### FILED JUNE 

### 19,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31094-9-III Respondent, ) ) 

### v. ) ) OPINION PUBLISHED EDWARD W. TERRY, ) INPART ) Appellant. ) SIDDOWAY, C.J.

- DuringEdward Terry's criminal trial for theft ofa vehicle and related charges, thetrial court invitedjurorsto propose questions. Onejurorquestion acceptedbythetrial court and posedtothe deputy who arrested Mr. Terry was whether Mr. Terry ever questioned orexpressed surprise at being arrested. The deputy answered that Mr. Terry did not ask, and in closing argument, theprosecutorreminded thejurors of that answer and argued that Mr. Terry did not ask because "[he] knewthat he had stolen a vehicle and he was goingto get caught." Report ofProceedings (RP) at 329. Mr. Terry's lawyer did not objecttothejuror's question on constitutional grounds nor object tothe prosecutor's argument. Forthe first time on appeal, Mr. Terry argues that the testimony and argumentviolated constitutional protections against self-incrimination and his right to due process.No.31094-9-Ill State 

### v. Terry
Anerror ofmanifest constitutional proportions occurred here, including as a result ofthe court-posed question. The error was not harmless as to most ofthe counts charged. Itrequires a new trial on all ofthe challenged convictions other than his conviction for resisting arrest. 1 Giventhat disposition, we do not reach Mr. Terry's remaining assignments of
error otherthan his requestthat we order all ofthe charges against him dismissed onthe basis ofallegedly insufficient evidence. The evidence againsthim was sufficient. We
reverse the convictions oftheft ofa vehicle, possession ofa stolen vehicle, and trespassing, and remand for a newtrial on those counts. FACTS AND PROCEDURAL BACKGROUND Edward Terry was arrested after he was followed from the scene ofa 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. whenthey saw an approaching truck round a comerat a high rate ofspeed, spin out on gravel, hitthe 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'sjudgment and sentence included his conviction ofan assault committed inMarch 2012 thathe does not challenge. 2No. 31094-9-111 State v. Terry
individual "tum[ ] around in kind ofa swinging motion, looked like he threw something." RP at 172. Ms. Smith immediately called herOnStar service, which conveyed herreport of the accident to 911. Although she and her husband were as much as a quarter ofa mile away from where the truck flipped over, they described the driverto 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, andjeans. Columbia County Deputy SheriffRichard Loyd responded to the report ofthe accident and spoke to Mr. Smith, who had walked to the truck to make sure no one else
was inside. Mr. Smithtold Deputy Loyd which direction the driver had run. He also explained thatthe farm on which they were standing was his, that he was familiar with the terrain overthe hill, and that he thought they couldprobably catch up withthe driver. The deputy took Mr. Smith up onhis offer ofhelp and the two went looking for the driver inthe deputy's sports utility vehicle. Two miles from the crash site, Mr. Smith and Deputy Loyd saw Mr. Terry walking slowly. Deputy Loydknew Mr. Terry from priorcontacts. 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 Loydthen approached Mr. Terry with his gun drawn. When he was close enough 3No.31094-9-III State v. Terry

to satisfy himselfthat Mr. Terry was not armed, the deputy put away his sidearm and drew his taser, again telling Mr. Terry to get on the ground andputhis 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 thenturned his back on the deputy and Mr. Smith, dropped his pants, and, as Mr. Smith would later testify, "moonedboth ofus." RP at 179. That done, he pulledup his pants, dropped to the ground, andput his hands behindhis back. The deputy attempted to handcuffMr. Terry, telling him to turn his head away; he later explained to thejurythat whenhandcuffing an individual who is prone, officers preferto be out ofthe individual's line ofsight. Mr. Terry did not comply, answering, accordingto the deputy, "thatwas all I was going to get." RP at 229. The officer then walked around to Mr. Terry's other side. He placed a handcuffonMr. Terry's left wrist but, when he reached for his right arm to cuffhis second wrist, Mr. Terry tried to push up againstthe deputy, roll over, and bite him. Deputy Loydtold Mr. Terryhe was resisting arrest, which Mr. Terry denied. Deputy Loydthen used a pressure compliancetechnique and Mr. Terry relented and allowed himto 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 ownedthe truck in which Mr. Terry had been driving, called the department toreport that his truck had been stolen. Hehad left it parked in front of 4No. 31094-9-III 

### State v. 

### Terry
his shop the night before withthe keys inside, and in the morning it was gone. Itturned outthat Mr. Frame's shop was a quarter mile from where 

### Mr. Terry lived withhis mother and was 10 to 12 miles from the crash site. After booking

### Mr. Terry and traveling to speakto 

### 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 ifto throw something. He saw footsteps leavingthe 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 ofthe 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, hetracked 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 tookpictures ofthe tracks and later obtained pictures ofMr. Terry's shoe tread, taken atthejail. 

### Mr. Terry was eventually charged with theft ofa vehicle, possession ofa stolen vehicle, trespassing, and resisting arrest. Attrial, Mr. Smith and Deputy Loydtestified 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 ofhis hair and clothing did notprove accurate, 

### Mr. 5NO.31094-9-III State v. Terry
Smith expressed confidence in his identification from the fact that itwas 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 ofthe 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 thatthe tracks made through the field were made by the shoes worn by Mr. Terry at the time ofhis arrest. The trial court allowedjurors to propose questions during the trial. When given the opportunity to propose questions afterDeputy Loyd's testimony, ajurorwrote, '''Did he, Eddie Terry, ever ask or wonderwhy he was arrested? Was he surprised he was arrested?'" RP at 292. Mr. Terry's counsel objected onhearsay grounds and that the question called for speculation by the deputy. The court overruled the objections and posedthe questions. The deputy answered "No"when asked ifMr. Terry asked or wondered why he was arrested. RP at 294. In response to the question aboutwhether Mr. Terry was surprised, the deputy said, "I don't know ifhe was surprised or not." 

### ld. During closing argument, the prosecutorreferred to thejuror's question and Deputy Loyd's response:

6No. 31094-9-

### III State 

### v. Terry
One more item I wantto talk about in regards to resisting arrest, and actually applicable, ah, to all the charges here is: when DeputyLoyd was asked, did the defendant ask why he was being arrested? No. He knew. Heknewthat he had stolen avehicle and he was going to get caught. He knew that hepossessedthat vehicle and wrecked it. He knewthat he trespassed. That's why he didn't askthe question. RP at 329. Thejury found Mr. Terry guilty as charged. He appeals. ANALYSIS 

### 1. Unconstitutional use of Mr. Terry'spostarrestsilence Mr. Terry contends thathis rights under the United States and Washington Constitutions were violated, first, whenthe trial courtposed ajuror'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 prosecutorthen argued in closing that Mr. Terry's failure to ask about his arrestwasprobative ofguilt. Mr. Terry argues thatboth were impermissible comments on his postarrest silence, in'violation ofconstitutional protections against self-incrimination and requirements ofdue process. The State argues that "[a] reasonable interpretation is that thejurorquestion applies to thepre-arresttime period when Mr. Terry was first being approached by Deputy Loyd," so that only constitutional protections against compelledtestimony are implicated, notthe right to due process. Br. ofResp't at 24 (emphasis added). Whether the testimony and argument were a comment onprearrest rather thanpostarrest silence

7No. 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). InSalinas, a three-memberplurality ofthe Supreme Courtheld that ifan individual voluntarily submits to an interview by police and reaches a point at whichhe
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 thejury may consider the fact that a defendant failed orrefused to speak to law enforcement in circumstances where an innocent person wouldreasonably be expectedto 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 'rightto 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 atthe crime scene to the petitioner's shotgun. Attrial, the officerwas permittedto testify to the petitioner's suspicious silence in response to that question and the prosecutorwas permittedto 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). 8No. 31094-9-III State 

### v. Terry
Salinas heldthat the testimony and argument was unobjectionable because the petitioner
was speakingto the investigating officer voluntarily and "itwould 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 orderto invoke the privilege [against selfincrimination],'" id. at 2178 (quoting Quinn v. UnitedStates, 349 U.S. 155, 164, 75 S. Ct. 668, 99 

### L. Ed. 964 (1955)), courts faced with the admissibility of prearrest silence after Salinas have examinedthe defendant's conductto see ifaninvocation ofFifth Amendment rights was either express or implied. See, e.g., UnitedStates v. Okatan, 728 F.3d 111 (2d Cir. 2013) (while defendant did not say "Fifth Amendment" or "privilege against self-incrimination," his expression ofa desire to speak with a lawyer sufficedto invoke the privilege).

3 Twojustices (Thomas, 1., and Scalia, 1.) expressedtheir disagreementwith 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 Amendmentprohibits a prosecutor orjudge from commenting on a defendant's failure to testify, as '''lack[ing] foundation in the Constitution's text, history, orlogic'" and establishing a principle that "shouldnot be extended." Salinas, 133 S. Ct. at 2184 (Thomas, 1., concurring injudgment) (quoting Mitchell v. UnitedStates, 526 U.S. 314, 341, 119 S. Ct. 1307, 143 

### L. Ed. 2d424 (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 heldthat 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 underMiranda4 

### 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 ofguilt. State 

### v. Easter, 

### 130 Wn.2d 228,236,922 P.2d 1285 (1996) (citingBrecht

### 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 governmentto comment onpost-Miranda 

### silence is to "[break] its promises given in the Miranda 

### warnings and violate[ ] due process oflaw." 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). 10No. 3lO94-9-1I1 State v. Terry
The State recognizes that controlling case law is more protective ofa defendant's postarrest silence when it argues that we should regard thejuror's question as addressed to the prearresttime period. But its argument that thejurorwas interested in prearrest events is grounded more in hope than in reality. Thejuror's questions, as handwritten by thejuror and read by court, asked ifMr. Terry ever "ask[ed] orwonder[ed] why he was arrested" orwas "surprisedthat 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 handcuffhim, and then read Mr. Terry his Miranda rights, in response to whichMr. Terry said he understood his rights. The deputy also testified that Mr. Terry "immediately told me he didn'twantto talkto me," although that answer
was stricken upon objection. RP at 231. In short, thejuryhad not heardtestimony about any meaningful prearrestperiod to which thejuror's questions could have been directed. We are dealing, then, with testimony and argument involving postarrest silence. The State next argues thatbecause Mr. Terry failed to object to thejuror'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 improperreference to a defendant's postarrest silence; an

11No. 31094-9-III 

### State v. Terry exception exists, however, for "manifesterror affecting a constitutional right." RAP 2.5(a)(3); 

### Burke, 163 Wn.2d at 224 (Madsen, J., dissenting). The Washington Supreme Courthas distinguished between "comments" and "references"to a criminal defendant's silence, recognizing that "[b10th are improper, but only the former rise to the level ofconstitutional error," andthat what are merely improper references "are notreviewable 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 Stateuses a defendant's silence as substantive evidence ofguilt or suggests the silence was an admission ofguilt. 

### 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 commentwas "direct," in the sense examined in 

### Lewis, which is to askwhetherthe witness effectively stated or expressed an opinionthat the defendant's silence was evidence ofgUilt. 

### 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 

### suggestedthree questions, drawn from earlier Washington cases, from which to determine whether the State was seeking to capitalize on an inference 

### ofguilt in a manner violating the defendant's rights: First, could the commentreasonably be considered purposeful, meaning responsive to the State's questioning, with even slight inferable prejudice to the defendant's claim ofsilence? Second, couldthe comment reasonably be considered unresponsive to a questionposed by either examiner, but in the context ofthe defense, the volunteered comment can reasonably be considered as either (a) given for the purpose ofattempting to prejudice the defense, or (b) resulting in the unintended effect oflikely prejudice tothe 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 ofconstitutional 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 ofthe first question and the third question mustboth be answered "yes," however. The State argues that the first question mustbe 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


### 13No. 31094-9-111 State 

### v. Terry implication ofguilt. 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 invitejurors to ask questions. Itis a practice that is standard and acceptable in civil trials, see CR43(k), butthat is discouraged in criminal trials because ofthe risks ofharm it presents. A commentto former Washington PatternJury Instruction (Criminal) 4.66, which was to be givenwhen jurors posed questions in criminal trials, stated that the instruction should not be given unless ajurorexpressed a desire to question a witness and that it was '''advisablethat a judge should not encouragejurors to ask questions.'" State v. Monroe, 65 Wn. App. 245, 251, 828 P.2d 24 (1992) (quoting 11 WASHINGTON PRACTICE: PATTERNJURY INSTRUCTIONS: CRIMINAL 4.66 cmt. (1977) (WPIC». The Monroe court agreed with authors ofthe pattern instructions in discouraging the practice, statingthat "webelieve the active solicitation of jurorquestions is inappropriate." Id. at 254. State v. Munoz, 67 Wn. App. 533,538,837 P.2d 636 (1992) reiterated disapproval ofactively solicitingjuror questions, recognizing that "[p ]otentially serious problems could arise fromjuror questions." FollowingMonroe 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 ofAppeals, the committee

14No. 31094-9-111 

### State 

### v. Terry
recommends trial courts not raise the issue unless ajurorinquires." 11 WASHINGTON PRACTICE: PATTERNJURY INSTRUCTIONS: CRIMINAL 4.66, at 130-31 (3d ed. 2008). Having nonetheless exercised its discretion to invitejuror questions inMr. Terry's trial, the trial court read an instruction that described forjurors how and when they could write out and submittheir questions. It included the following explanation, modified from WPIC 4.66 (1977): 

### I willreview the question-actually, I have to, ah, excuse you across the hall, then I review the questions with the lawyers outside yourpresence, ah, 

### to make sure they're
. .. in allowableform anddon't violate some technical rule of evidence, and/'II review it 

### to make sure it's legally proper. There are some questions I won't ask
.... Itwill often be the case that a lawyer has not asked a questionbecause it'slegally 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 thejurors that any question thejudge accepted and posed would be "in allowable form," would not violate any technical rule ofevidence, and would be "legallyproper." Itis reasonable to assume that thejurorwho asked whether Mr. Terry wondered why he was being arrested thought it was a good question, since ifMr. Terry was unsurprised it would tend to prove guilt. When the question was accepted by the court and posed to Deputy Loyd, 

### itreceived institutional imprimatur in the eyes ofthejurors. A leading treatise has recognized that among the risks ofpermittingjury questions is that "thejurors will attach inordinate weight to the witnesses' answers to thejurors' questions 15No. 3lO94-9-III 

### State 

### v. Terry
and slight the testimony elicited by the parties." 1MCCORMICK ON EVIDENCE 

### § 8 (Kenneth S. Broun ed., 7th ed. 2013). Whether we view the State as one ofthe gatekeepers of jury questions posed in a criminal trial or analyze this as aproblem 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 

### acquiescedin a question by the trial court that results in a responsive comment that even slightly and prejudicially infers orimplies 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 questionprovides further support for the manifest constitutional character ofthe error in this case. The State not only acquiesced in a question that elicitedtestimony prejudicially inferring or implying guilt, it then highlighted that inference or implication and encouragedthejuryto rely upon it. It cannot be seriously contendedthat the prosecutor's closing argument was merely a passing reference that was not relied upon by the State as evidence ofguilt. The State's exploitation ofDeputy 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 whetherthe error was harmless. A constitutional
error is harmless only ifthe reviewing court is convinced beyond a reasonable doubt that any reasonablejury would reach the same result absent the error and where the untainted evidence is so overwhelming that it necessarily leads to a finding ofguilt. 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 involvingprosecutors' 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 ofthe truck afterhe 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 aparticular 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 leadto a finding ofguilt and there is a real risk that the jury attached special significance to the response to, and argument from, thejuror'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 ofthe arrest was consistent and undisputed and included both men's testimony that the deputy accused Mr. Terry ofresisting during the course ofthe arrest. Mr. Smith testified first, telling thejury 17No. 31094-9-II1 

### State 

### v. Terry
that "the Officer said, 'You'reresisting arrest.' [Mr. Terry] said, 'No, I'm not.' At one time I saw himtry and bite the Officer, so I kind offigured that was resisting in my mind." RP at 179. The deputy's recollection was thathe told Mr. Terry "to stop resisting." RP at 230. Given Mr. Smith's testimony that Mr. Terry was aware ofthe perception thathe was resisting arrest and denied it, the State's comments do not present the sameproblem withrespect tothe resisting arrest charge. There was no question of Mr. Terry's identity with respectto that charge, either; the testimony was undisputed and overwhelming. We affirm the conviction ofresisting arrest. We reverse the convictions oftheft of
a vehicle, possession ofa stolen vehicle, andtrespassing, and remand for a newtrial on those counts. In light ofthat disposition, we need notreach Mr. Terry's remaining assignments oferror, which address matters that mightnot arise in a newtrial or, ifthey do, will involve a different record. The remainder ofthis opinion has noprecedential value. Therefore, it will be filed for public record in accordance withthe rules governing unpublished opinions. RCW 2.06.040. 

### II. Sufficiency o/the evidence Mr. Terry requests more than a newtrial, however; he argues that insufficient evidence waspresented attrial to supporthis convictions ofall butthe charge ofresisting

18No. 31094-9-111 

### State v. 

### Terry

arrest. He asks that we remandwith directions to dismiss those charges. He makes two principal arguments. His first-which, ifsuccessful, would be fatal to all three ofthe challenged claims (theft, possession ofa stolen vehicle, and trespass)-is thatthere was insufficient evidence that he was the individual seen crawling out ofMr. Frame's truck by the Smiths. His secondpertains only to the charge ofpossessing a stolen vehicle; he argues that even ifthere is sufficient evidence that he was in possession ofa stolen vehicle, the evidence was insufficient to establish his knowledge that it was stolen. An insufficient evidence claim admits the truth ofthe 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 deferto the trial court regarding issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence. 

### State v. 

### Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). A conviction will be reversed only whenno rational trier offact couldhave found thatthe State proved all ofthe elements ofthe crime beyond a reasonable doubt. 

### State v. 

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

19No.31094-9-III State 

### v. Terry
A. The identification ofMr. Terry as having been in possession ofMr. Frame'struck near the Smiths' farm The only witnesses who sawthe 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 tothe theft and possession ofstolen property chargesbut also to the trespassing charge, since Mr. Terry was not onthe Smiths' land whenhewas arrested. Immediately after seeing Mr. Frame'struck skid and roll, Ms. Smith got into her
owntruck and used its OnStar service to report the accident. While speaking withthe OnStar representative, she saw the driver crawling out ofthe truck. She testified attrial: And the nextthing, I look up and I see this guy in our wheat field and he is hoofing it. I don'tthink I've ever seen anybody run that fast in my life. He was like a gazelle going up this hill. Andtrust me, I have Arabian horses and we go up these hills on these horses and they're ready to stop when they getto thetop. 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 testifiedthat his age was "hard to gauge. Hewasn'ttoo old. He definitely wasn'tmy age. Ah, but I'dhave to guess-he didn't look like a teenager, you know." Id. When asked to describe the person he saw, Mr. Smithtestified:
20

### No. 31

### 094·9·1II State v. Terry [1]t was, ah, a male individual, appeared to be Caucasian, five and a halfto six feet tall, slender build, wearing dark clothing. Couldn'twear-tell ifit was really black hair or dark hair orwearing some kind ofa hat. 

### Ah, and literally, ah, climbed out ofthe vehicle as 1said before, and then immediately started running perpendicularup 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 ofspeed, and Ijustwas totally amazed. And that's really the only visual 1got at thatpoint. 

### RP at 173. 

### Mr. Smith was later asked whether the description he had providedto OnStar matched Mr. Terry's appearance when he and the deputy tracked him and encountered him in the field, andtestified: A. 

### Ah, pretty accurate. Actually, ah, he was a little tallerthan 

### Ithought, and, ah, was a slender male individual, and, ah, pretty much whatwhat 1conveyed to OnStar. Q. Didyou note anything about his clothing? A. 

### Ah, other than itwas, ah,jeanjacket, dark shoes-I mean, darkpants, ah, shoes-boots, ah, notreally. Q. Was that what you conveyed to OnStar as far as clothing; was that consistent with theA. -YesQ. -personthatyou saw in the field? 

### RP at 178. Compensating to some extent for the Smiths' distance from the scene ofthe 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, andthe early hour and absence of anyone else seen in the vicinity were all facts thatthejury was entitled to consider. 21No. 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 offootprints matching Mr. Terry's shoe from the location ofthe arrest back to the truck, ifbelieved by thejury, tended to prove that Mr. Terry had been the driver of the truck. Finally, the Statepresented 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 ofmiles ofwhere someone had crashed the truck andtaken offon foot. While neither ofthe Smiths was able to make apositive identification ofMr. Terry at trial, the evidence that the State did present was collectively sufficientto persuade a rational trier offact 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 ofstolen property Mr. 

### Terry's remaining challenge to the sufficiency ofthe evidence is that even if the Statepresented evidence that he was driving the truck when itrolled, his mere possession ofthetruck at thattime is not evidence that he stole it orknew it was stolen.
22

### No. 31094-9-III State 

### v. Terry


### As he points out, Deputy Loyd concededthere are several reasons individuals may leave the scene ofan accident, testifying, '''Usually when people flee the scene ofa collision, there's something else going on-maybethey're intoxicated, don'thave insurance, have warrants for their arrest, a myriad oflhings.'" Br. ofAppellant 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 offerhis own innocent explanation couldnot 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 outthat even the trial court characterizedthe State's evidence supporting the theft charge as tenuous. 5

5 

### When Mr. 

### Terry moved to dismiss all ofthe 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 ofparking, ah, at the Frame residence, ah, the evening before-8:30, 9 o'clockbefore, and was gone by, ah-ah,7 o'clockthe 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 ajury couldreasonably inferthat 

### itwas Mr. 

### Terry, ah, who tookthe vehicle, ah, and-and so, withoutthe owner'spermission. And-and-andthat was the closest case you have as far as insufficient evidence. RP at 297. 23No. 31094-9-III State 

### v. Terry
RCW 9A.56.140(1) defines possession ofstolen property in part as "knowingly" receiving, retaining, possessing, concealing, or disposing ofstolenproperty "knowing that it has been stolen." An individual's possession ofrecently stolen property increases the likelihoodthat the possessor has guilty knowledge but is insufficient, standing alone, to prove he or she knewthe property was stolen. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). Possession ofrecently stolenproperty 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 withtheft, such as a broken ignition; fleeing when stopped; and the absence of
aplausible 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 thatthe State will pointto 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). Yetproof that a driver fled a stolen car after an accident has a tendency to make it more probable thatthe driver was aware the carwas stolen regardless ofwhether a law enforcement officer was present. CfER401 (defining relevant evidence). His flight was relevant evidence.

24No. 31094-9-III State v. Terry
Additional corroborative evidence exists inthe fact that Mr. Terry was living with his motherwithin a quarter mile ofwhere Mr. Frame'struck was parked with the keys inside. His mother also testifiedthat onthe night ofthe theft she got up several times to
use the bathroom and noticed that her son was not sleeping onthe sofa; she testified that she thought he was sleeping in a trailer outside but an inference couldbe drawn from her testimony thatthe sofa was where heusually slept. Mr. Terry attacks theproximity ofhis 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 truckwas left unlocked with the keys inside has a tendency to make it more likely thatMr. Terry was the thiefthan if nothingplaced Mr. Terry within the vicinity ofthe unlocked truck. Theproximity ofMr. Terry'sresidence to the stolen truck, his mother'stestimony that she did not see himthe night ofthe theft, and his flight from the accident scene are sufficient corroboration, when added to evidence ofthe shorttime frame between the theft ofthe truck and Mr. Terry'spossession ofit, to support thejury'sverdictthathe
was guilty oftheft. We affirm the conviction ofresisting arrest. We reverse the convictions oftheftof
a vehicle, possession ofa stolen vehicle, and trespassing, andremand for a new trial on those counts. In light ofthat disposition, we need notreach Mr. Terry's remaining 25

# -- No. 31094-9-III State 

### v. Terry assignments oferror, which address matters that mightnot arise in a newtrial or, ifthey do, will involve a different record.

WE CONCUR: 

# rJ'

'

Antosz, J.P.T.

26