State Of Washington, V. Seth Tyrone Crum

• Court: Court of Appeals of Washington
• Decided: October 11, 2021
• Docket: 82764-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 82764-2-I Respondent, v. DIVISION ONE

SETH T. CRUM, UNPUBLISHED OPINION

Appellant.

APPELWICK, J. — Crum appeals a series of convictions following Crum

assaulting and threatening his girlfriend in their home. He argues that statements

he made to police before Miranda1 warnings should be suppressed because he

was in custody. He argues that statements he made after Miranda warnings

should be suppressed as a result of an improper two-step interrogation. Crum also

alleges the State did not meet its burden for felony harassment, as it did not prove

that his threat to his girlfriend constituted a “true threat.” Finally, he argues that

the court abused its discretion by imposing a $900 fine without analyzing Crum’s

ability to pay. We affirm.

FACTS

Seth Crum and Tara Davis were in a relationship and the two lived together.

Davis worked as a pharmacy technician, and Crum was a disabled veteran on

disability for post-traumatic stress disorder (PTSD). On August 6, 2018, Crum and

Davis got into an argument about cleaning their home. Davis became frustrated

1 Miranda v. Arizona, 384 U.S. 436, 476, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 82764-2-I/2

with Crum, and asked him to leave the home. Instead of leaving, Crum blocked

the doorway to prevent Davis from leaving. Davis attempted to exit the room to

call 911. Crum threw Davis on the bed and began to strangle her, causing her to

temporarily lose consciousness. Crum also pinned Davis’s arm back and told her

that she “always start[s] problems.” Davis attempted to fight back, while struggling

to reach her phone in her back pocket so she could dial 911. Crum took Davis’s

phone and threw it on the ground, smashing and breaking it. Davis ran to the

window in the room and tried to break it to escape.

Davis testified that while she tried to escape from the room Crum told her

that he could hurt her family and that he would crash their car with Davis and her

kids in it over a cliff. Davis interpreted this as driving her over a bridge nearby their

home. Crum testified that he meant his “drive off a cliff” statement as a metaphor

for their relationship, a statement to express that he felt Davis did not want him

around anymore. Crum also testified that he made the statement because “it felt

like she wanted me to frigging die.” Davis testified that Crum made the cliff

comment “very sternly,” and that she believed that Crum would hurt her. She said,

“Marines especially say what they mean and mean what they say.”

During the fight, Davis realized if she kept fighting back, it would only get

worse. When things calmed down, Davis told Crum she wanted to go to the

hospital because her back hurt. Crum offered Davis a beer, which she refused.

Crum testified that he made the comment about driving off a cliff around this time,

after things calmed down. Crum offered to drive her to the hospital, but Davis

refused. Crum allowed Davis to leave, and she drove herself to the hospital.

2 No. 82764-2-I/3

Deputy Nathan Conley received a call from the hospital about a physical

domestic dispute that occurred. Deputy Conley interviewed Davis, who showed

him her injuries and told him that Crum threatened to drive her off a cliff. Deputy

Conley contacted Crum at the house. Deputy Conley knew Crum from a prior

mental health crisis call and was aware Crum had PTSD from his time in the

Marines.

Crum came outside, and he, Deputy Conley, and another officer had a calm

and civil interaction, although Deputy Conley admits Crum seemed reluctant to talk

to them. Deputy Conley said he wanted to hear Crum’s side of the story of what

had occurred between him and Davis. He asked Crum to sit, and Crum took a

seat in a lawn chair. Crum testified that he did not feel like he could break off the

conversation with Deputy Conley. However, Crum admits that the officers never

told him he could not walk away. Deputy Conley testified this was akin to a Terry

stop. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Deputy Conley noted their conversation was “sometimes unintelligible” due to

Crum speaking quietly to the ground instead of directly to him. He testified that he

asked Crum about the incident with Davis earlier that day, the nature of the fight,

and if he could go inside to investigate.

Crum told Deputy Conley that he could go inside to look for information and

evidence related to the earlier fight. Inside, Deputy Conley took photos of Davis’s

broken cell phone. He exited the house and placed Crum under arrest. After

transporting Crum to the precinct, Deputy Conley took Crum into an interview room

and advised him of his Miranda rights. Deputy Conley testified that Crum did not

3 No. 82764-2-I/4

appear confused about the rights or have any questions about them. Crum waived

his rights. Deputy Conley then asked him questions about the earlier events.

Crum admitted to smashing Davis’s cell phone and making statements about

driving himself and Davis off a cliff. At the station, Crum told Deputy Conley that

he meant the cliff statement as a joke. At some point, either at the home or at the

station,2 Crum testified he told the officer his reasoning for mentioning driving the

car off the cliff was, “I thought that’s what she wanted—she wanted me to go crazy

so she could get benefits out of me or something. I don’t know to be honest with

you.”

Crum was charged with assault in the second degree (domestic violence),

unlawful imprisonment (domestic violence), felony harassment (domestic

violence), malicious mischief in the third degree (domestic violence), and

interfering with the reporting of domestic violence (domestic violence). At the CrR

3.5 hearing, the court admitted the statements Crum made at the house and at the

station. A jury convicted Crum of all five crimes. The trial court ordered Crum to

prison for 25 months, and to pay $900 of fines under RCW 9A.20.021.

DISCUSSION

I. Pre- and Post-Miranda Statements

Crum argues that the statements he made to Deputy Conley, both at his

house and at the police station, should have been suppressed at the CrR 3.5

hearing. The statements Crum made at home should have been suppressed,

Crum states, because he was being interrogated by Deputy Conley while in

2 It is unclear in the record where these comments took place.

4 No. 82764-2-I/5

custody and was not free to leave. The statements Crum made at the station

should have been suppressed, Crum further argues, because Deputy Conley

asking post-Miranda questions at the station was a prohibited two-step

interrogation process.

A. Custody

First, Crum argues that his constitutional rights were violated when

statements he made to Deputy Conley at the house were not suppressed, because

he was interrogated in custody without Miranda warnings.

This court reviews de novo a trial court's determination that police did not

obtain a confession in violation of Miranda. State v. Johnson, 94 Wn. App. 882,

897, 974 P.2d 855 (1999). The Fifth Amendment to the United States Constitution

provides criminal suspects with the right to be free from self-incrimination. State

v. Rhoden, 189 Wn. App. 193, 199, 356 P.3d 242 (2015). To protect against self-

incrimination, law enforcement officers are required to provide Miranda warnings

before questioning a suspect that is in custody. Id. Statements made during a

custodial interrogation without Miranda warnings cannot be used against the

suspect at trial. Id. For purposes of Miranda, “‘[c]ustodial’ refers to whether the

defendant’s movement was restricted at the time of questioning.” State v. Lorenz,

152 Wn.2d 22, 36, 93 P.3d 133 (2004). Washington courts use an objective test

to determine whether a suspect is in custody for purposes of Miranda. State v.

Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004). Courts look to whether a

reasonable person in the same situation would feel that his or her freedom was

curtailed to the degree associated with a formal arrest. Id.

5 No. 82764-2-I/6

A Terry stop is a brief and public questioning by an officer that does not

require Miranda warnings. Id. An officer may briefly stop a suspect, where

reasonable person would not feel free to leave, without putting them in custody

under Miranda. Id. The officer can ask “a moderate number of questions” to

determine the identity of the suspect and to “confirm or dispel the officer’s

suspicions.” Id.

In determining whether a stop amounted to a Terry stop or custody under

Miranda, courts look to the duration of the stop. State v. France, 129 Wn. App.

907, 910, 120 P.2d 654 (2005). In France, officers told a suspect he was free to

leave only after “the matter was cleared up.” Id. at 910-11. The court found this

to be an open-ended, unlimited duration of questioning. Id. The possibility of

unlimited questioning paired with the fact that the officers had probable cause to

make an arrest before questioning, resulted in custody that required Miranda

warnings. Id. In contrast, in Heritage, a suspect was not in custody when an officer

asked her in public, “Whose marijuana pipe is this?” 152 Wn.2d at 213. The court

in Heritage found that the public nature of the interrogation and the fact the officers

asked only a moderate number of questions amounted to a Terry stop rather than

in custodial detention, requiring Miranda warnings. Id. at 219.

Crum argues that he was in custody because the officers did not tell him he

was free to leave. But, an explicit statement that he was free to leave was

unnecessary. See, e.g., id. Moreover, an investigatory detention does not convert

into a custodial arrest requiring a Miranda warning merely because the suspect is

not free to leave. State v. Marcum, 149 Wn. App. 894, 910, 205 P.3d 969 (2009).

6 No. 82764-2-I/7

Deputy Conley testified that the conversation at Crum’s home was a Terry

stop. The questioning took place outside the house, on the front porch. The stated

purpose of the questions was to get his side of the story. The testimony reflects

only a few questions were asked: whether Crum had fought with Davis, the nature

of their fight, and whether Deputy Conley could enter the house to investigate

further. The brief nature of questioning, the public area, and the questions related

to Deputy Conley’s suspicions support a conclusion that this stop amounts to a

Terry stop. Crum was not in custody when Deputy Conley asked him questions

outside his house, so Miranda warnings were not needed. Crum’s constitutional

rights were not violated when his motion to suppress was denied.

B. Two-step Interrogation

Crum claims that Deputy Conley engaged in an improper two-step

interrogation when he questioned Crum both outside the house and at the station.

Because of this, he argues his post-Miranda statements at the station should be

suppressed. The State counters that a two-step interrogation occurs only when

both questionings take place in custody.

A two-step interrogation occurs when an officer asks questions before

giving a Miranda warning, the suspect confesses, and the officer gives the Miranda

warning followed by a repetition of the confession. United States v. Williams, 435

F.3d 1148, 1154 (9th Cir. 2006). Courts look to whether the interrogating officer

deliberately used a two-step interrogation to avoid giving Miranda warnings.

Rhoden, 189 Wn. App. at 200-01. A two-step interrogation occurs only when both

7 No. 82764-2-I/8

rounds of questioning take place in custody. United States v. Barnes, 713 F.3d

1200, 1204-5 (9th Cir. 2013).

When Crum spoke with Deputy Conley outside his house, he was not in

custody. Therefore, no two-step interrogation took place. The trial court properly

declined to exclude both Crum’s pre- and post-Miranda statements.

II. True Threat

Crum asserts that the State failed to prove beyond a reasonable doubt that

Crum made a “true threat” to Davis, which is an element of his felony harassment

charge. The State argues it met its burden of proof, as the evidence demonstrates

that a reasonable person would have taken Crum’s statements as a true threat.

To prove harassment, the State needs to show that Crum knowingly

threatened Davis with bodily injury, and that Davis was in reasonable fear that the

threat would be carried out. RCW 9A.46.020(1). Under this statute, only a “true

threat” is prohibited. State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004).

True threats are not protected speech under the First Amendment. Id.

Courts use an objective test to determine a true threat. Id. Under this test,

“[a] ‘true threat’ is ‘a statement made in context or under such circumstances

wherein a reasonable person would foresee that the statement would be

interpreted . . . as a serious expression of intention to inflict bodily harm upon or

take the life of another person.’” State v. Boyle, 183 Wn. App. 1, 7-8, 335 P.3d

954 (2014) (alteration in original) (internal quotation marks omitted) (quoting State

v. Locke, 175 Wn. App. 779 789, 307 P.3d 771 (2013)). Under the objective test,

8 No. 82764-2-I/9

courts do not find jokes or hyperbolic statements to be threats. Kilburn, 151 Wn.2d

at 39; State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010).

Whether a true threat was made is determined by the sufficiency of the

evidence. Boyle, 183 Wn. App. at 6. Because analysis of a true threat has

constitutional implications, review is “a limited independent review of facts crucial

to the true threat inquiry.” State v. Kohonen, 192 Wn. App. 567, 577, 370 P.3d 16

(2016). Sufficient evidence supports a true threat if, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could find a true threat

beyond a reasonable doubt. Id.

Courts will review a true threat under the totality of the circumstances.

Boyle, 183 Wn. App. at 8. Not only the words and phrasing matter, but “the larger

context in which the words were uttered, including the identity of the speaker, the

composition of the audience, the medium used to communicate the alleged threat,

and the greater environment in which the alleged threat was made.” Kohonen,

192 Wn. App. at 580. “When assessing whether a reasonable person in the

speaker’s position would foresee a statement interpreted as a serious threat, we

look at the speaker’s actual intended audience, not a reasonable audience or an

unintended recipient.” State v. D.R.C., 13 Wn. App. 2d 818, 825, 467 P.3d 994

(2020)

Crum argues that he made vague and hyperbolic statements to Davis, and

that she could not reasonably infer he was seriously threatening her. The relevant

question here is whether a reasonable person in Crum’s position would have

understood that the statements about driving Davis and her children off a cliff

9 No. 82764-2-I/10

would be interpreted as a serious expression of intent to physically harm Davis

and her children.

Crum cites Kilburn and D.R.C. in support of his claim that his statements

were hyperbolic and not serious. In Kilburn, a student laughingly made comments

about bringing a gun to school. 151 Wn.2d at 39, 52. Because of Kilburn’s

recognized joke-making past, and his laughing during delivery of the comments,

the Washington Supreme Court held that a reasonable person would not interpret

his comments as a threat. Id. at 52-53. Similarly, in D.R.C., a daughter texted her

friends that she was going to kill her mother. 13 Wn. App. 2d at 821-22. Other

texts threatening an acquaintance were filled with emojis3 and language indicating

that D.R.C. did not intend her language as a serious threat. Id. at 823, 828.

Because the threatening language was inlaid with humorous language and emojis

to represent that she was kidding, the court did not find that D.R.C. made a true

threat. Id. at 828.

Kilburn and D.R.C. are inapposite. There is no evidence that Crum was

laughing or indicated to Davis that he was only kidding. The threats were not made

in a light-hearted moment. They were made in the context of a physical altercation,

in which he had strangled her to the point of unconsciousness. And, when she

regained consciousness and tried to make a phone call, he seized the phone and

smashed it. He blocked her attempt to leave. Nothing about this situation suggests

that Crum made this statement merely in jest or exaggeration.

3 An “emoji” is a small symbol or image used in electronic communication, including text messaging, to convey information or the writer’s emotions.

10 No. 82764-2-I/11

We look to whether a reasonable person in Crum’s position could foresee

that Davis would interpret his statements as true threats. D.R.C., 13 Wn, App. 2d

at 825-26. Davis testified that she wanted to go to the hospital. Crum stated that

he wanted to drive her. She feared that he meant to drive her off the bridge they

would have to cross on the way to the hospital. She stated that she believed he

actually would do it because “Marines especially say what they mean and mean

what they say.” Further, Davis testified that Crum had physically assaulted her in

the past. She also stated that Crum was angrier than usual that night. On this

record, a reasonable person in Crum’s shoes would foresee that Davis would take

this threat seriously.

Viewed in the light most favorable to the State, the State proved that Crum

made a true threat to Davis beyond a reasonable doubt.

III. Legal Financial Obligations

Crum argues that, under State v. Blazina, the court abused its discretion

when it imposed $900 of discretionary legal financial obligations (LFOs) on him

without analyzing his ability to pay. 182 Wn.2d 827, 344 P.3d 680 (2015).

In Blazina, the Supreme Court of Washington held that before a court orders

discretionary LFOs under RCW 10.01.160(3), it must conduct an inquiry on the

defendant’s ability to pay. Id. at 839. However, Blazina applies only to

discretionary LFOs and costs under RCW 10.01.160, and not fines. State v. Clark,

191 Wn. App. 369, 376, 362 P.3d 309 (2015). And, in Clark, this court held that

LFOs under RCW 9A.20.021 were considered to be fines, and did not require a

trial court to analyze a defendant’s financial situation before imposing the fine. Id.

11 No. 82764-2-I/12

RCW 9A.20.021 lists maximum fines depending on the level of crime. His

three felony and two gross misdemeanor convictions exposed him to potential

fines in the tens of thousands of dollars. The trial court knew Crum was indigent

and stated it assumed he lacked the assets to pay the fine. But, the trial court also

correctly stated that it did not believe that consideration of ability to pay under

Blazina was applicable to the fine. In this case, the trial court imposed a fine of

$900, less than the maximum fine for a misdemeanor.4

The trial court did not err by imposing the fine despite Crum’s indigence.

We affirm.

WE CONCUR:

4 We are mindful that fines, costs, and restitution are all financial assessments on a defendant and all require money or assets to pay them. It is intuitively obvious that a $900 fine could be so burdensome to a particular indigent defendant that is would constitute an abuse of discretion to impose it, just as a discretionary cost of the same amount could be. But, the considerations under Blazina have not been extended to fines. Accordingly, we find no abuse of discretion in the imposition of the $900 fine in this case.