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

Respondent,

v. D AVID KALANI GRAY aka DAVID KALANI TYACKE,

Appellant. )

) ) ) ) ) ) ) ) ) No. 36961

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UNPUBLISHED OPINION

P ENNELL , C. J.

— David Kalan i Gray appeals his judgment and sentence for felony driving under the influence (DUI). We affirm. FACTS The Okanogan County s heriff stopped Mr. Gray after a concerned citizen called 911 and reported Mr. Gray for driving erratically. Among other things, the concerned citizen saw Mr. Gray swerving over the roadway and driving up onto a sidewalk, where he struck a retaining wall. While responding to the call , the s heriff also observed some erratic driving , although he did not witness any violations of the rule s of the road. FILED JULY 28, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division IIINo. 36961

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State v. Gray

2 When the s heriff contacted him, Mr. Gray appeared disoriented. He s melled of intoxicants. His eyes were bloodshot and watery. His speech was slurred. Field sobriety tests indicated an impairment consistent with intoxication. The s heriff aske d Mr. Gray to perform a voluntary portable breath test (PBT) ; he declined. Mr. Gray was then arrested for DUI

. At the jail, Mr. Gray was questioned further and also offered an evidentiary breath test (EBT). Mr. Gray admitted to a modest amount of drinking, but denied he had been driving. He declined the EBT. Mr. Gray was then booked and cited for DUI. The State cha rged Mr. Gray with felony DUI based on his prior conviction for vehicular assault. The case proceeded to a jury trial. The State presented testim ony from the 911

- caller and the s heriff

. During his testimony, the s heriff told jurors Mr. Gray ref used both the PBT and the EBT. During the PBT testimon y, both the prosecutor and the s heriff emphasized that Mr. Gray was wi thin his right to refuse testing

. In summation, the State referenced Mr. Gray’s refusal to take a breath test. Although the State did not explicitly state whether the refusal pertained to the PBT or EBT, the State referenced the refusal while discussing Mr. Gray’s jail interview. That was the time period when Mr. Gray was offered the EBT.No. 36961

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State v. Gray

3 The jury convicted Mr. Gray as charged. At sentencing, the parties submitted a stipulated statement of criminal history. The stipulation was signed by the prosecutor, defense counsel, and Mr. Gray. In add ition to h is signature, Mr. Gray initialed an acknowledgement that “each of the listed criminal convictions contained within this document count in the computation of the offender score and sentencing range

. ” Clerk’s Papers at 127. Based on the stipulation , the court calculated Mr. Gray’s offender score as

a 9+ , resulting in a standard range of 63 to 84 months

. Mr. Gray received a sentence near the bottom of this range. Mr. Gray appeals

. ANALYSIS Sufficiency of the e vidence Mr. Gray claims the evidence at trial was insufficient to justify the jury’s guilty verdict. We disagree. The evidence at Mr. Gray’s trial not only permitted the jury’s finding of guilt , State v. Cardenas

- Flores , 189 Wn.2d 243, 265, 401 P.3d 19 (2017) (appellate review of a sufficiency c hallenge asks whether, “viewing the evidence in the light most favorable to the State,” any rational trier of fact “could find the elements of the charged crime beyond a reasonable doubt”) , it was overwhelming. The un contradicted trial evidence showed Mr. Gray was driving in an erratic manner and exhibited obviousNo. 36961

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State v. Gray

4 signs of intoxication immediately after exiting his vehicle. While there was no evidence of Mr. Gray’s blood alcohol con centration , this was not required for conviction. See RCW 46.61.502(1)(c). M r. Gray’s challenge to the evidence ’s sufficiency fails. PBT refusal For the first time on appeal, Mr. Gray claims the s heriff’s testimony regarding his PBT refusal violated his constitutional right not to have the exercise of a constitutional right be use d against him at trial. See City of Vancouver v. Kaufman , 10 Wn. App. 2d 747,
763

- 64, 450 P.3d 196 (2019). Generally , errors not raised at the time of trial are not preserved for appellate review. RAP 2.5(a). There is an exception for manifest constitution al errors. RAP 2.5(a)(3). But to be manifest an error it “must have practical and identifiable consequences apparent on the record that should have been reasonably obvious to the trial court.” State v. O’Hara , 167 Wn.2d 91, 108, 217 P.3d 756 (2009)

. Here, there was no manifest constitutional error. Although the s heriff mentioned Mr. Gray’s PBT refusal during trial, it was not obviously admitted as substantive evidence of guilt. The PBT refusal was only given brief mention and both the prosecutor and the s he riff clarified that Mr. Gray was simply exercising his rights. It was the EBT refusal, not the PBT refusal that was referenced in the State’s summation as indicative ofNo. 36961

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State v. Gray

5 guilt. This reference was constitutionally permissible. State v. Baird , 187 Wn.2d 210, 226, 386 P.3d 239 (2016)

. Even if the brief reference to the PBT refusal constituted manifest constitutional error, it was nevertheless harmless beyond a reasonable doubt. The PBT refusal was cumulative of the later EBT refusal. As such, there was no reaso nabl e possibility that the jury relied on the PBT evidence in reaching its guilty verdict. See State v. Guloy , 104 Wn.2d 412, 426, 705 P.2d 1182 (1985). Furthermore, the overwhelming strength of the State’s case stemmed not from the evidence of test refusa l, but the affirmative signs of intoxication : Mr. Gray’s erratic driving, odor of intoxicants, slurred speech, and poor performance on field sobriety tests. His challenge o n constitutional grounds fails. Offender s core v alue Mr. Gray argues that the State did not prove his offender score because the statement of criminal history presented at sentencing included old offenses that could have wa shed out under RCW 9.94A.525(2). This claim fails because Mr. Gray affirmative ly acknowledg e d his offender score by initialing the criminal history statement that all listed offenses could be properly included in his offender score

. State v. Ross , 152 Wn.2d 220, 233, 95 P.3d 1225 (2004) (defendant’s “affirmative acknowledgement” that a conviction may be used in offender score calculation relieves state of burden of proof)

.No. 36961

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State v. Gray

6 T he State was therefore relieved of its burden to prove that various listed offenses had not washed out. If Mr. Gray’s stipulation was signed in error, then this is something that must be raised in a p ersonal restraint petition, supported by accompanying admissible facts.
State v. McFarland , 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). It is not a matter for direct review. CONCLUSION The judgment of conviction is a ffirm ed

. A majority of the panel has de termined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

_________________________________ Pennell, C. J. WE CONCUR:

______________________________ Korsm o, J.

______________________________ Siddoway, J.