State Of Washington, V. Jaycee Thompson

• Court: Court of Appeals of Washington
• Decided: April 28, 2025
• Docket: 86110-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86110-7-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION

JAYCEE CEDRIC THOMPSON,

Appellant.

FELDMAN, J. — Jaycee Thompson appeals his jury conviction for attempted theft

of a motor vehicle. He argues the trial court erred in three respects: (1) it commented on

the evidence by instructing the jury that “intent to deprive” does not require an intent to

“permanently deprive”; (2) it failed to give a voluntary intoxication instruction despite

substantial evidence supporting the defense; and (3) it admitted his custodial statements

to police in violation of Miranda. 1 Finding no error, we affirm.

I

On March 16, 2021, Idris Mohamed stopped at a convenience store for water and

snacks. Mohamed parked his car near the store entrance. As he entered the store, he

encountered Thompson. Mohamed claims Thompson told him, “Nice car. I should steal

1 See Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 86110-7-I

it.” Thompson, on the other hand, claims he complimented the car and asked Mohamed

if he could “take it for a spin,” to which Mohamed responded, “go ahead.”

Moments later, while Mohamed was in the store, he saw Thompson driving away

in his car and ran after it. Mohamed quickly caught up with the car. When he did,

Thompson exited the car and a conflict ensued during which Mohamed threatened

Thompson with a pistol and fired two warning shots, one of which struck Thompson’s foot.

Police were notified and two officers arrived within minutes, tackled Thompson,

and handcuffed him. Thompson asked one of the officers whether he had been shot. As

discussed in section II.C below, the officer then asked Thompson a series of questions

regarding why and how he may have been shot and Thompson repeatedly responded, “I

don’t know.” The officers then arrested Thompson and read him his Miranda rights, which

Thompson acknowledged he understood.

Before trial, Thompson filed a motion to exclude his pre-Miranda statements to

police. After holding a CrR 3.5 hearing, the trial court denied Thompson’s motion. The

pre-Miranda statements were then admitted at trial. Following trial, the jury convicted

Thompson of attempted theft of a motor vehicle. This timely appeal followed.

II

A

Thompson argues the trial court commented on the evidence by instructing the

jury that “intent to deprive” does not require an intent to “permanently deprive.” The State

argues Thompson waived this argument. We agree with the State.

The failure to timely object usually waives a claim of instructional error on appeal.

RAP 2.5(a); State v. Williams, 159 Wn. App. 298, 312, 244 P.3d 1018 (2011).

2 No. 86110-7-I

Notwithstanding that rule, a defendant may raise a claim of error for the first time on

appeal if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v.

Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). “In order to benefit from this

exception, ‘the appellant must identify a constitutional error and show how the alleged

error actually affected the [appellant]’s rights at trial.’” Gordon, 172 Wn.2d at 676 (quoting

State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). To determine if this exception

is applicable, “It is proper to ‘preview’ the merits of the constitutional argument to

determine whether it is likely to succeed.” State v. Kirwin, 165 Wn.2d 818, 823, 203 P.3d

1044 (2009) (quoting State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001)).

Thompson attempts to portray his claim as a manifest constitutional error by

arguing the trial court’s instruction 11 constituted an improper comment on the evidence.

Instruction 11 states:

As used in these instructions, “intent to deprive” means the intent to convert the property of another to one’s own use. “Intent to deprive” does not require proof . . . o[f] an intent to permanently deprive the other of the property.

We review alleged errors of law in jury instructions de novo. State v. Fleming, 155 Wn.

App. 489, 503, 228 P.3d 804 (2010).

Article IV, section 16 of the Washington Constitution provides that “[j]udges shall

not charge juries with respect to matters of fact, nor comment thereon, but shall declare

the law.” A judge is thus prohibited “from ‘conveying to the jury his or her personal

attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been

established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076

(2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). “A jury

instruction that does no more than accurately state the law pertaining to an issue does

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not constitute an impermissible comment on the evidence by the trial judge.” State v.

Sinrud, 200 Wn. App. 643, 649, 403 P.3d 96 (2017) (citing State v. Woods, 143 Wn.2d

561, 591, 23 P.3d 1046 (2001)). An instruction improperly comments on the evidence

when it resolves an issue of fact that should have been determined by the jury. Becker,

132 Wn.2d at 64-65.

Here, instruction 11 is not a comment on the evidence because it does no more

than accurately state the law pertaining to the charge of attempted theft. Instruction 11

is not misleading; it simply instructs the jury that “intent to deprive” does not require an

intent to “permanently deprive.” In so stating, instruction 11 reflects established

precedent that Washington’s theft statute does not require an intent to permanently

deprive someone of their property. 2 The instruction did not direct the jury as to whether

Thompson’s intent had been established as a matter of law, nor did it convey the judge’s

personal opinion regarding the credibility, weight, or sufficiency of the evidence presented

at trial. Rather, instruction 11 merely clarified the level of intent required to find Thompson

guilty of attempted theft.

Thompson argues instruction 11 is analogous to the instruction that we concluded

was unconstitutional in Sinrud. The instruction at issue there “stated that ‘the law requires’

substantial corroborating evidence” and, “[i]n the very next sentence, it stated that ‘the

law requires’ at least one additional factor.” 200 Wn. App at 651. Accordingly, we held

the instruction “conflated these two requirements such that a reasonable juror would have

interpreted the second sentence to be defining the first.” Id. Thus, the instruction created

2 State v. Komok, 113 Wn.2d 810, 816, 783 P.2d 1061 (1989) (holding that the Washington theft statute

rejects the common law element of “intent to permanently deprive”); State v. Crittenden, 146 Wn. App. 361, 370, 189 P.3d 849 (2008) (trial court correctly refused to instruct jury that intent to deprive requires intent to permanently deprive).

4 No. 86110-7-I

the risk that the jury would believe that if they found “at least one additional factor” then

they also found “substantial corroborating evidence.” Id. As such, the instruction was a

comment on the evidence because it relieved the prosecution of its burden of proof. Id.

at 650-51. Here, in contrast, instruction 11 did not allow the jury to erroneously find one

factor based on the presence of another factor, nor did it relieve the prosecution of its

burden of proof. Thompson’s reliance on Sinrud is therefore misplaced.

In conclusion, Thompson has not met his burden of showing a manifest error

affecting his constitutional rights, and we therefore do not review this claim of error.

B

Thompson next argues the trial court erred by denying his request for a jury

instruction on voluntary intoxication. We disagree.

“A criminal defendant is entitled to a voluntary intoxication instruction if: (1) one of

the elements of the crime charged is a particular mental state; (2) there is substantial

evidence of ingesting an intoxicant; and (3) the defendant presents evidence that this

activity affected his ability to acquire the required mental state.” State v. Harris, 122 Wn.

App. 547, 552, 90 P.3d 1133 (2004) (citing State v. Everybodytalksabout, 145 Wn.2d 456,

479, 39 P.3d 294 (2002)). The trial court here found insufficient evidence regarding the

third prong of this test. The court explained:

[E]ven assuming there’s substantial evidence of drug consumption, there’s, in the Court’s mind, insufficient evidence that the drug consumption affected his ability to acquire the required mental state to warrant a voluntary intoxication instruction.

So that is the reason and my finding why the voluntary instruction is not going to be given in this case.

5 No. 86110-7-I

Where a trial court determines there is insufficient evidence to justify giving a jury

instruction requested by the defense, we review that ruling for abuse of discretion. State

v. Butler, 200 Wn.2d 695, 713, 521 P.3d 931 (2022). Relevant here, an abuse of

discretion “may occur when a trial court decision ‘is unsupported by the record.’” Id. at

714 (quoting State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017)).

Thompson argues there is sufficient evidence to warrant a voluntary intoxication

instruction because, “The jury heard evidence of Mr. Thompson’s intoxication.”

Thompson testified he smoked PCP and felt its effect when he was at the store.

Mohamed similarly testified he “thought maybe [Thompson] was high” based on his

interactions with Thompson and because Thompson appeared confused when he was

confronted by Mohamed. Thompson also argues he had PCP on him when he was

searched by police, and he testified he was confused when the police arrested him.

Lastly, Thompson points to the convenience store’s video footage where he is seen

“slowly trying to purchase a coffee, dropping change, having difficulty picking up the

change, and then being locked out of the store due to his strange behavior.” Thompson

argues this is sufficient evidence of physical manifestations of intoxication from which to

infer his mental state was affected, thus entitling him to an intoxication instruction.

As the trial court correctly noted, while such evidence shows that Thompson was

intoxicated, it does not establish that his mental state was so affected as to warrant a

voluntary intoxication instruction. In so holding, the trial court relied on State v.

Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996), in which the defendant,

convicted of felony harassment and third-degree malicious mischief, appealed the denial

of a voluntary intoxication instruction. Although there was ample evidence Gabryschak

6 No. 86110-7-I

was intoxicated at the time of his crimes, the trial court did not find “evidence on the record

from which a rational trier of fact could reasonably and logically infer that Gabryschak was

too intoxicated to be able to form the required level of culpability to commit the crimes

with which he was charged.” Id. at 254. The court noted that Gabryschak refused to let

officers into the home and then attempted to run from the police while being escorted to

their vehicle, which indicated that Gabryschak understood his situation. Id. at 251, 254-

55. We affirmed the refusal to give a voluntary intoxication instruction because the

evidence did not reasonably connect Gabryschak’s intoxication with the asserted inability

to form the required level of culpability to commit the crimes charged. Id. at 252-53, 255.

This case is like Gabryschak. Similar to the police officers’ testimony in

Gabryschak, one of the officers who apprehended Thompson testified Thompson was

“calm,” concerned about his injury, and able to ride his bike. The officer also testified

Thompson knew his own name and answered questions appropriately. Thompson

himself stated that the events of the night were clear in his mind. Thompson never

testified he was too intoxicated by PCP to understand what he was doing; rather, he

repeatedly testified he drove Mohamed’s vehicle because he thought Mohamed “told me

I could take it for a spin.” Thompson testified that, even after Mohamed confronted him,

he was trying “to argue with [Mohamed] over the fact that he [] [told] me I could take it for

a spin.” As in Gabryschak, this evidence shows that Thompson’s drug use did not affect

his ability to acquire the required mental state.

On this record, the trial court did not abuse its discretion in refusing to give a

voluntary intoxication jury instruction.

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C

Lastly, Thompson argues the trial court erroneously admitted his custodial

statements to police in violation of Miranda. We disagree.

As noted previously, police quickly arrived on the scene, tackled Thompson, and

handcuffed him. Thompson then told the officers he may have been shot, prompting an

officer to ask, “why would you have got shot, tell me that?” Thompson answered, “I don’t

know.” The officer continued, “Tell me why you think you got shot?” Again, Thompson

answered, “I don’t know.” The officer repeated, “Again, why do you think you got shot?”

and “who shot you?” Thompson responded, “I don’t know who shot me.”

Before trial, Thompson filed a motion to exclude the statements he made to the

officers—repeated protestations of “I don’t know”—arguing they were elicited from him

before he was read his Miranda rights. After holding a CrR 3.5 hearing, the trial court

denied Thompson’s motion. In its written findings and conclusions, the court explained:

The Court finds that he was in custody the entire time as he was put in handcuffs immediately. All pre-Miranda statements are admissible as they were not made under questions meant to elicit incriminating statements. They were for information, such as questions about Mr. Thompson’s injury.

We review a trial court’s conclusions of law at a suppression hearing de novo, we review

challenged findings for substantial evidence, and we also review de novo whether an

interrogation was custodial. State v. Shuffelen, 150 Wn. App. 244, 252, 208 P.3d 1167

(2009).

The trial court’s analysis is consistent with applicable precedent. Although

statements made in a custodial interrogation without a Miranda warning are generally

inadmissible, see State v. Lavaris, 99 Wn.2d 851, 856-57, 664 P.2d 1234 (1983),

8 No. 86110-7-I

Washington courts have recognized, “Not every question posed in a custodial setting is

equivalent to interrogation requiring Miranda warnings.” Shuffelen, 150 Wn. App. at 256-

57. The test is “‘whether under all of the circumstances involved in a given case, the

questions are reasonably likely to elicit an incriminating response from the suspect.’” Id.

(quoting United States v. Gonzalez-Mares, 752 F.2d 1485, 1489 (9th Cir.1985)). “While

this test is objective, the subjective intent of the agent is relevant but not conclusive.” Id.

Generally, questions that are not reasonably likely to elicit an incriminating

response from the suspect, and thus may be asked in a custodial setting prior to a

Miranda warning, are questions regarding “routine information necessary for basic

identification purposes,” 3 questions “necessary to contain the situation,” 4 and questions

necessary for “the physical protection of the police.”5 In Richmond, an officer asked

Richmond who had called the police and where this person could be found. 65 Wn. App.

at 543. We held Richmond’s pre-Miranda responses to these questions were admissible,

noting, “it was reasonable and prudent for [the officer] to be concerned that someone

inside the apartment might be seriously injured.” Id. at 545. Similarly, in State v. Lane

77 Wn.2d 860, 861, 467 P.2d 304 (1970), our Supreme Court held Miranda warnings

were not required before asking a suspect “Do you have the gun?” The court reasoned

“[i]t would appear to be clearly unreasonable to deny the officer the power to take

necessary measures to determine whether the person is in fact carrying a weapon and to

neutralize the threat of physical harm.” Id. at 863.

3 United States v. McLaughlin, 777 F.2d 388, 391 (8th Cir.1985); accord State v. Walton, 64 Wn.App. 410,

414, 824 P.2d 533 (1992), abrogated on other grounds by In re Cross, 180 Wn.2d 664, 327 P.3d 660 (2014). 4 Richmond, 65 Wn. App. 541, 543,828 P.2d 1180 (1992). 5 State v. Lane 77 Wn.2d 860, 862, 467 P.2d 304 (1970).

9 No. 86110-7-I

Here, it is undisputed Thompson was in custody and had not been read his

Miranda rights when he was initially questioned. As such, the dispositive issue is whether

the police officers’ questions were reasonably likely to elicit an incriminating response.

As noted previously, and as Thompson explains in his appellate briefing, the specific

questions at issue here asked why Thompson had been shot and who shot him. These

questions were intended to secure the scene, ensure the officers’ safety, ascertain

whether Thompson was injured, and determine who shot him. As Richmond and Lane

confirm, the officers here could properly ask Thompson such questions before he was

read his Miranda rights.

Thompson argues, “the officer did not merely ask questions to ascertain whether

Mr. Thompson was injured or the extent of the injury. Rather, the officer’s questions were

about why someone shot Mr. Thompson and who shot him.” Thompson relies on Cross,

in which an officer told a suspect “sometimes we do things we normally wouldn’t do and

feel bad about it later.” In re Pers. Restraint of Cross, 180 Wn.2d 664, 684-85, 327 P.3d

660 (2014). Our Supreme Court held that this comment was designed to elicit an

incriminating response because any response, including silence, would be incriminating.

Id. at 684-86. The court further explained all of the defendant’s possible responses to the

police officers’ comments were incriminating because the comment “implie[d] Cross

committed the murders.” Id. at 686.

Thompson’s reliance on Cross is misplaced. Unlike the defendant in Cross,

Thompson could have responded to the police officers’ questions without incriminating

himself. When asked who shot him and why he was shot, Thompson could have indicated

Mohamed shot him as a result of an argument. Similarly, the officers’ questions did not

10 No. 86110-7-I

imply that Thompson committed any crime. To the contrary, the questions asked whether

Thompson was the victim of a crime and were reasonably likely to elicit a response that

incriminated someone else (Mohamed). Thus, the court’s holding in Cross is inapposite.

Lastly, even if Thompson’s pre-Miranda statements were improperly admitted, the

error was harmless. “A constitutional error is harmless if the appellate court is convinced

beyond a reasonable doubt that any reasonable jury would have reached the same result

in the absence of the error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).

Here, Thompson’s pre-Miranda statements had no plausible impact on the outcome of

the trial because Thompson repeatedly responded “I don’t know” when asked about why

he was shot and who shot him. Thompson did not confess to any criminal activity, nor

were his statements relevant to any element of the attempted theft charge. Additionally,

the pre-Miranda statements were nearly identical to Thompson’s post-Miranda

statements, which were properly admitted at trial. On this record, we are convinced

beyond a reasonable doubt that any reasonable jury would have reached the same result

in the absence of the asserted error. Thus, even if the pre-Miranda statements were

improperly admitted, the error was harmless.

Affirmed.

WE CONCUR: