Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29187-1-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
THOMAS ALLEN BUTLER,                            )         OPINION PUBLISHED
                                                )                 IN PART
                             Appellant.         )
                                                )

       Sweeney, J.  --  This appeal follows convictions for first degree kidnapping, first

degree burglary, conspiracy to commit first degree robbery, first degree robbery, and two 

counts of first degree assault.  The defendant and another man broke into a home intent 

on stealing drugs and money.  The defendant pistol-whipped and seized one victim, and 

then threatened him at gunpoint.  The defendant makes a number of assignments of error 

on appeal.  He contends the court should have suppressed the statement he gave to police 

while he was a patient in the hospital because he was on medication and could not then 

voluntarily consent to the police interview.  The court found and concluded otherwise and 

we conclude that the court's findings are supported by the record and support the court's  

No. 29187-1-III
State v. Butler

refusal to suppress the statement. The defendant also contends that any kidnapping was 

incidental to his robbery and therefore must be dismissed for insufficient evidence.  We 

conclude that the kidnapping here did not merge with the robbery.  We affirm the 

convictions.  

                                            FACTS

       Thomas Butler and Derick Taylor broke into a home occupied by Brandon 

Benson, Taylor Robertson, and Shelsey Carpenter on March 30, 2009.  Mr. Butler and 

Mr. Taylor punched Mr. Benson in the face.  Mr. Butler hit Mr. Benson in the face with a 

handgun and demanded drugs and money.  Mr. Benson told Mr. Butler to take his wallet 

and television, but that he did not have any drugs.  Mr. Benson also told Mr. Butler 

"[l]et's go upstairs," hoping that the commotion would wake up his roommates.  Clerk's 

Papers (CP) at 185. Mr. Butler then dragged Mr. Benson out of bed and led him, at 

gunpoint, up the stairs to the home's main floor.  

       Meanwhile, Mr. Taylor rifled through the roommates' stuff and packed things to 

steal.  Mr. Robertson was in his bedroom on the main floor; he woke up with the yelling 

and armed himself with a gun.  He cracked open his bedroom door and saw Mr. Butler 

holding a gun to Mr. Benson's head and Mr. Taylor rummaging through things.  Mr. 

Butler saw Mr. Robertson open the door, at which point he turned his gun from Mr. 

Benson to Mr. Robertson.  Mr. Butler and Mr. Robertson exchanged gunshots; Mr. Butler 

                                               2 

No. 29187-1-III
State v. Butler

was injured.  

       Police found Mr. Butler hiding underneath a neighbor's deck.  He had two gunshot 

wounds.  Mr. Butler was transported by ambulance to a hospital.  He remained in a coma 

and in intensive care for several days.  On April 6, Mr. Butler was still in the intensive 

care unit, but was no longer in a coma.  On that date, Mr. Butler consented to a surgery to 

remove a bullet near his spine.  Mr. Butler also met with Detective John Miller from the 

Spokane Police Department. 

       David Henry was the nurse assigned to Mr. Butler; and he controlled access to Mr. 

Butler.  Mr. Henry concluded that Mr. Butler was well enough to speak to Detective 

Miller even though Mr. Butler was required to lay flat in a bed and was on pain 

medication. Detective Miller introduced himself and asked if Mr. Butler would speak 

with him.  Detective Miller also concluded after talking to Mr. Butler that he was 
coherent enough to be interviewed.  The detective then read Mr. Butler Miranda1

warnings.  Mr. Butler said he understood and agreed to talk to Detective Miller.  

       Mr. Butler did not complain of difficulty understanding and his answers to 

questions made sense to the detective.  Detective Miller stopped the interview once Mr. 

Butler became too tired to continue and was having difficulty speaking.  

       The State charged Mr. Butler with first degree kidnapping, first degree burglary, 

       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  

                                               3 

No. 29187-1-III
State v. Butler

conspiracy to commit first degree robbery, three counts of first degree robbery, and two 

counts of first degree assault.  Mr. Butler moved to suppress the statements he gave to 

Detective Miller in the hospital.  He argued that he was too debilitated to give a knowing, 

voluntary, and intelligent waiver of his rights.  He also argued that Detective Miller failed 

to assess whether Mr. Butler was coherent enough to answer questions.  The court

listened to testimony from Mr. Henry, Detective Miller, Mr. Butler, and Mr. Butler's 

mother, Colleen Butler.  The court concluded that the interview did not implicate 

Miranda because it was noncustodial, but even if it was custodial, Mr. Butler had the 

necessary capacity to waive his Miranda rights.  The court denied Mr. Butler's motion to 

suppress and entered appropriate supporting findings of fact and conclusions of law.  

       The prosecution then proceeded to a jury trial. The court included, on its own 

motion, a jury instruction on when the occupant of a home can defend himself and others 

with deadly force.  Mr. Butler objected to the jury instruction as a comment on the 

evidence.  The jury convicted Mr. Butler of first degree kidnapping, first degree burglary, 

conspiracy to commit first degree robbery, first degree robbery, and two counts of first 

degree assault, all while armed with a firearm.  

                                        DISCUSSION

Statements To Police -- Voluntary

       Mr. Butler contends that the court erred by concluding that his statements to 

Detective Miller were free and voluntary.  

                                               4 

No. 29187-1-III
State v. Butler

He argues that the record shows that he was on strong pain medications, bedridden, and 

therefore hardly capable of understanding what was going on and certainly not capable of 

intelligently consenting to talk to police. 

       Mr. Butler's challenge to the court's refusal to suppress his statements implicates 

two separate standards here on appeal: one (substantial evidence) we apply to the court's 

findings of fact, and the second (de novo) we apply to the court's conclusion that his 

statements were freely and voluntarily given. State v. Grogan, 147 Wn. App. 511, 516, 

195 P.3d 1017 (2008).  Mr. Butler does not challenge the trial court's findings and we

therefore accept them as true.  State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 

(1997).  So the only question before us is a question of law; that is, whether the court's 

factual findings support the court's conclusion that Mr. Butler's statements were free and 

voluntary.  

       The court concluded that Mr. Butler was not in custody, and that even if he was in 

custody, his statement was voluntary.  We address both holdings in order.

       The conclusion that a suspect is in custody turns on "whether a reasonable person 

in the individual's position would believe he or she was in police custody to a degree 

associated with formal arrest." State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 

(2004). "Custody" depends on "whether the defendant's movement was restricted at the 

time of questioning," and necessarily that the police restricted that movement.  Id.

"Custody" does not refer to whether police 

                                               5 

No. 29187-1-III
State v. Butler

intend to arrest, whether the environment was coercive, or whether there was probable 

cause to arrest at the time of the questioning.  Id. at 37. It refers instead to whether the 

suspect's movement is restricted at the time of questioning.  Id. at 36-37.

       In State v. Kelter, for example, the court addressed whether a suspect was in 

custody when police interviewed him in his hospital room.  71 Wn.2d 52, 54, 426 P.2d 

500 (1967).  Mr. Kelter was in the hospital and under investigation for causing a fatal car 

crash.  The court refused to conclude that Mr. Kelter was in custody even though he was 

confined to his hospital room because he had not "been placed under arrest or otherwise 

restrained by the police."  Id. Mr. Kelter was restricted to a hospital room, by his own 

injuries, not by police.  Mr. Butler similarly was restricted to his hospital room because 

of his injuries.  No police were stationed inside or outside Mr. Butler's room.  And it was 

Mr. Butler's nurse, Mr. Henry, who ultimately controlled access to Mr. Butler.  These 

facts support the court's conclusion that Mr. Butler was not in custody when he spoke 

with Detective Miller.  

       Moreover, custody or not, we, like the trial court, would conclude that Mr. 

Butler's statements were voluntary.  A suspect can "voluntarily waive his Miranda rights 

even when he is in the hospital, on medication, and in pain."  United States v. George, 

987 F.2d 1428, 1430 (9th Cir. 1993).  If a suspect speaks to police while on narcotic 

drugs, the admissibility of the statement depends on the "unique facts of the case."  State 

v. Gregory, 79 Wn.2d 637, 642, 488 P.2d

                                               6 

No. 29187-1-III
State v. Butler

757 (1971), overruled on other grounds by State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 

(1974).  The court found that Mr. Gregory's "rationality" was not "hindered, diminished 

or in any manner affected by [Codeine and Demerol]." Gregory, 79 Wn.2d at 642.  And

that Mr. Gregory "freely and unhesitatingly answered questions" even though he was 

tired.  Id.  

       Again, the facts supporting the court's refusal to suppress are unchallenged.  He 

answered the detective's questions appropriately.  Report of Proceedings (RP) at 29, 30; 

CP at 108. His attending nurse, Mr. Henry, thought he was well enough to speak to 

detectives.  There is no showing that the detective took advantage of his weakened 

condition.  Indeed he stopped the questioning when Mr. Butler became too tired to talk.  

Detective Miller read Mr. Butler the Miranda warnings.  And Detective Miller left after 

the interview and did not arrest him until weeks later.  CP at 108.  We affirm the court's 

denial of Mr. Butler's motion to suppress his statements to police. 

Kidnapping -- Sufficient Evidence

       Mr. Butler next argues that any kidnapping here was "incidental" to the robberies 

because abduction requires restraint and the restraint here was merely incidental to the

robbery and is not enough then to support an independent conviction for kidnapping.  Br. 

of Appellant at 14.  He argues that a kidnapping is incidental to another crime when it has 

"no independent purpose or injury."  State v. Brett, 126 Wn.2d 136, 166, 892 P.2d 29 

(1995).  And here, he continues, the 

                                               7 

No. 29187-1-III
State v. Butler

restraint of Mr. Benson was only to facilitate the robbery, it is merely incidental, and 

therefore insufficient to independently support a kidnapping conviction.  

       The State, of course, must produce substantial evidence to support the elements of 

a crime.  State v. Werneth, 147 Wn. App. 549, 552, 197 P.3d 1195 (2008).  Whether the 

State has met that burden, a burden of production, is a question of law that we review de 

novo.  Id.  Whether there is sufficient evidence to support a conviction turns on 

"'whether, after viewing the evidence most favorable to the State, any rational trier of 

fact could have found the essential elements of [the crime].'" State v. Vladovic, 99 

Wn.2d 413, 424, 662 P.2d 853 (1983) (quoting State v. Green, 94 Wn.2d 216, 221-22, 

616 P.2d 628 (1980)).  Deference is given to the trier of fact on issues of conflicting 

testimony, credibility of witnesses, and the general persuasiveness of the evidence.  State 

v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).  

       Robbery is "unlawfully tak[ing] personal property from the person of another or in 

his presence against his will by the use or threatened use of immediate force, violence, or 

fear of injury to that person or his property or the person or property of anyone."  Former 

RCW 9A.56.190 (1975).  Robbery is elevated to first degree robbery if the robber inflicts 

bodily injury, is armed with a deadly weapon, or displays what appears to be a firearm or 

other deadly weapon. RCW 9A.56.200.  Kidnapping in the first degree, on the other 

hand, includes:

                                               8 

No. 29187-1-III
State v. Butler

       [I]ntentionally abduct[ing] another person with intent:
              . . . .
              (b) To facilitate commission of any felony or flight thereafter; or
              (c) To inflict bodily injury on him; or
              (d) To inflict extreme mental distress on him or a third person.

Former RCW 9A.40.020 (1975). "Abduct" is "restrain[ing] a person by either (a) 

secreting or holding him in a place where he is not likely to be found, or (b) using or 

threatening to use deadly force." Former RCW 9A.40.010(2) (1975). "Restrain" is 

"restrict[ing] a person's movements without consent and without legal authority in a 

manner which interferes substantially with his liberty."  Former RCW 9A.40.010(1)

(1975). 
       Mr. Butler relies on the analysis set out in State v. Korum,2 among other cases, for

his contention that the kidnapping here was incidental to the robbery and that there was 

not enough of a showing by the State, independent of the robbery, to support the 

conviction for kidnapping.  Br. of Appellant at 15.  We reject the contention for a number 

of reasons.  

       First, like any case law precedent, Korum has to be put in its proper factual context 

before it can be properly applied. And Korum was decided in a very different context 

than what we have here.  In Korum, the Court of Appeals was charged with deciding 

whether a prosecutor vindictively overcharged a defendant in retribution for successfully 

       2 120 Wn. App. 686, 703, 86 P.3d 166 (2004), aff'd in part, rev'd in part on other 
grounds, 157 Wn.2d 614, 141 P.3d 13 (2006).

                                               9 

No. 29187-1-III
State v. Butler

moving to set aside a guilty plea.  Korum, 120 Wn. App. at 689-90.  The court begins its 

analysis with a discussion of the prosecutorial standards set out in RCW 9.94A.411, 

including that: "'[c]rimes which do not merge as a matter of law, but which arise from the 

same course of conduct, do not all have to be charged.'"  Id. at 702 (quoting former RCW 

9.94A.440(2) (1996), recodified as RCW 9.94A.411(2)).  The court then cited to federal 

authority that prohibits, or, at least discourages "'without explanation, increas[ing] the 

number of or severity of those charges in circumstances which suggest that the increase is 

retaliation for the defendant's assertion of statutory or constitutional rights.'" Id. at 702 

(quoting Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir. 1977)).  And, significantly, 
the court in Korum cites to the dissent in Vladovic,3 not the majority opinion, to voice its

concern over the pyramiding of charges by a prosecutor.  Korum, 120 Wn. App. at 704.  

Ultimately, the court concluded that "the State's stacking of multiple kidnapping charges 

following Korum's plea withdrawal was not consistent with the legislature's directives in 

former RCW 9.94A.440(2) [(now RCW 9.94A.411)]."  Id. at 703.  

       But here we are not concerned with prosecutorial vindictiveness or the State 

overcharging Mr. Butler.  And that brings us to our next point which is that the 

controlling Supreme Court authority here is set out in Vladovic.  That case resolves these 

questions on the basis of merger principles.  Vladovic, 99 Wn.2d at 418-22.

       3 99 Wn.2d at 430.

                                               10 

No. 29187-1-III
State v. Butler

       In Vladovic, the court holds that the controlling principles here are those of the 

merger doctrine, with its attendant inquiry into legislative intent, not whether one crime 

was "incidental" to another: 

              Our only apparent divergence from the above analysis [merger 
       analysis] occurred in State v. Allen, 94 Wn.2d 860, 621 P.2d 143 (1980), 
       which petitioner relies upon. In Allen we determined that, under the facts 
       of that case, the kidnapping was separate and distinct from the robbery and 
       thus the case fell within an exception to the merger doctrine set forth in 
       Johnson I [State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979)]. There 
       is dictum in Allen to the effect that had the kidnapping merely been 
       incidental to the robbery, the former offense would have "merge[d] into the 
       robbery as a matter of law." Allen, at 864.  That statement is not in accord 
       with either Johnson I or II [State v. Johnson, 96 Wn.2d 926, 639 P.2d 1332 
       (1982)] and we do not now adhere to it.  We reaffirm our holdings that the 
       merger doctrine is a rule of statutory construction which only applies where 
       the Legislature has clearly indicated that in order to prove a particular 
       degree of crime (e.g., first degree rape) the State must prove not only that a 
       defendant committed that crime (e.g., rape) but that the crime was 
       accompanied by an act which is defined as a crime elsewhere in the 
       criminal statutes (e.g., assault or kidnapping). Pursuant to this rule, 
       kidnapping does not merge into first degree robbery.

Vladovic, 99 Wn.2d at 420-21.

       The court's later opinion in In re Personal Restraint of Fletcher also reflects this 

approach.  113 Wn.2d 42, 52, 776 P.2d 114 (1989) (citing Vladovic, 99 Wn.2d at 421).  

There the court says that robbery and kidnapping do not merge because a person does not 

need to abduct and commit another crime to commit kidnapping; a person need only 

abduct and do so with intent to commit another crime.  Id. This means that robbery, or 

                                               11 

No. 29187-1-III
State v. Butler

any other crime is not an element of kidnapping.  See id. at 53. So, the merger doctrine 

does not apply to kidnapping.  Id.

       The Supreme Court again endorsed this approach in State v. Louis, 155 Wn.2d 

563, 570-71, 120 P.3d 936 (2005) (affirming robbery and kidnapping convictions of 

Louis, who robbed jewelry store owners at gun point and left them bound inside the 

store's bathroom). Here there is no suggestion by counsel or in the statutory schemes of 

kidnapping and robbery that the legislature intended that one "merge" with the other.

Former RCW 9A.40.020; former RCW 9A.56.190. 

       Finally on this point the evidence here also supports separate convictions for each 

crime in this case.  Again, whether the evidence is sufficient to support the elements of a 

crime is a question of law.  Green, 94 Wn.2d at 220-21.  But, that said, the necessary 

considerations to answer the sufficiency question in this context certainly seem 

essentially factual.  That is whether one crime is "incidental" to another seems to turn on 

factual rather than legal considerations.  Korum, 120 Wn. App. at 707.  Indeed, it has 

been described as a "fact specific" determination.  State v. Elmore, 154 Wn. App. 885, 

901, 228 P.3d 760 ("Thus, whether the kidnapping is incidental to the commission of 

other crimes is a fact-specific determination"), review denied, 169 Wn.2d 1018 (2010). 

Whether one crime is incidental to another might better be left to the trier of fact than to 

the court.  Nonetheless, the facts here, when viewed objectively, support the jury's 

conviction for kidnapping independent of 

                                               12 

No. 29187-1-III
State v. Butler

the robbery conviction.  

       Mr. Butler punched Mr. Benson in the face.  Mr. Butler then hit Mr. Benson in the 

face with a handgun and demanded drugs and money.  Mr. Benson told Mr. Butler to take 

his wallet and television, but that he did not have any drugs.  Mr. Butler then dragged Mr. 

Benson out of bed and led him, at gunpoint, up the stairs to the home's main floor.  Mr. 

Robertson cracked open his bedroom door and saw Mr. Butler holding a gun to Mr. 

Benson's head and Mr. Taylor rummaging through things nearby.  Mr. Butler saw Mr. 

Robertson open the door, at which point he turned his gun from Mr. Benson to Mr. 

Robertson.  This factual scenario then easily supports a kidnapping conviction

independent of the robbery and it does not then merge with the robbery conviction.  See 

Louis, 155 Wn.2d at 566-67, 570-71.  

Conspiracy To Commit Robbery

       Mr. Butler next contends that the State's showing is not sufficient to support a 

conviction for conspiracy to commit first degree robbery because the State failed to show 

any agreement between him and Mr. Taylor to commit first degree robbery.  

       Again, whether there is sufficient evidence to support a conviction depends on 

"'whether, after viewing the evidence most favorable to the State, any rational trier of 

fact could have found the essential elements of [the crime].'" Vladovic, 99 Wn.2d at 424

(quoting Green, 94 Wn.2d at 221-22).  Again, we defer to the trier of fact on issues of 

conflicting testimony, credibility, and the 

                                               13 

No. 29187-1-III
State v. Butler

general persuasiveness of the evidence.  Thomas, 150 Wn.2d at 874-75.

       Criminal conspiracy requires "intent that conduct constituting a crime be 

performed, [agreeing] with one or more persons to engage in or cause the performance of 

such conduct, and any one of them tak[ing] a substantial step in pursuance of such 

agreement." RCW 9A.28.040(1).  The State must show that an actual agreement existed.  

State v. Pacheco, 125 Wn.2d 150, 159, 882 P.2d 183 (1994).  This agreement can be 

informal.  State v. Barnes, 85 Wn. App. 638, 664, 932 P.2d 669 (1997).  And the State 

can use circumstantial evidence to show the agreement.  State v. King, 113 Wn. App. 

243, 284, 54 P.3d 1218 (2002).  This circumstantial evidence can be in the form of 

declarations, acts, conduct, or by a concert of action.  Barnes, 85 Wn. App. at 664.

       The evidence here when viewed most favorably to the State shows that Mr. Butler 

and Mr. Taylor beat Mr. Benson at the same time and that, while Mr. Butler held a gun to 

Mr. Benson, Mr. Taylor rifled through items in the home and gathered items to steal.  

These are concerted actions from which the jury could have inferred that Mr. Butler and 

Mr. Taylor agreed to divide their efforts -- Mr. Butler had the job of strong-arming 

residents and Mr. Taylor had the job of gathering items to steal.  Strong-arming a person 

while stealing from that person is first degree robbery.  See former RCW 9A.56.190; 

RCW 9A.56.200(1)(a).  This circumstantial evidence is sufficient to support the 

conspiracy to commit first degree robbery.  

Self-Defense Instruction -- Homeowner 

                                               14 

No. 29187-1-III
State v. Butler

Victim 

       Mr. Butler next contends that the judge improperly commented on the case and 

injected himself into the proceedings by instructing the jury on a homeowner's right to 

use deadly force. 

       We review the court's choice of jury instructions for abuse of discretion.  State v. 

Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. 

Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).  We, however, review claims of legal error, 

including whether the instruction amounts to a comment on the evidence, de novo.  State 

v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).  Each instruction is considered in 

the context of the "instructions as a whole" rather than in isolation.  State v. Benn, 120 

Wn.2d 631, 654-55, 845 P.2d 289 (1993).  Here, the court instructed the jury that Mr. 

Robertson had the right to use deadly force:

              The use of deadly force by a homeowner or person in possession of 
       premises is justifiable when committed in the lawful defense of the 
       homeowner or any person in the homeowner's presence or company when:
              (1) the homeowner reasonably believed that the person in question or 
       others whom the homeowner reasonably believed were acting in concert 
       with the person in question intended to commit a felony or to inflict death 
       or great personal injury;
              (2) the homeowner reasonably believed that there was imminent 
       danger of such harm being accomplished; and
              (3) the homeowner employed such force and means as a reasonably 
       prudent person would use under the same or similar conditions as they 
       reasonably appeared to the homeowner, taking into consideration all the 
       facts and circumstances as they appeared to him or her, at the time of the 
       incident.

                                               15 

No. 29187-1-III
State v. Butler

CP at 71 (Instruction 31).

       Article IV, section 16 of the Washington State Constitution prohibits a judge from 

"conveying to the jury his or her personal attitudes toward the merits of the cases." State 

v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).  If the court expresses its personal 

feelings on an element of an offense, it is a violation to do so even if the court's feelings 

are only implied.  State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970).  Jury 

instructions that "permit the parties to argue their theories of the case, do not mislead the 

jury, and properly inform the jury of the applicable law" are proper.  State v. Willis, 153 

Wn.2d 366, 370, 103 P.3d 1213 (2005).

       Division One of this court has addressed facts similar to those presented here.  In 

State v. Malone, the trial court sua sponte included an instruction telling the jury that an 

alleged rape victim's testimony did not need to be corroborated to find the defendant

guilty of rape.  20 Wn. App. 712, 714, 582 P.2d 883 (1978).  The defendant argued that 

this was a "negative" instruction.  Id. The court there held that this was not a comment 

on the evidence because it was a correct statement of the law, it was relevant to the issues 

at trial, and its phrasing did not reveal the trial court's opinion on the witness's 

credibility.  Id. at 714-15.  

       Malone's analysis is helpful here.  Instruction 31 was a correct statement of the 

                                               16 

No. 29187-1-III
State v. Butler

law.  The court did not abuse its discretion by including it even though the jury did not 

have to decide whether Mr. Robertson acted in self-defense.  The instruction became

relevant with the conflicting testimony of Mr. Robertson and Mr. Butler on who fired 

first; both claimed the other fired first.  Both also claimed that he shot in self-defense.

And the wording of Instruction 31 did not prevent Mr. Butler from arguing his theory of 

the case or suggest to the jury which witnesses it should believe.  

       Instruction 31 accurately states the law, is relevant to the issues at trial, and does 

not suggest the court's opinion on the case.  

       We affirm the convictions.

       The remainder of this opinion has no precedential value.  Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions.  

Statement of Additional Grounds

       Interview was Custodial.  Mr. Butler argues that he was in custody at the time of 

Detective Miller's interview because there was probable cause to arrest Mr. Butler at the 

time of the interview and because Detective Miller spoke to Mr. Butler in the intensive 

care unit only six hours after Mr. Butler had regained consciousness.  We have already 

addressed this issue.  At the time of questioning, there may have been probable cause to 

arrest Mr. Butler, but because Mr. Butler was not restricted by law enforcement to a 

degree associated with formal arrest, he was not in custody. 

       State Failed to Show by 

                                               17 

No. 29187-1-III
State v. Butler

Preponderance of the Evidence that Statement was Voluntary.  Mr. Butler argues that the 

State failed to meet its burden of proof at the CrR 3.5 hearing because Detective Miller's 

testimony was uncorroborated and Mr. Butler's "credibility was never disputed."  

However, we leave it to the trier of fact to resolve conflicting testimony, weigh the 

credibility of witnesses, and generally decide how persuasive the evidence is.  State v. 

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).  

       Statement to Detective Miller was Involuntary.  Mr. Butler argues that his 

statement to Detective Miller was involuntary because he did not "possess sufficient 

mental capacity to make a free and rational choice of whether or not to speak to the 

detective" at the time of the interview.  Again, we have thoroughly addressed this 

assignment of error. 

       Court Improperly Admitted Hearsay.  Mr. Butler argues that the trial court 

improperly admitted hearsay evidence from the State's direct examination of Mr. Henry 

at the CrR 3.5 hearing:

              Q.  All right.  You have personal knowledge that Mr. Butler gave 
       informed consent for a surgery on April 6th of 2009?
                      [THE DEFENSE]:  I object to the hearsay, Your Honor.
                      [THE COURT]:  No.  This is something that has independent 
       legal significance.  I will permit.  
              Go ahead.  You may answer, sir.
              A.  In my considered opinion, the patient was fully alert, oriented, 
       and able to clearly discuss his surgery with the surgeon, and then give 
       informed consent. 

RP at 11-12.  The admissibility of evidence 

                                               18 

No. 29187-1-III
State v. Butler

 is within the court's discretion and that discretion will not be disturbed on review unless 

 there is a showing of abuse of discretion.  State v. Stubsjoen, 48 Wn. App. 139, 147, 738 

 P.2d 306 (1987).  Abuse "occurs when the ruling of the trial court is manifestly 

 unreasonable or discretion was exercised on untenable grounds."  State v. Gatalski, 40 

 Wn. App. 601, 606, 699 P.2d 804 (1985).  Here, the court stated that it would allow 

 testimony with "independent legal significance." In other words, the trial court allowed 

 the testimony because it had a purpose other than proving that Mr. Butler gave informed 

 consent.  The court did not abuse its discretion.

                                               19 

No. 29187-1-III
State v. Butler

       We affirm the convictions.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Kulik, C.J.

________________________________
Brown, J.

                                               20