FILED 

August 22,2013 

In the Office of the Clerk of Court 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, ) 

) No. 29658-0-111 

Respondent, ) 

) 

v. 	 ) 


) 


LEONARD WILLIAM BOSTON, 	 ) UNPUBLISHED OPINION 

) 

• Appellant. ) 

SIDDOWAY, A.C.J. Leonard Boston appeals his convictions for violations of 

several provisions ofthe Uniform Controlled Substances Act, chapter 69.50 RCW. He 

challenges the trial court's determination that inculpatory statements he made to a 

Stevens County sheriffs detective were admissible at trial. He also challenges increases 

in his period of confinement based on jury findings that he challenges for instructional 

error and insufficient evidence. 

We conclude that the State presented insufficient evidence to prove two school bus 

stop enhancements in light ofthe instructions to the jury, which-whether or not 

required-were given without objection, and are therefore law ofthe case. We reverse 
No. 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 of dealing 

heroin and conducted a number of controlled buys of heroin from his sister, Gail 

Remington, at the home where she and her teenaged 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 Loster were there at the time. All four were brought into the living room 

where one ofthe detectives present read Miranda1 warnings from a card to the group 

before transporting them to jail. None was asked to sign a waiver of rights. The last 

sentence read from the card was a question, '" Having these rights in mind do you wish to 

talk to us now[?]''' Report of Proceedings (Nov. 5,2010) (RP) at 51. Mr. Boston chose 

not to make a statement. 

A couple of hours after being booked into the Stevens County jail, Mr. Boston was 

taken to a conference room to meet with Detective Brad Manke. The detective advised 

Mr. Boston of the 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). 

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No. 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 come back in a day. 

The next day, Detective Manke returned to the jail 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, 

"'I want to know about your heroin dealings.'" Id. Mr. Boston replied, '''I'm small 

time-not big time. I'm just a junkie keeping other junkies well.'" Id. The detective 

had not read Mr. Boston his Miranda rights and Mr. Boston had not stated that he wished 

to waive his rights. Mr. Boston then said his head still was not very clear and again asked 

that Detective Manke come back later. Once again, that ended the conversation. 

Detective Manke returned to the jail a day or two later. At the outset ofthat 

conversation, Mr. Boston stated, "'I'd better talk to a lawyer.'" Id. Detective Manke 

ended contact with Mr. Boston at that point. 

The State planned to offer Mr. Boston's statements at trial, so a CrR 3.5 hearing 

was conducted. The court found an implied waiver ofMiranda rights and that Mr. 

Boston's statements could be offered in evidence by the State. 

Mr. Boston was found guilty by a jury of one count of delivery of a controlled 

substance, one count ofpossession with intent to deliver a controlled substance, use of 

drug paraphernalia, and bail jumping. Mr. Boston's statements to Detective Manke were 

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No. 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, if at all, in sales to the confidential informant. 

The jury was asked by special verdict whether Mr. Boston's delivery and 

possession with intent to deliver occurred within 1,000 feet of a school bus stop. Proof of 

sales in that proximity of a school bus stop may be relied upon to double the term of 

imprisonment otherwise provided for the crime. RCW 69.50.435(1)(c). The jury 

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 the jury 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 of school buses stopping 

near the BostoniRemington home. Mr. Boston concedes that his second assignment of 

error fails in light of the 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 of error in tum. 

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No. 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 Fifth Amendment unless the State can show 

that before the statements were made there was a knowing, voluntary, and intelligent 

waiver ofthe person's Fifth Amendment 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 Fifth Amendment must be suppressed. State v. 

Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995). 

"The waiver inquiry 'has two distinct dimensions': waiver must be 'voluntary in 

the sense that it was the product of a free and deliberate choice rather than intimidation, 

coercion, or deception,' and 'made with a full awareness ofboth the nature ofthe right 

being abandoned and the 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 serving the 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 

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No. 29658·0·111 

State v. Boston 

respond when asked if having these rights in mind, do you wish to say 

anything. The detectives did not question any of the 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'd had civil, non· 

confrontational conversations in the past. ... 

F. Detective Manke advised Mr. Boston what the 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 the jail 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-not big time. I'm just a junkie keeping other junkies well." 

Mr. Boston then said that his head still wasn't very 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 at Mr. Boston's request. 

H. Detective Manke returned again on May 16, or May 17. Mr. 

Boston stated at the outset, "I'd better talk to a lawyer." Detective Manke 

ended the contact. 

CP at 273· 75. 

From these findings of fact, the trial court concluded that Mr. Boston did not 

expressly waive his Miranda rights, but that he waived them by implication: he was 

informed of his rights, he understood them, and he then chose to offer information. It 

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No. 29658-0-III 

State v. Boston 

found that the waiver was evident on May 14 and 15, only to be terminated on May 16 or 

17. Although the court concluded that the detective's statement "I want to know about 

your heroin dealings" was interrogation, it concluded that the State had proved by a 

preponderance of the evidence that Mr. Boston's incriminating statements were 

voluntary. 

Mr. Boston assigns error to the trial court's finding of fact that Detective Manke 

returned to the jail for the second interview at Mr. Boston's request. He assigns error to 

the court's conclusions that he waived his Miranda rights by implication; that he was 

informed of his rights, he understood his rights, and then chose to volunteer information. 

He also assigns error to the court's conclusions that the waiver was evidenced on May 14 

and 15, and that Mr. Boston never indicated anything other than a willingness to speak to 

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 of fact entered following the CrR 3.5 hearing as verities on 

appeal if unchallenged, and, if challenged, treat them as verities if supported 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 of sufficient quantity that a rational fair-minded person could 

believe the finding to be true. State v. Hill, 123 Wn.2d 641,644,870 P.2d 313 (1994). 

Credibility determinations are the prerogative of the trial court and are not subject to 

7 

No. 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 of fact. 

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 of error to the trial court's findings 

of fact: his challenge to the finding that Detective Manke returned to the jail on May 15 

at Mr. Boston's request.2 Detective Manke testified at the CrR 3.5 hearing; Mr. Boston 

did not. The following testimony by the detective was relevant to the trial court's 

finding: 

Q ... [Y]ou did tell him you wanted to talk to 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. And that was 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 get your 

side ofthe story" type thing. I don't remember the exact words. 

Q Okay. 

A He asked me to come back the next day. 

RP at 67-68. 

Q You'd indicated that the suspect Mr. 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). 

8 

No. 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 whether he wanted to talk to you? 

Actually the first two times that I tried to talk to him he told me to 

come back. So he seemed certain that he wanted me to come back. 

And then the third time he-told me he wanted to talk to an attorney; 

so he was certain about that. 

Id at 76. 

At the 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 of Mr. Boston's statement, the trial court was 

in the best position to evaluate the evidence of surrounding circumstances and assess the 

credibility of the 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 and had had civil, 

nonconfrontational conversations in the past. 

Turning to Mr. Boston's challenges to the trial court's conclusions, the trial court's 

conclusion that Mr. Boston was informed of his rights is supported by the unchallenged 

finding that Detective Ashley read Miranda warnings to Mr. Boston and the others 

9 

No. 29658-0-111 

State v. Boston 

present at the home in the early afternoon ofMay 14, at the time the search warrant was 

being executed. 

Mr. Boston nonetheless argues that the initial warnings were not sufficient because 

he told Detective Manke he did not want to speak on May 14, the detective respected his 

wishes at that time, and the detective's right to resume questioning was governed by case 

law holding that questioning can be resumed only "after a 'significant period' oftime has 

passed [and] only ifthe accused's original request to cut off questioning was 

'scrupulously honored' and he is provided with a fresh set ofMiranda warnings 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. The trial court's finding in that case was that the defendant, upon being visited 

in the hospital by his attorney, 

"was advised ofhis constitutional right to remain silent and the defendant 

determined that he wanted to exercise his right to remain silent; defense 

counsel at that time advised Officer Covington ofKing County 

Rehabilitative Services who was guarding the defendant that the defendant 

did not want to talk to police." 

38 Wn. App. at 234. An accused who wants to invoke his or her 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 that he 

wanted to talk to Detective Manke and asked the detective to come back in a day," does 

10 

No. 29658-0-111 

State v. Boston 

not present an unequivocal invocation of the right to remain silent. Cf United States v. 

Al-Muqsit, 191 F.3d 928,936 (8th Cir. 1999) (right to remain silent was not invoked by 

accused's statements that he "'wasn't ready to talk ... at that time'" and '''I don't think 

right now"'), vacated in part on other grounds on reh 'g sub nom. United States 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 need to figure some things out,'" 

not an unequivocal assertion of right to remain silent); People v. Martinez, 47 Cal. 4th 

911,945,224 P.3d 877,105 Cal. Rptr. 3d 131 (2010) ('''I don't want to talk 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 other unchallenged findings, not 

reproduced above, that when being read his rights Mr. Boston did not show confusion or 

fear and did not show any signs of being under the influence of heroin, other controlled 

substances, or alcohol. 

The next conclusion challenged by Mr. Boston is that he impliedly waived his' 

rights. "[A] waiver ofMiranda rights may be implied,through 'the defendant's silence, 

coupled with an understanding of his rights and a course of conduct indicating waiver.'" 

Berghuis, 130 S. Ct. at 2261 (quoting North Carolina v. Butler, 441 U.S. 369, 373,99 S. 

Ct. 1755,60 L. Ed. 2d 286 (1979)); State v. Terrovona, 105 Wn.2d 632, 646-47, 716 P.2d 

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No. 29658-0-111 

State v. Boston 

295 (1986) (implied waiver may be found where the defendant is informed of his 

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 did not 

expressly invoke his right to remain silent after being read Miranda warnings, that he 

stated he understood his rights, that he stated later that afternoon that he wanted to talk to 

Detective Manke and told him to come back 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 requirement that his waiver be ''voluntary'' in the sense of being the 

product of choice, Mr. Boston has not challenged any ofthe trial court's findings that his 

statement was not the result ofintimidation, coercion, or deception.3 Those findings are 

sufficient to support the 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. But that conclusion was 

unnecessary to the trial court's determination that Mr. Boston's statement was 

admissible; it is enough that in responding to interrogation, Mr. Boston had been read his 

rights, understood them, impliedly waived them, and provided answers voluntarily. 

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No. 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 of error is that insufficient evidence supported 

the jury's finding by special verdict that Mr. Boston possessed a controlled substance 

within 1,000 feet of a school bus stop designated by a school district, with the intent to 

manufacture or deliver the controlled substance. RCW 69.50.435(l)(c) provides 

increased periods of confinement under such circumstances. 

Mr. Boston argues that the trial court's enhancement of his sentence based on the 

jury finding must be reversed where the court's instructions to the jury 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 relevant part whether the State had proved beyond a reasonable 

doubt that the defendant possessed or delivered a controlled substance "within one 

thousand feet of a school bus route stop designated by a school district." CP at 268,270. 

The jurors had been given the following instructions to guide them in answering 

question 1 to the special verdict forms: 

13 
No. 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. If you find the defendant not guilty ofthese crimes or 

guilty of a lesser offense, do not use the special verdict form. Ifyou find 

the defendant guilty ofthese crimes, you will then use the special verdict 

form and fill in the blanks with the answer "yes" or ~'no" according to the 

decision you reach. 

The special verdict form for these offenses has two questions. 

Because this is a criminal question, all twelve ofyou must agree in order to 

answer each question. 

The first question will ask you to consider the place where the crime 

occurred. For this question, the State has the burden ofproof beyond a 

reasonable doubt. An earlier instruction defines this burden of proof. 

INSTRUCTION NO. 27 

"School bus" means a vehicle that meets the following requirements: 

(1) has a seating capacity of more than ten persons including the driver; (2) 

is regularly used to transport students to and from school or in connection 

with school activities; and (3) is [owned and operated by any school 

district] [or] [privately owned and operated under contract or otherwise 

with any school district] for the transportation of students. The term does 

not include buses operated by common carriers in the urban transportation 

ofstudents such as transportation of students 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 "school bus" with 

a definition contained in administrative regulations published by the superintendent of 

public instruction. Id. 

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No. 29658-0-111 

State v. Boston 

The State does not dispute Mr. Boston's contention that it presented no evidence 

of the seating capacity of buses using the school bus route stop that it relied upon to 

prove facts supporting the enhancement. It argues instead that the seating capacity of a 

school bus is not an "element" of any crime with which Mr. Boston was charged. 

Because it is only the definition of a term relevant to a sentencing enhancement, the State 

argues, case law holding that the State assumes the burden of proving otherwise 

unnecessary elements of an 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 if insufficient evidence is introduced at trial 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 of the case doctrine is not limited in its application to elements 

instructions, however. It provides more generally (and has, since 1896) that "whether the 

instruction in question was rightfully or wrongfully given, it was binding and conclusive 

upon the jury, and constitutes upon this hearing the law of the case." Pepperall v. City 

Park Transit Co., 15 Wash. 176, 180,45 P. 743, 46 P. 407 (1896), overruled in part on 

other grounds by Thornton v. Dow, 60 Wn.2d 622, 111 P. 899 (1910). It extends to 

definition instructions. See Scoccolo Constr., Inc. v. City ofRenton, 158 Wn.2d 506, 

522-23, 145 P.3d 371 (2006) (Madsen, J., concurring) (narrow and debatable definition 

15 

No. 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 of accidental death was law ofthe 

case, no error having been assigned). 

The jury was instructed that a "school bus" as used in the instructions must have a 

seating capacity of more than 10 persons including the driver. Instruction 27 was the 

only substantive instruction given to the jury to guide its determination whether the State 

met its burden ofproof, beyond a reasonable doubt, that Mr. Boston possessed a 

controlled substance within the required proximity of a designated "school bus" stop. 

The State raised no objection to the instruction, which thereby became the law of the 

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 of a controlled substance and 

possession with intent to manufacture or deliver a controlled substance in light of reversal 

ofthe enhancements. 

A majority of the panel has determined that this opinion will not be printed in the 

16 I 

( 

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No. 29658-0-II1 

State v. Boston 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

Siddoway, A.C.J. 

WE CONCUR: 

Brown, J. 

Kulik, J. 

f 

17 I 

t 

t