KURTZ, J.
After a car chase, Scott Skylstad was stopped and arrested for attempting to elude the police. On his way to the hospital and while at the hospital, Mr. Skylstad made statements about being involved in a robbery that had occurred two days earlier. Mr. Skylstad was charged with first degree robbery and attempting to elude a police vehicle. The court denied Mr. Skylstad's motion to suppress the statements he made in the hospital and Mr. Skylstad was convicted of both charges. The court included one weapon enhancement with his sentence. Mr. Skylstad appeals, contending that the court erred by admitting his statements. The State cross-appeals contending that the court erred by sentencing Mr. Skylstad to only one weapon enhancement. Pro se, Mr. Skylstad submitted a statement of additional grounds for review setting forth numerous arguments. We affirm Mr. Skylstad's convictions, reverse his sentence, and remand for resentencing.
FACTS
On September 17, 2001, two men armed with guns and wearing Halloween — type masks and latex gloves robbed the Mountain View Credit Union in Spokane. Approximately $15,000 was taken in the robbery. Michael Stricker, the branch manager, went outside and saw a car with at least two people in it leave the parking lot. Several workers in the area noticed three strangers lingering near the credit union earlier that day and were able to identify two of them as being Jason Kiss and Scott Skylstad.
The car used in the robbery was spotted later that day at a car wash and the police questioned the owner of the car, Russell Crosswhite. The police executed a search warrant at Mr. Crosswhite's residence where he lived with Mr. and Ms. Skylstad and Ms. Skylstad's father, David Hilliard.
The police found $1,115 in Ms. Skylstad's purse and receipts for several, recent, large expenditures. They also found latex gloves in the Skylstads' bedroom.
On September 19, Police Officer Kurt Vigesaa tried to stop a driver who was speeding and driving erratically. The driver refused to stop and a lengthy, high-speed chase ensued. The chase ended when two police cars pinned the suspect car between them and forced it to stop. The officers were able to extract the driver, Scott Skylstad, from the car by putting a police dog through the window of his car and pulling him out. Mr. Skylstad had been using methamphetamines and fought with the officers. After a lengthy struggle, the officers subdued Mr. Skylstad and put him in leg restraints and handcuffs.
During the struggle, Mr. Skylstad yelled, `I was just trying to get away from you guys. I didn't rob no bank. I didn't get any money. The money would be in my car, but it's not. It's not in that guy's truck.' Report of Proceedings (RP) at 13-14. Mr. Skylstad had an elevated body temperature and his arm was injured from a dog bite, so he was transported to the hospital. In the ambulance, Mr. Skylstad said he was going to prison for the rest of his life because the bank robbery was his third strike.
At the hospital, Mr. Skylstad was advised of his Miranda rights and stated he understood them and was willing to answer questions. Mr. Skylstad commented to a nurse that he had robbed a bank. She asked which one and he responded, `They know which one.' RP at 16. The nurse asked how much did he get, and he replied: '$15,000.' RP at 16. A little while later, Mr. Skylstad stated: `Hey, Lieutenant, you want to know something else? That robbery I did all myself. No one else did shit.' RP at 25. No one questioned Mr. Skylstad, but he told an officer that he was the one who robbed the bank, that he did not want anyone else to go down for it, and he was willing to write out a statement.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Mr. Skylstad was charged with one count of first degree robbery and one count of attempting to elude a police vehicle. The charges were joined for trial. At the CrR 3.5 hearing, the court found that all of Mr. Skylstad's statements were unsolicited and voluntary and, therefore, admissible. Mr. Skylstad was found guilty of both charges by a jury. At sentencing, the State asked for two 5-year weapon enhancements because two weapons were used. The court sentenced Mr. Skylstad to only one weapon enhancement. Mr. Skylstad appeals and the State cross-appeals.
ANALYSIS
Mr. Skylstad's Statements. Mr. Skylstad contends that his statements made during the arrest, in the ambulance, and at the hospital were inadmissible because he had not been given his Miranda warning. To trigger the protections afforded by Miranda, there must be a custodial interrogation by a state agent. State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995); State v. Breedlove, 79 Wn. App. 101, 112, 900 P.2d 586 (1995); State v. Walton, 64 Wn. App. 410, 413, 824 P.2d 533 (1992); State v. McWatters, 63 Wn. App. 911, 915, 822 P.2d 787 (1992). Both custody and interrogation must be present. `A suspect who is not in custody does not have Miranda rights. A suspect who is in custody but not being interrogated does not have Miranda rights.' State v. Warness, 77 Wn. App. 636, 639-40, 893 P.2d 665 (1995) (citations omitted).
It is not disputed that Mr. Skylstad was in custody. However, the court found that Mr. Skylstad's statements were voluntary and not in response to interrogation. In determining whether the court correctly decided that Mr. Skylstad's statements were not in response to an interrogation, we apply the clearly erroneous standard of review. Walton, 64 Wn. App. at 414 (citing United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981)).
A custodial `interrogation' is defined as `express questioning' or its `functional equivalent' initiated by law enforcement officers after a person is in custody or otherwise significantly deprived of his freedom. State v. Hawkins, 27 Wn. App. 78, 82, 615 P.2d 1327 (1980). For purposes of Miranda, the `functional equivalent' of express police questioning includes any words or actions on the part of police that they "should know are reasonably likely to elicit an incriminating response from the suspect." State v. Sargent, 111 Wn.2d 641, 650, 762 P.2d 1127 (1988); State v. Mahoney, 80 Wn. App. 495, 497, 909 P.2d 949 (1996); Hawkins, 27 Wn. App. at 82 (all are quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)); see Walton, 64 Wn. App. at 414. "Interrogation' involves some degree of compulsion.' Warner, 125 Wn.2d at 884. The perception of the suspect and the nature of the question rather than the procedure during which the question is asked or the intent of the police are decisive. Sargent, 111 Wn.2d at 651; Walton, 64 Wn. App. at 414.
Mr. Skylstad argues that the officers' conduct amounted to interrogation because they gave Mr. Skylstad the silent treatment which created a coercive environment and it was conduct that the police should have known was reasonably likely to elicit an incriminating response from him. The evidence shows that Mr. Skylstad was not questioned about the robbery because initially the officers did not even know he was a robbery suspect. Even after Mr. Skylstad was read his Miranda rights, he was not questioned because the officers were told that the sheriff's department would be taking over the investigation. There is no evidence that the officers were using the silent treatment to create a coercive environment. Mr. Skylstad freely talked about the robbery. `Statements which are freely given are voluntary and if they are likewise spontaneous, unsolicited, and not the product of custodial interrogation, they are not coerced within the concept of Miranda.' State v. Miner, 22 Wn. App. 480, 483, 591 P.2d 812 (1979). Mr. Skylstad's statements were spontaneous and voluntary.
Mr. Skylstad further contends he did not knowingly and voluntarily waive his Miranda rights because he was impaired by a severe wound, high body temperature, drugs, and the coercive environment. Statements obtained as a result of police interrogation are voluntary and admissible only if the person receives the Miranda warnings and waives his right against self — incrimination. Such a waiver must be knowing and intelligent, which of course requires the person to be mentally capable of waiver. State v. Davis, 73 Wn.2d 271, 284-86, 438 P.2d 185 (1968).
'The voluntariness of a confession is determined by examining the totality of the circumstances in which the confession was made.' State v. Cushing, 68 Wn. App. 388, 392, 842 P.2d 1035 (1993). The fact that the person in custody has recently used drugs or alcohol, or is in withdrawal from such use, does not automatically invalidate a waiver, but is a factor for the court to consider. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996); State v. Ortiz, 104 Wn.2d 479, 484, 706 P.2d 1069 (1985); State v. Lawley, 32 Wn. App. 337, 345, 647 P.2d 530 (1982); State v. Turner, 31 Wn. App. 843, 845-46, 644 P.2d 1224 (1982). A trial court's determination of voluntariness should be reversed on appeal where it is not supported by substantial evidence in the record. Cushing, 68 Wn. App. at 393. In reviewing the question of voluntariness, the appellate court reviews the challenged findings of fact. State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997).
Mr. Skylstad was not read his Miranda rights until he was stabilized in the hospital. The court found that at the hospital Mr. Skylstad was oriented, coherent, and able to understand advice and follow instructions. Mr. Skylstad responded to the Miranda warning by stating that he understood his rights and was willing to answer questions. The officer who read Mr. Skylstad his rights said he appeared to be oriented, to understand his constitutional rights, and to understand what the nurses were doing. The nurse treating Mr. Skylstad said he appeared oriented, answered questions, followed directions, and was cooperative. There is substantial evidence that Mr. Skylstad's waiver was voluntary.
In conclusion, the trial court did not err by denying the motion to suppress Mr. Skylstad's statements.
Additional Grounds for Review. Mr. Skylstad submitted a statement of additional grounds for review setting forth numerous arguments. He contends he received ineffective assistance of counsel because his attorney failed to object to immaterial, nonrelevant evidence. We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). The court presumes that defense counsel's performance is within the broad range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
The test for ineffective assistance of counsel is whether: (1) defense counsel's performance fell below the objective standard of reasonableness, and (2) this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 687). Prejudice results when it is reasonably probable that "but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694). If a reviewing court concludes that either prong has not been met, it need not address the other prong. State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990). If counsel's conduct can be characterized as a reasonable trial strategy, a court will not find ineffective assistance of counsel. State v. Soonalole, 99 Wn. App. 207, 215-16, 992 P.2d 541 (2000).
Mr. Skylstad argues that his counsel should have objected to the search of Ms. Skylstad's purse because the search warrant was for Mr. Crosswhite's bedroom, not Ms. Skylstad's purse. A warrant that authorizes a search of premises justifies a search of the owner's personal effects found on the premises if they are plausible repositories for the objects specified in the warrant. State v. Worth, 37 Wn. App. 889, 892, 683 P.2d 622 (1984). A premises search warrant also gives permission for law enforcement officials to detain non-owner occupants at the site. Id. But a premises warrant generally does not authorize a personal search of occupants and other individuals found at the site.
To show ineffective assistance of counsel, the defendant must show both deficient performance and prejudice. McFarland, 127 Wn.2d at 334-35.
In other words, the burden is on Mr. Skylstad to demonstrate from the record before us that the trial court likely would have granted the motion to suppress the evidence obtained from a search of Ms. Skylstad's purse.
Because no motion to suppress was made, the record before us does not indicate whether the trial court would have granted the motion. For that reason, Mr. Skylstad has not overcome the strong presumption that his counsel's representation was effective.
Mr. Skylstad contends that his counsel should have objected to the introduction of duplicates of money and receipts the police found in the Skylstads' possession. He argues that the originals were admitted and the admission of the copies misled the jury into believing there was more money than what was actually there. A duplicate is admissible `to the same extent as an original' except when the authenticity of the original is questioned or when it would be unfair to admit the duplicate instead of the original. ER 1003. The record indicates that the original money and receipts were admitted into evidence. In addition, photographs of the money showing how and where the money was found were admitted. There is no evidence that this confused the jury into thinking there was more money, and there was no reason for defense counsel to object.
Mr. Skylstad argues that his counsel should have objected to the joining of the eluding and the robbery charges because it misled the jury into thinking that they happened together rather than two days apart. Joinder is proper for counts where the offenses are of the same or similar character, or are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. CrR 4.3; State v. Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994). We construe the rule expansively to promote the public policy of conserving judicial and prosecutorial resources. State v. Hentz, 32 Wn. App. 186, 189, 647 P.2d 39 (1982), rev'd in part on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983). The underlying principle behind this rule ensures that the defendant receives a fair trial untainted by undue prejudice. State v. Bryant, 89 Wn. App. 857, 865, 950 P.2d 1004 (1998). In deciding whether joinder was proper as a matter of law, we must determine whether the defendant suffered actual prejudice. Id.
Mr. Skylstad argues that testimony made it sound like the eluding happened right after the robbery and Mr. Crosswhite was being arrested as Mr. Skylstad drove by. The testimony Mr. Skylstad refers to occurred when the prosecutor used the map showing the course of the pursuit of Mr. Skylstad to show the location of the car wash where Mr. Crosswhite was arrested. There was no testimony that the two activities were going on at the same time. It was clear that the map was being used simply to show a location. Mr. Skylstad was not prejudiced by the joinder of the two charges, and defense counsel did not err by failing to object.
Mr. Skylstad also contends that his counsel should have produced evidence at the CrR 3.5 hearing showing he could not have made a valid waiver of his Miranda rights. The evidence he refers to are photographs taken in the hospital showing his arm severely damaged by the dog bite and a photograph of Mr. Skylstad lying in bed with his eyes closed. As previously discussed, although Mr. Skylstad was injured, the evidence showed he was oriented and coherent and able to make a valid waiver of his Miranda rights. Introduction of the photographs at the CrR 3.5 hearing would not have changed the outcome. Defense counsel's performance was not deficient and Mr. Skylstad received effective assistance of counsel.
Mr. Skylstad contends the court erred by admitting evidence of an unrelated crime. The trial court's decision to admit or exclude evidence is an act of discretion. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). "A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds." Viereck v. Fibreboard Corp., 81 Wn. App. 579, 587, 915 P.2d 581 (1996) (quoting Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 131, 896 P.2d 66 (1995)). `It is not an abuse of discretion for a trial court to admit testimony when the party seeking exclusion fails to demonstrate prejudice as a result of admission.' Viereck, 81 Wn. App. at 587. Defense counsel introduced testimony that Mr. Crosswhite, Mr. Kiss, and Mr. Skylstad discussed a proposed robbery other than the Mountain View Credit Union robbery. The court limited that testimony to evidence that another robbery was discussed, but did not allow testimony that the other robbery actually occurred. The court also instructed that a witness only refer to `a robbery' rather than robberies. The court actually prevented evidence of another robbery from being introduced and this was not an abuse of discretion.
Mr. Skylstad also contends that the court erred by denying the motion to arrest judgment when the evidence was contrary to the verdict. He points to testimony that there were only two men involved in the robbery, not three. He also argues that he had a solid alibi because he was posting a bond at the time of the robbery. Under CrR 7.4(a)(3), judgment may be arrested on the basis of insufficiency of the proof of a material element of the crime. When reviewing a motion to arrest judgment pursuant to CrR 7.4(a)(3), an appellate court's function is to determine "whether the evidence is legally sufficient to support the jury's finding." State v. Bourne, 90 Wn. App. 963, 967, 954 P.2d 366 (1998) (quoting State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993)). `The evidence is sufficient if any rational trier of fact viewing it most favorably to the State could have found the essential elements of the charged crime beyond a reasonable doubt.' Bourne, 90 Wn. App. at 968.
Some of the witnesses who testified saw two men, while others saw three men. The jury was entitled to believe that there were three men involved in the robbery. Also, the bail bondsman testified that Mr. Skylstad was in his office at some time between 10:30 a.m. and 1:30 p.m. Mr. Skylstad would have had time to commit the robbery and get to the bondsman by 1:30 p.m. The evidence was sufficient to support the verdict and the court did not err by denying the motion to arrest judgment.
Mr. Skylstad also contends that the court erred by denying the motion to vacate when it was made aware that Mr. Kiss had been coerced not to testify. The decision to deny a motion to vacate is reviewed for an abuse of discretion. See, e.g., Mosbrucker v. Greenfield Implement, Inc., 54 Wn. App. 647, 651, 774 P.2d 1267 (1989) (quoting State v. A.N.W. Seed Corp., 44 Wn. App. 604, 607, 722 P.2d 815 (1986)). It is unclear why Mr. Skylstad believes Mr. Kiss was coerced not to testify. Mr. Kiss did testify at Mr. Skylstad's trial and stated that he had been driving the car when the eluding took place. Mr. Kiss exercised his Fifth Amendment rights and chose not to testify about the robbery. There is no evidence of coercion.
The court did not abuse its discretion by denying the motion to vacate.
Finally, Mr. Skylstad contends this court should reverse because his right to a fair trial was prejudiced by governmental misconduct. Specifically, he refers to the failure of Mr. Crosswhite to grant an interview before trial, the failure of the government to disclose that some of the fingerprints on the mask could not be identified, and the State's conduct of charging him with the robbery as a cover up for police brutality. These arguments or theories were not presented to the trial court. Consequently, these contentions cannot be considered on appeal. RAP 2.5(a); In re Marriage of Tang, 57 Wn. App. 648, 655, 789 P.2d 118 (1990).
Cross-Appeal. The State cross-appeals contending that the court erred by adding only one weapon enhancement when both Mr. Skylstad and his accomplice were armed with a firearm. RCW 9.94A.510(3)(e) provides that:
`Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.' The State argues that this means all deadly weapon enhancements must run consecutively to all other deadly weapon enhancements, even multiple enhancements added to one underlying offense.
Statutory interpretation is a question of law that this court reviews de novo. State v. Spandel, 107 Wn. App. 352, 358, 27 P.3d 613, review denied, 145 Wn.2d 1013 (2001). We must give effect to the legislative intent and give statutory terms their plain and ordinary meaning. State v. Bright, 129 Wn.2d 257, 265, 916 P.2d 922 (1996). If a statute is ambiguous, this court may look at the legislative history to discern the legislature's intent. State v. Van Woerden, 93 Wn. App. 110, 116, 967 P.2d 14 (1998).
A firearm enhancement is not a separate sentence or a separate substantive crime, but a statutorily-imposed sentence increase for a particular crime based upon certain factors involved in the crime. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 253, 955 P.2d 798 (1998).
The State cites Spandel as controlling. In Spandel, the court accepted that a single charge of robbery could be enhanced twice. The jury found Mr. Spandel guilty of first degree robbery and second degree assault, but the trial court vacated the assault charge. At the robbery, Mr. Spandel was armed with a sawed-off shotgun, and his cohort was armed with a knife.
The trial court sentenced Mr. Spandel to 75 months for the robbery, and it imposed consecutive 60-month firearm and 24-month nonfirearm deadly weapon enhancements. Thus, Mr. Spandel's enhancements were consecutive to a single underlying offense. The court held that former RCW 9.94A.310 clearly did not limit the consecutive enhancements provision to enhancements on separate underlying offenses. Rather, the court stated that the enhancement provision applies `to all firearm . . . enhancements and . . . these enhancements are to run consecutively to other enhancements related to all offenses.' Spandel, 107 Wn. App. at 359. The court further stated: `If the Legislature intended to restrict the application of [former] RCW 9.94A.310(3)(e) . . . to situations involving more than one underlying offense, it clearly could do so.' Spandel, 107 Wn. App. at 358-59.
RCW 9.94A.310 was recodified as RCW 9.94A.510 by Laws 2001, ch. 10 § 6.
Mr. Skylstad argues that State v. DeSantiago, 108 Wn. App. 855, 33 P.3d 394 (2001), aff'd in part, rev'd in part, 149 Wn.2d 402, 68 P.3d 1065 (2003) is controlling. In DeSantiago, five defendants were convicted of first degree kidnapping while each was armed with a firearm and another deadly weapon. The trial court imposed two consecutive enhancements on each defendant's sentence. This court reversed concluding that the intent of former RCW 9.94A.310(3) and (4) was to impose either a deadly weapon enhancement or a firearm enhancement, but not both, when only one offense is committed with both a deadly weapon and a firearm. Mr. Skylstad argues that under DeSantiago, if there is a single offense and a defendant and/or his accomplice is armed, only one enhancement is imposed.
However, DeSantiago was recently reversed. In State v. DeSantiago, 149 Wn.2d 402, 421, 68 P.3d 1065 (2003), the court concluded that the plain language of RCW 9.94A.510 requires a sentencing judge to impose an enhancement for each firearm or other deadly weapon that a jury finds was carried during an offense. The court reasoned that the plain language of RCW 9.94A.510(3)(e) and (4)(e) `mandates that one enhancement must be applied for each firearm or other deadly weapon that a jury finds was carried by the offender or an accomplice during a crime. . . . For each weapon found by special verdict, the sentencing judge must determine whether the weapon in question is a `firearm' or `other deadly weapon' and apply the appropriate corresponding enhancement.' DeSantiago, 149 Wn.2d at 418; see RCW 9.94A.510(3)(e), (4)(e).
Here, the jury returned two special verdict forms finding that both Mr. Skylstad and his accomplice were armed with a firearm. The court erred by not imposing two firearm enhancements.
We affirm Mr. Skylstad's convictions, reverse his sentence, and remand for resentencing.
The 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.
SWEENEY and SCHULTHEIS, JJ., concur.