-9-III 

State v. Terry 

The Washington Constitution includes its own provision against self-incrimination 

but it provides no greater protection; the Washington Supreme Court has held that it 

'" envisions the same guarantee as that provided in the federal constitution.'" State v. 

Mecca Twin Theater & Film Exch., Inc., 82 Wn.2d 87, 91, 507 P.2d 1165 (1973) 

(quoting State v. Moore, 79 Wn.2d 51,57,483 P.2d 630 (1971)); In re Pers. Restraint of 

Ecklund, 139 Wn.2d 166, 172 n.6, 985 P.2d 342 (1999) (the federal and state 

constitutional provisions "are given the same interpretation"). 

Commenting on postarrest silence raises a second constitutional concern, 

grounded in due process. Warnings under Miranda4 given upon arrest "constitute an 

'implicit assurance' to the defendant that silence in the face ofthe State's accusations 

carries no penalty," making it fundamentally unfair to then penalize the defendant by 

offering his silence as evidence of guilt. State v. Easter, 130 Wn.2d 228,236,922 P.2d 

1285 (1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 

353 (1993); Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)). For 

the government to comment on post-Miranda silence is to "[break] its promises given in 

the Miranda warnings and violate[ ] due process of law." State v. Burke, 163 Wn.2d 204, 

213, 181 P.3d 1 (2008). 

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

10 

No. 3lO94-9-1I1 

State v. Terry 

The State recognizes that controlling case law is more protective of a defendant's 

postarrest silence when it argues that we should regard the juror's question as addressed 

to the prearrest time period. But its argument that the juror was interested in prearrest 

events is grounded more in hope than in reality. The juror's questions, as handwritten by 

the juror and read by court, asked if Mr. Terry ever "ask[ ed] or wonder[ ed] why he was 

arrested" or was "surprised that he was arrested." Clerk's Papers at 120 (emphasis 

added); RP at 292. The questions followed Deputy Loyd's testimony that he ordered Mr. 

Terry to stop and drop immediately upon encountering him, drew his gun when Mr. Terry 

did not comply, undertook to handcuff him, and then read Mr. Terry his Miranda rights, 

in response to which Mr. Terry said he understood his rights. The deputy also testified 

that Mr. Terry "immediately told me he didn't want to talk to me," although that answer 

was stricken upon objection. RP at 231. In short, the jury had not heard testimony about 

any meaningful prearrest period to which the juror's questions could have been directed. 

We are dealing, then, with testimony and argument involving postarrest silence. 

The State next argues that because Mr. Terry failed to object to the juror's 

question on constitutional grounds and did not object at all to the prosecutor's argument, 

he may not raise the due process issue for the first time on appeal. Ordinarily, we will 

not review an error to which no objection was made in the trial court. RAP 2.5(a). This 

includes error involving an improper reference to a defendant's postarrest silence; an 

11 

No. 31094-9-III 

State v. Terry 

exception exists, however, for "manifest error affecting a constitutional right." RAP 

2.5(a)(3); Burke, 163 Wn.2d at 224 (Madsen, J., dissenting). 

The Washington Supreme Court has distinguished between "comments" and 

"references" to a criminal defendant's silence, recognizing that "[b 10th are improper, but 

only the former rise to the level of constitutional error," and that what are merely 

improper references "are not reviewable for the first time on appeal." Burke, 163 Wn.2d 

at 225 (citing State v. Romero, 113 Wn. App. 779, 790-91, 54 P.3d 1255 (2002)). The 

distinction "focus[es] largely on the purpose ofthe remarks." ld. at 216 & n.7 (collecting 

examples). A "comment" occurs when the State uses a defendant's silence as substantive 

evidence of guilt or suggests the silence was an admission of guilt. State v. Gregory, 158 

Wn.2d 759,838, 147 P.2d 1201 (2006) (quoting State v. Lewis, 130 Wn.2d 700, 707, 927 

P.2d 235 (1996)). 

In Romero, this court suggested a two-part analytical framework for determining 

whether a State agent's direct or indirect comments during trial on a defendant's silence 

amount to constitutional error. The first step asks whether the comment was "direct," in 

the sense examined in Lewis, which is to ask whether the witness effectively stated or 

expressed an opinion that the defendant's silence was evidence of gUilt. See Lewis, 130 

Wn.2d at 706. A direct comment is automatic constitutional error. 

12 

No. 31094-9-111 

State v. Terry 

Ifthe comment was not direct, Romero suggested three questions, drawn from 

earlier Washington cases, from which to determine whether the State was seeking to 

capitalize on an inference of guilt in a manner violating the defendant's rights: 

First, could the comment reasonably be considered purposeful, meaning 

responsive to the State's questioning, with even slight inferable prejudice to 

the defendant's claim of silence? Second, could the comment reasonably 

be considered unresponsive to a question posed by either examiner, but in 

the context ofthe defense, the volunteered comment can reasonably be 

considered as either (a) given for the purpose of attempting to prejudice the 

defense, or (b) resulting in the unintended effect of likely prejudice to the 

defense? Third, was the indirect comment exploited by the State during the 

course ofthe trial, including argument, in an apparent attempt to prejudice 

the defense offered by the defendant? 

Romero, 113 Wn. App. at 790-91 (citations omitted). Answering "yes" to any ofthe 

questions means the indirect comment is an error of constitutional proportions. Id. at 

791. 

The second question suggested by Romero must be answered "no" here because 

Deputy Loyd's answer was directly responsive to the court's question; he volunteered 

nothing more. A necessary variant of the first question and the third question must both 

be answered "yes," however. 

The State argues that the first question must be answered "no" because it did not 

pose the question about silence-the court did. As a result, it argues, constitutional error 

was avoided. We disagree. Romero did not consider the possibility oftestimony that is 

responsive to ajuror- or court-posed question that invites a prejudicial inference or 

13 

No. 31094-9-111 

State v. Terry 

implication of guilt. The fact that the question was posed by the court makes it uniquely 

problematic and requires that the first question be modified in the circumstances present 

here. 

Before Mr. Terry's trial, the State agreed to invite jurors to ask questions. It is a 

practice that is standard and acceptable in civil trials, see CR 43(k), but that is 

discouraged in criminal trials because ofthe risks of harm it presents. A comment to 

former Washington Pattern Jury Instruction (Criminal) 4.66, which was to be given when 

jurors posed questions in criminal trials, stated that the instruction should not be given 

unless a juror expressed a desire to question a witness and that it was '''advisable that a 

judge should not encourage jurors to ask questions.'" State v. Monroe, 65 Wn. App. 245, 

251, 828 P .2d 24 (1992 ) (quoting 11 WASHINGTON PRACTICE: PATTERN JURY 

INSTRUCTIONS: CRIMINAL 4.66 cmt. (1977) (WPIC». The Monroe court agreed with 

authors ofthe pattern instructions in discouraging the practice, stating that "we believe 

the active solicitation ofjuror questions is inappropriate." Id. at 254. State v. Munoz, 67 

Wn. App. 533,538,837 P.2d 636 (1992) reiterated disapproval of actively soliciting juror 

questions, recognizing that "[p ]otentially serious problems could arise from juror 

questions." Following Monroe and Munoz, the authors ofthe Washington pattern 

instructions withdrew WPIC 4.66 (1977). The comments to the withdrawn instruction 

state that "[g]iven the concerns expressed by the Court of Appeals, the committee 

14 

No. 31094-9-111 

State v. Terry 

recommends trial courts not raise the issue unless a juror inquires." 11 WASHINGTON 

PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL 4.66, at 130-31 (3d ed. 2008). 

Having nonetheless exercised its discretion to invite juror questions in Mr. Terry's 

trial, the trial court read an instruction that described for jurors how and when they could 

write out and submit their questions. It included the following explanation, modified 

from WPIC 4.66 (1977): 

I will review the question-actually, I have to, ah, excuse you across 

the hall, then I review the questions with the lawyers outside your presence, 

ah, to make sure they're . .. in allowable form and don't violate some 

technical rule ofevidence, and /'II review it to make sure it's legally 

proper. There are some questions I won't ask.... It will often be the case 

that a lawyer has not asked a question because it's legally objectionable or 

because a later witness may be addressing that subject. 

RP at 151-52 (emphasis added). Given the highlighted language, the instruction 

implicitly communicated to the jurors that any question the judge accepted and posed 

would be "in allowable form," would not violate any technical rule of evidence, and 

would be "legally proper." 

It is reasonable to assume that the juror who asked whether Mr. Terry wondered 

why he was being arrested thought it was a good question, since if Mr. Terry was 

unsurprised it would tend to prove guilt. When the question was accepted by the court 

and posed to Deputy Loyd, it received institutional imprimatur in the eyes ofthe jurors. 

A leading treatise has recognized that among the risks of permitting jury questions is that 

"the jurors will attach inordinate weight to the witnesses' answers to the jurors' questions 

15 

No. 3lO94-9-III 

State v. Terry 

and slight the testimony elicited by the parties." 1 MCCORMICK ON EVIDENCE § 8 

(Kenneth S. Broun ed., 7th ed. 2013). Whether we view the State as one of the 

gatekeepers ofjury questions posed in a criminal trial or analyze this as a problem of 

independent trial court error, the outcome is the same. Cj Griffin v. California, 380 U.S. 

609,85 S. Ct. 1229, 14 L. Ed. 2d lO6 (1965) (treating the trial court's instructions on 

permissible inferences from silence and the State's argument as equally problematic). 

We conclude that where ajuror-proposed, court-posed question in a criminal trial invites 

a comment on a defendant's silence, a fourth question must be added to the second step 

ofthe Romero analysis: has the State acquiesced in a question by the trial court that 

results in a responsive comment that even slightly and prejudicially infers or implies guilt 

from a defendant's silence? Ifthe answer is yes, as it is here, then an issue of 

constitutional error is raised that must survive constitutional error review. 

The answer to the third Romero question provides further support for the manifest 

constitutional character ofthe error in this case. The State not only acquiesced in a 

question that elicited testimony prejudicially inferring or implying guilt, it then 

highlighted that inference or implication and encouraged the jury to rely upon it. It 

cannot be seriously contended that the prosecutor's closing argument was merely a 

passing reference that was not relied upon by the State as evidence of guilt. The State's 

exploitation of Deputy Loyd's indirect comment on Mr. Terry's silence presents further 

constitutional error. 

16 
No. 31094-9-111 

State v. Terry 

The question that remains is whether the error was harmless. A constitutional 

error is harmless only ifthe reviewing court is convinced beyond a reasonable doubt that 

any reasonable jury would reach the same result absent the error and where the untainted 

evidence is so overwhelming that it necessarily leads to a finding of guilt. Burke, 163 

Wn.2d at 222; State v. Emery, 174 Wn.2d 741,757,278 P.3d 653 (2012) (constitutional 

harmless error standard applies to direct constitutional claims involving prosecutors' 

improper arguments). 

As to the three crimes that are alleged to have preceded the deputy's encountering 

Mr. Terry, the comments were not harmless. Mr. Smith lost sight ofthe driver of the 

truck after he crested the first hill, and his and his wife's initial description ofthe driver 

did not match Mr. Terry. Deputy Loyd did not testify to any forensic training or 

expertise in matching footprints to a particular shoe and he admitted he was unable to 

locate an unbroken footprint trail between the crash site and the location where he and 

Mr. Smith encountered Mr. Terry. The evidence was not sufficiently overwhelming to 

necessarily lead to a finding of guilt and there is a real risk that the jury attached special 

significance to the response to, and argument from, the juror's question .. 

As to the resisting arrest charge, however, the error was harmless. Deputy Loyd's 

and Mr. Smith's testimony as to what transpired during the course of the arrest was 

consistent and undisputed and included both men's testimony that the deputy accused Mr. 

Terry of resisting during the course ofthe arrest. Mr. Smith testified first, telling the jury 

17 

No. 31 094-9-II1 

State v. Terry 

that "the Officer said, 'You're resisting arrest.' [Mr. Terry] said, 'No, I'm not.' At one 

time I saw him try and bite the Officer, so I kind of figured that was resisting in my 

mind." RP at 179. The deputy's recollection was that he told Mr. Terry "to stop 

resisting." RP at 230. Given Mr. Smith's testimony that Mr. Terry was aware of the 

perception that he was resisting arrest and denied it, the State's comments do not present 

the same problem with respect to the resisting arrest charge. There was no question of 

Mr. Terry's identity with respect to that charge, either; the testimony was undisputed and 

overwhelming. 

We affirm the conviction of resisting arrest. We reverse the convictions of theft of 

a vehicle, possession of a stolen vehicle, and trespassing, and remand for a new trial on 

those counts. In light ofthat disposition, we need not reach Mr. Terry's remaining 

assignments of error, which address matters that might not arise in a new trial or, if they 

do, will involve a different record. 

The remainder of this opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions. RCW 

2.06.040. 

II. Sufficiency o/the evidence 

Mr. Terry requests more than a new trial, however; he argues that insufficient 

evidence was presented at trial to support his convictions of all but the charge of resisting 

18 

No. 31094-9-111 

State v. Terry 

arrest. He asks that we remand with directions to dismiss those charges. He makes two 

principal arguments. 

His first-which, if successful, would be fatal to all three ofthe challenged claims 

(theft, possession of a stolen vehicle, and trespass)-is that there was insufficient 

evidence that he was the individual seen crawling out of Mr. Frame's truck by the 

Smiths. 

His second pertains only to the charge ofpossessing a stolen vehicle; he argues 

that even ifthere is sufficient evidence that he was in possession of a stolen vehicle, the 

evidence was insufficient to establish his knowledge that it was stolen. 

An insufficient evidence claim admits the truth of the evidence as well as all 

reasonable inferences that can be drawn from the evidence. State v. Salinas, 119 Wn.2d 

192,201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally 

reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P .2d 99 (1980) ..On appeal, we will 

defer to the trial court regarding issues of conflicting testimony, credibility of witnesses, 

and the persuasiveness ofthe evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 

850 (1990). A conviction will be reversed only when no rational trier of fact could have 

found that the State proved all of the elements ofthe crime beyond a reasonable doubt. 

State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). 

19 

No.31094-9-III 

State v. Terry 

A. 	 The identification ofMr. Terry as having been in 

possession of Mr. Frame's truck near the Smiths' farm 

The only witnesses who saw the individual crawl out ofthe stolen truck following 

the accident were Angelia and Gordon Smith. Being able to place Mr. Terry in the truck 

was essential not only to the theft and possession ofstolen property charges but also to 

the trespassing charge, since Mr. Terry was not on the Smiths' land when he was 

arrested. 

Immediately after seeing Mr. Frame's truck skid and roll, Ms. Smith got into her 

own truck and used its OnStar service to report the accident. While speaking with the 

OnStar representative, she saw the driver crawling out of the truck. She testified at trial: 

And the next thing, I look up and I see this guy in our wheat field and he is 

hoofing it. I don't think I've ever seen anybody run that fast in my life. He 

was like a gazelle going up this hill. And trust me, I have Arabian horses 

and we go up these hills on these horses and they're ready to stop when 

they get to the top. 

RP at 162. Asked at trial to describe the man that she saw, she testified, "He was tall and 

slender, wearing a hoodie or a cap or something, jeans, ah-like I said, I was a little bit 

away, so I didn't-I got a good look that he was tall and slender and man can he run." 

Id. She testified that his age was "hard to gauge. He wasn't too old. He definitely 

wasn't my age. Ah, but I'd have to guess-he didn't look like a teenager, you know." 

Id. 

When asked to describe the person he saw, Mr. Smith testified: 

20 

No. 31 094·9·1II 

State v. Terry 

[1]t was, ah, a male individual, appeared to be Caucasian, five and a half to 

six feet tall, slender build, wearing dark clothing. Couldn't wear-tell if it 

was really black hair or dark hair or wearing some kind of a hat. Ah, and 

literally, ah, climbed out of the vehicle as 1 said before, and then 

immediately started running perpendicular up the hill, which is a very steep 

hill. These are Palouse hills-it's farming country. Ah, and he was going 

at a high rate of speed, and I just was totally amazed. And that's really the 

only visual 1 got at that point. 

RP at 173. Mr. Smith was later asked whether the description he had provided to OnStar 

matched Mr. Terry's appearance when he and the deputy tracked him and encountered 

him in the field, and testified: 

A. 	 Ah, pretty accurate. Actually, ah, he was a little taller than I thought, 

and, ah, was a slender male individual, and, ah, pretty much whatwhat 1 conveyed to OnStar. 

Q. 	 Did you note anything about his clothing? 

A. 	 Ah, other than it was, ah, jean jacket, dark shoes-I mean, dark pants, 

ah, shoes-boots, ah, not really. 

Q. 	 Was that what you conveyed to OnStar as far as clothing; was that 

consistent with theA. 	 -YesQ. 	 -person that you saw in the field? 

RP at 178. 

Compensating to some extent for the Smiths' distance from the scene of the 

accident and their inability to get a better look at the driver was Mr. Smith's familiarity 

with his land and surrounding areas and his confidence, reasonably explained, that he and 

the deputy would be able to track the driver. Mr. Smith's ability to anticipate the route 

the driver would follow, the timeliness ofthe pursuit, and the early hour and absence of 

anyone else seen in the vicinity were all facts that the jury was entitled to consider. 

21 

No. 31094-9-III 

State v. Terry 

In addition to Mr. and Ms. Smith's testimony, the State offered evidence of 

Deputy Loyd's work in locating the path followed by the driver after the fact. There was 

no question that Mr. Terry was the individual encountered and arrested in a wheat farm 

two miles from the accident scene. The deputy's testimony that he was able to find a 

broken trail of footprints matching Mr. Terry's shoe from the location ofthe arrest back 

to the truck, ifbelieved by the jury, tended to prove that Mr. Terry had been the driver of 

the truck. 

Finally, the State presented evidence that Mr. Terry lived within a quarter mile of 

where Mr. Frame's truck had been stolen and was encountered 10 to 12 miles down the 

road from his home, early in the morning, and within a couple of miles ofwhere someone 

had crashed the truck and taken off on foot. 

While neither ofthe Smiths was able to make a positive identification ofMr. Terry 

at trial, the evidence that the State did present was collectively sufficient to persuade a 

rational trier of fact that it was Mr. Terry who was driving the truck at the time that it 

crashed. 

B. 	 Additional evidence required to prove theft and 

possession of stolen property 

Mr. Terry's remaining challenge to the sufficiency of the evidence is that even if 

the State presented evidence that he was driving the truck when it rolled, his mere 

possession ofthe truck at that time is not evidence that he stole it or knew it was stolen. 

22 

No. 31 094-9-III 

State v. Terry 

As he points out, Deputy Loyd conceded there are several reasons individuals may 

leave the scene of an accident, testifying, '''Usually when people flee the scene of a 

collision, there's something else going on-maybe they're intoxicated, don't have 

insurance, have warrants for their arrest, a myriad oflhings.'" Br. of Appellant at 15 

(quoting RP at 226). Mr. Terry points out that since he invoked his Miranda rights 

immediately after being cuffed and read the rights, and because he chose not to testify at 

trial, the fact that he did not offer his own innocent explanation could not be used against 

him. See State v. Mace, 97 Wn.2d 840, 650 P.2d 217 (1982) (conviction vacated where 

the prosecutor impermissibly relied on defendant's postarrest silence as evidence 

defendant had no explanation for possessing stolen property). 

Finally, he points out that even the trial court characterized the State's evidence 

supporting the theft charge as tenuous.5 

5 When Mr. Terry moved to dismiss all of the State's charges at the conclusion of 

the evidence, the trial court said: 

Looking at the evidence most favorably in light ofthe non-moving party, 

the State in this instance, ah, given the fact that the, ah-it's undisputed that 

the vehicle was still at its usual, ah, location of parking, ah, at the Frame 

residence, ah, the evening before-8:30, 9 o'clock before, and was gone by, 

ah-ah,7 o'clock the next morning it was discovered missing, ah, by Mr. 

Frame. Ah, I realize that is tenuous, but it is a sufficiently short length of 

time, ah, upon which a jury could reasonably infer that it was Mr. Terry, ah, 

who took the vehicle, ah, and-and so, without the owner's permission. 

And-and-and that was the closest case you have as far as insufficient 

evidence. 

RP at 297. 

23 

No. 31094-9-III 

State v. Terry 

RCW 9A.56.140(1) defines possession of stolen property in part as "knowingly" 

receiving, retaining, possessing, concealing, or disposing of stolen property "knowing 

that it has been stolen." An individual's possession of recently stolen property increases 

the likelihood that the possessor has guilty knowledge but is insufficient, standing alone, 

to prove he or she knew the property was stolen. State v. Couet, 71 Wn.2d 773, 775, 430 

P.2d 974 (1967). Possession ofrecently stolen property coupled with slight corroborative 

evidence is sufficient to prove gUilty knowledge, however. State v. Womble, 93 Wn. 

App. 599, 604, 969 P.2d 1097 (1999). Corroborative evidence can include damage 

consistent with theft, such as a broken ignition; fleeing when stopped; and the absence of 

a plausible explanation for legitimate possession. State v. L.A., 82 Wn. App. 275, 276, 

918 P.2d 173 (1996); Womble,93 Wn. App. at 604. 

Anticipating that the State will point to Mr. Terry's flight, he argues that cases 

relying on flight as corroborating evidence sufficient to prove guilty knowledge deal with 

flight from a law enforcement officer, which he argues was not the case here. See L.A., 

82 Wn. App. at 276; State v. Hudson, 56 Wn. App. 490, 784 P.2d 533 (1990). Yet proof 

that a driver fled a stolen car after an accident has a tendency to make it more probable 

that the driver was aware the car was stolen regardless of whether a law enforcement 

officer was present. Cf ER 401 (defining relevant evidence). His flight was relevant 

evidence. 

24 

No. 31094-9-III 

State v. Terry 

Additional corroborative evidence exists in the fact that Mr. Terry was living with 

his mother within a quarter mile of where Mr. Frame's truck was parked with the keys 

inside. His mother also testified that on the night of the theft she got up several times to 

use the bathroom and noticed that her son was not sleeping on the sofa; she testified that 

she thought he was sleeping in a trailer outside but an inference could be drawn from her 

testimony that the sofa was where he usually slept. 

Mr. Terry attacks the proximity of his mother's home and Mr. Frame's shop as 

corroborative because Dayton is a small town and its environs are rural, with "everyone 

liv[ing] close to everyone else." Br. ofAppellant at 14 n.l. It is corroborative, however, 

because the fact that Mr. Terry lived close to where the truck was left unlocked with the 

keys inside has a tendency to make it more likely that Mr. Terry was the thief than if 

nothing placed Mr. Terry within the vicinity of the unlocked truck. 

The proximity ofMr. Terry's residence to the stolen truck, his mother's testimony 

that she did not see him the night of the theft, and his flight from the accident scene are 

sufficient corroboration, when added to evidence ofthe short time frame between the 

theft of the truck and Mr. Terry's possession of it, to support the jury's verdict that he 

was guilty of theft. 

We affirm the conviction of resisting arrest. We reverse the convictions oftheft of 

a vehicle, possession of a stolen vehicle, and trespassing, and remand for a new trial on 

those counts. In light ofthat disposition, we need not reach Mr. Terry's remaining 

25 

--

No. 31094-9-III 

State v. Terry 

assignments of error, which address matters that might not arise in a new trial or, if they 

do, will involve a different record. 

WE CONCUR: 


rJ' ' 

Antosz, J.P. T. 

26