### FILED August22,2013 In the Office oftheClerkofCourt W A State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) 

### No. 

### 29658-0-111 Respondent, ) ) 

### v. ) ) 

### LEONARD WILLIAMBOSTON, ) 

### UNPUBLISHED OPINION ) 

### • Appellant. ) 

### SIDDOWAY, 

### A.C.J. Leonard Boston appeals his convictions for violations of severalprovisions ofthe Uniform Controlled Substances Act, chapter

### 69.50 RCW. He challenges the trial court's determinationthat inculpatory statements he madeto a Stevens County sheriffs detective were admissible at trial. He also challenges increases in his period ofconfinement based onjury findings that he challenges for instructional
error and insufficient evidence. We concludethat the Statepresented insufficient evidence toprove two school bus stop enhancements in light ofthe instructions to thejury, which-whetherornot required-were given without objection, and are therefore law ofthe case. WereverseNo. 29658-0-111 State 

### v. Boston
those sentencing enhancements and remand for resentencing for the associated convictions. We otherwise affirm. FACTS AND PROCEDURAL BACKGROUND The Stevens County Sheriffs Department suspected Leonard Boston ofdealing heroin and conducted a number ofcontrolled buys ofheroin from his sister, Gail Remington, at the home where she and herteenaged son lived with Mr. Boston. Based
on evidence developed through the controlled buys, the sheriffs department obtained and served a search warrant at the BostoniRemington home. Mr. Boston, Ms. Remington, her son, and Chas Losterwere there at the time. All four were brought into the livingroom where one ofthe detectives present readMiranda 1warnings from a card to the group before transporting them tojail. None was asked to sign a waiver ofrights. The last sentence read from the card was a question, '" Having these rights in mind do you wish to talk to us now[?]''' Report ofProceedings (Nov. 5,2010) (RP) at 51. Mr. Boston chose not to make a statement. A couple ofhours afterbeingbooked into the Stevens Countyjail, Mr. Bostonwas taken to a conference room to meet with Detective BradManke. The detective advised Mr. Boston ofthe charges against him and asked ifMr. Boston wanted to speak to him. Mr. Boston told the detective he was getting sick from not having heroin and needed

I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2No. 29658-0-II1 State 

### v. Boston
medical help because "[his] head [was] not clear." Clerk's Papers (CP) at 274. Mr. Boston asked Detective Manke to comeback in a day. The next day, Detective Manke returned to thejail and again spoke to

### Mr. Boston in the conference room. After he inquired how

### Mr. Boston was feeling, 

### Mr. Boston said, "'Let's cut to the chase. What do you want?'" CP at 275. Detective Manke responded, "'Iwant to know about your heroin dealings.'" Id. 

### Mr. Boston replied, '''I'm small time-notbig time. I'mjust ajunkiekeeping otherjunkies well.'" Id. The detective had not read

### Mr. Bostonhis Miranda rights and

### Mr. Bostonhad not stated thathe wished to waive his rights. 

### Mr. Bostonthen said his head still was not very clear and again asked thatDetective Manke comeback later. Once again, that ended the conversation. Detective Manke returned to thejail a day ortwo later. Atthe outset ofthat conversation, 

### Mr. Boston stated, "'I'dbetter talkto a lawyer.'" Id. Detective Manke ended contactwith 

### Mr. Boston at that point. The State plannedto offer Mr. Boston's statements at trial, so a CrR 3.5 hearing
was conducted. The court found an implied waiver ofMiranda rights andthat Mr. Boston's statements could be offered in evidence by the State. 

### Mr. Bostonwas found guilty by ajuryofone count ofdelivery ofa controlled substance, one count ofpossession with intent to deliver a controlled substance, use of drugparaphernalia, and bailjumping. 

### Mr. Boston's statements to Detective Manke were

3No. 29658-0-111 State 

### v. Boston arguably important to his conviction ofthe first two counts, given trial evidence that he
was involved in only a limited way, ifat all, in sales to the confidential informant. Thejurywas asked by special verdict whether Mr. Boston's delivery and possession with intent to deliver occurred within 1,000 feet ofa school bus stop. Proofof sales in thatproximity ofa school bus stop may be relied upon to double the term of imprisonment otherwise provided for the crime. RCW 69.50.435(1)(c). Thejury answered "yes." CP at 268,270. The court imposed a sentence of 120 months, which included 48 months for two sentence enhancements based on the special verdict forms. Mr. Boston appeals. ANALYSIS Mr. Boston assigns error to the trial court's (1) finding that his statements to Detective Manke were admissible, (2) instructing thejury it had to be unanimous to
answer "no" to the special verdict forms, and (3) imposing school bus stop enhancements when insufficient evidence was presented ofthe seating capacity ofschool buses stopping
near the BostoniRemington home. Mr. Boston concedes thathis second assignment of
error fails in light ofthe Washington Supreme Court's intervening decision in State v. Guzman

### Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). We address his first and third assignments oferror in tum.



### 4No. 29658-0-III State 

### v. Boston
I When a person is subject to custodial interrogation, any statements made are deemed to be compelled in violation ofthe FifthAmendment unless the State can show that before the statements were made there was a knowing, voluntary, and intelligent waiver ofthe person's FifthAmendment privilege. State v. Sargent, 111 Wn.2d 641, 648, 762 P.2d 1127 (1988). The State must show a waiver ofMiranda rights by a preponderance ofthe evidence. State v. Athan, 160 Wn.2d 354,380, 158 P.3d 27 (2007). Statements obtained in violation ofthe FifthAmendment must be suppressed. State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995). "The waiver inquiry 'hastwo distinct dimensions': waiver must be 'voluntaryin the sense that it was the product ofa free and deliberate choice rather than intimidation, coercion, or deception,' and 'made with a full awareness ofboth the nature ofthe right being abandoned andthe consequences ofthe decision to abandon it.'" Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010) (quoting Moran v. Burbine, 475 U.S. 412,421, 106 S. Ct. 1135,89 L. Ed. 2d 410 (1986)). The following findings and conclusions by the trial court following the CrR 3.5 hearing are relevant to the issues Mr. Boston raises on appeal: C. [After servingthe search warrant] Detective [Michael] Gilmore brought Mr. Boston into the front room and had him sit on the couch, along with Ms. Remington and Mr. Loster
....At 14: 11, Detective Ian Ashley read the full Miranda warning to the three occupants-offofhis rights card
....Mr. Boston stated that he understood his rights. He did not 

### 5

### No. 29658·0·111 State 

### v. Boston 

### respond when asked ifhaving these rights in mind, do you wish to say anything. The detectives did not question any ofthe three arrestees. 

### E. Later on May 14,2010, Detective Brad Manke contacted 

### Mr. Boston in the conference room in the Stevens County Jail. Mr. Boston and the others were at the house for about 20 minutes, and then they were transported some blocks to the Jail, where they were booked. 

### Mr. Boston was then taken into the conference room....Detective Manke had met Mr. Boston on at least three previous occasions-they'dhad civil, non· confrontational conversations in thepast. ... F. Detective Manke advised Mr. Boston whatthe charges were and asked Mr. Boston ifhe wanted to speak to him
.... Mr. Boston [said] he was getting sick from not having heroin, and needed medical help-my head is not clear. He stated that he wanted to talk to Detective Manke and asked the detective to come back in a day. They talked for five to ten minutes on May 14. G. On May 15, Detective Manke returned to thejail and again talked to Mr. Boston in the conference room. 

### Mr. Boston's medical condition was noticeably better
...Mr. Boston stated, "Let's cut to the chase. What do you want?" Detective Manke answered, "I want to know about your heroin dealings." Detective Manke only answered 

### Mr. Boston's question-Mr. [B]oston asked the first question. 

### Mr. Boston stated, "I'm

. small time-notbig time. I'mjust ajunkiekeeping otherjunkies well."



### Mr. Bostonthen said that his head still wasn'tvery clear and again asked the detective to come back later
.... The interview took only a few minutes. 

### Mr. Boston
... fully understood the reason Detective Manke had returned-Detective Manke had returned atMr. Boston'srequest. H. Detective Manke returned again on May 16, orMay 17. 

### Mr. Boston stated at the outset, "I'dbetter talk to a lawyer." Detective Manke ended the contact. CP at 273·75. From these findings offact, the trial court concluded that 

### Mr. Boston did not expressly waive his Miranda 

### rights, butthat he waived them by implication: he was informed ofhis rights, he understood them, and he then chose to offer information. It


### 6No. 29658-0-III State v. Boston
found thatthe waiver was evident on May 14 and 15, only to be terminated on May 16 or 17. Although the court concluded thatthe detective's statement "I wantto know about your heroin dealings" was interrogation, it concluded thatthe State hadprovedby a preponderance ofthe evidence that 

### Mr. Boston's incriminating statements were voluntary. Mr. Boston assigns errorto the trial court's finding offact that Detective Manke returned to thejail for the second interview at 

### Mr. Boston'srequest. He assigns errorto the court's conclusions that he waived his Miranda rights by implication; that he was informed ofhis rights, he understood his rights, and then chose to volunteer information. He also assigns errorto the court's conclusions that the waiverwas evidenced on May 14 and 15, and that 

### Mr. Boston never indicated anything otherthan a willingness to speakto Detective Manke until May 16 or 17. Br. ofAppellant at 5. In reviewing a trial court's decision that a defendant's statement is admissible, we treat the court's findings offact entered following the CrR 3.5 hearing as verities on appeal ifunchallenged, and, ifchallenged, treatthem as verities ifsupported by substantial evidence. State v. Broadaway, 133 Wn.2d 118, 131,942 P.2d 363 (1997). A trial court's findings following a CrR 3.5 hearing are supported by substantial evidence if supported by evidence ofsufficient quantity that a rational fair-minded person could believe the finding tobetrue. State v. Hill, 123 Wn.2d 641,644,870 P.2d 313 (1994). Credibility determinations are the prerogative ofthe trial court and are not subjectto 7No. 29658-0-111 

### State 

### v. Boston
review. 

### State v. 

### Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We review de novo whether the trial court's conclusions oflaw are properly derived from its findings offact. 

### State v. 

### Gasteazoro-Paniagua, 173 Wn. App. 751, 755, 294 P.3d 

### 857,petitionjor review 

### filed, No. 89036-6 (Wash. July 9, 2013). We first address Mr. Boston's sole assignment oferrortothe trial court's findings offact: his challenge to the finding that Detective Mankereturned to thejail on May 15 at Mr. Boston'srequest.2 Detective Manke testified at the CrR 3.5 hearing; Mr. Boston did not. The following testimony by the detective was relevantto the trial court's finding: Q
... [Y]ou did tell him you wanted to talkto him, and he said, "Okay, I'll talk to you but not now." Correct? A At some point. I-He did say that. 

### Q Okay. Andthatwas in response to you saying you wanted to talk to him. A Yeah, basically, theQ Okay. A -"Here's,-here's what you're charged with; I want to getyour side ofthe story" type thing. I don'trememberthe exactwords. Q Okay. A He asked me to come backthe next day. RP at 67-68. 

### Q You'd indicated that the suspectMr. Boston had asked you to return the next [d]ay. Did you in fact do that? A I did.

2 The finding is included in finding G, not finding H as stated in Mr. Boston's brief. Br. ofAppellant at 5. We can and do overlook the error. RAP 1.2(a). 

### 8No. 29658-0-III State 

### v. Boston



### Id. at 69. Q A Was there any time during your contact with Mr. Boston that he seemed uncertain about whetherhe wanted to talk to you? Actually the first two times that I triedto talk to him he told me to comeback. So he seemed certain that he wanted me to come back. Andthen the third time he-told me he wantedto talk to an attorney; so he was certain aboutthat. 

### Id at 76. Atthe erR 3.5 hearing, Mr. Boston's lawyer argued that Mr. Boston's statement that his head was not clear and to come back the next day was "not an invitation to come back tomorrow, ... [t]hat's an attempt to delay the conversation that's going on." 

### Id at 91. While that is a possible interpretation ofMr. Boston's statement, the trial courtwas in the best position to evaluate the evidence ofsurrounding circumstances and assess the credibility ofthe detective, and it found a true invitation to return the next day. Detective Manke's testimony is substantial evidence supporting the trial court's finding. Further support for the finding is provided by the trial court's unchallenged finding that the detective and Mr. Boston had met on at least three prior occasions andhad had civil, nonconfrontational conversations inthe past. Turning to Mr. Boston's challenges to the trial court's conclusions, the trial court's conclusion that Mr. Boston was informed ofhis rights is supported by the unchallenged finding that Detective Ashley readMiranda warnings to Mr. Boston and the others



### 9No. 29658-0-111 State 

### v. Boston present at the home in the early afternoon ofMay 14, atthe time the search warrant was being executed. Mr. Boston nonetheless argues thatthe initial warnings were not sufficientbecause he told Detective Manke he did not wantto speak on May 14, the detective respected his wishes at thattime, and the detective's right to resume questioning was governed by case law holdingthat questioning can be resumed only "after a 'significantperiod' oftime has passed [and] only ifthe accused's original requestto cut offquestioning was 'scrupulously honored' and he is providedwith a fresh set ofMirandawarnings on requestioning." Br. ofAppellant at 12 (quoting State v. Cornethan, 38 Wn. App. 231, 233-34,684 P.2d 1355 (1984». Cornethan addressed an unambiguous invocation ofthe right to remain silent, however. Thetrial court's finding in that case was thatthe defendant, upon being visited in the hospital by his attorney, "was advised of his constitutional right to remain silent andthe defendant determined thathe wantedto exercise his right to remain silent; defense counsel at that time advised Officer Covington ofKing County Rehabilitative Services who was guarding the defendantthat the defendant did not want to talkto police." 38 Wn. App. at 234. An accused who wants to invoke his orher right to remain silent must do so unambiguously. Berghuis, 130 S. Ct. at 2260. Here, the trial court's unchallenged finding that "[Mr. Boston] stated thathe wantedto talk to Detective Manke and asked the detective to come back in a day," does 10No. 29658-0-111 State v. Boston

not present an unequivocal invocation ofthe right to remain silent. Cf UnitedStates v. Al-Muqsit, 191 F.3d 928,936 (8th Cir. 1999) (right to remain silentwas not invoked by accused's statements thathe "'wasn'tready to talk
... at thattime'" and '''I don't think right now"'), vacated inparton othergrounds on reh 'g sub nom. UnitedStates v. Logan, 210 F.3d 820 (8th Cir. 2000); Commonwealth v. Leahy, 445 Mass. 481, 483-84,838 N.E.2d 1220 (2005) (,"Not right now, in a minute. 

### I needto figure some things out,'" not an unequivocal assertion ofright toremain silent); People 

### v. Martinez, 47 Cal. 4th 911,945,224 P.3d 877,105 Cal. Rptr. 3d 131 (2010) ('''I don't wanttotalk anymore right now,'" not unequivocal). Mr. Boston's next challenge is to the trial court's conclusion that Mr. Boston understood his rights. The conclusion is supported by the court's unchallenged finding that Mr. Boston stated he understood his rights and by otherunchallenged findings, not reproduced above, thatwhen being read his rights Mr. Boston did not show confusion or fear and did not show any signs ofbeing under the influence ofheroin, other controlled substances, or alcohol. The next conclusion challenged by Mr. Boston is thathe impliedly waived his' rights. 

### "[A] waiver ofMiranda rights may be implied,through 'the defendant's silence, coupled with an understanding ofhis rights and a course ofconduct indicating waiver.'" Berghuis, 130 S. Ct. at 2261 (quotingNorth Carolina v. Butler, 441 U.S. 369, 373,99 S. Ct. 1755,60L. Ed. 2d 286 (1979)); State 

### v. Terrovona, 105 Wn.2d 632, 646-47, 716 P.2d 11

### No. 29658-0-111 State 

### v. Boston


### 295 (1986) (implied waiver may be found where the defendant is informed ofhis Miranda rights, understands them, and chooses to volunteer information in the absence of duress, promise, or threat). The "knowing and intelligent" dimension ofMr. Boston's waiver is supported by the trial court's unchallenged findings that Mr. Boston didnot expressly invoke his right to remain silent after being readMiranda warnings, thathe stated he understood his rights, that he stated laterthat afternoon that he wanted to talk to Detective Manke and toldhim to comeback in a day, and that he thereafter made a limited statement. These same unchallenged findings support the court's conclusion that his waiver was evidenced on May 14 and 15 and that he never indicated anything other than a willingness to speak to Detective Manke until May 

### 16 or 17. As to the requirementthat his waiverbe ''voluntary'' in the sense ofbeing the product ofchoice, Mr. Boston has not challenged any ofthe trial court's findings thathis statementwas nottheresult ofintimidation, coercion, or deception. 3 Those findings are sufficientto supportthe voluntary character ofthe waiver.

3 We would not characterize Mr. Boston as having "chose[n] to volunteer information" in light ofthe trial court's conclusion (with which we agree) that Detective Manke's statement on May 14 constituted interrogation. Butthat conclusion was unnecessary tothe trial court's determinationthatMr. Boston's statement was admissible; it is enoughthat in responding to interrogation, Mr. Bostonhad been read his rights, understood them, impliedly waived them, and provided answers voluntarily. 

### 12No. 29658-0-111 State v. Boston
In conclusion, the trial court's findings following the CrR 3.5 hearing are supported by substantial evidence and its conclusions following the hearing were properly derived from its findings. Mr. Boston's statement was properly admitted at trial. II Mr. Boston's remaining assignment oferror is that insufficient evidence supported thejury's finding by special verdict that Mr. Bostonpossessed a controlled substance within 1,000 feet ofa school bus stop designated by a school district, with the intent to manufacture ordeliver the controlled substance. RCW 69.50.435(l)(c) provides increasedperiods ofconfinement under such circumstances. Mr. Boston argues that the trial court's enhancement ofhis sentence based on the jury finding must be reversed where the court's instructions to thejury defined "school bus," yet the State failed to present any evidence that buses using the bus stop relied upon by the State satisfied the definition. Question 1 on the special verdicts relied upon for the school bus stop enhancements asked in relevantpart whether the State had proved beyond a reasonable doubt that the defendantpossessed or delivered a controlled substance "within one thousand feet ofa school bus route stop designated by a school district." CP at 268,270. Thejurors had been given the following instructions to guide them in answering question 1to the special verdict forms:

13No. 29658-0-111 State 

### v. Boston
INSTRUCTION NO. 26 You will also be given a special verdict form for the crimes charged in counts 3 and 5. Ifyou find the defendantnot guilty ofthese crimes or guilty ofa lesser offense, do not use the special verdict form. Ifyou find the defendant guilty ofthese crimes, youwill then use the special verdict form and fill in the blanks with the answer "yes" or**~'no"** accordingtothe decision youreach. The special verdict form for these offenses has two questions. Becausethis is a criminal question, all twelve ofyou must agree in orderto answer each question. The first question will askyou to considerthe place where the crime occurred. Forthis question, the State has the burden ofproofbeyond a reasonable doubt. An earlier instruction defines this burden ofproof. INSTRUCTION NO. 27 "Schoolbus" means a vehicle that meets the following requirements: (1) has a seating capacity ofmore than ten persons includingthe driver; (2) is regularly usedto transport students to and from school or in connection with school activities; and (3) is [owned and operatedby any school district] [or] [privately owned and operated under contract orotherwise with any school district] for the transportation ofstudents. Theterm does not include buses operatedby common carriers in the urban transportation ofstudents such as transportation ofstudents through a municipal transportation system. CP at 254-55 (most alterations in original). Instruction 27 was based on Washington pattemjury instruction 50.63. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50.63, at 1000 (3d ed. 2008). The instruction combines the statutory definition of"schoolbus" with
a definition contained in administrative regulations published by the superintendent of public instruction. 

### Id.

14No. 29658-0-111 State v. Boston
The State does not dispute Mr. Boston's contention that it presented no evidence ofthe seating capacity ofbuses using the school bus route stop that it relied upon to prove facts supporting the enhancement. It argues instead that the seating capacity ofa school bus is not an "element" ofany crime with which Mr. Boston was charged. Because it is only the definition ofa term relevant to a sentencing enhancement, the State argues, case law holding that the State assumes the burden ofproving otherwise unnecessary elements ofan offense when they are included without objection in the toconvict instructions should not apply. See, e.g., State v. Lee, 128 Wn.2d 151, 159,904 P.2d 1143 (1995). Such cases provide that ifinsufficient evidence is introduced attrial to prove the added element, reversal is required. Id. at 164. Retrial following reversal for insufficient evidence is "unequivocally prohibited" and dismissal is the remedy. State v. Hardesty, 129 Wn.2d 303,309,915 P.2d 1080 (1996). The law ofthe case doctrine is not limited in its application to elements instructions, however. Itprovides more generally (and has, since 1896) that "whetherthe instruction in question was rightfully orwrongfully given, it was binding and conclusive upon thejury, and constitutes upon this hearing the law ofthe case." Pepperall v. City Park Transit Co., 15 Wash. 176, 180,45 P. 743, 46 P. 407 (1896), overruledinparton othergrounds by Thornton v. Dow, 60 Wn.2d 622, 111 P. 899 (1910). Itextends to definition instructions. See Scoccolo Constr., Inc. v. City of Renton, 158 Wn.2d 506, 522-23, 145 P.3d 371 (2006) (Madsen, J., concurring) (narrow and debatable definition 15No. 29658-0-III State v. Boston
of"acting for" accepted in instructions was law ofthe case); Englehart v. Gen. Elec. Co., 11 Wn. App. 922,923,527 P.2d 685 (1974) (definition ofaccidental death was law ofthe case, no error having been assigned). Thejury was instructed that a "school bus" as used in the instructions must have a seating capacity ofmore than 10 persons including the driver. Instruction 27 was the only substantive instruction given to thejuryto guide its determination whether the State met its burden ofproof, beyond a reasonable doubt, that Mr. Bostonpossessed a controlled substance withinthe required proximity ofa designated "school bus" stop. The State raised no objection to the instruction, which thereby became the law ofthe
case. No evidence was presented regarding the seating capacity ofbuses stopping within 1,000 feet ofthe BostonlRemington home. Reversal ofthe school bus stop enhancements is required. We reverse the school bus stop enhancements. We otherwise affirm. We remand for resentencing on Mr. Boston's convictions for delivery ofa controlled substance and possession with intent to manufacture ordeliver a controlled substance in light ofreversal ofthe enhancements. A majority ofthepanel has determinedthat this opinion will not be printed in the

16 

# I ( INo. 29658-0-II1 State 

### v. Boston Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.
Siddoway, A.C.J.


### WE CONCUR:
Brown, J.
Kulik, J.



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# I t 

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