Filed
Washington State
Court of Appeals
Division Two
January 28, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51668-3-II
Respondent, UNPUBLISHED OPINION
v.
E.E.,
Appellant.
GLASGOW, J. —EE argues that his juvenile felony harassment conviction must be reversed
because his confession was obtained in violation of Miranda.1 The State concedes this issue but
argues that any error in admitting the confession was harmless.
We conclude that the trial court erred when it admitted EE’s confession into evidence but
hold that the error was harmless. We affirm EE’s conviction.
FACTS
One morning in third period math class in their middle school, EE, DS, and CW were
talking about some “shoot em’ up” video games like “Call of Duty.” Verbatim Report of
Proceedings, Transcript from Video CD (VRP) at 19. EE and DS were in eighth grade and CW
was in seventh grade. EE was 14 years old at the time. According to DS and CW, EE said
something like “he was going to shoot the school,” “[l]ike shoot up the school,” or “[t]hat there
was going to be a school shooting tomorrow.” VRP at 8, 13.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 51668-3-II
DS said he “[d]idn’t pay any attention really” or take the statement seriously because he
thought EE was joking and “[b]ecause [EE] says stuff like that all the time.” Id. at 8, 10. CW
likewise said that EE had made similar statements in the past, and he did not take those seriously.
This specific statement concerned CW, though, and he told the teacher. CW said: “[EE] never
said it to anybody individually” and confirmed that EE muttered the statement to himself quietly.
Id. at 17. CW said he reported the statement this time “[b]ecause I was afraid [EE] could harm a
friend or myself.” Id. at 17.
The teacher notified the principal, Jason Prather. The statement concerned Prather. Prather
said he “would take that threat seriously no matter who made it” out of concern for the safety of
his students and staff. Id. at 23. But EE also had some behavioral problems in the past. Prather
interviewed all three students. EE told Prather he did not make the statement. Prather then notified
law enforcement.
The Napavine chief of police, Chris Salyers, responded. After meeting with Prather,
Salyers obtained statements from DS and CW. They both confirmed what EE had said. Salyers
and Prather went back to Prather’s office to speak with EE. They shut the door. Prather sat behind
his desk and Salyers stood. Salyers did not place EE under arrest or read EE his Miranda warnings.
Salyers did not tell EE that he was free to leave. Nor did Prather. Prather explained: “I would not
have let [EE] go. He was going to stay in the office until I finished the investigation.” Id. at 44.
Salyers then had a short conversation with EE about what happened. Salyers said: “[EE]
was very quiet. He confirmed the statements that were made and basically said that he didn’t take
them serious and he was just kind of joking.” Id. at 28.
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Salyers arrested EE, and the State charged him with one count of felony harassment, under
the threat to kill provision under RCW 9A.46.020(2)(b)(ii). The trial court held an adjudicatory
hearing. It also held a contemporaneous CrR 3.5 hearing to determine the admissibility of EE’s
admission. For purposes of CrR 3.5, EE argued that he was in custody and he could not leave
during the interrogation. He asked the court to exclude his confession to Salyers.
The trial court made oral findings of fact and concluded that there were no disputed issues
of fact related to the interview of EE in the principal’s office. The court reasoned EE was in the
principal’s office “under direction of the principal” and “nothing that the officer did escalated that
or elevated that to the point where he was in custody.” VRP at 57. The court concluded EE was
not in custody for the purposes of Miranda. No written findings of fact or conclusions of law were
ever prepared or entered for the CrR 3.5 issue.
The witnesses testified consistent with the facts described above. The court found EE
guilty of felony harassment.
The State prepared findings of fact and conclusions of law regarding the felony harassment
charge, but EE’s counsel objected to some of the findings. The trial court told the parties the entry
of findings and conclusions needed to be specially set on the court’s calendar due to scheduling
conflicts.
EE filed this appeal before the trial court entered its findings of fact and conclusions of law
regarding the felony harassment charge, as required by JuCR 7.11(d). On appeal, the State moved
to supplement the record with the findings of fact and conclusions of law, and we granted the
motion.
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In its findings of fact and conclusions of law, the court found that EE made the alleged
threat “to return to the school with a gun and shoot students,” or “shoot[]up the school tomorrow,”
which DS and CW heard. Resp’t Mot. to Suppl. Record, at 2. CW “overheard” EE make the
comment “to himself” and did not believe the statement was “directed to any one person.” Id.,
Appx. A, at 2. The court found that DS did not take the threat seriously, and CW knew EE had
made similar threats before and did not take those seriously. But CW was “worried” about “what
would happen if [EE] returned to school” and “was concerned enough” that he told an adult. Id.
Based on EE’s history, the principal was “concerned for the safety of his school, staff and students
and contacted police.” Id. The court found that EE confirmed in his interview with the police that
he made the statement but also indicated “he was not serious about the threat.” Id.
The court entered the following conclusion of law: “The [S]tate has proven, beyond a
reasonable doubt, that: . . . On January 31, 2018; . . . [EE], knowingly and without lawful authority;
. . . [d]id threaten to kill another in the future; . . . [t]he [c]ontext of the threat was such that a
reasonable person would interpret the threat as a serious expression of [EE]’s intent to kill; and
. . . [EE]’s words and conduct placed people in fear the threat would be carried out.” Id. at 3.
ANALYSIS
A. Custodial Interrogation
1. The trial court’s failure to enter written findings of fact and conclusions of law
under CrR 3.5 was harmless
Although CrR 3.5 requires certain findings to be in writing, under State v. Grogan, “‘failure
to enter findings required by CrR 3.5 is considered harmless error if the court’s oral findings are
sufficient to permit appellate review.’” 147 Wn. App. 511, 516, 195 P.3d 1017 (2008) (quoting
State v. Cunningham, 116 Wn. App. 219, 226, 65 P.3d 325 (2003)); see also State v. France, 121
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Wn. App. 394, 401-02, 88 P.3d 1003 (2004). In France, the trial court entered written findings of
fact and conclusions of law belatedly. Id. at 401. But because the trial court explicitly stated that
there were no disputed facts and we reversed the trial court on its conclusion that the defendant’s
statements were admissible, we declined to find that the “untimely entry of findings of fact and
conclusions of law prejudiced” the defendant. Id. at 402.
Similarly, in this case, the trial court clearly explained its reasoning in its oral ruling and
plainly stated that none of the facts relevant to the CrR 3.5 issue were disputed. As in France, the
trial court’s oral ruling was sufficiently clear to permit us to review whether EE was subject to
custodial interrogation. Accordingly, the trial court’s failure to enter written findings of fact and
conclusions of law is harmless error that does not prevent review.
2. EE’s interview was custodial
EE argues that the trial court erred when it admitted his statements to law enforcement into
evidence. Specifically, he argues that he was in custody, that the officer did not provide Miranda
warnings prior to his interrogation, and therefore, that his confession should have been excluded.2
The State concedes this issue. We agree with EE and accept the State’s concession.
“The Fifth Amendment to the United States Constitution provides criminal suspects with
the right to be free from self-incrimination.” State v. Rhoden, 189 Wn. App. 193, 199, 356 P.3d
242 (2015). Thus, “Miranda warnings must be given when a suspect endures (1) custodial (2)
2
The parties do not dispute Salyers’s law enforcement presence. Nor is there any question that
the questioning constituted an “‘interrogation.’” Br. of Appellant at 4; Br. of Resp’t at 9; see State
v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988) (quoting Rhode Island v. Innis, 446 U.S.
291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)) to define interrogation for purposes of
Miranda.
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interrogation (3) by an agent of the State.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345
(2004). “Without Miranda warnings, a suspect’s statements during custodial interrogation are
presumed involuntary.” Id. Where there has been a failure to give Miranda warnings, the State
violates a defendant's constitutional rights if it seeks to introduce unwarned statements at trial.
United States v. Patane, 542 U.S. 630, 641, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004). The remedy
for failure to give Miranda warnings is the “exclusion of unwarned statements.” Id. at 641-42
(plurality opinion); id. at 644-45 (concurring opinion).
“A suspect is in custody for purposes of Miranda when ‘a reasonable person in a suspect’s
position would have felt that his or her freedom was curtailed to the degree associated with a
formal arrest.’” State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309 P.3d 728 (2013) (quoting
Heritage, 152 Wn.2d at 218). The conclusion that a suspect is not “in custody” for Miranda
purposes is a conclusion of law. See Rosas-Miranda, 176 Wn. App. at 779. Appellate courts
review “de novo whether the trial court’s conclusions of law are supported by its findings of fact.”
Id.
Both EE and the State cite to State v. D.R., 84 Wn. App. 832, 930 P.2d 350 (1997), which
is factually similar to this case. DR was a 14-year-old boy called into the school principal’s office
and questioned about alleged incest by a plain-clothes officer. Id. at 834. The officer told DR that
he did not have to answer questions, but he never informed DR that he was free to leave. Id. The
appellate court held DR was subject to a custodial interrogation. Id. at 838.
The D.R. court emphasized that the “sole question” to consider in deciding if the
interrogation was custodial was “whether a 14-year-old in D.R.’s position would have ‘reasonably
supposed his freedom of action was curtailed.’” Id. at 836 (quoting State v. Short, 113 Wn.2d 35,
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No. 51668-3-II
41, 775 P.2d 458 (1989)). The D.R. court’s conclusion that the interrogation was custodial hinged
on the fact that no one told DR he was free to leave. Id. at 838. The court identified three other
important factors: DR’s youth, the “naturally coercive nature of the school and principal’s office
environment for children of his age,” and the “obviously accusatory nature” of the interrogation.
Id.
The State correctly concedes that EE was in custody when Salyers interrogated him in
Prather’s office. Law enforcement questioned EE, who was 14, about an accusation that he had
violated the law. The questioning took place in the principal’s office. Here, as in D.R., the sole
question is whether a reasonable 14-year-old in EE’s position would have felt free to terminate the
interrogation in Prather’s office. D.R., 84 Wn. App. at 836. Prather’s office door was shut.
Although Salyers did not place EE under arrest, neither Salyers nor Prather told EE that he was
free to leave.
To the extent the trial court reasoned that EE was not in custody because it found that
Prather, rather than Salyers, was responsible for preventing EE from leaving the office, we
conclude that under D.R., that distinction is immaterial to whether or not EE was in custody. See
Id. at 836. Therefore, the fact that the principal, rather than the law enforcement officer, ordered
EE to go to and remain in his office does not change the custodial nature of the interview under
the facts of this case.
We conclude that a reasonable 14-year-old in EE’s position would have felt that his
“‘freedom was curtailed to the degree associated with a formal arrest.’” See Rosas-Miranda, 176
Wn. App. at 779 (quoting Heritage, 152 Wn.2d at 218); see also D.R., 84 Wn. App. at 836.
Therefore, EE was in custody, and Salyers was required to advise EE of his Miranda rights before
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interrogating him. In sum, we accept the State’s concession and hold that the trial court erred
when it determined EE was not in custody and admitted his confession into evidence.
B. Harmless Error
EE argues that the admission of his confession was prejudicial because the remaining
untainted evidence was not sufficient to convict him of felony harassment. The State argues that
the admission of EE’s confession was harmless error. Viewing the confession in light of the entire
record and its overall significance, we agree with the State and conclude that the erroneous
admission of EE’s confession was harmless.
1. Elements of felony harassment under RCW 9A.46.020
Under RCW 9A.46.020(1)(a)(i), (b), a person commits harassment if, “[w]ithout lawful
authority, the person knowingly threatens” to “cause bodily injury immediately or in the future to
the person threatened or to any other person,” and “by words or conduct places the person
threatened in reasonable fear that the threat will be carried out.” The State charged EE under the
statute’s felony “threat to kill” provision, which provides that the threat amounts to a class C felony
if it is a threat to kill “the person threatened or any other person.” RCW 9A.46.020(2)(b)(ii).
To comply with the First Amendment, a conviction for felony harassment based upon a
threat to kill also requires that the State satisfy a constitutional dimension by proving a true threat
was made in addition to proving the statutory elements of the crime. State v. Kilburn, 151 Wn.2d
36, 54, 84 P.3d 1215 (2004). A true threat occurs only when a reasonable person in the defendant’s
position could have foreseen that the listener would interpret the statement as a serious threat. See
State v. Trey M., 186 Wn.2d 884, 908, 383 P.3d 474 (2016). “A true threat is a serious threat, not
one said in jest, idle talk, or political argument.” Kilburn, 151 Wn.2d at 43. Whether a statement
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was a true threat or a joke is considered “in light of the entire context.” Id. at 46. Our Supreme
Court has recognized that “[t]he person to whom the threat is communicated may or may not be
the victim of the threat.” State v. J.M., 144 Wn.2d 472, 488, 28 P.3d 720 (2001).
2. Admission of EE’s statement was harmless error
“[A]dmission of an involuntary confession obtained in violation of Miranda is subject to
treatment as harmless error.” State v. Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177 (1991). The
test for whether a constitutional error is harmless is whether this court is “‘convinced beyond a
reasonable doubt that any reasonable trier of fact would have reached the same result despite the
error.’” State v. Scherf, 192 Wn.2d 350, 370, 429 P.3d 776 (2018) (quoting State v. Thompson,
151 Wn.2d 793, 808, 92 P.3d 228 (2004)); see also Reuben, 62 Wn. App. at 626 (applying the
constitutional harmless error test to the improper admission of a confession obtained in violation
of Miranda).
To make this determination, we consider “if the untainted evidence is so overwhelming
that it necessarily leads to a finding of guilt.” State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182
(1985); see also Scherf, 192 Wn.2d at 371. The State bears the burden of overcoming the
presumption that this constitutional error was prejudicial. State v. Nysta, 168 Wn. App. 30, 43,
275 P.3d 1162 (2012). The Supreme Court recently elaborated that “this inquiry requires us to
find the error harmless if, in light of the entire trial record, we are convinced that the [factfinder]
would have reached the same verdict absent the error.” State v. Romero-Ochoa, 193 Wn.2d 341,
348, 440 P.3d 994, remanded, 2019 WL 5960652 (2019). Under this test, we look to the “overall
significance of the erroneously admitted or excluded evidence in this context (e.g., whether it was
cumulative or corroborated, or consistent with the defense theory).” Id.
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Here, suppression of EE’s confession would not have changed the result of the trial. Other
witnesses testified that EE made the statement, and he did not contest this fact at trial. Instead, EE
argued that he was only joking, which was consistent with Salyers’s testimony about what EE told
him. The overall significance of the improperly admitted confession was minimal and cumulative
of properly admitted evidence. As a result, we conclude that the improper admission of EE’s
confession was harmless error.
C. Trial Court’s Delay in Entering Written Findings of Fact and Conclusions of Law, as
Required by JuCR 7.11(d)
EE also asks us to reverse and remand on the basis of the trial court’s failure to enter
findings of fact under JuCR 7.11(d). We decline to grant this relief.
Since EE’s brief was filed, we have granted the State’s motion to supplement the record
with the trial court’s findings of fact and conclusions of law supporting EE’s conviction for felony
harassment. Thus, the issue is moot. State v. Gentry, 125 Wn.2d 570, 616-17, 888 P.2d 1105
(1995). Additionally, to the extent EE argues his conviction should be dismissed entirely due to
the trial court’s delay in entering the findings of fact and conclusions of law, reversal is not
appropriate unless EE can show actual prejudice. State v. Head, 136 Wn.2d 619, 624-25, 964 P.2d
1187 (1998).
The court in Head explained that “actual prejudice” may exist where written findings and
conclusions were originally missing and “where there is strong indication that findings ultimately
entered have been ‘tailored’ to meet issues raised on appeal.” Id. EE has not shown tailoring or
other actual prejudice. Because the findings of fact and conclusions of law were “ultimately
entered” and there is no evidence of bad faith or “tailoring,” EE has not met his burden of showing
prejudice from their delayed entry.
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We conclude that the trial court’s failure to timely enter findings of fact and conclusions
of law is moot.
CONCLUSION
EE’s confession was the product of an unlawful custodial interrogation, and we hold that
the trial court erred in admitting it. However, EE has not shown that the admission of this statement
prejudiced him under the overwhelming untainted evidence test. Accordingly, the admission of
the statement was harmless error. We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J.
We concur:
Maxa, C.J.
Melnick, J.
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