State of Washington v. David Kalani Gray aka David Kalani Tyacke

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
DAVID KALANI GRAY
aka DAVID KALANI TYACKE,
Appellant.
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No. 36961-7-III
UNPUBLISHED OPINION
PENNELL, C.J. — David Kalani Gray appeals his judgment and sentence for felony
driving under the influence (DUI). We affirm.
FACTS
The Okanogan County sheriff stopped Mr. Gray after a concerned citizen called
911 and reported Mr. Gray for driving erratically. Among other things, the concerned
citizen saw Mr. Gray swerving over the roadway and driving up onto a sidewalk, where
he struck a retaining wall. While responding to the call, the sheriff also observed some
erratic driving, although he did not witness any violations of the rules of the road.
FILED
JULY 28, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III

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When the sheriff contacted him, Mr. Gray appeared disoriented. He smelled of
intoxicants. His eyes were bloodshot and watery. His speech was slurred. Field sobriety
tests indicated an impairment consistent with intoxication.
The sheriff asked Mr. Gray to perform a voluntary portable breath test (PBT); he
declined. Mr. Gray was then arrested for DUI.
At the jail, Mr. Gray was questioned further and also offered an evidentiary breath
test (EBT). Mr. Gray admitted to a modest amount of drinking, but denied he had been
driving. He declined the EBT. Mr. Gray was then booked and cited for DUI.
The State charged Mr. Gray with felony DUI based on his prior conviction for
vehicular assault. The case proceeded to a jury trial. The State presented testimony from
the 911-caller and the sheriff. During his testimony, the sheriff told jurors Mr. Gray
refused both the PBT and the EBT. During the PBT testimony, both the prosecutor and
the sheriff emphasized that Mr. Gray was within his right to refuse testing.
In summation, the State referenced Mr. Gray’s refusal to take a breath test.
Although the State did not explicitly state whether the refusal pertained to the PBT or
EBT, the State referenced the refusal while discussing Mr. Gray’s jail interview. That was
the time period when Mr. Gray was offered the EBT.

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The jury convicted Mr. Gray as charged. At sentencing, the parties submitted a
stipulated statement of criminal history. The stipulation was signed by the prosecutor,
defense counsel, and Mr. Gray. In addition to his signature, Mr. Gray initialed an
acknowledgement that “each of the listed criminal convictions contained within this
document count in the computation of the offender score and sentencing range.” Clerk’s
Papers at 127. Based on the stipulation, the court calculated Mr. Gray’s offender score as
a 9+, resulting in a standard range of 63 to 84 months. Mr. Gray received a sentence near
the bottom of this range.
Mr. Gray appeals.
ANALYSIS
Sufficiency of the evidence
Mr. Gray claims the evidence at trial was insufficient to justify the jury’s guilty
verdict. We disagree. The evidence at Mr. Gray’s trial not only permitted the jury’s
finding of guilt, State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017)
(appellate review of a sufficiency challenge asks whether, “viewing the evidence in the
light most favorable to the State,” any rational trier of fact “could find the elements of the
charged crime beyond a reasonable doubt”), it was overwhelming. The uncontradicted
trial evidence showed Mr. Gray was driving in an erratic manner and exhibited obvious

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signs of intoxication immediately after exiting his vehicle. While there was no evidence
of Mr. Gray’s blood alcohol concentration, this was not required for conviction. See
RCW 46.61.502(1)(c). Mr. Gray’s challenge to the evidence’s sufficiency fails.
PBT refusal
For the first time on appeal, Mr. Gray claims the sheriff’s testimony regarding his
PBT refusal violated his constitutional right not to have the exercise of a constitutional
right be used against him at trial. See City of Vancouver v. Kaufman, 10 Wn. App. 2d 747,
763-64, 450 P.3d 196 (2019). Generally, errors not raised at the time of trial are not
preserved for appellate review. RAP 2.5(a). There is an exception for manifest
constitutional errors. RAP 2.5(a)(3). But to be manifest an error it “must have practical
and identifiable consequences apparent on the record that should have been reasonably
obvious to the trial court.” State v. O’Hara, 167 Wn.2d 91, 108, 217 P.3d 756 (2009).
Here, there was no manifest constitutional error. Although the sheriff mentioned
Mr. Gray’s PBT refusal during trial, it was not obviously admitted as substantive
evidence of guilt. The PBT refusal was only given brief mention and both the prosecutor
and the sheriff clarified that Mr. Gray was simply exercising his rights. It was the EBT
refusal, not the PBT refusal that was referenced in the State’s summation as indicative of

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guilt. This reference was constitutionally permissible. State v. Baird, 187 Wn.2d 210, 226,
386 P.3d 239 (2016).
Even if the brief reference to the PBT refusal constituted manifest constitutional
error, it was nevertheless harmless beyond a reasonable doubt. The PBT refusal was
cumulative of the later EBT refusal. As such, there was no reasonable possibility that the
jury relied on the PBT evidence in reaching its guilty verdict. See State v. Guloy, 104
Wn.2d 412, 426, 705 P.2d 1182 (1985). Furthermore, the overwhelming strength of the
State’s case stemmed not from the evidence of test refusal, but the affirmative signs of
intoxication: Mr. Gray’s erratic driving, odor of intoxicants, slurred speech, and poor
performance on field sobriety tests. His challenge on constitutional grounds fails.
Offender score value
Mr. Gray argues that the State did not prove his offender score because the
statement of criminal history presented at sentencing included old offenses that could
have washed out under RCW 9.94A.525(2). This claim fails because Mr. Gray
affirmatively acknowledged his offender score by initialing the criminal history statement
that all listed offenses could be properly included in his offender score. State v. Ross, 152
Wn.2d 220, 233, 95 P.3d 1225 (2004) (defendant’s “affirmative acknowledgement” that a
conviction may be used in offender score calculation relieves state of burden of proof).

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The State was therefore relieved of its burden to prove that various listed offenses had not
washed out. If Mr. Gray’s stipulation was signed in error, then this is something that must
be raised in a personal restraint petition, supported by accompanying admissible facts.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). It is not a matter for
direct review.
CONCLUSION
The judgment of conviction is affirmed.
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.
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Pennell, C.J.
WE CONCUR:
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Korsmo, J.
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Siddoway, J.