State of Washington v. Ray Leny Betancourth ( 2016 )


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  •                                                                              FILED
    JUNE 30, 2016
    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. 32683-7-111
    Respondent,            )
    )
    V.                                   )
    )
    RAY LENY BETANCOURTH,                       )        UNPUBLISHED OPINION
    )
    Appellant.             )
    FEARING, C.J. -   A jury found Ray Betancourth guilty of second degree felony
    murder and first degree assault. We reverse and remand for a new trial Betancourth's
    conviction for second degree murder because the State, during closing argument,
    misrepresented the elements of a defense available to Betancourth. We, nonetheless,
    affirm a trial court ruling denying Betancourth's motion to suppress statements he made
    during police station interviews.
    JI
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    1;
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    No. 32683-7-III
    State v. Betancourth
    FACTS
    Our statement of facts comes from both trial testimony and two motions to
    suppress evidence. We begin with some trial testimony on the charges of second degree
    murder and first degree assault against Ray Betancourth. On September 17, 2012,
    Betancourth noticed damage to windows of his Honda Civic. On September 19, on a
    basis unknown to us, Betancourth identified one of the window caperers as Terrence
    Frank.
    During the afternoon of September 19, 2012, Ray Betancourth and his girlfriend
    texted one another:
    [Girlfriend:] Did you see the video Eiree posted on Facebook. Is
    that the black guy who broke your window.
    [Betancourth:] Yeah, I just-did.
    [Girlfriend:] Is that him?
    [Betancourth:] Yep. Both those fools.
    [Girlfriend:] Cool. Cool.
    [Betancourth:] Yep, I want to beat the shit of o' [sic] them.
    Report of Proceedings (RP) at 1435 (internal quotation marks omitted).
    In the early evening of September 19, Ray Betancourth assembled companions to
    harass Terrence Frank. Betancourth first summoned Marco Cardenas. He telephoned
    Mario Cervantes, while David Chavez was visiting Cervantes' house. Betancourth
    informed Chavez and Cervantes that he had located one of the men who broke his car
    windows and that he "wanted to beat his ass." RP at 905. Betancourth advised that he
    would shortly retrieve Chavez and Cervantes. Ten minutes later, Ray Betancourth,
    2
    No. 32683-7-111
    State v. Betancourth
    driving a four-door Ford pickup truck, arrived at Cervantes' home with Marco Cardenas
    riding shotgun. Cervantes and Chavez entered into the backseat of the truck. The quartet
    journeyed through Toppenish and found Terrence Frank, with Jordan Lemus and Jose
    Rodriguez, walking on a sidewalk along the city's Madison Street.
    Ray Betancourth stopped the pickup truck at a stop sign. David Chavez, from the
    backseat, then saw Marco Cardenas unfasten his seatbelt and move his hands. Chavez
    also heard Mario Cervantes tell Cardenas to "put that shit away." RP at 910. David
    Chavez did not see what object Cardenas placed in his hand because Chavez sat directly
    behind Cardenas. Nevertheless, Chavez noticed Marco Cardenas put away the object.
    Betancourth pulled a firearm from the truck door pocket, and placed it under his driver's
    seat. All four exited the truck.
    The four companions planned for Ray Betancourth to fight Terrence Frank
    without anyone else scrapping. Betancourth hollered to the three walking on the
    sidewalk: "Who broke my windows?" RP at 917. Betancourth, Cervantes, Cardenas,
    and Chavez then chased the other three. Terrence Frank ran down the street, while
    Jordan Lemus and Jose Rodriguez ran into an alley south of Madison Street.
    David Chavez testified that all four pursuers, with Marco Cardenas leading,
    followed Lemus and Rodriguez into the alley. Lemus jumped a fence, after which Marco
    Cardenas pulled a gun and shot twice. One or both bullets struck Rodriguez in the head.
    David Chavez testified that he did not know that Marco Cardenas carried a gun until the
    3
    No. 32683-7-III
    State v. Betancourth
    shots fired.
    According to Ray Betancourth, before Marco Cardenas fired the gun, Mario
    Cervantes yelled: "the truck." RP at 1220. Betancourth then ended his chase out of
    recognition that he left the pickup unattended and with the engine running. He returned
    to his truck to tum off the motor. As he opened the driver's door to the pickup,
    Betancourth heard "popping sounds." RP at 1221. According to Betancourth, he also did
    not know Marco Cardenas carried a gun. He did not expect Cardenas to shoot anyone.
    According to David Chavez, Ray Betancourth, Marco Cardenas, Chavez, and
    Mario Cervantes quickly returned to Betancourth's Ford truck after the shooting and sped
    away. According to Ray Betancourth, once he entered his pickup truck and turned off the
    ignition, he noticed Marco Cardenas and David Chavez frantically sprinting to the
    pickup. Both hopped into the backseat of the truck. Betancourth then heard a thud and
    saw, through the rear view mirror, Mario Cervantes jumping into the truck's bed.
    Betancourth, not knowing what transpired, drove away.
    David Chavez testified that Betancourth, Chavez, and Cervantes asked Cardenas,
    after the quartet returned to the pickup: "What the fuck, what-what are you doing?" RP
    at 944. Ray Betancourth testified he heard David Chavez twice loudly comment to
    Marco Cardenas: "You shot him." RP at 1223. Cardenas responded: "You think so."
    RP at 1224. Chavez also said to Marco Cardenas: "You fucked up." RP at 1226.
    The foursome traveled out of Toppenish. David Chavez testified that Ray
    4
    No. 32683-7-111
    State v. Betancourth
    Betancourth stopped the pickup truck on a Wapato bridge where Cardenas handed the
    gun to Betancourth, who threw it into the river. Betancourth denies stopping the truck on
    a bridge or handling a gun. Betancourth drove the truck to a friend's home in Buena.
    According to Betancourth, when the four arrived in Buena, the three others repeatedly
    questioned Marco Cardenas why he brought a gun to the fight.
    At 6:20 p.m. on September 19, 2012, Toppenish Police Officer Casey Gillette
    traveled to the alley adjacent to Madison Street because of a report of gun shots and of a
    man stricken in the alley. Officer Gillette found a resident of a nearby house attending to
    an unconscious Jose Rodriguez. Officer Gillette summoned medical aid, which arrived
    and transported Rodriguez to the hospital. Fifteen-year-old Rodriguez died the following
    day.
    Witnesses to the chase identified Ray Betancourth's Ford pickup truck as the
    vehicle used by Jose Rodriguez's assailants. Based on this identification, Toppenish
    police seized the truck on September 21.
    The following portion of the statement of facts derives from a hearing to suppress
    statements uttered by Ray Betancourth. During the evening of September 21, 2012,
    Betancourth and his father entered the Toppenish police station. Toppenish Police
    Detective Jaban Brownell spoke to Betancourth' s father about the seizure of the pickup
    truck, while Betancourth stood nearby. Eventually Detective Brownell asked Ray
    Betancourth to speak with him, Detective Damon Dunsmore, and Sergeant Paul Logan.
    5
    No. 32683-7-III
    State v. Betancourth
    The police then considered Betancourth a suspect in the shooting death of Jose
    Rodriguez. Brownell did not mention to Betancourth any reason for requesting the
    interview. Betancourth offered no objection, and Detective Brownell led Betancourth to
    an investigations office at the back of the police station. Brownell told Betancourth that
    the interview was voluntary. Betancourth indicated he understood the voluntary nature of
    the interview, and Brownell further explained to Betancourth that he could leave at any
    time. Detective Brownell did not inform Betancourth that the latter was under arrest.
    Brownell did not place Betancourth in handcuffs.
    Ray Betancourth's father asked to be present during the September 21 interview of
    I
    )
    his son, but Detective Jaban Brownell denied the request. Detective Brownell did not ask
    Betancourth if he wished his father present. Brownell and the other officers knew that
    Betancourth was eighteen years old at the time.
    The Toppenish police investigations office was a converted, small single-wide
    trailer, approximately nine-feet wide by twenty-feet long, where three detectives worked
    at desks. Ray Betancourth sat in a chair near the trailer entry door. Detective Jaban
    Brownell, Detective Damon Dunsmore, and Sergeant Paul Logan questioned Betancourth
    for twenty to thirty minutes inside the trailer. Nobody recorded the questioning. The
    three officers asked Betancourth about his pickup truck's involvement in the shooting.
    One or more questions sought to elicit an admission from Betancourth as to his presence
    I   at the crime scene. Betancourth denied any involvement in a shooting. Betancourth left
    6
    No. 32683-7-III
    State v. Betancourth
    the trailer after the officers finished asking questions.
    We return to trial testimony. Sergeant Paul Logan followed Ray Betancourth to
    the Toppenish police station parking lot where he asked Betancourth to look at the latter's
    cell phone. Betancourth gave him permission, and Logan obtained Betancourth's cell
    phone number. On September 21, Detective Damon Dunsmore sent a preservation letter
    to Verizon Wireless to preserve records associated with Betancourth's phone number.
    On September 25, 2012, the Yakima County District Court granted a search
    warrant ordering Cellco Partnership, dba Verizon Wireless, to provide Ray Betancourth' s
    cell phone records from September 19 to September 25, 2012. Detective Damon
    Dunsmore faxed the warrant to Verizon's custodian of records in New Jersey, and
    Verizon sent the phone records to Dunsmore.
    We return to testimony from the motion to suppress hearing. During the afternoon
    of October 9, 2012, Sergeant Paul Logan called Ray Betancourth and asked him to come
    to the Toppenish police station to answer more questions about the Ford pickup truck.
    Because he lacked a vehicle, Betancourth's mother drove him to the police station.
    Detective Damon Dunsmore took Betancourth to the detectives' trailer. Logan and
    Detective Jaban Brownell soon entered the trailer. During the interview, no officer told
    Betancourth that he was under arrest or that he could not leave the trailer. No officer
    delivered Betancourth the Miranda warnings. Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 964
    (1966). The interview lasted twenty to thirty minutes.
    7
    No. 32683-7-III
    State v. Betancourth
    During the October 9 interview, the three Toppenish police officers presented
    incriminating evidence to Ray Betancourth. Detective Damon Dunsmore, Betancourth's
    former school resource officer, remained silent. Detective Jaban Brownell acted polite.
    Sergeant Paul Logan portrayed anger and hurled accusations at Betancourth. Betancourth
    testified that Logan's behavior intimidated and frightened him, particularly since Logan
    was a larger man than Betancourth. Once Logan grew hostile, Betancourth no longer
    deemed himself free to leave the trailer.
    During the October 9 interview, Ray Betancourth initially denied his presence at
    the scene of the shooting of Jose Rodriguez. Detective Jaban Brownell testified at trial:
    So, I explained to Mr. Betancourth what ... I had believed had
    occurred. And I explained ... that the defendant was driving with another
    subject in this white truck, saw the victim and his two friends, returned to
    another location in Toppenish to elicit reinforcements, returned to this
    location to look for these three victims, and in the process of confronting
    them for a physical altercation one of them was shot. And then they left.
    So that was the information I was trying to elicit from him. An
    interview, an interrogation, call it what you will, I was trying to elicit some
    form of information from him.
    RP at 1175.
    Ray Betancourth again denied involvement in the crime. He portrayed confidence
    and occasionally flashed smirks. Detective Jaban Brownell showed Betancourth text
    messages from the latter's phone that police obtained from Verizon. Brownell played a
    three to four minute audio statement of Nancy Arriaga, Betancourth's girlfriend.
    Betancourth first denied that the voice on the recording was Arriaga's voice. As the
    8
    No. 32683-7-III
    State v. Betancourth
    audio played further, his body language changed and Betancourth said: "Guess you know
    what happened then." RP at 1179.
    Ray Betancourth asked to speak to an attorney, and the interview ended. Police
    arrested Betancourth the next day.
    The Toppenish police department later learned that, under a recent court ruling,
    the district court search warrant for Ray Betancourth' s cell phone records was invalid. A
    superior court search warrant was required to subpoena records in another state. On
    October 9, 2013, the Yakima County Superior Court granted, at Detective Jaban
    Brownell's request, a search warrant to obtain the same phone records procured from
    Verizon through the district court warrant. On October 15, Brownell sent the warrant by
    fax to the custodian of records in Verizon's legal compliance office in San Angelo,
    Texas, with a message that "THESE RECORDS WERE REQUESTED BY A DISTRICT
    COURT WARRANT PREVIOUSLY. BASED ON RECENT COURT RULING THEY
    NEED TO BE BASED ON A SUPERIOR COURT WARRANT." Clerk's Papers (CP)
    at 76. The warrant did not contain language required by RCW 10.96.020(2). Verizon
    never produced the records again.
    PROCEDURE
    The State of Washington charged Ray Betancourth with first degree assault and
    second degree felony murder for the assault and death of Jose Rodriguez.
    Ray Betancourth moved to suppress the cell phone records and his statements to
    9
    No. 32683-7-III
    State v. Betancourth
    the Toppenish police during the September 21 and October 9, 2012 interviews. During
    the hearing to suppress the police station statements, Detective Jaban Brownell and Ray
    Betancourth testified. The trial court denied the motion to suppress. The court reasoned
    that no reasonable person would believe he was under arrest during either of the two
    interviews. Regarding the October 9 interview, the court commented:
    Mr. Betancourth's recall of the events leading up to his conversation
    with officers on October 9 was relatively-sparse, didn't remember much
    about the circumstances; most of the detail he provided was of the actual
    conversation. Although he-it does not appear that he was told he was free
    to leave, at no point was he placed under arrest, he was never handcuffed,
    he was never told he couldn't leave .
    . . . There was nothing coercive about the interview with the
    exception of Mr. Betancourth's statements regarding Sgt. Logan, but even
    in his testimony, that is, Mr. Betancourth's testimony, there was no
    suggestion that Sgt. Logan stood up or displayed himself in an aggressive
    manner. He did indicate he was nervous, or afraid of him, but that was-
    based on what I saw from Mr. Betancourth I would not place significant
    credibility on that statement.
    RP at 84-85. The trial court entered, in part, the following findings of fact and
    conclusions of law after the motion to suppress hearing:
    I. FINDINGS OF FACT
    1.1 During the investigation of the homicide which is the subject
    matter of this case, the Toppenish Police Department twice contacted the
    defendant and questioned him. The State now seeks to introduce evidence
    regarding the second of these two conversations. The first conversation
    took place on September 21, 2012.
    1.2 On that date the defendant came to the Toppenish Police
    Department with his father. He had an approximately 20 to 30 minute
    conversation with officers at that time.
    10
    No. 32683-7-III
    State v. Betancourth
    1.3 He was eighteen years of age. He wanted to have his father
    present for the conversation but his father was not allowed to be present.
    1.4 The defendant was not under arrest and was free to leave at any
    time. He was never told he was under arrest. Nor was he handcuffed or
    told he was not free to leave.
    t                   1.6 On October 9, 2012 the defendant came to the Toppenish Police
    I           Department with his mother to talk about a truck which had been seized
    civilly. The defendant was not under arrest and was free to leave. He was
    II          never told he was under arrest, handcuffed, or told he was not free to leave.
    1.7 Toppenish Police Department Detectives Jaban Brownell and
    Damon Dunsmore were present during this conversation, as was Sargent
    II          Paul Logan. The defendant testified that he got along fine with Brownell
    and Dunsmore, but claims that he was nervous and felt intimidated by
    Logan. The court does not find this claim credible. As he testified the
    i           defendant presented as being very confident in a potentially stressful
    I
    I
    situation.
    1. 9 The defendant did actually terminate the October 9, 2012
    contact so that he could consult with his attorney. The officers did not
    impede or object to his doing so.
    II. CONCLUSIONS OF LAW
    2.1 Miranda warnings were not required during either of September
    21, 2012 or October 9, 2012 conversations which the Toppenish officers
    had with the defendant as no reasonable person in his position would
    believe that the[y] were under arrest on either occasion.
    CP at 104-06.
    The trial court later held a CrR 3.6 hearing on Ray Betancourth's motion to
    suppress his cell phone records because the district court warrant was not valid. The
    court heard testimony from Detective Jaban Brownell, Detective Damon Dunsmore, and
    Melissa Sandoval, custodian of records for Verizon Wireless. Sandoval testified that
    11
    ---- I
    No. 32683-7-III
    State v. Betancourth
    Verizon still maintained the records of Betancourth' s phone as requested in the
    preservation letter. She testified that Verizon could produce the records again if
    requested to do so. The trial court denied Betancourth's motion to suppress the phone
    records on the basis that the district court order was entitled to full faith and credit and
    producing the records again was fruitless.
    The State of Washington's prosecution of Ray Betancourth proceeded to a jury
    trial. During trial, Betancourth raised the defense, to felony murder, available under
    RCW 9A.32.050(l)(b). The defense applies if Betancourth did not know Marco
    Cardenas was armed at the time of the chase of Jose Rodriguez.
    During the State's case in chief, Detective Jaban Brownell testified to the two
    police interviews of Ray Betancourth. Brownell remarked that, during the September 21
    interview, Betancourth provided different information from his father as to the use of the
    Ford pickup on the date of the shooting. In response, Betancourth declared his father to
    be lying. He denied any involvement in the shooting. Concerning the October 21
    interview, Brownell testified to Betancourth's confidence until police played the audio
    recording of his girlfriend. Betancourth then changed his posture and remarked: "Guess
    you know what happened then." RP at 11 79.
    The State also raised the station-house statements when cross-examining
    Betancourth. Betancourth conceded he lied when he told the officers that he knew
    nothing about the shooting. During trial, the State showed the jury text messages from
    12
    No. 32683-7-III
    State v. Betancourth
    Betancourth's phone records, including one message when Betancourth wrote: '"Yep. I
    wanna beat the shit of both of them.' Smiley face." RP at 1122. Ray Betancourth
    testified at trial that he did not know Marco Cardenas had a gun and, before the shooting,
    he returned to his truck to tum off the motor.
    During closing argument, the State uttered the phrase, or a variation of the phrase:
    "beat the shit out of' twenty-three times. The State also reviewed the police station
    interviews, Betancourth's repeated denial of any involvement in the shooting, and his
    subsequent implied admission.
    Also during closing arguments, the State argued concerning Ray Betancourth' s
    defense:
    But there's another thing here. And that is that there's a statutory
    defense. And when I say that, you know that you've been told over and
    over-over again, the state has to prove the elements beyond a reasonable
    doubt. And the state has proved the elements beyond a reasonable doubt of
    felony murder.
    But what the law says is that, you know, this felony murder, it does
    cast a pretty broad net. Especially when you're talking about the conduct
    of other people. So there's an affirmative defense that he can bring, and if
    he can prove by a preponderance of the evidence, if he can prove, more
    likely than not, certain things-and we're going to look at another list of
    things-he has to prove all these things by a preponderance of the
    evidence, and if he does that, even though I proved the elements beyond a
    reasonable doubt then you would still have a duty to find him not guilty.
    So let's look at what the elements of that [defense] are.
    And I'm going to-He has to prove all four of these. I'm going to argue to
    you that he really doesn't prove any of them.
    Number one, he has to show he did not commit the homicidal act. That's
    true. But he-also has to show that he didn't solicit, request, importune-in other
    words provide the opportunity-or aid the commission of the homicidal act.
    13
    No. 32683-7-III
    State v. Betancourth
    Well, he provided-importune means provide the opportunity. He
    provided the opportunity for the homicidal act, didn't he? He brought Marcos to
    the scene where the shooting took place. Rode around with him in a truck looking
    for Terrence and his friends. Went back and got reinforcements, took him back to
    the scene of the crime-
    MR. THERRIEN [Betancourth's counsel]: Your Honor, I think that's a
    misstatement of the law. I think-he's talking about-he's referring to the second
    degree assault.
    MR. SOUKUP [State's counsel]: I'm referring to this instruction right here,
    your Honor.
    THE COURT: Objection's overruled.
    MR. SOUKUP: So he gave him the opportunity, and he-and he aided it.
    It's-That's it right there. He can't show that by a preponderance of the evidence
    that he didn't do that. So you should deny it on that basis alone.
    RP at 1450-51.
    The trial court instructed the jury on second degree felony murder and first degree
    assault. The court also provided an instruction for a felony murder affirmative defense:
    It is a defense to a charge of Murder in the Second Degree based
    upon committing the crime of second degree assault that the defendant:
    (I) Did not commit the homicidal act or in any way solicit, request,
    command, [i]mportune, cause, or aid the commission thereof; and
    (2) Was not armed with a deadly weapon, or any instrument, article,
    or substance readily capable of causing death or serious physical injury;
    and
    (3) Had no reasonable grounds to believe that any other participant
    was armed with such a weapon, instrument, article, or substance; and
    (4) Had no reasonable ground to believe that any other participant
    intended to engage in conduct likely to result in death or serious physical
    lilJUry.
    The defendant has the burden of proving this defense by a
    preponderance of the evidence. Preponderance of the evidence means that
    you must be persuaded, considering all the evidence in the case, that it is
    more probably true than not true. If you find that the defendant has
    established this defense, it will be your duty to return a verdict of not guilty
    as to this charge.
    14
    No. 32683-7-III
    State v. Betancourth
    CP at 170.
    The jury found Ray Betancourth guilty of second degree murder and first degree
    assault and imposed a firearm enhancement for each crime. The trial court sentenced
    Betancourth, who lacked a criminal history, to 336 months confinement and imposed the
    following financial obligations:
    RTN $5,700.77        Restitution distributed to: Crime Victims Compensation,
    subject to modification
    PCV $500.00          Crime Penalty Assessment- felony or gross misd. (RCW
    7.68.035)
    FRC $200.00          Criminal filing fee
    PUB $600.00          Court appointed attorney recoupment (RCW 9.94A.760)
    DNA $100.00          DNA collection fee (any felony committed after 7/1/02)
    (RCW 43.43.7541)
    JFR    $250.00       Jury fee
    $7,350.77     TOTAL
    CP at 193 (boldface omitted). The trial court also found Betancourth financially able to
    pay the costs of incarceration and medical care costs incurred by Yakima County and
    ordered Betancourth to pay both.
    LAW AND ANALYSIS
    Prosecution Closing Argument
    On appeal, Ray Betancourth contends the trial court erred by denying his motion
    to suppress as evidence his statements during police interviews, by denying his motion to
    suppress as evidence the cell phone text messages, by allowing the State to argue in
    I
    closing that he did not prove his defense to felony murder because of undisputed            I'
    15
    No. 32683-7-III
    State v. Betancourth
    evidence that he drove Marco Cardenas to the scene of the shooting, by allowing the
    State during closing to repeatedly utter his text message of wanting to "beat the shit" out
    of Terrence Frank, and by imposing the extent of the legal financial obligations. We
    address first whether the trial court committed error by permitting the State's comments,
    during closing argument, concerning the defense to felony murder.
    Ray Betancourth raised the statutory defense to felony murder under RCW
    9A.32.050. RCW 9A.32.050 creates the crime of second degree murder and reads, in
    relevant part:
    ( 1) A person is guilty of murder in the second degree when:
    (a) With intent to cause the death of another person but without
    premeditation, he or she causes the death of such person or of a third
    person; or
    (b) He or she commits or attempts to commit any felony, including
    assault, other than those enumerated in RCW 9A.32.030(1)(c), and, in the
    course of and in furtherance of such crime or in immediate flight therefrom,
    he or she, or another participant, causes the death of a person other than one
    of the participants.
    RCW 9A.32.050(1)(b) denotes the crime of felony murder that occurs when the accused
    does not shoot the victim, but an accomplice, during the commission of another crime,
    shoots the victim.
    In a prosecution for felony murder when a coparticipant, not the accused, shoots
    the victim, the accused may raise a defense of lack of knowledge of the coparticpant
    carrying a deadly weapon. The remainder of RCW 9A.32.050 reads:
    16
    No. 32683-7-III
    State v. Betancourth
    ... except that in any prosecution under this subdivision ( 1)(b) in
    which the defendant was not the only participant in the underlying crime, if
    established by the defendant by a preponderance of the evidence, it is a
    defense that the defendant:
    (i) Did not commit the homicidal act or in any way solicit, request,
    command, importune, cause, or aid the commission thereof; and
    (ii) Was not armed with a deadly weapon, or any instrument, article,
    or substance readily capable of causing death or serious physical injury;
    and
    (iii) Had no reasonable grounds to believe that any other participant
    was armed with such a weapon, instrument, article, or substance; and
    (iv) Had no reasonable grounds to believe that any other participant
    intended to engage in conduct likely to result in death or serious physical
    lilJUry.
    We focus on RCW 9A.32.050(l)(b)(i), which subsection withdraws the defense if
    the accused solicited, requested, importuned, caused, or aided "the commission thereof."
    "Thereof' refers back to the "homicidal act," not the underlying felony. During closing
    arguments, the State argued that Ray Betancourth needed to prove that he did not
    "provide the opportunity" for the homicide. RP at 1451. The State declared: "Importune
    means provide the opportunity." RP at 1451. "He [Betancourth] provided the
    opportunity for the homicidal act, didn't he?" RP at 1451. "He brought Marcos to the
    scene where the shooting took place." RP at 1451. "So he gave him the opportunity."
    RP at 1451. "So you should deny it [the defense] on that basis alone." RP at 1451.
    Contrary to the State's closing argument, the accused does not forfeit the defense
    under RCW 9A.32.050 by providing the gunman the opportunity to shoot. The word
    "opportunity" is not used in the statute. The State also erroneously declared that the word
    17
    No. 32683-7-III
    State v. Betancourth
    "importune" means give one an opportunity. The Washington criminal code does not
    define the word "importune." We may use a dictionary to discern the plain meaning of
    an undefined statutory term. Nissen v. Pierce County, 183 Wn.2d 863,881,357 P.3d 45
    (2015). "Importune" means in a lay dictionary:
    1. a: [T]o press or urge with frequent or unreasonable requests or
    troublesome persistence
    2. b: To make immoral or lewd advances toward
    WEBSTER'STHIRDNEWINTERNATIONALDICTIONARY 1135 (1993). Thus, the State's
    summation conflicted with the law and with the court's instruction to the jury.
    A prosecuting attorney commits misconduct by misstating the law. State v. Allen,
    
    182 Wash. 2d 364
    , 373-74, 
    341 P.3d 268
    (2015); State v. Warren, 
    165 Wash. 2d 17
    , 28, 
    195 P.3d 940
    (2008). Also, statements by the prosecution or defense to the jury on the law
    must be confined to the law as set forth in the instructions given by the court. State v.
    Davenport, 
    100 Wash. 2d 757
    , 760, 
    675 P.2d 1213
    (1984); State v. Estill, 
    80 Wash. 2d 196
    ,
    199,492 P.2d 1037 (1972).
    A case will be reversed for improper argument of law by counsel when the error is
    prejudicial to the accused. State v. 
    Davenport, 100 Wash. 2d at 762
    . In determining
    whether a trial was fair and whether the defendant suffered prejudice, the court should
    look to the trial irregularity and determine whether it may have influenced the jury. State
    v. 
    Davenport, 100 Wash. 2d at 762
    . The prosecuting attorney misstating the law of the case
    to the jury is a serious irregularity having the grave potential to mislead the jury. State v.
    18
    No. 32683-7-III
    State v. Betancourth
    
    Davenport, 100 Wash. 2d at 763
    . Misstating the law on a key issue in the case is a factor
    showing prejudice. State v. 
    Allen, 182 Wash. 2d at 375
    . The trial court's overruling, in the
    presence of the jury, of the defendant's objection to the misstatement of the law is an
    important factor in weighing prejudice since the trial court's ruling lends an aura of
    legitimacy to the improper argument. State v. 
    Allen, 182 Wash. 2d at 378
    .
    We hold the State's closing argument was prejudicial to Ray Betancourth.
    Betancourth testified to his lack of knowledge of Marco Cardenas possessing a gun. One
    of the State's prime witnesses, David Chavez, also denied having knowledge of Cardenas
    bringing a gun to the chase. Other testimony supported a finding that Betancourth should
    have reasonably concluded that Cardenas held a gun during the chase, but the jury could
    have rejected this testimony and found otherwise. Although there was some evidence
    that Betancourth possessed a gun inside the pickup truck, Betancourth did not take his
    firearm on the chase. A jury could infer from this evidence that Betancourth did not want
    or expect anyone to bring a gun to the chase. The State's misstatement of the law was
    central to a key issue in the trial. The trial court impliedly approved the State's
    misinforming of the jury when the trial court overruled Betancourth's objections to the
    closing argument.
    Because we reverse the conviction of Ray Betancourth on the basis of the
    prosecution's misstatement of the law, we do not address whether the prosecution
    engaged in misconduct when repeating, during closing, Betancourth's text message of
    19
    No. 32683-7-III
    State v. Betancourth
    wanting to "beat the shit" out of Terrence Frank. We also decline to address the
    introduction as evidence of the Verizon records since any defect can be cured before a
    retrial. Finally, we need not address Betancourth's challenge to the imposition oflegal
    financial obligations. Since a new trial is likely, we should and do determine whether the
    trial court should have granted Ray Betancourth's motion to suppress statements made
    during the two police station interviews.
    Police Station Interviews
    Ray Betancourth contends the trial court erred in admitting his statements to police
    during the September 21 and October 9, 2012 interviews. He argues the statements are
    inadmissible because he made them during custodial interrogations without the police
    affording him Miranda warnings. The State responds that the trial court properly
    admitted Betancourth's statements because he was not in police custody when the police
    interviewed him. Additionally, the State maintains that any error in admitting the
    statements was harmless. We agree with the State that Betancourth was not in custody at
    the time of the interviews.
    The Fifth Amendment to the United States Constitution provides that "[n]o person
    ... shall be compelled in any criminal case to be a witness against himself." U.S. Const.
    amend. V. Article 1, section 9 of the Washington State Constitution declares, in part:
    "No person shall be compelled in any criminal case to give evidence against himself.... "
    Article 1, section 9 is equivalent to the United States Constitution's Fifth Amendment
    20
    No. 32683-7-III
    State v. Betancourth
    and should receive the same interpretation. State v. Templeton, 
    148 Wash. 2d 193
    , 207-08,
    
    59 P.3d 632
    (2002); State v. Foster, 91 Wn.2d 466,473, 
    589 P.2d 789
    (1979).
    The right against testimonial compulsion is not limited to the courtroom. In
    Miranda v. 
    Arizona, 384 U.S. at 467
    (1966), the United States Supreme Court adopted
    prophylactic measures designed to protect a suspect's Fifth Amendment right from the
    "inherently compelling pressures" of custodial interrogation. The Miranda Court held
    that a suspect interrogated while in police custody must be told that he has a right to
    remain silent, that anything he says may be used against him in court, and that he is
    entitled to the presence of an attorney, either retained or appointed, at the interrogation.
    Mirandav. Arizona, 384 U.S. at444;Marylandv. Shatzer, 559 U.S. 98,104,130 S. Ct.
    1213, 
    175 L. Ed. 2d 1045
    (2010). Without Miranda warnings, a suspect's statements
    during custodial interrogation are presumed involuntary and are thus inadmissible. State
    v. Heritage, 
    152 Wash. 2d 210
    , 214, 
    95 P.3d 345
    (2004).
    The United States Supreme Court formulated Miranda warnings to protect a
    defendant's constitutional right not to make incriminating confessions or admissions to
    police while in the coercive environment of police custody. Miranda v. 
    Arizona, 384 U.S. at 468-69
    (1966); State v. 
    Heritage, 152 Wash. 2d at 214
    . Washington courts have
    enunciated two rationales for recognizing a custodial situation requiring Miranda
    warnings: (1) to protect the individual from the potentiality of compulsion or coercion
    inherent in in-custody interrogation, and (2) to protect the individual from deceptive
    21
    No. 32683-7-III
    State v. Betancourth
    practices ofthe interrogation. Heinemann v. Whitman County, 
    105 Wash. 2d 796
    , 806, 
    718 P.2d 789
    (1986). Conversely, the requirement is not intended to unduly interfere with a
    proper system of law enforcement or to hamper the traditional investigatory and public
    safety functions of the police. Miranda v. 
    Arizona, 384 U.S. at 481
    .
    Law enforcement officers need not deliver the Miranda warnings whenever
    speaking with a citizen, let alone questioning a prime suspect of a crime. For statements
    to be later admissible, Miranda warnings must precede the statements made during (1)
    custodial (2) interrogation (3) by an agent of the State. State v. 
    Heritage, 152 Wash. 2d at 214
    .
    The State concedes that its agents conducted the questioning of Ray Betancourth.
    The State also presents no argument on whether the police questioning constituted
    interrogation. "Interrogation" can be express questioning or any words or actions
    reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 
    446 U.S. 291
    ,
    292, 
    100 S. Ct. 1682
    , 
    64 L. Ed. 2d 297
    (1980); In re Pers. Restraint of Cross, 
    180 Wash. 2d 664
    , 685, 
    327 P.3d 660
    (2014). In both police station encounters, officers directly
    questioned Ray Betancourth about his involvement in a murder. Detective Jaban
    Brownell testified, at a suppression hearing, that he sought to elicit from Betancourth
    information about the murder. We conclude that Toppenish law enforcement officers
    interrogated Betancourth. The issue becomes whether the trial court correctly ruled that
    Betancourth was not "in custody" during the station interviews.
    22
    No. 32683-7-III
    State v. Betancourth
    The United States Supreme Court declared, in Miranda v. Arizona, that "custodial
    interrogation" means "questioning initiated by law enforcement officers after a person
    has been taken into custody or otherwise deprived of his freedom of action in any
    significant way." Miranda v. 
    Arizona, 384 U.S. at 444
    (1966). The police are required to
    give Miranda warnings only when "there has been such a restriction on a person's
    freedom as to render him 'in custody."' Oregon v. Mathiason, 
    429 U.S. 492
    ,495, 
    97 S. Ct. 711
    , 
    50 L. Ed. 2d 714
    (1977). The ultimate inquiry is simply whether there is a
    formal arrest or restraint on freedom of movement of the degree associated with a formal
    arrest. California v. Beheler, 
    463 U.S. 1121
    , 1125, 
    103 S. Ct. 3517
    , 
    77 L. Ed. 2d 1275
    (1983); Oregon v. 
    Mathiason, 429 U.S. at 495
    .
    The United States Supreme Court has given some guidance as to factors that,
    standing alone, do not merit a finding of custody. "[A] noncustodial situation is not
    converted to one in which Miranda applies simply because a reviewing court concludes
    that, even in the absence of any formal arrest or restraint on freedom of movement, the
    questioning took place in a 'coercive environment.'" Oregon v. 
    Mathiason, 429 U.S. at 495
    . Any interview of one suspected of a crime by a police officer will have coercive
    aspects to it, simply by virtue of the fact that the police officer is part of a law
    enforcement system that may ultimately cause the suspect to be charged with a crime.
    Oregon v. 
    Mathiason, 429 U.S. at 495
    . There is coercion and there is coercion. A small
    23
    No. 32683-7-III
    State v. Betancourth
    degree of coercion is permissible. A large degree of coercion is not permissible. Lower
    courts must adjudge the dividing line between the two.
    Similarly Miranda warnings are not required "simply because the questioning
    takes place in the station house, or because the questioned person is one whom the police
    suspect." Oregon v. 
    Mathiason, 429 U.S. at 495
    . The high court has rejected the notion
    that the "in custody" requirement is satisfied merely because the police interviewed a
    person who was the "focus" of a criminal investigation. Beckwith v. United States, 
    425 U.S. 341
    , 347, 
    96 S. Ct. 1612
    , 
    48 L. Ed. 2d 1
    (1976).
    A key aspect of the custodial setting as described in Miranda is the isolation of the
    suspect in a room that is dominated by law enforcement officials. State v. Pejsa, 75 Wn.
    App. 139, 147, 
    876 P.2d 963
    (1994). Whether officers told the suspect he was free to
    leave is also a significant factor in the custody analysis. State v. D.R., 
    84 Wash. App. 832
    ,
    838, 
    930 P.2d 350
    (1997). A court may consider age in the custody analysis so long as
    the suspect's age was known to the officer at the time of police questioning or would
    have been objectively apparent to a reasonable officer. J.D.B. v. North Carolina, 564
    U.S. 261,274, 
    131 S. Ct. 2394
    , 
    180 L. Ed. 2d 310
    (2011).
    The test of whether police engage in a custodial interrogation is an objective test.
    J.D.B. v. North 
    Carolina, 564 U.S. at 270
    . We do not consider whether the accused
    subjectively considered himself restrained or free to depart the presence of law
    enforcement or whether the officers considered the accused free to leave or under implied
    24
    No. 32683-7-III
    State v. Betancourth
    arrest. Instead we consider the mythical reasonable person and hope that judges can
    discern what a reasonable person would think.
    A person is in custody, for purposes of Miranda warnings, when "a reasonable
    person in a suspect' s position would have felt that his or her freedom was curtailed to the
    degree associated with a formal arrest." State v. 
    Heritage, 152 Wash. 2d at 218
    (2004). It
    thus is irrelevant whether the police had probable cause to arrest the defendant, whether
    the defendant was a "focus" of the police investigation, whether the officer subjectively
    believed the suspect was or was not in custody, or even whether the defendant was or was
    not psychologically intimidated. State v. 
    D.R., 84 Wash. App. at 836
    (1997). The critical
    inquiry is not the psychological state of the defendant but whether his freedom of
    movement is restricted. State v. Sargent, 
    111 Wash. 2d 641
    , 649, 
    762 P.2d 1127
    (1988).
    The circumstances of each case must influence a determination of whether a suspect is
    "in custody" for purposes of receiving of Miranda protection. California v. 
    Behe/er, 463 U.S. at 1125
    (1983).
    Ray Betancourth argues that both encounters in the Toppenish detectives' trailer
    satisfied the custodial prong of the Miranda analysis because a reasonable person of
    similar age would not have felt free to leave. The State argues the trial court decided
    correctly because he was never told that he could not leave, the officers never threatened
    him, and he voluntarily went to the police station and talked to the police. We consider
    the elements emphasized by the State to be critical and agree with the State's position.
    25
    No. 32683-7-III
    State v. Betancourth
    The facts of some United States Supreme Court and Washington appellate court
    decisions assist us. In Oregon v. Mathiason, 
    429 U.S. 492
    (1977), the Supreme Court
    held that the defendant was not in custody when questioned about his involvement by a
    detective at an office in the state patrol station. The suspect willingly went to the station
    to discuss the burglary, met the officer in the hallway, shook hands, and went into an
    office. The officer told the suspect he was not under arrest. The two sat across a desk
    with the door closed when the officer began questioning the suspect about his
    involvement in the burglary. Within five minutes of entering the office, the suspect
    confessed and then received his Miranda warnings. The Supreme Court found he was
    not subject to custodial interrogation because "there is no indication that the questioning
    took place in a context where respondent's freedom to depart was restricted in any way."
    Oregon v. 
    Mathiason, 429 U.S. at 495
    .
    In California v. Beheler, 
    463 U.S. 1121
    (1983), Jerry Beheler admitted his
    involvement in a fatal shooting. He was at the police station when he made the
    incriminating statements. Although he was not given his Miranda warnings, the police
    told Beheler that he was not under arrest. The Supreme Court reversed the California
    Court of Appeals, holding that Miranda warnings were not required.
    In State v. Furman, 
    122 Wash. 2d 440
    , 
    858 P.2d 1092
    (1993), law enforcement took
    Michael Furman's confession to murder without reading him Miranda warnings. Furman
    was seventeen years old at the time. The Supreme Court refused to suppress the
    26
    No. 32683-7-III
    State v. Betancourth
    confession because Furman was free to leave during the confession.
    In State v. Grogan, 
    147 Wash. App. 511
    , 
    195 P.3d 1017
    (2008), review granted, 
    168 Wash. 2d 1039
    , 
    234 P.3d 169
    (2010), Clifford Grogan voluntarily went to the Spokane
    Public Safety Building to talk to officers about a murder investigation. He was not
    placed under formal arrest. He was told that he could leave at any time and he
    acknowledged that he was told he could leave at any time. The interviewing detectives
    did not give Miranda warnings. This court affirmed the trial court's refusal to suppress
    the statements given during the interview.
    Ray Betancourth suggests his case is similar to State v. Daniels, 
    160 Wash. 2d 256
    ,
    
    156 P.3d 905
    (2007). In Daniels, the police suspected the defendant committed homicide
    by abuse for the death of her nine-week-old son. The day after her son's funeral, two
    police detectives questioned seventeen-year-old Carissa Daniels for over 90 minutes in an
    8 foot by 10 foot room at the precinct. The detectives refused to allow her father to
    accompany her. They did not give her any Miranda warnings until near the end of the
    interrogation, she refused to answer any more questions soon after receiving the
    warnings, and then they placed her in a holding cell. Our Supreme Court found the
    detectives subjected Daniels to a custodial interrogation and affirmed suppression of her
    statements. Unfortunately, the decision provides little insight into what factors are
    important or controlling when determining the status of custody.
    We deem other decisions more analogous than State v. Daniels. In Daniels, the
    27
    No. 32683-7-III
    State v. Betancourth
    record shows no comments to the accused that she was not under arrest or that she could
    leave at any time. The interrogation took place the day after the son's funeral, while
    Carissa Daniels suffered stress. Ray Betancourth suffered no similar stress. Daniels was
    seventeen years old, while Betancourth was eighteen years of age. Although the
    difference in age is only one year, we consider an eighteen-year-old to be the age of
    majority and capable of living on one's own. Although both interviewing rooms were
    small, the Toppenish trailer was double the size of the precinct room in Daniels.
    Betancourth understood he was free to leave, and he left on his own volition both times.
    Ray Betancourth emphasizes his age. Ray Betancourth was eighteen at the time of
    the killing and the police station questioning. In JD.B. v. North 
    Carolina, 564 U.S. at 272
    , the United States Supreme Court held that the age of a child subjected to police
    questioning is relevant to the custody analysis of Miranda v. Arizona. The court reasoned
    that children will often feel bound to submit to police questioning when an adult in the
    same circumstances would feel free to leave. The Supreme Court did not announce,
    however, the dividing line between an adult and a child. The petitioner, J.D.B., was
    thirteen years old when he was removed from his classroom by a uniformed police
    officer, escorted to a closed-door conference room, and questioned by two police officers
    with two school administrators present and encouraging him to speak. Even then, the
    Supreme Court did not suppress the confession, but remanded the case for the lower court
    to consider age as one factor in the determination of whether J.D.B. was in custody.
    f
    28                                              r
    I
    .
    1
    I
    I   No. 32683-7-III
    I   State v. Betancourth
    I
    i
    I          Toppenish police officers' denial of entry of Ray Betancourth's parents into the
    investigations office plays in favor of Betancourth. Nevertheless, we do not find this
    I   factor controlling. The Daniels court considered this factor, but did not rule it
    controlling. We find no case in which a court holds that the barring of a parent from the
    interview should require police to give a child Miranda warnings. Although not directly
    on point, the following decisions hold that a child's statement without a parent present
    constituted a voluntary statement. State v. Moore, 
    2015 WI 54
    , 
    363 Wis. 2d 376
    , 
    864 N.W.2d 827
    ; People v. Edwards, 
    2015 IL App (3d) 130190
    , 32 N.E.3d 116,392 Ill. Dec
    116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 
    390 S.C. 502
    , 
    702 S.E.2d 395
    (Ct. App. 2010); Smith v. State, 
    276 Ga. 97
    , 
    575 S.E.2d 450
    (2003).
    The record does not show that law enforcement told Ray Betancourth, during the
    October 9 interview, that he was free to leave. Nevertheless, Jaban Brownell told
    Betancourth such during the September 21 questioning and there was little difference
    between the two interviews. The September 21 and October 9 interviews shared location,
    participants, and duration. No officer told Betancourth he was under arrest during the
    second interview. Betancourth left when he wanted.
    Ray Betancourth did not incriminate himself during the first interview. One might
    even question if Ray Betancourth seriously incriminated himself at the end of the second
    interview. During the October 9 interrogation, the law enforcement officers played a tape
    recording of Betancourth's girlfriend confessing to the crime on behalf of Betancourth.
    29
    No. 32683-7-III
    State v. Betancourth
    The jury heard the same recording during the trial. During the second interview,
    Betancourth merely uttered the obvious: "Guess you know what happened then." RP at
    1179.
    Ray Betancourth assigns error to many of the trial court's findings of fact, but
    most of alleged errors concern findings addressing whether Betancourth was in custody
    during the law enforcement interviews. Two discrete inquiries are essential to the
    determination of custody: first, what were the circumstances surrounding the
    interrogation; and second, given those circumstances, would a reasonable person have
    felt he or she was not at liberty to terminate the interrogation and leave. Thompson v.
    Keohane, 
    516 U.S. 99
    , 112, 
    116 S. Ct. 457
    , 
    133 L. Ed. 2d 383
    (1995). Once the trial
    court reconstructs the play and determines the stage props, the actors' positions and
    movements on stage, and the elocution and dialogue of the actors, the reviewing court
    applies an objective test to resolve the ultimate inquiry of whether there was a formal
    arrest or restraint on freedom of movement of the degree associated with a formal arrest.
    Regardless of whether the status of being in custody is referred to as a finding of fact or a
    conclusion of law, we review the determination de novo because of its legal significance.
    Thompson v. 
    Keohane, 516 U.S. at 121
    ; State v. 
    Daniels, 160 Wash. 2d at 261
    (2007). Still,
    we agree with the trial court's determination of the lack of custody.
    Ray Betancourth assigns error to finding of fact 1.7, which reads:
    30
    No. 32683-7-III
    State v. Betancourth
    ... The defendant testified that he got along fine with [Detectives]
    Brownell and Dunsmore, but claims that he was nervous and felt
    intimidated by [Sergeant] Logan. The court does not find this claim
    credible. As he testified the defendant presented as being very confident in
    a potentially stressful situation.
    CP at 105. This finding is one of pure fact unencumbered by legal consequences. If the
    accused challenges findings of fact, they are verities if supported by substantial evidence
    in the record. State v. Broadaway, 133 Wn.2d 118,131,942 P.2d 363 (1997).
    Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of
    the truth of the finding. State v. Cherry, 
    191 Wash. App. 456
    , 464, 362 P .3d 313 (2015).
    Substantial evidence supports the trial court's finding of fact 17.
    State Motion to Consolidate
    The State moves to consolidate this appeal with Ray Betancourth's appeal No.
    33954-8-III. In that appeal, Betancourth challenges the trial court's denial of his motion
    for a new trial. The State argues that consolidation may aid our review by providing
    additional insights and evidence from the trial court. We deny the motion to consolidate.
    CONCLUSION
    We reverse the conviction of Ray Betancourth for second degree murder and
    remand to the trial ·court for a new trial on the charge. We deny Betancourth's request to
    preclude use of his statements uttered during his two police station interviews.
    l
    31
    I
    t
    No. 32683-7-III
    State v. Betancourth
    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.
    Fearing,   ci
    WE CONCUR:
    Pennell, J.
    I.
    J
    I
    l
    l
    32
    I
    ,: