Filed Washington State Court of Appeals Division Two
October 28, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 59531-1-II
Respondent,
v.
DAVID LEE ANDERSON, UNPUBLISHED OPINION
Appellant.
MAXA, J. – David Anderson appeals his convictions of second degree burglary and third
degree theft. The convictions arose out of Anderson’s entry into a storage shed on private
property. Anderson challenges the trial court’s refusal to suppress statements he made to law
enforcement officers, the trial court’s ruling allowing the State to amend the information after it
had rested, and the trial court’s admission of a law enforcement officer’s testimony about shoe
prints at the scene of the burglary.
We hold that (1) the trial court did not err when it admitted Anderson’s statements to law
enforcement officers after the officers pulled over his car and talked to him without advising him
of his Miranda1 rights; (2) the trial court did not abuse its discretion when it allowed the State to
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 59531-1-II
amend the information to change the address of the burglary after it had rested and Anderson had
presented evidence that the address in the information was incorrect, because the amendment did
not prejudice Anderson; (3) the trial court did not abuse its discretion when it allowed a law
enforcement officer to testify about similarities between shoe prints found in the storage shed
and Anderson’s shoes; and (4) as the State concedes, the crime victim penalty assessment (VPA)
must be stricken from the judgment and sentence.
Accordingly, we affirm Anderson’s convictions, but we remand for the trial court to strike
the VPA from the judgment and sentence.
FACTS
On July 21, 2021, Richard Anders noticed a green and silver SUV parked near a storage
shed adjoining his property in Centralia. While he wrote down the vehicle’s license plate
number, he saw Anderson exit the shed. Anderson told Anders that he was exploring the shed
and that he was not hurting anything. Anders heard someone else in the shed and called the
police. While Anders was talking to police dispatch, Jesika Jellison, Anderson’s girlfriend,
exited the shed. Shortly thereafter, Anderson and Jellison drove away.
Lewis County Sheriff’s Deputy Sam Schouten responded to Anders’ call. Schouten
requested the assistance of Centralia police to locate Anderson’s vehicle. Centralia police officer
Andrew Huerta stopped Anderson, who was driving a vehicle with the same license plate number
as Anders reported that matched the description of the suspect vehicle. Huerta turned on the
lights of his patrol vehicle when he made the stop. Huerta notified Anderson and Jellison that he
had stopped them to investigate a trespass complaint. At some point, another officer arrived at
the scene with their patrol vehicle lights on.
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Both Anderson and Jellison told Huerta that they had entered the shed. Anderson
explained that he was part of an urban exploring group that visited abandoned buildings.
Anderson and Jellison stated that they had been confronted by the owner of the shed and that
they left the property soon after.
After about 10 minutes, Schouten arrived at the scene with his emergency lights on.
Schouten asked Anderson what he had been doing at the property. Anderson said that they were
urban exploring and had gone to the shed because it looked abandoned, but they did not go
inside. Anderson said that they had gone onto the property but had not taken anything.
Schouten left the scene of the traffic stop to contact Anders and visit the shed. He
photographed shoe prints in the shed that he suspected belonged to Anderson and/or Jellison.
About 30 to 40 minutes later, Schouten returned. While Schouten was gone, Anderson
and Jellison remained in their vehicle. Schouten again asked Anderson what he had been doing
at the shed. Anderson said that they had gone into the shed but had not taken anything. At that
point, Schouten placed Anderson under arrest and advised him of his Miranda rights.
The State charged Anderson with second degree burglary and third degree theft. The
information stated that Anderson entered or remained unlawfully “in the building located at 2479
Seminary Hill Road” in Centralia. Clerk’s Papers (CP) at 1. However, the probable cause
affidavit stated that officers were dispatched to a trespass near 2479 Seminary Hill Road.
CrR 3.5 Hearing
The trial court held a CrR 3.5 hearing to determine the admissibility of the statements
Anderson and Jellison made to Huerta and Schouten. Huerta testified that he conducted a traffic
stop and described his interaction as follows:
Q. Okay. And what did you tell them the reason for the stop was? A. The original call, the trespass.
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.... Q. Okay. Once you informed them of the basis for the stop, did they say anything to you? A. Yes. They both informed me that they had entered the storage shed. Q. Okay. Did they say anything else? A. Yes. Mr. Anderson advised he was part of a Facebook urban exploring group and that -- that explored abandoned buildings.
Rep. of Proc. (RP) at 18. Huerta did not recall the words that were exchanged that led to
Anderson’s statement that they had entered the shed.
Schouten testified as follows:
A. I made contact at the driver’s side window with Mr. Anderson, as he was in the driver’s seat. Q. Okay. A. And I briefly asked what he was doing up where the reporting party had contacted him. Q. Okay. And do you recall what he said? A. He told me that they were -- he and [Jellison] were out, an evening away from their kid, doing what he called, quote/unquote, urban exploring. And that had gone to the building because it looked abandoned, but he did not go inside the building.
RP at 42-43. Schouten admitted that he then said, “If you’re lying to me, then someone’s going
to jail.” RP at 52.
The trial court entered findings of fact. Finding of fact 1.4 stated that both Anderson and
Jellison told Huerta that they had entered the shed. Finding of fact 1.5 stated that Anderson told
Schouten that they had been on the property but did not take anything. That finding of fact did
not reflect that Schouten had said “If you’re lying to me, then someone’s going to jail.” The trial
court entered the following conclusions of law:
2.1 The defendants[’] statements to law enforcement after the initial vehicle stop are admissible to both Officer Huerta and to Deputy Schouten. The initial contact was brief, particularly with Deputy Schouten, the statements were non-custodial, and Miranda warnings were not required. The Court finds that the statements were voluntary and are admissible.
4 No. 59531-1-II
2.2 The statements made by the defendant, Anderson, to Deputy Schouten when he returned to the vehicle stop location after 30-40 minutes of investigating the scene are not admissible. Miranda warnings should have been read to defendant Anderson, prior to the questioning, 30-40 minutes into the investigation.
CP at 8-9.
Bench Trial
A bench trial took place in September 2022. Anders testified that his shed did not have
an address but that it was located next to 2479 Seminary Hill Road. He stated that the shed was
visible from the road, there were two gates leading to the shed, and that there was a no
trespassing sign on it. Anders stated that he saw a man that he identified as Anderson coming out
of the shed.
Anders testified that he had visited the shed two days before the incident and noted that a
well pump inside the shed was covered up, tied down, and secured. He stated that after he saw
Anderson and Jellison leaving the shed, he saw that the cover from the well pump had been
removed and other property had been moved. Anders also testified that he noticed that other
property inside the shed had been moved and staged by the door as if to be taken away. Anders
explained that he later learned that he was missing some fuses and an old lock from the shed.
Huerta testified that Anderson told him that they had entered the shed but had not taken
anything. Anderson said that they were part of an urban explorer group. Huerta also testified
that when he remained with Jellison while Schouten was talking with Anderson, he saw her
remove a glass fuse from her pants.
Schouten testified that Anderson told him that they had been on the property but did not
take anything. Schouten stated that when he searched Anderson incident to arrest he found a
small, rusty padlock in his pocket.
5 No. 59531-1-II
Schouten also testified about what he saw inside the shed. He said he took photos of the
ground inside the shed because he noticed shoe prints. Schouten explained that they appeared to
be fresh shoe prints based the on the ridges of the prints and the fact that they were undisturbed.
He noticed that the tread patterns on the bottom of Anderson’s and Jellison’s shoes were similar
to the prints inside the shed.
Anderson objected to this testimony, arguing that Schouten lacked the necessary training
and experience to make that determination. The trial court overruled the objection, explaining,
“It goes to weight, not admissibility.” RP at 125.
The State rested. Anderson then testified. He stated that he and Jellison belonged to a
Facebook group that took pictures of abandoned buildings. Anderson admitted that they entered
the shed, which he described as having the roof caved in and no door. He looked at photos of the
shed and confirmed that it was the building that he had entered. Anderson stated that they looked
around and came out when someone outside yelled at them. He said that the lock in his pocket
came from Jellison’s mother’s house, not from the shed.
Anderson also presented testimony from Schouten, who stated that the shed was not
located at 2479 Seminary Hill Road. The State then moved to file a second amended
information, in which it changed the location of the burglary from “a building located at 2479” to
“[a] building located near 2479.” RP at 172. Anderson objected, arguing that the State waited
too long to change the information. He argued that the address of the burglary was an essential
element of the crime. The State argued that Anderson was on notice of the change because the
probable cause affidavit stated the property was “near 2479” and not “at.” RP at 175. The State
also argued that based on the photos, testimonial descriptions, and Anders’ eyewitness account,
there was no confusion about where the crime occurred.
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The trial court allowed the amendment. The court stated,
This is not a necessary element. There’s no question of, especially in this rural area, what the building was that we’re talking about. There’s no prejudice to this because everybody knows the building, the description, and the affidavit of probable cause in the report . . . says that it’s near this address.
We have Mr. Anders saying that this specific address or parcel didn’t have an address. So the fact that it’s near, that’s a scrivener’s error, that’s allowed under the rule for an amendment. I’m finding that there is not prejudice.
I understand that the Defense was relying on that technicality. But that does not have a – that’s not prejudice as anticipated or as contemplated in that rule.
RP at 177. The State subsequently filed the amended information.
Anderson then presented additional testimony from the county assessor and Anders that
showed that the shed was not located at 2479 Seminary Hill Road.
After the conclusion of the trial, the trial court found Anderson guilty of second degree
burglary and third degree theft. The court entered findings of fact and conclusions of law that
included guilty findings on both counts. At sentencing, the court found that Anderson was
indigent under RCW 10.101.010(3) but imposed a $500 VPA.
Anderson appeals his conviction and the imposition of the VPA.
ANALYSIS
A. ADMISSIBILITY OF PREARREST STATEMENTS
Anderson argues that the trial court erred in failing to suppress the statements he made to
Huerta and Schouten before he was informed of his Miranda rights. We disagree.
1. Legal Principles
Under CrR 3.5, the trial court must conduct a hearing before admitting a defendant’s
statement into evidence. The purpose of a CrR 3.5 hearing is to prevent “the admission of
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involuntary, incriminating statements.” State v. Williams, 137 Wn.2d 746, 751, 975 P.2d 963
(1999).
Miranda requires that before subjecting a person to custodial interrogation, law
enforcement officers are required to inform the person of the right to remain silent and the right
to an attorney. State v. Escalante, 195 Wn.2d 526, 532, 461 P.3d 1183 (2020). If a person is not
informed of their Miranda rights, the person’s statements made during a custodial interrogation
generally are inadmissible. Id.
We review de novo whether a person is in custody for purposes of Miranda. Id. at 531.
A person is in custody when their freedom of action has been reduced in such a way as to
resemble a formal arrest. Id. at 533. Significantly, our Supreme Court has noted that “even if a
person is ‘seized’ within the meaning of the Fourth Amendment – such that a reasonable person
in their position would not feel free to leave or otherwise terminate the encounter with law
enforcement – they are not necessarily in ‘custody’ for Miranda purposes.” Id. “Custody” refers
to “ ‘circumstances that are thought generally to present a serious danger of coercion.’ ” Id.
(quoting Howes v. Fields, 565 U.S. 499, 508-09, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012)).
The relevant inquiry for determining when a person is in custody is “an objective one that
asks how a reasonable person in the suspect’s position would have understood the
circumstances.” Escalante, 195 Wn.2d at 533.
To determine whether a reasonable person in the suspect’s position would feel restrained to the degree associated with formal arrest, a court examines the totality of the circumstances. Relevant circumstances may include the nature of the surroundings, the extent of police control over the surroundings, the degree of physical restraint placed on the suspect, and the duration and character of the questioning.
Id. at 533-34.
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Interrogation by law enforcement includes express questioning, “ ‘but also to any words
or actions on the part of the police . . . that the police should know are reasonably likely to elicit
an incriminating response from the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the intent of the police.’ ” State v.
Butler, 34 Wn. App. 2d 614, 621-22, 570 P.3d 383 (2025) (quoting Rhode Island v. Innis, 446
U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)).
In Escalante, the court noted that the United States Supreme Court in Berkemer v.
McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), held that a person
detained during a traffic stop generally is not in custody for Miranda purposes. Escalante, 195
Wn.2d at 534. The court in Berkemer stated that a traffic stop is more analogous to a Terry2 stop,
under which officers are allowed to briefly detain and question a person. 468 U.S. at 439.
Ordinary traffic stops do not constitute custodial interrogations because they generally are
temporary and brief, “the atmosphere surrounding an ordinary traffic stop is substantially less
police-dominated” than in police station interrogations, and traffic stops typically are in public.
Id. (quoting Berkemer, 468 U.S. at 438-39).
Washington courts have held that an officer may question a person during a traffic stop or
a Terry stop without informing a person of their Miranda rights. Our Supreme Court stated,
[T]he Court [in Berkemer] recognized that because both traffic stops and routine Terry stops are brief, and they occur in public, they are “substantially less ‘police dominated’ ” than the police interrogations contemplated by Miranda. Thus, a detaining officer may ask a moderate number of questions during a Terry stop to determine the identity of the suspect and to confirm or dispel the officer’s suspicions without rendering the suspect “in custody” for the purposes of Miranda.
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004) (quoting Berkemer, 468 U.S. at 439)
(citations omitted). “[M]ere investigatory stops are not custodial interrogations requiring a
Miranda warning. A suspect may be asked to identify himself or to explain his activities without
first receiving a Miranda warning.” State v. Kolesnik, 146 Wn. App. 790, 811, 192 P.3d 937
(2008) (citations omitted). “Temporary detainment following a routine traffic stop does not
constitute custody for purposes of Miranda.” City of Coll. Place v. Staudenmaier, 110 Wn. App.
841, 849, 43 P.3d 43 (2002).
We review challenged findings of fact entered after a CrR 3.5 hearing for substantial
evidence and review de novo whether those findings support the trial court’s conclusions of law.
State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309 P.3d 728 (2013).
2. Analysis
Here, the trial court concluded that Anderson was not in custody for purposes of Miranda
when he made the statements to Huerta and Schouten. We agree.
Huerta conducted a traffic stop after receiving a report of a trespass. He told Anderson
the reason for the stop, and Anderson explained what he and Jellison had done. Schouten then
arrived at the scene of the traffic stop, but he simply asked Anderson what he was doing up at the
property. Both interactions were on a public road and were brief. The officers had activated
their patrol car lights and a third officer also arrived with patrol lights on, but the atmosphere fell
short of being coercive. Nothing about this initial interaction suggests that Anderson’s freedom
of action was reduced in such a way as to resemble a formal arrest, as Escalante requires.3
3 Schouten did escalate the coerciveness of the situation by saying, “If you’re lying to me, then someone’s going to jail.” RP at 52. But this statement was made after Anderson made the statement that Schouten was allowed to recount at trial – that he had been on the property.
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Further, Burkemer, 468 U.S. at 439, Heritage, 152 Wn.2d at 218, and Kolesnik, 146 Wn.
App. at 811, all support the conclusion that Miranda warnings are not required for this type of
investigatory stop. Huerta and Schouten were allowed to “ask a moderate number of questions
. . . to confirm or dispel [their] suspicions” without informing Anderson of his Miranda rights.
Heritage, 152 Wn.2d at 218.
We hold that the trial court did not err when it admitted Anderson’s statements to Huerta
and Schouten.
B. AMENDMENT OF THE INFORMATION
Anderson argues that the trial court erred when it allowed the State to amend the
information after it rested to change the address where the burglary occurred. We disagree.
1. Legal Principles
Article I, section 22 of the Washington Constitution states that criminal defendants have a
right “to demand the nature and cause of the accusation against him.” Under this provision,
“ ‘[t]he accused, in criminal prosecutions, has a constitutional right to be appraised of the nature
and cause of the accusation against him. . . . This doctrine is elementary and of universal
application, and is founded on the plainest principle of justice.’ ” State v. Gehrke, 193 Wn.2d 1,
6, 434 P.3d 522 (2019) (quoting State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894)).
Defendants have a right to be informed of the charge against them, and cannot be tried for
offenses with which he is not charged. Gehrke, 193 Wn.2d at 6. As a result, “the State must
allege in the charging document all essential elements of a crime to inform a defendant of the
charges against him and to allow for preparation of his defense.” State v. Brooks, 195 Wn.2d 91,
97, 455 P.3d 1151 (2020).
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The State generally may not amend the information to charge a different crime after the
State has rested its case in chief. Gehrke, 193 Wn.2d at 9. However, this rule does not apply
when the amendment does not change the charged crime or the crime’s essential elements.
Brooks, 195 Wn.2d at 98.
CrR 2.1(d) provides that the trial court “may permit any information . . . to be amended at
any time before verdict or finding if substantial rights of the defendant are not prejudiced.”
When the State moves to amend the information in a way that does not impact the criminal
charge, the defendant generally must demonstrate prejudice under CrR 2.1(d) to defeat the
motion. Brooks, 195 Wn.2d at 98.
We review for abuse of discretion a trial court’s ruling on a proposed amendment to an
information. Id. at 96. The trial court abuses its discretion when its decision is manifestly
unreasonable or is based on untenable grounds or reasons. Id. at 97.
2. Analysis
Here, the State moved to amend the information after it rested to correct the address
where the burglary occurred. The State did not move to amend to change a different crime, and
Anderson agrees that the exact address of the burglary is not an essential element of the crime.
Therefore, the question is whether the trial court abused its discretion when it ruled that
Anderson would not be prejudiced by the amendment to the information.
It is clear that Anderson and the other witnesses understood that the crime took place at
the shed. Anders saw Anderson exit the shed. Anders described where the shed was located.
And Anderson testified that he entered the same building described by Anders. Anderson also
identified the shed in a picture during his testimony. In addition, Anderson was on notice about
12 No. 59531-1-II
the potential street address of the shed because the probable cause affidavit stated that the shed
was located “near 2479 Seminary Hill Road.” CP at 4 (emphasis added).
Anderson argues that he was prejudiced by this amendment because it contained new
details about the crime that should have been introduced before the State rested its case. He
argues that changing the address location altered his trial strategy, causing surprise and
amounting to prejudice.
But Anderson fails to explain how the State’s amendment to the location of the shed on
the information surprised or prejudiced him. As discussed above, it was clear from the testimony
during the case that Anderson understood which property he was charged with trespassing.
Anderson cites to State v. Lamb, where the Supreme Court acknowledged that the trial
court in the exercise of its discretion “may deny a motion to amend an information irrespective
of prejudice to a defendant.” 175 Wn.2d 121, 131, 285 P.3d 27 (2012). However, the court in
Lamb noted that this rule applies on appeal only when the trial court denies a motion to amend.
Id. at 130-31. The court stated that when the defendant appeals the trial court’s decision to allow
an amendment, “[t]he defendant’s burden . . . is to demonstrate prejudice to his or her substantial
rights.” Id. at 130. Anderson fails to do so here.
Anderson argues that the trial court failed to recognize that it had the discretion to deny
the motion to amend even in the absence of prejudice. But the trial court addressed prejudice as
required under CrR 2.1(d). There is no indication in the record that the court believed it did not
have the discretion to deny the motion in the absence of prejudice.
Accordingly, we hold that the trial court did not abuse its discretion when it allowed the
State to amend the information.
13 No. 59531-1-II
C. ADMISSION OF SHOE PRINT TESTIMONY
Anderson argues that the trial court erred when it allowed Schouten to testify that
Anderson’s and Jellison’s shoes matched the shoe prints he found inside the shed. We disagree.
Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” ER 401. Lay witnesses may testify to opinions or inferences
that are “rationally based on the perception of the witness.” ER 701(a). We review the trial
court’s admission of evidence for abuse of discretion. State v. Young, 192 Wn. App. 850, 854,
369 P.3d 205 (2016).
Schouten took photos of shoe prints he saw in the shed. He believed the prints belonged
to Anderson or Jellison because they looked fresh. Schouten compared the photographs of shoe
prints from the shed building with photos of the soles of Anderson’s and Jellison’s shoes. He
identified that the tread pattern on the shoes was similar to the tread marks left by the shoe prints.
This testimony was relevant to proving that Anderson and Jellison had entered the shed.
Anderson argues that the trial court erred when it admitted Schouten’s testimony because
shoe print analysis requires specialized training, and Schouten was a lay witness not qualified to
testify about the shoe prints. And he claims that shoe print comparison testimony is not
scientifically reliable. But Schouten was not providing any sophisticated, expert analysis of shoe
prints. He was simply testifying about his observations, which he was entitled to do under ER
701(a).
Anderson also argues that that shoe print comparison evidence can only be introduced
with an expert witness, citing State v. Groth, 163 Wn. App. 548, 261 P.3d 183 (2011). In that
case, an expert “human tracker” testified about footprints at the crime scene. Id. at 556. He
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examined photographs of footprints and testified that they showed “overlapping impressions
indicating that two individuals, wearing shoes with soles consistent with those of the defendant
and victim, were physically engaged on the night of the murder.” Id. at 562. The court held that
the testimony was admissible because he was qualified as an expert in tracking based on his
skills and experience. Id. at 563.
But Groth involved the specialized file of human tracking, not simple shoe print
comparison. And Anderson cites to no legal authority to support his contention that shoe print
matching can only be done by expert witnesses.
Accordingly, we hold that the trial court did not err when it admitted Schouten’s
testimony about the shoe prints in the shed.
D. CRIME VICTIM PENALTY ASSESSMENT
Anderson argues, and the State concedes, that the $500 VPA should be stricken from his
judgment and sentence. We agree.
Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on
indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16,
530 P.3d 1048 (2023), review granted, 4 Wn.3d1009 (2025). For purposes of RCW
10.01.160(3), a defendant is indigent if they meet the criteria in RCW 10.101.010(3). Although
this amendment took effect after Anderson’s sentencing, it applies to cases pending on appeal.
Ellis, 27 Wn. App. 2d at 16.
The trial court determined that Anderson was indigent under RCW 10.101.010(3).
Therefore, we remand for the trial court to strike the $500 VPA from the judgment and sentence.
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CONCLUSION
We affirm Anderson’s convictions, but we remand for the trial court to strike the VPA
from his judgment and sentence.
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.
MAXA, J.
We concur:
VELJACIC, A.C.J.
PRICE, J.