FILED APRIL 17, 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STATE OF WASHINGTON, ) ) No. 39568-5-III Respondent, ) ) v. ) ) ELIJAH S. SARGENT, ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — Following a vehicle crash, Elijah Sargent was charged with second
degree assault and driving under the influence (DUI). The State alleged that he
intentionally wrecked the vehicle he was driving in order to assault his passenger. At
trial, Sargent maintained that he was not the driver of the vehicle when it crashed and
alternatively was not under the influence at the time of the accident. A jury found him
guilty of both charges.
Sargent appeals, raises four issues: (1) the court erred when it denied his motion
for a mistrial based on a deputy’s testimony that he was “impaired,” (2) the prosecutor
committed misconduct when it elicited testimony from a witness who testified that No. 39568-5-III State v. Sargent
Sargent failed to state he was not the driver at a prior CrR 3.5 hearing, (3) defense
counsel was ineffective for failing to object to both above referenced pieces of testimony,
and (4) we should remand to have the trial court strike the victim penalty assessment
(VPA) and reconsider the imposition of interest on his ordered restitution.
We affirm Sargent’s convictions but remand for the limited purpose of striking the
VPA and interest on his restitution.
BACKGROUND
On the evening of April 9, 2022, Sargent and Elizabeth Simonson were involved
in a serious car crash in Spokane Valley, Washington.
K.H.,1 a witness to the crash, observed a vehicle “driving erratically,” and then
saw the car “fly in the air, hit a transformer, and fall on top of the roto rooters that were
outside of Sunshine Rental.” Rep. of Proc. (RP) at 125-26.2 K.H. attempted to render aid
to Simonson “who she observed crawling out of the vehicle, and then she opened the
back door to grab her little dog.” RP at 127. K.H. called 911.
1 K.H. was a minor at the time of trial so we will refer to her by her initials. 2 Unless otherwise noted, “RP” refers to the report of proceedings beginning on January 17, 2023.
2 No. 39568-5-III State v. Sargent
At trial, K.H. identified Sargent as the driver and Simonson as the passenger due
to the fact that Sargent “was stuck underneath the driver’s seat, and [Simonson] had
fallen out of the passenger’s seat.” RP at 130. K.H. also noted that prior to the crash, she
“could see that the woman was in the passenger side because of her hair reflecting from
the sun, the red on her hair.”3 RP at 133.
A recording of K.H.’s 911 call was played to the jury. During the call several
frantic voices can be heard in the background and K.H. relays to the operator that “he was
mad, he was mad, he pulled them off the road.” Ex. 5 at 1 min. 27 sec. She later
explained Simonson told her that Elijah Sargent “pulled the wheel off the road,” causing
the wreck. Exhibit 5 at 1 min. 53 sec.
Another witness, Alexus Rockstrom, saw the vehicle “as the car veered off the
road and went up in the air, hit a power pole, and then, like, landed upside down.” RP at
138. Rockstrom also identified Sargent as the driver and Simonson as the passenger.
Rockstrom’s 911 call was also played to the jury. In this call Rockstrom relays that the
female passenger is outside the vehicle but the male driver is trapped in the vehicle.
3 Although K.H. and Alexus Rockstrom believed Ms. Simonson’s hair was red, another witness described her hair as blonde, and Simonson’s hair appears to have blonde coloring in the body camera footage from the night of the crash.
3 No. 39568-5-III State v. Sargent
First responders quickly arrived on scene. Simonson told police she was a
passenger in the vehicle when it crashed, and that it “was her boyfriend’s[4] car.” RP at
165. Deputy Garrett Spencer arrived at the scene and observed Sargent making his way
toward the open back right passenger side door of the vehicle.
Sargent was charged with second degree assault, and DUI.
1. CrR 3.5 Hearing
Prior to trial, a CrR 3.5 hearing was held to determine the admissibility of
statements Sargent made to police at the hospital about his relationship with Simonson.
Deputy Spencer testified that he advised Sargent of his Miranda5 rights at the scene and
asked Sargent questions about his relationship with Simonson at the hospital. Sargent
told Deputy Spencer that he and Simonson had previously been in an intimate dating
relationship. Deputy Spencer was cross-examined on whether Sargent was coherent
enough at the scene to understand the Miranda warnings.
During the CrR 3.5 hearing, the court advised Sargent of his rights and the
consequences if he testified at the hearing:
THE COURT: All right. Mr. Sargent, so now it’s my duty to inform you, sir, that you may but you need not testify at this hearing today on the circumstances surrounding the statements. If you do testify at today’s hearing, you will be subject to cross-examination with respect to the
4 The owner of the car was identified as someone other than Sargent. 5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 No. 39568-5-III State v. Sargent
circumstances surrounding the statement and with respect to your credibility.
If you do testify at today’s hearing, you do not, by so testifying, waive your right to remain silent during trial. If you do testify at today’s hearing, neither this fact nor your testimony at the hearing shall be mentioned to the jury unless you testify concerning the statement.
RP (Jan. 3, 2023) at 130.
Sargent testified at the hearing that he did not remember many of the events prior
to the crash and did not remember being read his Miranda warnings:
[DEFENSE COUNSEL:] Do you remember being in a vehicle crash back in April 9th of 2022?
[SARGENT:] I remember being in the hospital, told the vehicle was crashed.
[DEFENSE COUNSEL:] Do you remember anything before that since the crash?
[SARGENT:] I remember us leaving the Wendy’s and getting into an argument. And after that, it kind of quickly goes blank till the hospital.
[DEFENSE COUNSEL:] So after the crash occurred, the next thing that you remember is being in the hospital?
[SARGENT:] Yeah, waking up in Deaconess.
[DEFENSE COUNSEL:] Do you remember talking to Deputy Spencer that day?
[SARGENT:] I remember talking to him in the hospital room.
[DEFENSE COUNSEL:] Do you remember talking to him while he read you your [Miranda] warnings?
[SARGENT:] I do not.
5 No. 39568-5-III State v. Sargent
[DEFENSE COUNSEL:] Do you remember being transported to the hospital?
[SARGENT:] Vaguely, thinking back on it, kind of but not really. Kind of just, like, came lucid for a second and then blacked back out, woke up in the hospital.
RP (Jan. 3, 2023) at 131-32. The court ultimately ruled Sargent’s statements to police
were admissible.
Trial
At trial, the witnesses testified consistent with the above narrative. Simonson did
not testify, but many of her statements at the scene were admitted as non-testimonial
hearsay exceptions that are not challenged on appeal.
Deputy Spencer testified at trial. He discussed his training and experience,
explaining that in addition to his position as a law enforcement officer, he was also a
certified collision technician, a drug recognition expert (DRE), and a standardized field
sobriety test instructor. Deputy Spencer estimated that he had conducted “thousands” of
DUI investigations over the course of his career.
Deputy Spencer was then asked about his observations upon arriving on scene the
night Sargent was arrested. He testified that he was one of the first responders on scene
and saw a car on its roof with the right rear passenger door open. He saw Simonson on
her phone and described her as frantic and hysterical. As he walked up to her, she said
something like, “I can’t believe he did this.” RP at 192.
6 No. 39568-5-III State v. Sargent
Deputy Spencer then saw Sargent in the backseat area of the car, making his way,
on the roof, toward the open right passenger side door of the vehicle. Once outside the
car, Deputy Spencer walked Sargent, who appeared to be disoriented but steady on his
feet, to the medics. Sargent was placed on a gurney, and Deputy Spencer watched as
they took Sargent’s vital signs and checked him for injuries. Deputy Spencer observed
that Sargent’s vital signs were normal, which Deputy Spencer described as “unusual,”
noting that in his experience when people who are not impaired are involved in serious
collisions their blood pressure and pulse are elevated not normal.
Deputy Spencer then conducted a pupil dilation test and noticed that Sargent’s
pupils were extremely constricted. He searched Sargent’s pants and found “a small metal
tin” in Sargent’s “right pocket” that contained fentanyl pills.
Deputy Spencer testified that “when I shined my pen light . . . they had little to no
reaction to the light and . . . they were extremely constricted.” RP at 195-96. Deputy
Spencer testified this was significant because it was consistent with “somebody who’s
under the influence of a narcotic analgesic.” RP at 196. Deputy Spencer was then asked:
[THE STATE:] After evaluating Mr. Sargent’s pupils, as a DRE, did you form any opinions?
[DEPUTY SPENCER:] Yes.
[THE STATE:] What was the opinion that you made at the scene?
7 No. 39568-5-III State v. Sargent
[DEPUTY SPENCER:] My opinion was that he was impaired by a drug, a drug category consistent with a narcotic analgesic.
RP at 196. Sargent did not object to this testimony.
Darlene Valencia’s Testimony
The State called Darlene Valencia, a forensic scientist with the Washington State
Patrol, as a witness. Valencia tested a blood sample taken from Sargent after the crash.
She testified that Sargent’s blood tested positive for five different drugs: “amphetamine,
methamphetamine, morphine, fentanyl, and Norfentanyl.” RP at 239.
Valencia went on to testify that “amphetamine and methamphetamine are known
as central nervous system stimulants” and typically have two phases: an up phase and a
down phase. RP at 246. She testified “[i]n relation to driving with the up phase,
generally what we see is speeding, weaving in and out of traffic; whereas, in the down
phase, you could see someone fall asleep at the wheel or not able to maintain lane
position.” RP at 246.
On the other hand, Valencia testified that Fentanyl, Norfentanyl, and morphine are
known as narcotic analgesics. “[T]he general [effects] of these are pretty much a lot like
the down phase of central nervous stimulants. So you’re going to be very lethargic,
fatigued, tired, sedated.” RP at 246. She testified “central nervous stimulants are going
to dilate your pupils” while “narcotic analgesics will constrict the pupils.” RP at 247.
8 No. 39568-5-III State v. Sargent
After providing a few more general examples of the possible effects of these types
of drugs on the human body, Valencia declined to provide an opinion on whether the
level of drugs in Sargent’s system would have impaired his ability to drive because she
did not know his tolerance levels.
Motion for Mistrial
After the State rested, and outside the presence of the jury, Sargent moved for “a
mistrial or for a dismissal” of the DUI charge. RP at 261-62. Sargent based his mistrial
motion on Deputy Spencer’s testimony that Sargent was “impaired.” RP at 262-63.
Defense counsel argued:
Based on the DUI charge, we’re arguing for a mistrial that in the defense’s opinion, based on the testimony that we’ve heard from Deputy Spencer, that there was just the one test conducted of looking into Mr. Sargent’s eyes and seeing the constricted pupils and nonreactive to light. It’s essentially synonymous with State v. Quaale[6], that in that case, the trooper’s opinion was just based on one test of the horizontal gaze nystagmus [HGN] test, and that he essentially concluded that there was impairment based on that one test. So we are moving for a mistrial based on that opinion testimony.
RP at 262-63.
The court found Quaale was distinguishable from Sargent’s case and denied the
motion for a mistrial.
6 182 Wn.2d 191, 340 P.3d 213 (2014).
9 No. 39568-5-III State v. Sargent
Sargent’s Testimony
Sargent testified that Simonson was the one driving the vehicle when it crashed.
Sargent stated that Simonson went to Wendy’s, and he walked across the parking lot to
the Hico Mart, on the night of the crash. He testified that after leaving the Hico Mart, he
met back up with Simonson at Wendy’s, and he “got in [the car] on the passenger side.”
The two left “westbound on Barker until we hit Sprague and then—or going southbound
on Barker until we hit Sprague and then we started going westbound.” RP at 291. He
further stated:
[SARGENT:] Shortly as we hit the road, she went to get on a freeway entrance ramp and then changed lanes into an off-coming ramp. We got into a minor argument about it, so she flipped the car around and decided to go just to Sprague, that way we could take that way. [DEFENSE COUNSEL:] And when you say “she flipped the car around” what do you mean by that? [SARGENT:] She pulled over and then just, like, pulled a u-ey. [DEFENSE COUNSEL:] Where were you going when you left the Hico and Wendy'’? [SARGENT:] From there, we discussed to go to my family’s house, then her mother’s house, then back to her apartment. ... [DEFENSE COUNSEL:] Okay. And did you end up getting to where you were going? [SARGENT:] We did not. Part of the argument started back up as we hit Sprague and she reached over from the driver’s seat to the passenger’s seat and grabbed her dog off my lap. Following that, I don't remember too much. ...
10 No. 39568-5-III State v. Sargent
[DEFENSE COUNSEL:] Okay. And you said that you were in the passenger’s seat. Correct? [SARGENT:] Yes, I was. [DEFENSE COUNSEL:] And were you holding the dog? [SARGENT:] Yes. [DEFENSE COUNSEL:] Okay. And then you said you got into an argument. Correct? [SARGENT:] Yes. [DEFENSE COUNSEL:] Can you describe how Simonson was able to grab the dog off your lap? [SARGENT:] Like I said, she reached over from the driver’s seat to the passenger’s seat with both arms and kind of snatched him away from me. [DEFENSE COUNSEL:] Okay. What happened after that? [SARGENT:] Like I said, I don’t remember very much because that’s what I think caused the accident. [DEFENSE COUNSEL:] What is the next thing that you do remember?
[SARGENT:] Having a conversation with Deputy Spencer in the hospital.
RP at 291-94.
During cross-examination, the State pointed out that Sargent’s ability to recall
details during his trial testimony conflicted with his vague testimony at the CrR 3.5
hearing:
[THE STATE:] Okay. Now, during your testimony with [defense counsel] Mr. Sargent, you seemed to provide quite a bit of detail about what happened between when you were at the Wendy’s with Ms. Simonson and the crash when—is that correct? [SARGENT:] Yes.
11 No. 39568-5-III State v. Sargent
[THE STATE:] So in your testimony, you talked about the nature of the argument, as well as what street you were driving on and where you were headed, the incident with trying to get on the freeway and those types of things. Right? [SARGENT:] Yes. [THE STATE:] So is it fair to say that you have a pretty good memory of what happened between leaving the Wendy’s until the crash? [SARGENT:] Yes. [THE STATE:] Okay. So when did that change, your memory? [SARGENT:] My memory is only affected by the crash. After the dog was grabbed, I don’t remember much because what I assume was the concussion. [THE STATE:] Now, is it correct, Mr. Sargent, that you’ve testified a couple of weeks ago in a different hearing in this case? [SARGENT:] Yes. [THE STATE:] Do you remember your testimony from that hearing? [SARGENT:] Vaguely. It hadn’t changed much. [THE STATE:] So why did you testify at that hearing that you didn’t remember anything between leaving the Wendy’s and waking up in the hospital? [SARGENT:] I don’t believe I testified to that. [THE STATE:] Okay. You deny you made any testimony of that nature? [SARGENT:] Yes.
RP at 299-300.
Recall of Deputy Spencer
Following Sargent’s testimony, the State briefly recalled Deputy Spencer as a
rebuttal witness. RP at 301. The State asked Deputy Spencer:
12 No. 39568-5-III State v. Sargent
[THE STATE:] Deputy Spencer, do you recall being present in court for a hearing related to this matter a week before last? [DEPUTY SPENCER:] Yes. [THE STATE:] Were you present when Mr. Sargent testified at that prior hearing? [DEPUTY SPENCER:] I was. ... [THE STATE:] During that hearing, was there any testimony or questions for Mr. Sargent about the events leading up to the crash? [DEPUTY SPENCER:] Yes. [THE STATE:] Did Mr. Sargent say anything about Ms. Simonson driving the vehicle? [DEPUTY SPENCER:] Not to my recollection. [THE STATE:] Did Mr. Sargent give any testimony about what he remembered leading up to the crash on April 9th? [DEPUTY SPENCER:] Yes. [THE STATE:] What did he say? [DEPUTY SPENCER:] As far as I can recall, he stated that he remembered leaving the Wendy’s, but didn’t remember anything else until the hospital.
RP at 304-05. During cross-examination, defense counsel asked:
[DEFENSE COUNSEL:] Deputy Spencer, would you say it’s fair that the testimony that was given at the prior hearing was pretty limited? [DEPUTY SPENCER:] Yes.
RP at 306.
The jury was instructed that to convict Sargent of DUI, it had to find “beyond a
reasonable doubt . . . [t]hat the defendant drove a motor vehicle [while] . . . under the
influence of or affected by a drug.” RP at 314. In closing, defense counsel
13 No. 39568-5-III State v. Sargent
acknowledged that there was a bad accident but challenged the State’s evidence and lack
of evidence that Sargent was the driver. With respect to the evidence of Sargent’s
impairment, defense counsel argued that Deputy Spencer’s opinion was not credible
because he did not conduct any field sobriety tests. Counsel also pointed to Valencia’s
testimony, arguing to the jury, that there was not enough to show that Sargent was
definitively impaired.
Verdict & Sentencing
Following trial, the jury found Sargent guilty of assault in the second degree and
DUI.7
The court sentenced Sargent to 38 months of incarceration and 18 months of
community custody. The court found Sargent to be indigent and imposed the then
mandatory $500 VPA and $753.77 of restitution. Sargent’s judgment and sentence
states, “The restitution obligations imposed in this judgment shall bear interest from the
date of the judgment until payment in full, at the rate applicable to civil judgments.”
Clerk’s Papers at 68.
Sargent timely appeals.
7 The jury also returned a special verdict that Sargent and Simonson were intimate partners.
14 No. 39568-5-III State v. Sargent
ANALYSIS
1. MOTION FOR MISTRIAL BASED ON OPINION OF IMPAIRMENT
Sargent argues that the court erred in denying his motion for a mistrial. On appeal
he contends that Deputy Spencer’s opinion testimony, that Sargent was impaired, was
improper for two reasons. First, the opinion was unreliable as it was based solely on
Deputy Spencer’s observation of Sargent’s pupils. Second, he argues that the opinion
amounted to an improper opinion of guilt. The State responds that the opinion was based
on more than pupil dilation, Sargent waived any claim that the testimony amounted to an
opinion of guilt by failing to raise the issue below, and regardless the opinion was proper.
As a preliminary matter we must determine the scope of our review. The State
argues that Sargent has waived any claim that Deputy Spencer’s opinion amounted to an
improper opinion of guilt. The State points out that Sargent’s motion for a mistrial was
limited to a claim that Deputy Spencer’s opinion testimony was improper because it was
based solely on a pupil dilation test. We agree. Sargent argued that his case was
essentially synonymous with Quaale because in both cases the officer’s opinion of
impairment was based on one test. He did not argue that the opinion testimony also
amounted to an improper opinion of guilt.
RAP 2.5(a) allows this court to “refuse to review any claim of error which was not
raised in the trial court.” “A party may assign evidentiary error on appeal only on a
specific ground made at trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125
15 No. 39568-5-III State v. Sargent
(2007). The purpose of this rule is to give the trial court the opportunity to cure the error.
Id. Here, Sargent did not ask the trial court to consider whether Deputy Spencer’s
testimony amounted to an improper opinion of guilt. While he raises this issue for the
first time on appeal, Sargent does not argue that an exception to the rule of waiver should
apply.
We also note that Sargent did not object to Deputy Spencer’s opinion at the time
of his testimony. Instead, after the State rested, Sargent moved for a mistrial on the DUI
charge. Thus, our analysis on appeal is about whether the opinion testimony prejudiced
Sargent to such an extent that nothing short of a new trial would insure a fair trial on the
charge of DUI. State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986).
We review the grant or denial of a motion for a mistrial for abuse of discretion.
State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). We first consider whether
Deputy Spencer’s testimony was admissible. If there was no error in admitting the
testimony then it was not an abuse of discretion to deny the motion for a mistrial. Id.
Our Supreme Court has held that the DRE protocol, including the horizontal gaze
nystagmus test (HGN) meets the Frye8 standard for admissibility. State v. Baity, 140
Wn.2d 1, 14-15, 991 P.2d 1151 (2000). Nevertheless, the court placed limitations on the
admissibility of the HGN test. The “officer may not testify in a fashion that casts an aura
8 Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (1923).
16 No. 39568-5-III State v. Sargent
of scientific certainty to the testimony, [and t]he officer also may not predict the specific
level of drugs present in a suspect.” Id. at 17. On the other hand, the officer “may . . .
relate an opinion about the presence or absence of certain categories of drugs in a
suspect’s system.” Id. at 18.
In Quaale, a trooper was asked whether the defendant was too impaired to operate
a motor vehicle based solely on the results of the HGN test. 182 Wn.2d at 195. Over the
defendant’s objection the trooper testified that “there was no doubt [the defendant] was
impaired.” Id. Ultimately, the Supreme Court concluded that the trooper’s opinion
testimony was inadmissible because it violated the limitations set by Baity in two ways.
First, by testifying that the results of the HGN test left him with “no doubt” about his
conclusion, the trooper “improperly gave the appearance that the HGN test may produce
scientific[ ] certain results.” Id. at 198-199. In addition, by testifying that the defendant
was “‘impaired,’” the trooper suggested that the defendant consumed a sufficient level of
intoxicants to be impaired. Id. at 199.
At trial and on appeal, Sargent argued that Deputy Spencer’s testimony, that
Sargent was impaired, was likewise inadmissible because it was based solely on pupil
dilation and suggested this test could produce certain results of a specific level. We
conclude that Quaale is distinguishable in several respects.
First, Sargent fails to demonstrate that Deputy Spencer’s opinion was based solely
on a pupil dilation test. After testifying to his training and experience, Deputy Spencer
17 No. 39568-5-III State v. Sargent
testified that he was one of the first responders on scene and saw a car on its roof with the
right rear passenger door open. He saw Simonsen outside of the vehicle and she told him
that she was the passenger. He then observed Sargent crawl out of the open right rear
passenger door and appear disoriented with vital signs abnormal under the circumstances
and constricted pupils. Deputy Spencer was then asked, “After evaluating Mr. Sargent’s
pupils, as a DRE, did you form any opinions?” RP at 196. The qualifier in the question
was temporal not foundational. Deputy Spencer was not asked, and never testified, that
his opinion was based solely on his observations of Sargent’s pupils.
Second, there is nothing in the record to indicate whether a pupil dilation test is
similar in scientific novelty to an HGN test and thus limited to the same restrictions as
outlined in Baity. Third, Deputy Spencer’s opinion did not cast an “aura of scientific
certainty.” Baity, 140 Wn.2d at 17. Deputy Spencer did not express that the results of
one scientific test left him with “no doubt” about Sargent’s impairment or suggest such
degree of certainty in other ways. See Quaale, 182 Wn.2d at 198-99. Instead, he
testified, “My opinion was that he was impaired by a drug, a drug category consistent
with a narcotic analgesic.” RP at 196.
Still, Sargent contends that Deputy’s Spencer’s testimony that Sargent was
“impaired” conveyed a specific level of affectation deemed improper by Quaale. As
noted above, Quaale held that while the HGN test could be used as evidence that a
person was demonstrating characteristics of a particular type of drug, it could not be used
18 No. 39568-5-III State v. Sargent
to “predict the specific level of drugs present in a suspect.” Quaale, at 198. Deputy
Spencer’s testimony here is distinguishable from that prohibited in Quaale. Deputy
Spencer’s opinion was not based solely on the HGN test and his opinion did not expound
on whether Sargent’s ability to drive was impaired. Nor was the jury instructed that
impairment was the legal standard.
But even if Deputy Spencer’s opinion on impairment was improperly admitted, as
an indirect opinion on a specific level of intoxication, the improper opinion was not
sufficient to support a mistrial. In considering whether a trial irregularity warrants a new
trial, we look at three factors: “(1) the seriousness of the irregularity; (2) whether the
statement was cumulative of evidence properly admitted; and (3) whether the irregularity
could be cured by an instruction.” State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172
(1992).
Here, assuming there was an irregularity, it was not serious. Instead, to the extent
Deputy Spencer conveyed an opinion on the specific level of intoxication, the opinion
was indirect. There is no dispute that Deputy Spencer could testify that Sargent was
exhibiting the effects of having consumed certain drugs. While Deputy Spencer opined
that Sargent was impaired by a drug category consistent with a narcotic analgesic, he did
not indicate a specific level of impairment and did not suggest that the level of
impairment would affect Sargent’s ability to drive. In addition, impairment was not the
19 No. 39568-5-III State v. Sargent
central issue of the charge. Instead, Sargent’s main defense was that he was not driving
at the time of the accident.
Moreover, the opinion was cumulative. Additional evidence of affectation
included testimony about the motive and severity of the crash, Deputy Sargent’s
observations, and the testimony of Valencia, the forensic scientist who testified that
Sargent’s blood tested positive for five different drugs. When asked whether “a person
with Mr. Sargent’s blood content of any one of these drugs individually would have an
impaired ability to drive?” Valencia replied, “[Y]es, there are studies out there about
morphine, for fentanyl, for methamphetamine individually, and in relation to driving, and
there are statistics on the increased risk of an accident. And so, yes, so individually,
they—they can be.” RP at 249. Though she would not give an opinion as to whether the
drugs in Sargent’s system would impair his ability to drive, because she did not know his
tolerance level, she did testify to the effects of these various drugs generally and noted
that a person affected by narcotic analgesics will have constricted pupils.
Finally, the irregularity could have been cured by an instruction, especially if
Sargent had objected at the time of Valencia’s opinion and moved to strike the testimony.
Assuming the court found her opinion inadmissible, the court could have instructed the
jury to disregard the testimony. Moreover, even after his motion for a mistrial was
denied, Sargent could have sought a curative instruction.
20 No. 39568-5-III State v. Sargent
The court did not abuse its discretion when it denied Sargent’s motion for a
mistrial.
2. PROSECUTORIAL MISCONDUCT
Sargent argues the prosecutor committed misconduct by improperly commenting
on his right to silence. Specifically, he points to the elicitation of testimony through
Deputy Spencer that at a prior hearing Sargent did not deny driving the vehicle. The
State responds that Sargent failed to object and that by testifying at both the hearing and
trial, Sargent waived his right to silence and was subject to impeachment.
A defendant claiming prosecutorial misconduct must show the prosecutor's
conduct was improper and prejudicial. State v. Walker, 182 Wn.2d 463, 477, 341 P.3d
976 (2015). When a defendant fails to object, we will reverse for prosecutorial
misconduct during closing only if “the remark is so flagrant and ill intentioned that it
causes an enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury.” State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). “In
other words, a conviction must be reversed only if there is a substantial likelihood that the
alleged prosecutorial misconduct affected the verdict.” Id.
Under this heightened standard, a defendant who fails to object to misconduct at
trial must show more than impropriety and prejudice to succeed on appeal. State v.
Loughbom, 196 Wn.2d 64, 74-75, 470 P.3d 499 (2020). Instead, the defendant must
show that the misconduct was flagrant and ill-intentioned, and that the resulting prejudice
21 No. 39568-5-III State v. Sargent
was incurable. State v. Crossguns, 199 Wn.2d 282, 299, 505 P.3d 529 (2022). This
requires the defendant to show that “‘no curative instruction would have obviated any
prejudicial effect on the jury’ and that ‘the misconduct resulted in prejudice that had a
substantial likelihood of affecting the jury verdict.’” Id. (quoting State v. Emery, 174
Wn.2d 741, 761, 278 P.3d 653 (2012)) (internal quotation marks omitted).
Under this heightened standard, incurable prejudice has only been found “‘in a
narrow set of cases where we were concerned about the jury drawing improper inferences
from the evidence.’” Loughbom, 196 Wn.2d at 74, (quoting In re Pers. Restraint of
Phelps, 190 Wn.2d 155, 170, 410 P.3d 1142 (2018)). The Supreme Court has recognized
reversible misconduct under this heightened standard when the misconduct is either so
inflammatory that it threatens the fundamental fairness of trial, or when it is so severe as
to demonstrate that it was flagrant and ill intentioned. See Phelps, 190 Wn.2d at 171.
A defendant’s “right to silence is derived from the Fifth Amendment, applicable to
the State[ ] [through] the Fourteenth Amendment , and article I, section 9 of the
Washington Constitution.” State v. Romero, 113 Wn, App. 779, 786, 54 P.3d 1255
(2002). The applicable amendment and associated analysis depend on when the silence
occurred and whether it is being used as substantive evidence of guilt or as impeachment
evidence.
“The Fifth Amendment prohibits impeachment based upon the exercise of silence
where the accused does not waive the right and does not testify at trial.” State v. Burke,
22 No. 39568-5-III State v. Sargent
163 Wn.2d 204, 217, 181 P.3d 1 (2008). When a defendant testifies at trial, pre-arrest
silence may be used, but only to impeach his testimony. Id. Post-Miranda silence cannot
be used, even for impeachment. Id. In a post-Miranda scenario, a defendant’s failure to
answer some interrogation questions is viewed as an invocation of the right to remain
silent and cannot be used as either substantive or for impeachment evidence. State v.
Fuller, 169 Wn. App. 797, 815, 282 P.3d 126 (2012). Silence in response to questioning
is presumed to be reliance on Miranda warnings. See State v. Young, 89 Wn.2d 613, 621,
574 P.2d 1171 (1978). Likewise, the State cannot comment on a defendant’s failure,
post-arrest, to come forward with an explanation. State v. Heller, 58 Wn. App. 414, 418-
19, 793 P.2d 461 (1990).
However, once a defendant waives the right to remain silent and makes post-
Miranda statements, the defendant’s subsequent testimony at trial can be impeached with
the earlier inconsistent statements. State v. Belgarde, 110 Wn.2d 504, 511, 755 P.2d 174
(1988). And when “ʻa defendant voluntarily offers information to police [post-Miranda],
his toying with the authorities by allegedly telling only part of his story is certainly not
protected by Miranda or Doyle.[9]’” Young, 89 Wn.2d at 621 (quoting State v. Osborne,
50 Ohio St.2d 211, 364 N.E.2d 216, 217 (1977)). Similarly, when a defendant provides a
denial in one form and asserts a different version at trial, the “‘partial silence’ at the time
9 Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
23 No. 39568-5-III State v. Sargent
of the initial statement is not insolubly ambiguous, but ‘strongly suggests a fabricated
defense and the silence properly impeaches the later defense.’” Belgarde, 110 Wn.2d at
511-12 (quoting State v. Cosden, 18 Wn. App. 213, 221, 568 P.2d 802 (1977)).
In this case, Sargent was advised of his rights before he chose to testify at the CrR
3.5 hearing. He chose to waive his right to remain silent and voluntarily testified to a
version of events before the accident. His trial testimony differed from his testimony at
the CrR 3.5 hearing. Not only did he provide more details at trial, despite his earlier
claim of not remembering much before the accident, he testified at trial that he was the
passenger, not the driver. At the very least his testimony about being a passenger was
omitted in his prior explanation. Arguably, however, his trial testimony about sitting in
the passenger seat with a dog on his lap was inconsistent with his CrR 3.5 testimony
where he was unable to recall any details about what happened but instead claimed that
he was “told the vehicle was crashed.” RP (Jan. 3, 2023) at 131. It was not improper for
the State to impeach Sargent on his inconsistent testimony and draw unfavorable
inferences from his failure to include crucial exculpatory information that he later related
at trial. See State v. Gutierrez, 50 Wn. App. 583, 589, 749 P.2d 213 (1988).
We disagree with Sargent that his case is controlled by State v. Fricks, 91 Wn.2d
391, 588 P.2d 1328 (1979). In Fricks, the prosecutor elicited testimony from police that
the defendant did not make any statements after being arrested. The court held that using
the defendant’s post-arrest silence as substantive evidence of guilt violated the
24 No. 39568-5-III State v. Sargent
defendant’s due process rights. Id. at 395. Fricks did not concern post-arrest statements
volunteered by a defendant after waiving Miranda rights.
Sargent also argues that his testimony at the CrR 3.5 hearing was focused on the
circumstances surrounding his post-arrest statements and he had no reason to discuss
whether he was driving. Sargent does not explain how his intentions would exempt him
from impeachment. See State v. Smith, 15 Wn. App. 103, 106, 547 P.2d 299 (1976)
(“Under CrR 3.5 . . . if a defendant does testify at trial concerning the statement, then the
prosecution may cross-examine the defendant at trial as ‘any other witness.’”).
Sargent fails to show that the prosecutor improperly commented on his right to
silence and alternatively fails to show that any such error was incurable.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Sargent argues he was afforded ineffective assistance of counsel because defense
counsel failed to object to (1) Deputy Spencer’s testimony that he was “impaired,” and
(2) the prosecutor’s question to Deputy Spencer regarding the CrR 3.5 hearing. We
should disagree.
Defendants have a constitutionally guaranteed right to effective assistance of
counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190 Wn.2d
104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel is an issue
of constitutional magnitude that may be considered for the first time on appeal. State v.
25 No. 39568-5-III State v. Sargent
Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Ineffective assistance of counsel claims
are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).
Here, Sargent bears the burden of showing (1) that his counsel’s performance “fell
below an objective standard of reasonableness based on consideration of all the
circumstances” and, if so, (2) “there is a reasonable probability that [but for counsel’s
poor performance, the outcome] of the proceeding would have been different.” State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “If either element . . . is not
satisfied, the inquiry ends.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
A defendant alleging ineffective assistance of counsel bears the burden of showing
deficient representation. McFarland, 127 Wn.2d at 335. In reviewing the record, there is
a strong presumption that counsel’s performance was reasonable. Id. “The
reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at
the time of the alleged error and in light of all the circumstances.” Kimmelman v.
Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). “When
counsel’s conduct can be characterized as a legitimate trial strategy or tactic[ ],
performance is not deficient.” Kyllo, 166 Wn.2d at 863.
In order for a defendant to prevail on a claim of ineffective assistance of counsel
based on a failure to object, they must show (1) the absence of legitimate strategic or
tactical reason for not objecting; (2) the trial court would have sustained the objection if
26 No. 39568-5-III State v. Sargent
made; and (3) if the evidence had not been admitted, the trial result would have been
different. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
Even if we find that counsel’s performance was deficient, a defendant must
affirmatively prove prejudice. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816
(1987). This requires more than simply showing “that the errors had some conceivable
effect on the outcome.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). A defendant demonstrates prejudice by showing that the
proceedings “would have been different but for counsel’s deficient representation.”
McFarland, 127 Wn.2d at 337.
Sargent first argues his counsel was ineffective for failing to object to Deputy
Spencer’s testimony that he was “impaired.” This argument fails. As discussed above,
Sargent’s counsel made a tactical decision to attack the opinion testimony by moving for
a mistrial. It is a legitimate trial strategy to avoid objecting to damaging testimony so as
not to draw attention to it. Further, even if this tactical decision was deficient, Sargent
fails to show that the outcome of the trial would have been different had he objected at
the time Deputy Spencer provided the opinion. As we noted above, even if there was
error, it was not significant and the evidence was redundant.
Second, Sargent argues counsel was ineffective for failing to object to the State’s
questioning of Deputy Spencer regarding the fact that Sargent never testified at the CrR
3.5 hearing that Ms. Simonson was the one driving. This argument also fails. The failure
27 No. 39568-5-III State v. Sargent
to object is generally considered a strategic decision. Sargent fails to demonstrate that an
objection would have been sustained. Additionally, defense counsel effectively
rehabilitated Sargent by pointing out the testimony at the CrR 3.5 hearing was limited.
Sargent has failed to demonstrate that his attorney was constitutionally ineffective.
4. LEGAL FINANCIAL OBLIGATIONS (LFOS)
Sargent requests we remand his case so the trial court can strike the VPA from his
judgment and sentence. The State concedes. Sargent also requests we remand so the
court can exercise its discretion in imposing interest on his ordered restitution. The State
concedes but also posits we can strike the restitution interest now. We accept the State’s
concession and remand for the limited purpose of striking the VPA and restitution interest.
Former RCW 7.68.035(1)(a) (2018) required a VPA be imposed on any individual
found guilty of a crime in superior court. In April 2023, the legislature amended RCW
7.68.035 to prohibit the imposition of the VPA on indigent defendants. See LAWS OF
2023, ch. 449, § 1, took effect on July 1, 2023.
Similarly, former RCW 10.82.090 (2018) required interest be imposed on
restitution without exception. However, effective January 1, 2023, the statute was
amended to say “The court may elect not to impose interest on any restitution the court
orders.” RCW 10.82.090(2) (2023). Amendments to statutes that impose costs upon
convictions apply prospectively to cases pending appeal. See State v. Ramirez, 191
Wn.2d 732, 748-49, 426 P.3d 714 (2018).
28 No. 39568-5-III State v. Sargent
Because Sargent’s case is pending on direct appeal, the amendments apply.
Below, the court found Sargent to be indigent, he was ordered to pay restitution, and his
judgment and sentence mandated that interest accrue on the restitution until it is paid in
full. The State concedes that these recent changes apply and requests that we strike the
fee and interest rather than remand for reconsideration. We accept the State’s concession
and proposed resolution.
Affirmed but remanded to strike the VPA and interest on restitution.
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.
_________________________________ Staab, J. WE CONCUR:
_________________________________ _________________________________ Lawrence-Berrey, C.J. Hill, J.†
† Tyson R. Hill, an active judge of a court of general jurisdiction, is serving as a judge pro tempore of this court pursuant to RCW 2.06.150(1).