FILED MAY 29, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39375-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DARIN R. BARRY, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Darin Barry appeals his convictions for fourth degree
assault, unlawful imprisonment, malicious mischief, and two counts of felony harassment
(threat to kill). He argues the trial court erred by (1) admitting statements he made to a
deputy without first finding he knowingly and voluntarily waived his right to remain
silent, and (2) admitting body camera videos in violation of chapter 9.73 RCW. We
disagree with his first argument, conclude he failed to preserve his second argument, and
affirm. No. 39375-5-III State v. Barry
FACTS
Deputy Christopher Olin responded to a domestic disturbance that involved Darin
Barry attacking two acquaintances during which time he threatened to kill each of them
and threw one of their phones into his fireplace.
On the morning of trial, the court held a CrR 3.5 hearing to determine the
admissibility of statements Barry made to Deputy Olin. At the hearing, Deputy Olin
testified that he read Barry his constitutional rights and asked him whether he understood
those rights. The State offered body camera videos, which Deputy Olin testified were
true and accurate depictions of his interactions with Barry. Barry did not object to the
use of these videos in the CrR 3.5 hearing.
One video depicts Deputy Olin telling Barry he is “under arrest for assault, among
other things.” Ex. 160. Barry requests that Deputy Olin tell him “why [Deputy Olin] is
reading [him his] rights.” Id. Although the conversation immediately after the reading of
the rights seemingly confirms the reading, the video did not capture the reading of the
rights.
On cross-examination, Deputy Olin testified he did not initially advise Barry he
was being recorded but did inform him later. Deputy Olin testified he read Barry’s
2 No. 39375-5-III State v. Barry
Miranda1 rights to him from a card, but did not have him sign the card. The card also
does not appear in the record. Deputy Olin admitted that Barry never affirmatively
acknowledged he understood his rights.
In its oral ruling, the court found that Deputy Olin read Barry his constitutional
rights and concluded that Barry had waived those rights by speaking without coercion to
the officer. The court held that Barry’s statements were admissible.
At trial, the State called witnesses to support the charges, including Deputy Olin.
Through the deputy, the State offered the body camera videos, which included Barry’s
custodial statements. When asked if he objected to the admission of one of the videos,
Barry responded he did not. After the State sought to admit a second video, Barry
reversed himself and responded, “Your Honor, may adjust in regards to all of these
exhibits, I’d like to preserve my prior objections. For that reason, I would object to all of
them. I’ll leave it at that.” Rep. of Proc. (RP) at 312. The court overruled the objection
and admitted both videos.
The jury returned a mixed verdict, finding Barry not guilty of some of the most
serious charges, but finding him guilty of others, including felony harassment. The trial
court imposed a standard range sentence, and Barry timely appealed to this court.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 No. 39375-5-III State v. Barry
ANALYSIS
CrR 3.5 HEARING
Barry first assigns error to the trial court’s admission of his recorded statements.
He argues the trial court erred by admitting the statements without first finding that he
knowingly and voluntarily waived his rights.2
We review a trial court’s denial of a suppression motion for whether substantial
evidence supports challenged findings of fact. State v. Campbell, 166 Wn. App. 464,
469, 272 P.3d 859 (2011). We review its legal conclusions de novo. Id. Substantial
evidence means evidence sufficient to persuade a fair-minded person of the truth of the
stated premise. State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999). Although
CrR 3.5 requires courts to enter written findings of fact and conclusions of law, if the oral
ruling and hearing record are “‘sufficiently comprehensive and clear that written facts
would be a mere formality,’ the trial court’s failure to enter mandatory written findings
and conclusions is harmless.” State v. Bluehorse, 159 Wn. App. 410, 423, 248 P.3d 537
(2011) (quoting State v. Hickman, 157 Wn. App. 767, 771 n.2, 238 P.3d 1240 (2010)).
2 Barry’s first argument is hard to discern. In his brief, he discusses what occurred during the CrR 3.5 hearing, he then sets forth several principles of law, and he then concludes: “Here, the trial court failed to find after Deputy Olin was unable to testify that he fully advised Mr. Barry of Miranda warnings. Nevertheless, the court found a waiver by Mr. Barry. The court failed to require that the defendant had made knowing and voluntary waiver of his rights contrary to the defendant’s right. As such he should be given a new trial consistent with established case law.” Br. of Appellant at 27.
4 No. 39375-5-III State v. Barry
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
a suspect in custody must be warned before questioning that “(1) he has the absolute right
to remain silent, (2) anything that he says can be used against him, (3) he has the right to
have counsel present before and during questioning, and (4) if he cannot afford counsel,
one will be appointed for him.” In re Pers. Restraint of Woods, 154 Wn.2d 400, 434, 114
P.3d 607 (2005). Miranda rights can be waived implicitly. North Carolina v. Butler, 441
U.S. 369, 374, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). However, the State retains the
burden of showing that the accused intelligently and voluntarily waived their Miranda
rights by a preponderance of the evidence. State v. Coles, 28 Wn. App. 563, 567, 625
P.2d 713 (1981). Freely and selectively responding to police questioning after initially
asserting Miranda rights supports a finding of waiver. Id.
Here, the trial court failed to enter written findings and conclusions after the
CrR 3.5 hearing. Nevertheless, the court’s oral findings and conclusions are sufficient for
us to understand the reasons for its ruling. The failure to enter written findings and
conclusions therefore is harmless.
The trial court found that Deputy Olin read Barry his constitutional rights and
concluded that Barry’s statements after being informed of those rights constituted a valid
waiver. It did not expressly find that Barry knew each of the four rights associated with a
valid waiver nor did it expressly find that Barry voluntarily waived those rights. Rather,
5 No. 39375-5-III State v. Barry
it directed the State “to prepare findings of fact and conclusions of law .
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MAY 29, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39375-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DARIN R. BARRY, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Darin Barry appeals his convictions for fourth degree
assault, unlawful imprisonment, malicious mischief, and two counts of felony harassment
(threat to kill). He argues the trial court erred by (1) admitting statements he made to a
deputy without first finding he knowingly and voluntarily waived his right to remain
silent, and (2) admitting body camera videos in violation of chapter 9.73 RCW. We
disagree with his first argument, conclude he failed to preserve his second argument, and
affirm. No. 39375-5-III State v. Barry
FACTS
Deputy Christopher Olin responded to a domestic disturbance that involved Darin
Barry attacking two acquaintances during which time he threatened to kill each of them
and threw one of their phones into his fireplace.
On the morning of trial, the court held a CrR 3.5 hearing to determine the
admissibility of statements Barry made to Deputy Olin. At the hearing, Deputy Olin
testified that he read Barry his constitutional rights and asked him whether he understood
those rights. The State offered body camera videos, which Deputy Olin testified were
true and accurate depictions of his interactions with Barry. Barry did not object to the
use of these videos in the CrR 3.5 hearing.
One video depicts Deputy Olin telling Barry he is “under arrest for assault, among
other things.” Ex. 160. Barry requests that Deputy Olin tell him “why [Deputy Olin] is
reading [him his] rights.” Id. Although the conversation immediately after the reading of
the rights seemingly confirms the reading, the video did not capture the reading of the
rights.
On cross-examination, Deputy Olin testified he did not initially advise Barry he
was being recorded but did inform him later. Deputy Olin testified he read Barry’s
2 No. 39375-5-III State v. Barry
Miranda1 rights to him from a card, but did not have him sign the card. The card also
does not appear in the record. Deputy Olin admitted that Barry never affirmatively
acknowledged he understood his rights.
In its oral ruling, the court found that Deputy Olin read Barry his constitutional
rights and concluded that Barry had waived those rights by speaking without coercion to
the officer. The court held that Barry’s statements were admissible.
At trial, the State called witnesses to support the charges, including Deputy Olin.
Through the deputy, the State offered the body camera videos, which included Barry’s
custodial statements. When asked if he objected to the admission of one of the videos,
Barry responded he did not. After the State sought to admit a second video, Barry
reversed himself and responded, “Your Honor, may adjust in regards to all of these
exhibits, I’d like to preserve my prior objections. For that reason, I would object to all of
them. I’ll leave it at that.” Rep. of Proc. (RP) at 312. The court overruled the objection
and admitted both videos.
The jury returned a mixed verdict, finding Barry not guilty of some of the most
serious charges, but finding him guilty of others, including felony harassment. The trial
court imposed a standard range sentence, and Barry timely appealed to this court.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 No. 39375-5-III State v. Barry
ANALYSIS
CrR 3.5 HEARING
Barry first assigns error to the trial court’s admission of his recorded statements.
He argues the trial court erred by admitting the statements without first finding that he
knowingly and voluntarily waived his rights.2
We review a trial court’s denial of a suppression motion for whether substantial
evidence supports challenged findings of fact. State v. Campbell, 166 Wn. App. 464,
469, 272 P.3d 859 (2011). We review its legal conclusions de novo. Id. Substantial
evidence means evidence sufficient to persuade a fair-minded person of the truth of the
stated premise. State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999). Although
CrR 3.5 requires courts to enter written findings of fact and conclusions of law, if the oral
ruling and hearing record are “‘sufficiently comprehensive and clear that written facts
would be a mere formality,’ the trial court’s failure to enter mandatory written findings
and conclusions is harmless.” State v. Bluehorse, 159 Wn. App. 410, 423, 248 P.3d 537
(2011) (quoting State v. Hickman, 157 Wn. App. 767, 771 n.2, 238 P.3d 1240 (2010)).
2 Barry’s first argument is hard to discern. In his brief, he discusses what occurred during the CrR 3.5 hearing, he then sets forth several principles of law, and he then concludes: “Here, the trial court failed to find after Deputy Olin was unable to testify that he fully advised Mr. Barry of Miranda warnings. Nevertheless, the court found a waiver by Mr. Barry. The court failed to require that the defendant had made knowing and voluntary waiver of his rights contrary to the defendant’s right. As such he should be given a new trial consistent with established case law.” Br. of Appellant at 27.
4 No. 39375-5-III State v. Barry
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
a suspect in custody must be warned before questioning that “(1) he has the absolute right
to remain silent, (2) anything that he says can be used against him, (3) he has the right to
have counsel present before and during questioning, and (4) if he cannot afford counsel,
one will be appointed for him.” In re Pers. Restraint of Woods, 154 Wn.2d 400, 434, 114
P.3d 607 (2005). Miranda rights can be waived implicitly. North Carolina v. Butler, 441
U.S. 369, 374, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). However, the State retains the
burden of showing that the accused intelligently and voluntarily waived their Miranda
rights by a preponderance of the evidence. State v. Coles, 28 Wn. App. 563, 567, 625
P.2d 713 (1981). Freely and selectively responding to police questioning after initially
asserting Miranda rights supports a finding of waiver. Id.
Here, the trial court failed to enter written findings and conclusions after the
CrR 3.5 hearing. Nevertheless, the court’s oral findings and conclusions are sufficient for
us to understand the reasons for its ruling. The failure to enter written findings and
conclusions therefore is harmless.
The trial court found that Deputy Olin read Barry his constitutional rights and
concluded that Barry’s statements after being informed of those rights constituted a valid
waiver. It did not expressly find that Barry knew each of the four rights associated with a
valid waiver nor did it expressly find that Barry voluntarily waived those rights. Rather,
5 No. 39375-5-III State v. Barry
it directed the State “to prepare findings of fact and conclusions of law . . . to be . . .
signed by me and filed in the court.” RP at 136.
“[A]n appellate court may imply or infer the existence of a finding of fact ‘if—but
only if—all the facts and circumstances in the record . . . clearly demonstrate that the
omitted finding was actually intended, and thus made, by the trial court.’” Dalton M,
LLC v. N. Cascade Tr. Servs., Inc., 2 Wn.3d 36, 54, 534 P.3d 339 (2023) (alteration in
original) (emphasis omitted) (quoting In re Welfare of A.B., 168 Wn.2d 908, 921, 232
P.3d 1104 (2010)). Our review of the record and the trial court’s ruling leaves us with no
doubt that it would have entered the two express findings noted above had the State
fulfilled its obligation to prepare written findings and conclusions for the court to enter.
In short, we imply the two omitted findings because the trial court actually intended to
make them and would have entered them. Because we are willing to imply those two
findings, we reject Barry’s argument.3
3 The State did not ask Deputy Olin to recite the rights he read from his card. It also did not present written findings and conclusions for the trial court to enter. The State’s first oversight risked the trial court finding that Barry was not advised of his constitutional rights. Its second oversight risked our reversing Barry’s convictions. One reason we do not reverse Barry’s convictions is because there is nothing in the recordings that could have affected the verdicts.
6 No. 39375-5-III State v. Barry
BODY CAMERA FOOTAGE
Barry again assigns error to the trial court’s admission of the body camera
videos and argues the videos should have been excluded because they violate
chapter 9.73 RCW.
RCW 9.73.030(1)(b) generally makes it unlawful to record any private
conversation without first obtaining the consent of all parties. With narrow exceptions,
RCW 9.73.050 renders any information obtained in violation of RCW 9.73.030
inadmissible at trial. RCW 9.73.090(1)(a)-(c) provides safe harbors from these rules.
RCW 9.73.090 provides:
(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances: .... (b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following: (i) The arrested person shall be informed that such recording is being made and the statement so informing him or her shall be included in the recording; (ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof; (iii) At the commencement of the recording the arrested person shall be fully informed of his or her constitutional rights, and such statements informing him or her shall be included in the recording; (iv) The recordings shall only be used for valid police or court activities.
7 No. 39375-5-III State v. Barry
In general, we will not permit an appellant to raise an argument for the first time
on appeal. RAP 2.5(a). The underlying policy of the rule is to encourage the efficient
use of resources. State v. O'Hara, 167 Wn.2d 91, 98,217 P.3d 756 (2009). "The
appellate courts will not sanction a party's failure to point out at trial an error which the
trial court, if given the opportunity, might have been able to correct to avoid an appeal
and a consequent new trial." State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).
Here, Barry failed to argue to the trial court that the videos should be excluded
because they violated his privacy under chapter 9.73 RCW. We therefore decline to
review Barry's second claim of error.
Affirmed.
A majority of the panel has determined 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.
l.,,. ._,.1.0;(.,.. (6...,.,_,_ '--1 ' C ~ Lawrence-Berrey, CJ. ~
WE CONCUR:
~~ •.:r. Fearing,i. Cooney, J.