### FILED AUGUST 15, 2013 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THECOURTOF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 30220-2-III ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) JONA RENEEZEIGLER, ) ) Appellant. ) KULIK,

### J.
- JonaRenee Zeigler appeals herconviction for attemptingto elude a pursuingpolicevehicle. A CrR3.5 hearing was heldto assess the incriminating statements Ms. Zeiglermadeto an officerwhile she was inthe hospital recovering from injuries she suffered duringthe incident. Ms. Zeigler did not appear atthe hearingbut
was represented by her counsel. The statements were admitted. Ajury found Ms. Zeigler guilty ofattemptingto elude. She contends that her absence from the CrR3.5 hearing violated herrighttobepresent at all critical stages oftrial proceedings. She also alleges ineffective assistance ofcounsel.No. 30220-2-III State v. Zeigler
We conclude that Ms. Zeigler fails to establish a manifest error and she waived her right to bepresent atthe CrR 3.5 hearing. Her counsel was effective. Therefore, we affirm the conviction. FACTS Corporal Thomas Tufte approached 

### JonaZeigler while she was sitting in her truck in aparking lot near downtown Moses Lake. Corporal Tuftetold herthere was a warrant for her arrest, andthat she was not free to go. After an additional conversation, Ms. Zeiglertold him'" I'm not going,'" backedup her truck, and then drove out ofthe parking lot. Report ofProceedings (Aug. 24 & 25, 2011) (RP) at l39. Corporal Tufte got into his patrol car and followed her. Duringthe pursuit, Corporal Tufte activatedhis siren. After turning on a residential street, Ms. Zeigler attempted to get out ofthe moving truck. She slipped, grabbedthe steering wheel andtriedto getback into the truck. As thetruck bounced off the curb, Ms. Zeigler lost her grip and fell. The truck continued to roll until it high centered on a chain link fence. Ms. Zeigler becamepinned underthe rear wheel ofher vehicle. Nearby neighbors came to the assist Corporal Tufte in getting Ms. Zeigler out from underneath the truck. After he had moved her away from the truck, Corporal Tufte found
2No.30220-2-III 

### State v. 

### Zeigler
Ms. Zeigler had apulsebut was not breathing. An ambulance took Ms. Zeiglerto a nearby hospital, where Detective Kurt Adkinson interviewed her 10 days later. The State charged Ms. Zeigler with attemptingto elude andreckless endangennent and sought an exceptional sentence based on an allegation ofendangennent by eluding. The Stateproposed to introduce statements by Ms. Zeigler allegedly made to Corporal Tufte and Detective Adkinson. The trial court conducted a suppression hearing at which Ms. Zeigler did not appear. Defense counsel told the court that she had asked Ms. Zeiglerto bepresent, but
was prepared to proceed given the nature ofthe hearing. The court did not question the
reason for Ms. Zeigler's absence. The hearing proceeded without Ms. Zeigler. Atthe outset ofthe suppression hearing, defense counsel told the court that she
was not challenging the admissibility ofMs. Zeigler's statements to Corporal Tufte because she did not believe that her client was in custody at the time. She offered to stipulate to the admissibility ofthe statements in her client's absence, but ultimately agreed to the admissibility ofa transcript ofthe corporal's previously recorded statement The trial court found that defense counsel had stipulated to the admissibility ofMs. Zeigler's statements to Corporal Tufte.



### 3

### No. 30220-2-111 State v. Zeigler


### As to the statements to Detective Adkinson, Ms. Zeigler contended that she was heavily medicated at the time she was questioned by Detective Adkinson and not capable offully understanding her statements or the Miranda! 

### warnings. The trial court found that Ms. Zeigler's coherent and thoughtful responses to Detective Adkinson's questions demonstrated that her waiver ofrights was knowing and voluntary. The court ruled that her statements to law enforcement officers were admissible. Five days later, Ms. Zeigler appeared at a hearing on the State's motion to amend the information. The trial court did not ask her anything about her failure to appear at the suppression hearing nor did Ms. Zeiglermention hernonappearance. Ms. Zeigler also did not object when the findings offact and conclusions oflaw from the suppression hearing
were presented to the court on the first day oftrial. Ms. Zeigler appeared at a readiness hearing on Monday, August 22. Ms. Zeigler acknowledged that she should be ready to proceedto trial on Wednesday. Thetrial began
as scheduled on Wednesday, August 24. Duringthe State's case, Corporal Tuftetold thejurythat Ms. Zeigler initially lied about her identity and that as she began to drive away, she said to Corporal Tufte, "'No,
rmnot going.'" RP at 139. Detective Adkinson related several ofMs. Zeigler's

1Miranda v. Arizona, 

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

### No.30220-2-III 

### State v. 

### Zeigler

statements made during his interview with her, including her admission that she told Corporal Tufte that she '"can'tgo tojail'" and was '"going to try and run.'" RP at 196, 198. Ms. Zeigler testified at trial. Her trial testimony did not address the statements made to the officers. Instead, Ms. Zeigler testified that she left the parking lot quickly. About one-halfmile later, she saw the officer was following her with his lights on. She said she knew the officerwas behind her but was ignoring his signal. She also said that she thought about stopping buther husband needed her care at home. Ajury found Ms. Zeigler guilty ofeluding and answered "yes" on the special verdict form that Ms. Zeigler's actions ofeluding threatened otherpersons with physical injury orharm. Ms. Zeigler appeals. ANALYSIS Whether a defendant's constitutional right to be present has been violated is a question oflaw reviewed de novo. 

### State v.lrby, 170 Wn.2d 874, 880,246 P.3d 796 (2011). In reviewing atrial court's decision regarding whether a defendant is voluntarily absent from trial, we apply an abuse ofdiscretion standard. 

### State v. 

### Garza, 150 Wn.2d 360, 365-66, 77 P.3d 347 (2003). The determination whether the defendant is voluntarily
5No. 30220-2-111 State v. Zeigler
absent from trial is dependent upon an inquiry into the facts and the totality ofthe circumstances, and the trial court is in a betterposition than the appellate court to pass on the question. Id. at 366. An abuse ofdiscretion occurs when a trial court's decision is manifestly unreasonable oris based on untenable grounds orfor untenable reasons. Id. (quotingState v. Woods, 143 Wn.2d 561,626,23 P.3d 1046 (2001)). erR 3.5Suppression Hearing. Generally, appellate courts will not consider an issue raised for the first time on appeal unless the issue involves a manifest error affecting
a constitutional right. State v. McFarland, 127 Wn.2d 322,333,899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3)). The burden is on the defendant to "identifY a constitutional
error and show how, in the context ofthe trial, the alleged error actually affected the defendant's constitutional rights; it is this showing ofactual prejudice that makes the
error 'manifest', allowing appellate review." Id. "[P]ermitting everypossible constitutional error to be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful ofthe limited resources ofprosecutors, public defenders and courts." State v. Lynn, 67 Wn. App. 339,344, 835 P.2d 251 (1992). A criminal defendant has a constitutional right to be present at all critical stages of the proceedings. UnitedStates v. Gagnon, 470 U.S. 522,526, 105 S. Ct. 1482,84 L. Ed.


### 6

### No.**30220~2~III** State v. Zeigler


### 2d 486 (1985). "The core ofthe constitutional rightto be present is the right to be present when evidence is being presented." In re Pers. Restraintof Lord, 

### 123 Wn.2d 296, 306, 868 P.2d 835 (1994). A defendant may waive his rights under the constitution, provided that such waiver is voluntary, knowing, and intelligent. State v. Thomson, 

### 123 Wn.2d 877,880, 872 P.2d 1097 (1994). Constitutional rights can be waived by conduct. State v. Myers, 

### 86 Wn.2d 419,**426~27,** 

### 545 P.2d 538 (1976). Voluntarily absenting oneselffrom
a proceeding may waive a defendant's right to be present. See Taylor v. UnitedStates, 

### 414 V.S. 17,20,94 S. Ct. 194,38L. Ed. 2d 174 (1973). Washington requires courts to conduct a hearingpursuantto CrR 3.5 to determine the admissibility ofa defendant's statements to law enforcement. State 

### v. Williams, 

### 137 Wn.2d 746,**749~50,** 

### 975 P.2d 963 (1999). A CrR 3.5 hearing tests the voluntariness ofan incriminating statementprior to its admission at trial. Williams, 

### 137 Wn.2d at 754. Even after incriminating statements are admitted following a CrR 3.5 hearing, a defendant is not precluded from presenting evidence that casts doubt on the credibility or weight to be given to the statements. CrR 3.5(d). "Aviolation ofthe due process right to be present is subject to harmless error analysis." Irby, 

### 170 Wn.2d at 885. '" [T]heburden ofproving harmlessness is on the State and it must do so beyond a reasonable doubt.'" Id. 

### at 886 (quoting State v.


### 7

### No.30220-2-III State 

### v. Zeigler Caliguri, 

### 99 Wn.2d 501,509,664 P.2d 466 (1983)). Ms. Zeigler contends that the trial court violated her due process right to be present at all critical stages ofthe trial proceedings by conducting the erR3.5 hearing in her absence. She maintains that the evidence fails to establish a knowing, voluntary, and intelligent waiver ofher rights. She also contends that this error is not harmless because she could have objected at the hearing to the testimony regarding her confessional statements. Ms. Zeigler**~aises** 

### this due process challenge for the first time on appeal. Despite several other complaints, Ms. Zeiglernever approached the trial court with the issue of her absence from the erR3.5 hearing. The preliminary question is whether Ms. Zeigler raises a manifest error affecting a constitutional right. 

### In this situation, Ms. Zeigler's erR3.5 hearing is a critical stage ofthe trial proceedings because it involved the taking oftestimony. Detective Adkinson testified at the hearing regarding Ms. Zeigler's confessional statements, and the trial courtruled that this evidence was admissible. Ms. Zeigler's alleged error involves a constitutional right. However, the trial court's decision to conduct the hearing without Ms. Zeigler's presence was not a manifest error. Ms. Zeigler fails to show actual prejudice from the
error. Ms. Zeigler's constitutional right to have incriminating statements assessed was


### 8No. 30220-2-III State 

### v. Zeigler protected despite her absence. Ms. Zeigler's attorney represented her and questioned Detective Adkinson aboutMs. Zeigler's statements. Moreover, Ms. Zeigler does not establish how the outcome ofthe hearingwould have been different with herpresence. There is no indication that the court's findings and conclusions from the hearing were erroneous or would not have been admissible at trial. Ms. Zeigler does not assign error to the trial court's findings from the erR 3.5 hearing. Nor did Ms. Zeigler objecttothe entry ofthese findings, even though she was in the courtroom when her attorney presentedthe findings and conclusions from the erR 3.5 hearing to the trial court. Ms. Zeigler did not contradict Detective Adkinson's testimony at trial. In sum, no actual prejudice resulted from Ms. Zeigler's absence because she was afforded the right to have her incriminating statements assessed, and she does not contend that the statements are false. She fails to establish a manifest error? Even ifwe were to decide that Ms. Zeiglerraises a manifest error affecting a constitutional right, her contention still fails. Under the circumstances, the trial court did not err in conducting the erR 3.5 hearing despite Ms. Zeigler's absence. Ms. Zeigler voluntarily waived her right to be present, as evidenced through her conduct. Ms. Zeigler knew ofthe hearing and failed to appear. She was not in custody. Ms. Zeigler's attorney

2ButseeIrby, 170 Wn.2d 874. 9No.30220-2-III 

### State v. 

### Zeigler implied thatMs. Zeigler was waving her right to appear by telling the trial courtthat it shouldproceedwithoutMs. Zeigler, given the nature ofthe hearing. When Ms. Zeigler appeared at the next courtproceeding, she did not offer an explanation for her absence or objecttothe hearing beingheld. Nor did she complain at trial when the findings and conclusions from the CrR 3.5 hearing were presentedto the court. There is no prejudicial effect from the trial court's failure to question Ms. Zeigler
as to whether she knowingly, voluntarily, and intelligently waived herrightto be present duringthe CrR 3.5 hearing. As we have previously stated, Ms. Zeigler's attorney made her arguments for suppression ofthe statements. Ms. Zeigler did not contest any ofthe fmdings or conclusions ofthe trial court from the CrR 3.5 hearing or contradict Detective Adkinson'stestimony. Ms. Zeigler does not establishthatherpresence at the hearing would have changed the evidence presented at trial orthe outcome ofhertrial. In any case, the errorwas harmless. The outcome ofMs. Zeigler's trial would not have been different ifshewaspresent at the CrR 3.5 hearing. Corporal Tufte's statements were still admissible at trial. Ms. Zeigler's attorney told the courtthat she did notplan on contesting the statements because the statements were not made while Ms. Zeiglerwas in custody. Corporal Tufte's statements establishedthatMs. Zeiglerknew she was not free to leave when she exitedthe parking lot.
10No.30220-2-III State v. Zeigler
As for the statements made toDetectiveAdkinson, even ifMs. Zeigler's presence would have somehow convincedthe courtto suppress these statements, there was still ample evidence to support the verdict that Ms. Zeigler attempted to evade the police. In addition to Corporal Tufte's testimony, Ms. Zeiglertestified that she was aware that a police car was following her and that she did not stop. Thevideotape ofthe police pursuit also establishedthat Ms. Zeigler failed to stop for police. Ms. Zeigler's absence at the suppression hearingwas a harmless error beyond a reasonable doubt. We decline to review Ms. Zeigler's alleged error for the first time on appeal because she fails to establish a manifest error affecting a constitutional right. Even ifwe
were to address Ms. Zeigler's contentionthather constitutional right to be present at all crucial stages oftrial proceedings was violated, her contention fails. Ms. Zeigler waived herrightto bepresent attheproceeding. Any alleged error is notprejudicial and is harmless. STATEMENT OF ADDITIONAL GROUNDS FORREVIEW E{(ectiveness of Counsel. In her statement ofadditional grounds for review (SAG), Ms. Zeigler claims ineffective assistance ofcounsel. Ms. Zeigler contends that defense counsel's performance was defective when counsel (1) admitted in closing arguments thatMs. Zeigler was eluding, (2) told Ms. Zeiglerthat she did not need to be
11No.30220-2-III State v. Zeigler present during the CrR 3.5 hearing, and (3) misled Ms. Zeigler aboutthe date ofthe trial, causingMs. Zeigler to rush horne from an out-of-townjob opportunity. To establish ineffective assistance ofcounsel, two prongs need to be satisfied: (1) counsel's conductmust be deficient, and (2) counsel's acts must have prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "[S]crutiny ofcounsel's performance must be highly deferential." 

### Id. at 689. Where the evidence ofguilt on a particular count is overwhelming and there is no
reason to suppose that anyjuror doubts it, conceding guilt on that count in closing can be
a sound trial tactic. State v. Silva, 106 Wn. App. 586, 596, 24 P.3d 477 (2001) (quoting Underwood v. Clark, 939 F.2d473,474 (7th Cir. 1991)). This approach may help win thejury's confidence, preserve the defendant's credibility, and lead thejurytoward leniency by conceding thatthe defendant is guilty ofa lesser charge. See id. at n.37. If the concession is a matter oftrial strategy ortactics, it is not ineffective representation. 

### Id. at 599. We conclude that Ms. Zeigler fails to establish that defense counsel was ineffective. Defense counsel's statement during closing argument was not unreasonable. Defense counsel could not deny the allegation ofattempting to elude because Ms. Zeigler admitted to all ofthe elements ofthe offense in hertestimony. Also, the videotape
12No. 30220-2-III State v. Zeigler
evidence clearly showed Ms. Zeigler's failure to stop. Atthis point, it is reasonable to concludethat defense counsel's strategy was to minimize the impact ofthe evidence by admitting thatthe evidence established the offense ofeluding, butdenyingthatthe evidence supported the recklessness charge orthe special allegation ofendangerment. This strategy offocusing on charges where reasonable doubt could be established was a sound trial tactic. The strategy was effective, as Ms. Zeigler was found not guilty of reckless endangerment. As for the erR 3.5 hearing, the record does not establish that defense counsel advised Ms. Zeigler that she did not needto attend. However, even ifthis was true, defense counsel did not act unreasonably in advising Ms. Zeigler. Ms. Zeigler'spresence would nothave changed the outcome ofthe proceeding. The testimony would still have been admitted. Thetrial courtrecognized the clear admissibility ofthe statements. Defense counsel was reasonable in telling Ms. Zeiglerthatherpresence was not necessary. There is no prejudiceto Ms. Zeigler. The alleged confusion overthe trial date did not amount to ineffective assistance. Thetrial court addressed this issue and recognized that it could not confirmthat defense counsel advised Ms. Zeigler ofan incorrecttrial date. Even so, the court correctly found thatthe action was notprejudicial to Ms. Zeigler. The court found that Ms. Zeigler
13

### No.30220-2-II1 State 

### v. Zeigler 

### appeared at the pretrial hearing, was advised ofthe trial date, and had an obligation to appear on that date. Defense counsel's failure to confer with Ms. Zeigler immediately before trial does not establish ineffective assistance ofcounsel. Defense counsel presented a coherent argument and was well prepared. Ms. Zeigler was notprejudiced by the alleged error. Defense counsel effectively represented Ms. Zeigler. Jury Instructions. 

### Next, Ms. Zeigler contends thatthejury confused the instruction on reckless endangermentwith the instruction on the special allegation of endangerment on the eluding charge. She contends thatthe instructions appearto charge hertwice for the same offense and thejury's confusion may have resulted in Ms. Zeigler being convicted ofthe wrong offense. Ms. Zeigler did not object to thejury instructions at trial.Generally, a defendant's failure to object tojury instructions at trial results in a waiver ofthe right to challenge the instruction on appeal. However, an error may be raised for the first time on appeal ifit '" invades a fundamental right ofthe accused.' " State 

### v. Levy, 

### 156Wn.2d709, 719, 132 P.3d 1076 (2006) (quoting State 

### v. Becker, 132 

### Wn.2d 54, 64,935 P.2d 1321 (1997)). Also, a doublejeopardy violation is an error of constitutional magnitude and can be raised for the first time on appeal. State 

### v. Mutch,


### 14No. 30220-2-111 State 

### v. Zeigler
171 Wn.2d 646,661,254PJd 803 (2011). The constitutional guaranty against double jeopardyprotects a defendant against multiple punishments for the same offense. U.S. CONST. amend. V; CONST. art. I, 

### § 9. Ms. Zeigler failed to objectto thejury instructions at trial. Thus, she waived her right to challenge thejury instructions on appeaL Admittedly, Ms. Zeigler alludes to a doublejeopardyviolation in her challenge tothejury instructions. However, no double jeopardyviolation occurred because she was not convicted ofboth ofthe separate charges. Thejury answered affirmatively on the special endangerment allegation, but found Ms. Zeigler not guilty ofthe count ofreckless endangerment. Thus, she did not receive multiplepunishments for the same offense. In her last SAG issue, Ms. Zeigler suggests that she cannotbe found guilty of eluding ifthe act takes place onprivate property. Ms. Zeigler does not cite to legal authority to support this position. In any case, the eluding statute does not require the offense to occur onpublic highways. Ms. Zeiglerwaived herright to challenge thejury instructions on appeal.

15No.30220-2-II1 State v. Zeigler
We affirm the conviction. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Kulik, J. WE CONCUR: 

## ("J

# Sidd~LlrKorsmo, C.J.

16