                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 13, 2018



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 49851-1-II

                                Respondent,

        v.

 CHRISTOPHER THOMAS FULLER,                                   UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J. – Christopher Thomas Fuller appeals his convictions for theft of a motor

vehicle and possession of stolen property in the second degree. Fuller contends testimony that he

refused to answer a police officer’s questions violated his constitutional right to silence. Fuller

also alleges the sentencing court erred by ordering him to potentially forfeit seized property. We

affirm Fuller’s convictions but remand for correction of the judgment and sentence.

                                              FACTS

       Fuller rode with his friend, Theodore Borchers, to a convenience store to assist one of

Borchers’s friends with starting his car. Borchers got out and helped his friend jumpstart his car

while Fuller waited in the car. After the car started, Borchers removed the jumper cables and

turned towards his car. He noticed Fuller slide over to the driver seat. Fuller then drove Borchers’s

car to a nearby gas pump.
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         Confused by Fuller’s actions, Borchers followed the car and when it stopped asked Fuller

to open the trunk so Borchers could put the jumper cables in. Fuller opened the trunk and then,

after Borchers put the cables in, Fuller drove away again. Borchers attempted to follow the vehicle

but ultimately gave up and called the police.

         Kitsap County Sheriff’s Deputy Steven Argyle responded to the report of a stolen vehicle.

While he was talking with Borchers, another 911 call came in about a suspicious person and a car

left at a nearby gas station.1 Argyle went to the gas station and called Borchers to meet him there.

Borchers confirmed the car was his and that several items were missing from the vehicle, including

Borchers’s debit card.

         While he was at the gas station, Argyle viewed the security video, which showed Fuller

going in and out of the car. About an hour later, Argyle spotted Fuller walking near the gas station.

Argyle arrested Fuller.

         The State charged Fuller with theft of a motor vehicle and possession of stolen property,

an access device, in the second degree.

         During trial, Argyle testified, without objection, that after he told Fuller he was under arrest

for vehicle theft, Fuller was “argumentative, threatening, refused to do any of my commands.” I

Verbatim Report of Proceedings (VRP) at 86. Fuller told Argyle that he did “nothing wrong.” I

VRP at 86. But, Fuller “would not answer any specific questions.” I VRP at 86. Argyle testified

that Fuller would not listen when he tried to read him his Miranda2 rights.




1
 Borchers’s vehicle uses a key fob to start. After Fuller turned off the vehicle at the gas station it
would not restart because he did not have the key fob.
2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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       On cross-examination, defense counsel questioned Argyle about his initial conversation

with Fuller. Defense counsel asked, “Your conversation was, ‘You’re under arrest’?” I VRP at

98. Argyle responded, “That’s how it started.” I VRP at 98. Defense counsel then asked, “He’s

telling you that he didn’t do anything?” I VRP at 98. Argyle responded, “He wouldn’t answer

any question. That was the only thing he kept repeating.” I VRP at 98-99.

       Fuller testified in his defense. He testified that Borchers gave him permission to borrow

the vehicle. Borchers, however, testified that he did not give Fuller permission to take the vehicle.

       During closing remarks, the prosecutor stated, “Deputy Argyle describes [Fuller] as

belligerent, uncooperative, fighting him not responding clearly to his answers, not responding

clearly to his questions or commands.” III VRP at 379. Fuller did not object.

       The jury found Fuller guilty as charged. The sentencing court checked a box on the

judgment and sentence ordering Fuller to “Forfeit all seized property referenced in the discovery

to the originating law enforcement agency unless otherwise stated.” Clerk’s Papers (CP) at 72.

Fuller appeals.

                                            ANALYSIS

I.     RIGHT TO REMAIN SILENT

       Fuller contends Argyle’s testimony regarding Fuller’s demeanor at the time of his arrest

amounted to an impermissible comment on his right to remain silent. The dispositive issue,

however, is whether Fuller may raise this issue for the first time on appeal. We hold he may not.

       Appellate courts generally do not consider issues raised for the first time on appeal. RAP

2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). A narrow exception exists

for “manifest” errors affecting constitutional rights. RAP 2.5(a)(3); State v. King, 167 Wn.2d 324,

332, 219 P.3d 642 (2009). It is the appellant’s burden to demonstrate manifest constitutional error,



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i.e., error that affects constitutional rights and results in actual prejudice. State v. O’Hara, 167

Wn.2d 91, 98-100, 217 P.3d 756 (2009). Fuller has not carried that burden.

         A police witness may not testify in a manner that implies guilt from a defendant’s silence

or refusal to answer questions. State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996). To do

so violates the defendant’s Fifth Amendment right to refrain from self-incrimination. State v.

Easter, 130 Wn.2d 228, 241-42, 922 P.2d 1285 (1996).              But, when a defendant talks to

investigators, a police witness may comment on what he does or does not say. State v. Clark, 143

Wn.2d 731, 765, 24 P.3d 1006 (2001). And, comments on a defendant’s demeanor, as opposed to

silence, are proper. State v. Barry, 183 Wn.2d 297, 308, 352 P.3d 161 (2015).

         Here, Argyle testified, without objection, that after he told Fuller he was under arrest for

vehicle theft, Fuller was “argumentative, threatening, refused to do any of my commands.” I VRP

at 86. Fuller told Argyle that he did “nothing wrong.” I VRP at 86. But, Fuller “would not answer

any specific questions.” I VRP at 86. Later, during cross-examination, defense counsel questioned

Argyle about his initial conversation with Fuller. Argyle testified that Fuller repeatedly denied

any wrong doing, but then would not cooperate with the officer or “answer any question.” I VRP

at 98.

         Based on the above facts, Fuller did not invoke his right to remain silent; rather, he spoke

to Argyle and denied doing anything wrong. Fuller then refused to follow commands or answer

questions. Since Fuller did not invoke his right to remain silent and spoke with Argyle, Argyle

was permitted to comment on what Fuller did or did not say afterwards. Moreover, Argyle’s

testimony primarily went to Fuller’s demeanor at the time of arrest. Comments on a defendant’s

demeanor at the time of arrest are admissible. Accordingly, Fuller does not show constitutional

error.



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       Even if Fuller could demonstrate constitutional error, he cannot show it was manifest. An

alleged error is “manifest” only if there is a showing of actual prejudice—i.e., a “‘plausible

showing by the [appellant] that the asserted error had practical and identifiable consequences in

the trial of the case.’” Kirkman, 159 Wn.2d at 935 (internal quotation marks omitted) (quoting

State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)).

       Fuller does not establish any identifiable consequences. Based on the strength of the

State’s case, which includes eye witness testimony, and based on our deference to the trier of fact

on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence,

Fuller cannot show actual prejudice. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       Based on the above, Fuller does not raise a manifest constitutional error. Accordingly, his

argument cannot be raised for the first time on appeal.

II.    FORFEITURE BOX ON JUDGMENT AND SENTENCE

       Fuller next argues that the sentencing court erred by checking a box on the judgment and

sentence ordering Fuller to “Forfeit all seized property referenced in the discovery to the

originating law enforcement agency unless otherwise stated.” CP at 72. Because there is nothing

in our record to show there was any property seized or the sentencing court’s intent to order

forfeiture and because the State concedes there was no property to be seized, the checked box is a

clerical error. The remedy for a clerical error in a judgment and sentence is to remand to the trial

court for correction. State v. Makekau, 194 Wn. App. 407, 421, 378 P.3d 577 (2016). We,

therefore, remand for correction of the judgment and sentence.




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        We affirm Fuller’s convictions but remand for correction of the judgment and sentence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                            Melnick, J.

We concur:




        Worswick, P.J.




        Lee, J.




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