State of Washington v. Levi A. Fogleman ( 2022 )

FILED
FEBRUARY 3, 2022
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. 37725-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
LEVI A. FOGLEMAN, )
)
Appellant. )
PENNELL, C.J. — Levi Fogleman appeals his convictions for possession,
distribution, and possession with intent to distribute controlled substances. We reverse
Mr. Fogleman’s conviction for simple possession of a controlled substance and remand
for resentencing and for correction of scrivener’s errors. We otherwise affirm.
FACTS
In the fall of 2019, law enforcement obtained a warrant to search Levi Fogleman’s
home. Probable cause was based on several undercover drug sales. Upon executing the
warrant, a detective saw Mr. Fogleman throw a plastic baggie out of the back door of his
residence. The baggie was later determined to contain 103 grams of methamphetamine.
No. 37725-3-III
State v. Fogleman
Mr. Fogleman was arrested inside his home along with three other individuals.
All the occupants were read their Miranda 1 rights. Upon subsequent questioning,
Mr. Fogleman admitted to throwing the bag of methamphetamine out of his back door.
A search of Mr. Fogleman’s home uncovered heroin, hydrocodone pills, and other indicia
of distribution, such as a scale and packaging materials.
The State charged Mr. Fogleman with one count of possession of a controlled
substance (methamphetamine) with intent to distribute, one count of possession of a
controlled substance (heroin), one count of possession of a controlled substance
(hydrocodone) with intent to distribute, and three counts of delivery of a controlled
substance (methamphetamine).
The case proceeded to a jury trial on July 23, 2020. Several months earlier,
Washington’s governor had declared a state of emergency due to the COVID-19
pandemic. The Washington State Supreme Court subsequently issued an order approving
jury trials in noncourthouse locations to facilitate social distancing. The Supreme Court
subsequently approved Asotin County Superior Court’s choice of the “Asotin County
Fire District Building in Clarkston” (the Fire Hall) as an appropriate trial venue. Clerk’s
Papers at 42-43. The county had purchased the building from a church in June 2014.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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The church thereafter paid rent to the county so that it could continue to use the building
for office space and Sunday gatherings. The county had utilized the building for fire
district training, town hall meetings, an emergency evacuation center, and also made it
available for rent to the community for other events. At the time of Mr. Fogleman’s trial,
the court had removed most religious imagery from the Fire Hall. A church office sign,
a shallow bas relief sculpture of a four-pointed star appearing to be set above eye level,
and triangular stage decorations remained in the Fire Hall.
At trial, immediately after the jury was empaneled, defense counsel raised an
objection to the Fire Hall location. 2 Counsel argued the nature of the Fire Hall could
improperly influence the jurors, raising issues regarding the separation of church and
state. Defense counsel noted that while the only obvious religious imagery was a
“Church Office” sign, the Fire Hall nevertheless “[felt] like a church, [and] it look[ed]
like a church . . . .” Report of Proceedings (RP) (Jul. 23, 2020) at 179.
The court overruled the objection. The court explained it had been involved in
venue selection and concluded the Fire Hall was the best option in terms of spacing,
acoustics, and air conditioning. Furthermore, the court noted it neither saw any indication
the Fire Hall was used as a church nor any religious symbols or imagery that might have
2
The objection was voiced outside the presence of the jury.
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State v. Fogleman
influenced the jury. Nevertheless, the court offered to cover up the “church office” sign.
Id. at 182.
The court also held a brief CrR 3.5 hearing to determine the admissibility of
Mr. Fogleman’s post-arrest statements. The State elicited testimony from the arresting
detective who explained that after he seized Mr. Fogleman and the other occupants of the
home, he read everyone their Miranda rights. The detective testified that no one had any
questions about their rights and everyone was willing to waive their rights, including
Mr. Fogleman. On cross-examination, Mr. Fogleman’s attorney asked four questions
aimed at clarifying the detective’s testimony. Defense counsel did not present any
argument against the admissibility of Mr. Fogleman’s statements. Instead, counsel
commented he was “really not all that concerned about the statements.” Id. at 192.
At the conclusion of the CrR 3.5 hearing, the court found
based on the testimony that was presented here, it does appear to me that
at the time that the warrant was executed on the 23rd of October, [Mr.
Fogleman] then, with three other individuals, were present. The Detective
testified to an extent where the Court feels he must have felt that they were
in custody at the time, under arrest. Miranda warnings were provided, not
individually but to the group.
[Mr. Fogleman] in particular acknowledged that he understood those
rights and agreed to answer questions, did answer questions, and it’s the
Court’s conclusion here that the Miranda obligation was honored here and
that [Mr. Fogleman] understood what his rights were and knowingly,
voluntarily, and intelligently waived the rights and made the statements that
were testified to.
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Id. No written findings of fact or conclusions of law were entered by the trial court
following the CrR 3.5 hearing.
The jury convicted Mr. Fogleman as charged. The court sentenced Mr. Fogleman
to 144 months in prison and 12 months of community custody. Mr. Fogleman timely
appeals.
ANALYSIS
Assistance of counsel
Mr. Fogleman contends he was deprived of his constitutional right to effective
assistance of counsel because his attorney did not adequately address the religious
imagery on display in the Fire Hall. Mr. Fogleman claims trial counsel should have taken
further steps to conceal or remove religious symbols from the Fire Hall. He also argues
his trial counsel should have proposed a limiting instruction to blunt the impact of the
trial taking place at a religious site.
To establish a claim of ineffective assistance of counsel, a defendant must prove
both (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to establish either prong precludes
relief from conviction. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Here, Mr. Fogleman fails on the first prong, requiring him to show deficient performance.
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With respect to the religious imagery, Mr. Fogleman’s attorney brought the issue
to the trial court’s attention through an objection to the Fire Hall venue. The court
assessed the surroundings and determined the only nonsecular imagery was a sign on the
building that read “church office.” RP (Jul. 23, 2020) at 182. The court overruled the
objection and indicated that it would “hide” the sign and anything suggesting the building
was being used as a church. Id. Given the trial court’s assessment of the Fire Hall venue,
it is not clear what more defense counsel could have done with respect to any perceived
religious imagery at the Fire Hall. Counsel was not deficient in this regard.
As for the lack of a curative instruction, we agree with the State that counsel’s
actions were reasonably strategic. See State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d
1251 (1995) (no deficient performance if defense counsel’s decision was arguably
strategic). Curative instructions are not always helpful, in that they can draw the jury’s
attention to potentially damaging information. See State v. Humphries, 181 Wn.2d 708,
720, 336 P.3d 1121 (2014) (no limiting instruction for defendant’s stipulation to a prior
offense); State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000) (no limiting
instruction for defendant’s prior fights). Because curative instructions often function
as double-edged swords, we generally defer to counsel’s decision not to seek a curative
instruction as tactical. See, e.g., Humphries, 181 Wn.2d at 720; State v. Yarbrough,
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151 Wn. App 66, 90-91, 210 P.3d 1029 (2009); State v. Price, 126 Wn. App. 617, 649,
109 P.3d 27 (2005), abrogated on other grounds by State v. Hampton, 184 Wn.2d 656,
665, 361 P.3d 734 (2015). Here, requesting a curative instruction would have amplified
defense counsel’s concern that the jurors may have noticed religious imagery at the Fire
Hall. The decision not to seek a curative instruction was reasonably strategic.
Conviction for simple possession
As the parties agree, Mr. Fogleman’s conviction for unlawful possession of
heroin (Count 2) must be reversed in light of the Supreme Court’s ruling in State v.
Blake, 197 Wn.2d 170, 481 P.3d. 521 (2021). We reverse Mr. Fogleman’s conviction for
Count 2. Because the reversal for the conviction for Count 2 also impacts Mr. Fogleman’s
offender score, we also remand for resentencing.
CrR 3.5 written findings of fact and conclusions of law
Mr. Fogleman contends the trial court erred when it failed to enter written findings
of fact and conclusions of law in violation of CrR 3.5(c). The State agrees the trial court
erred by not making written findings, but contends the error was harmless and remand
is unnecessary because the court's oral findings are sufficient to allow appellate review.
We agree with the State.
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CrR 3.5 establishes a pretrial process for assessing the admissibility of a
defendant’s statements at trial. The rule requires entry of written findings of fact and
conclusions of law. CrR 3.5(c). Written findings and conclusions facilitate and expedite
appellate review of the issues. State v. Head, 136 Wn.2d 619, 622-23, 964 P.2d 1187(1998). However, the failure to enter written findings and conclusions does not
necessarily require reversal. The lack of written findings and conclusions is harmless
error if the trial court’s oral findings are sufficient to allow appellate review. State v.
Thompson, 73 Wn. App. 122, 130, 867 P.2d 691 (1994).
Here, the trial court’s failure to enter written findings and conclusions was
harmless. None of the facts surrounding Mr. Fogleman’s post-arrest statements were
contested at the time of the CrR 3.5 hearing. For the first time on appeal, Mr. Fogleman
suggests the detective’s Miranda warning may have been inaccurate or incomplete. This
unpreserved argument is not well taken. See RAP 2.5(a). While it would have been better
practice for the State to clarify the contents of the detective’s Miranda warning, either
by entering the advice card into evidence or reciting its contents, these practices are not
required. Under the circumstances here, the detective’s testimony that Mr. Fogleman
was read his Miranda rights and agreed to waive his rights without asking for
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clarification was sufficient to justify the court’s finding of a valid waiver. The record
does not support the need to remand for written findings.
Scrivener’s errors
The parties agree that the dates listed on Counts 4 and 5 of Mr. Fogleman’s
judgment and sentence form are incorrect. This matter can be remedied on remand.
CONCLUSION
We reverse Mr. Fogleman’s conviction for Count 2, possession of a controlled
substance (heroin), and remand for resentencing and for correction of scrivener’s errors.
We otherwise affirm the remaining convictions.
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.
_________________________________
Pennell, C.J.
WE CONCUR:
____________________________
Siddoway, J.
______________________________
Staab, J.
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