      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   DIVISION ONE
                     Respondent,
                                                   No. 70936-4-1
         v.
                                                   UNPUBLISHED OPINION
CARLA ANNA FORD,

                     Appellant.                    FILED: March 9, 2015


       Dwyer, J. — Following a jury trial, Carla Ford was convicted of one count

of residential burglary. On appeal, Ford contends (1) that her right to due

process was violated by the prosecutor twice improperly commenting on her

custodial silence, and (2) that the trial court erred by failing to consider

sentencing alternatives before sentencing her to nine months of total

confinement. Because evidence of Ford's reaction to police questioning was not

improperly admitted and the sentencing issue is moot, we affirm.



       On December 10, 2012, Scott Nance left his Lake Stevens home to run an

errand. When he returned, Nance noticed an unoccupied green Chevrolet

pickup truck parked on a gravel road across from his driveway. Nance also
noticed that the screen door to his front door was open and a light was on in his
No. 70936-4-1/2



bedroom. Nance did not typically use his front door, and he had turned the light

off before he left.

       Nance had loaded weapons in his home and was concerned that

someone had gotten to them. He pulled out his pistol and went to his front door.

He noticed that the lock fell out of the door when he pushed it open. The lock

had not previously been broken. When Nance walked in, he saw Shauntel

Raymur coming out of his bedroom. Nance pointed his gun at Raymur and

asked her what she was doing. Raymur responded, "I'm with her." Nance then

heard someone come out of his bathroom and go out the back door. Nance

looked out his window and saw Ford running out of his carport. While Nance

was distracted, Raymur followed Ford out the back door. The two women ran to

a pickup truck parked across the street. Nance telephoned 911. As he did, Ford

and Raymur started the truck and drove toward Nance, swerving to avoid him as

they drove off.

       Nance went back into his house and found that it had been ransacked.

Drawers in his bedroom had been dumped out. A box from the spare bedroom

had been emptied and Nance's computer, knives, bullets, prescription

medication, and other property had been placed in that box. Police arrived on

scene about five minutes later.

       Three days later, police showed Nance two photo line ups. Nance picked

out Raymur and Ford as the two women who had broken into his home without

his permission.
No. 70936-4-1/3



      A week previously, on December 6, 2012, Francis Schatz had gone

outside his home upon hearing his dog bark. Schatz's next door neighbor,

Elizabeth Ries, had earlier left for work. However, her son, Nathan Ries, was

home studying. Schatz saw a woman get out of a blue Chevrolet pickup truck

and walk up to the Ries's front door. Schatz had never before seen that truck in

the neighborhood. Ries heard the doorbell ring, but ignored it because he was

studying. The woman then walked away from the door, looked toward the

backyard, and reentered the passenger side of the pickup truck. The driver was

a dark haired woman.


      Schatz saw the pickup drive off. Schatz got dressed and left his home,

intending to look for the truck. He observed it parked around the corner,

unoccupied. Schatz wrote down the license plate number, which he later

provided to the police. When Schatz returned home he noticed that Ries's gate

and her back door were open. The gate and the door had been closed when

Ries left for work. Schatz then called Ries at work to inform her of what he saw.

Schatz then drove to get coffee. When he returned, he saw the two women he

had previously seen at the Ries's residence walking near that residence. One of

the women was carrying a backpack.

      When Ries heard from Schatz, she called her son. Ries's son had been

listening to music, so he had not heard anyone come into the house. When he

went downstairs he noticed that his boots were not where he had left them.

Additionally, his binder had been removed from his backpack, and his backpack

was gone.
No. 70936-4-1/4



      Detective Margaret Ludwig investigated both the Nance and Ries

burglaries. She showed Nance and Schatz photomontages. Raymur was picked

out by both Nance and Schatz. Nance picked out Ford as one of the women at

his house.


      Thereafter, Ludwig located Raymur and Ford together at a trailer park.

Ford was standing by the truck that had been identified in both burglaries. The

truck was impounded and later searched pursuant to a search warrant. Inside

the truck, police found backpacks, a crowbar, a police scanner, walkie talkies, a

pair of gloves, and some tools. Ludwig testified that, in her experience, burglars

use walkie talkies to communicate with one another and use tools like those

found in the truck to pry open doors.

      The State originally charged Ford with one count of residential burglary,

concerning the Nance incident of December 10. The State later amended the

information to include an additional count of residential burglary involving the

Ries dwelling on December 6. Ford and Raymur were tried together.

       During direct examination, the prosecutor asked Ludwig whether she had

questioned Ford about a gun having been pulled in the course of the Nance

burglary. Ludwig answered that Ford responded to the question by closing her

eyes and hanging her head.

       Ford presented an alibi defense on both counts, consisting of witnesses

testifying that she was someplace else when the burglaries occurred.

       A jury found Ford guilty of the Nance burglary but acquitted her of the Ries
burglary. The jury returned a special verdict that the victim was present at the

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No. 70936-4-1/5



time of the Nance burglary, which qualifies as an aggravating circumstance,

RCW 9.94A.535(3)(u), authorizing an exceptional sentence.

      The State recommended an exceptional sentence of 12 months

confinement. The court imposed a sentence of nine months confinement, the top

of the standard range. The court also stated, "I understand this is your first

offense, but I believe this is an appropriate sentence and this will be the sentence

of the court." This appeal follows.

                                              II


       Ford first contends that her right to due process was violated by the State

improperly commenting on her exercise of her right to remain silent. This is so,

Ford asserts, because the State presented evidence that she closed her eyes

and lowered her head in response to a police detective's postarrest, post-

Miranda1 question. We disagree.

       Although the defendant did not object to the admission of the evidence

she now challenges, we may consider the issue if it is a manifest error affecting a

constitutional right. RAP 2.5(a)(3). An asserted issue meets this criteria if the

claim of error suggests a constitutional issue, and if the appellant has made a

plausible showing that the error had a practical and identifiable consequence in

the trial of the case. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).

Here, because a comment on a defendant's exercise of her right to remain silent

implicates the Fifth Amendment to the United States Constitution and article I,

section 9 of the Washington Constitution, the defendant raised a constitutional

       1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             -5-
No. 70936-4-1/6



issue. State v. Romero, 113 Wn. App. 779, 786, 54 P.3d 1255 (2002). Further,

because the record is sufficient to determine the merits of that claim, any error

would be manifest.

      The Fifth Amendment states, in pertinent part, that no person "shall be

compelled in any criminal case to be a witness against himself." This provision

applies to the states through the due process clause of the Fourteenth

Amendment. Mallow. Hoqan. 378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653

(1964). Article I, section 9 states: "[n]o person shall be compelled in any criminal
case to give evidence against himself." These two provisions are interpreted
equivalent^. State v. Easter, 130Wn.2d 228, 235, 922 P.2d 1285 (1996);
accord State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). The right

against self-incrimination is liberally construed. Hoffman v. United States, 341
U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951): Easter, 130 Wn.2d at 236.

       The right against self-incrimination prohibits the State from forcing the
defendant to testify at trial. Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct.
1602 (1966); State v. Foster, 91 Wn.2d 466, 473, 589 P.2d 789 (1979).
Moreover, the State may not elicit comments from witnesses or make closing
arguments relating to a defendant's silence so as to encourage the jury to infer
guilt from such silence. This rule is required because "[a]n accused's Fifth
Amendment right to silence can be circumvented by the State 'just as effectively
by questioning the arresting officer or commenting in closing argument as by
questioning defendant himself.'" Easter, 130 Wn.2d at 236 (quoting State v.
Fricks, 91 Wn.2d 391, 396, 588 P.2d 1328 (1979)). However, physical and

                                        -6-
No. 70936-4-1/7



demeanor evidence "does not engender Fifth Amendment protection." United

States v. Velarde-Gomez. 269 F.3d 1023, 1030 (9th Cir. 2001).

      As our Supreme Court explained:

              The Fifth Amendment right to silence extends to situations
      prior to the arrest of the accused. An accused's right to remain
      silent and to decline to assist the State in the preparation of its
      criminal case may not be eroded by permitting the State in its case
      in chief to call to the attention of the trier of fact the accused's pre-
      arrest silence to imply guilt.
             Nothing in our conclusion, however, prevents the State from
      introducing pre-arrest evidence of a non-testimonial nature about
      the accused, such as physical evidence, demeanor, conduct, or the
      like.


Easter. 130 Wn.2d at 243: accord Pennsylvania v. Muniz. 496 U.S. 582, 592, 110

S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (distinguishing "physical" and "demeanor"

evidence from "testimonial" evidence).

       Demeanor evidence includes, for example, the admission of evidence

concerning a defendant's "slurr[ed] speech," Muniz. 496 U.S. at 592, "apparent

nervousness," United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990), or

a defendant's demeanor during a polygraph test, even though the results of the

test may not be admissible, Rothaeb v. United States. 789 F.2d 647, 651 (8th

Cir. 1986).

       The distinction between permissible evidence of a defendant's demeanor

and improper comments on a defendant's silence is helpfully elaborated by the
following two cases: Velarde-Gomez. 269 F.3d 1023, and Michigan v. Rice. 235
Mich. App. 429, 437, 597 N.W.2d 843 (1999). The first addresses when alleged
No. 70936-4-1/8



demeanor evidence is actually commentary on a defendant's silence; the second

provides an example of demeanor evidence that was properly admitted.

       First, in Velarde-Gomez, the government elicited testimony about the

defendant's lack of response when confronted with the 63 pounds of marijuana in

his gas tank. 269 F.3d at 1030. The evidence included testimony that the

defendant "just sat there" and "didn't look surprised or upset," that "[tjhere was no

response," and that he did not "say anything" and did not "deny knowledge."

Velarde-Gomez. 269 F.3d at 1031. In short, a series of comments each

described the same thing—that the defendant did not react at all. Velarde-

Gomez. 269 F.3d at 1031.

       Sitting en banc, the Ninth Circuit held that, while "[it] agree[d] that the

government may offer evidence of demeanor,"2 the "non-reaction" that the

government sought to introduce as demeanor evidence therein was "notan

action or a physical response, but a failure to speak. There was no outward
physical manifestation to comment upon other than [the defendant's] 'state or

condition of silence.'" Velarde-Gomez. 269 F.3d at 1030-31. The court

concluded that it was error to admit the evidence of the defendant's "non-

reaction," because it allowed the government to comment on his postarrest

silence. Velarde-Gomez. 269 F.3d at 1033.

       In short, the government may not comment on a defendant's silence in the
guise of offering demeanor evidence consisting of a lack of response to


      2The courtoffered "testimony that [the defendant] was sweating or vomiting" as an
example of demeanor testimony that would have been admissible.

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No. 70936-4-1/9



questioning. Evidence of a defendant's (non-verbal) demeanor in response to

police questioning must focus on the defendant's physical response or reaction—

not the lack thereof. This conclusion is entirely consistent with the United States

Supreme Court's pronouncement in Miranda that. "[t]he prosecution may not. ..

use at trial the fact that [the defendant] stood mute or claimed his privilege in the

face of accusation." 384 U.S. at 468 n.37; accord Dovle v. Ohio. 426 U.S. 610,

617, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

       Second, in Rice, the trial court admitted the following demeanor evidence

from two police interviews: "In the first interview, [the] defendant made some

statements, stopped talking, and hung his head down, and then again responded

to questioning. In the second interview, . . . [the] defendant merely looked down,

nodded, and cried."3 235 Mich. App. at 437. The prosecutor then argued in

closing that the jury should infer defendant's guilt from his nonverbal conduct
during police questioning. In concluding that the officers' testimony concerning
defendant's nonverbal conduct and silence was not improper commentary on

constitutionally protected silence and that the prosecutor's closing arguments

regarding the defendant's nod of his head and outburst of crying were likewise
permissible, the court quoted an opinion of that state's Supreme Court:
             "We have found no authority for the proposition that a
       defendant's nonverbal conduct during interrogation, after a valid
       waiver of the right to remain silent, is an exercise of that Fifth
       Amendment right to remain silent or that the 'description of partial
       silence' in such a setting is an error of constitutional dimension."



       3The defendant waived his Fifth Amendment rights at the outset of each interrogation.

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No. 70936-4-1/10



Rice, 235 Mich. App. at 436 (quoting People v. McReavv. 436 Mich. 197, 219-

220, 462 N.W.2d 1 (1990)). Thus, nodding, crying—and looking down or

hanging one's head—may constitute evidence of demeanor.

      The following evidence is at issue in this case: First, the following

exchange took place during the State's direct examination of Ludwig:

      Q. You also had a chance to speak to Ms. Ford; is that
      correct?
      A. Correct.
      Q. Did you speak to her about specifics from one or the other
      of the burglaries?
      A. Yes.
      Q. In fact, you asked her about a gun being pulled; is that
      correct?
      A. Yes.
      Q. And that would refer to Mr. Nance?
      A. Correct.
      Q. What was her response or her reaction?
      A. She closed her eyes and hung her head.

      The prosecutor also commented on this evidence during closing

argument:

             Yes, ladies and gentlemen, they have some innocent
      explanations. A crowbar can be used for a lot of things. Start
      adding them up, though, latex gloves, a police scanner? When
      Carla Ford is questioned and said what about the gun being drawn,
       what does she do? She hung her head and sighed.
             You hear a crash in the other room, when you go in and ask
       your kids what happened, and you ask them about kicking that
       vase off the table and they lower their head and sigh, what do you
       think your reaction is? What do you think is happening right here in
       your stomach?




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No. 70936-4-1/11



        In this case, the prosecutor did not comment on Ford's "silence."4 Instead,

the prosecutor focused on Ford's actions. Specifically, she elicited testimony

regarding Ford's physical response—closing her eyes and lowering her head—to

a particular question from the police. There was no direct testimony from the

officer that Ford did not respond verbally, much less any argument from the

prosecutor that the jury should draw a negative inference from such a lack of

response.

        This fact distinguishes this case from State v. Knapp. 148 Wn. App. 414,

199 P.3d 505 (2009), on which Ford heavily relies. In that case, both the

improper testimony from the police officer who had questioned the defendant and

the prosecutor's argument from the evidence specifically mentioned that the

defendant had not verbally responded to the officer's question—i.e., that he had

remained silent.5 As our Supreme Court has explained, such commenting is

improper because

        Miranda warnings implicitly assure the defendant his or her silence will not
        be used for any purpose once the compulsion of an arrest has occurred.
        Such silence is "insolubly ambiguous" because the defendant may be
        exercising the right to silence.

        4 In fact, apart from the physical reactions discussed, Ford did also speak—she
immediately thereafter asked for an attorney. However, the trial court properly excluded evidence
of her invocation of the right to counsel.
         5The testimony was as follows: "The prosecutor then asked, 'Okay. What did Mr. Knapp
do in response to that, hearing that information?' [The detective] stated, 'Well, he immediately
hung his head but did notsay anything.'" Knapp. 148 Wn. App. at 419.
         In closing, the prosecutor argued that the only question was whether Knapp was the
second suspect. He listed numerous reasons why the jury should find Knapp guilty ofthe
burglary, including:
                 "And another reason to believe that this defendant, Kyle Knapp, did the
        burglary, both times that it was mentioned to him that Darren Blakeslee identified
        him and then Officer Harris identified him, what did he do? He put his head
        down. Didhe say, "No. It wasn't me"? [sic] No."
Knapp. 148 Wn. App. at 419-20.

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No. 70936-4-1/12




Easter. 130 Wn.2d at 238 (quoting Dovle. 426 U.S. at 617).

        Moreover, the only ambiguity raised regarding Ford's physical response to

the officer's questioning was whether it expressed dismay at learning that the

police had specific information about the alleged crime or annoyance at the line

of questioning. As the trial court phrased it, the response could have been meant

to express "This is baloney!" This is different from the "insoluble ambiguity" as to

whether a defendant was silent because he was guilty or because he was

exercising his constitutional right.

        The prosecutor in this case did not improperly comment on Ford's

"silence." The testimony regarding Ford's physical response to the police

questioning was allowable evidence, and the prosecutor's reference to it in

closing argument was permissible. The prosecution has wide latitude to relate to

the jury the facts adduced at trial and all reasonable inferences arising therefrom.

State v. Thorqerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). Appellate relief is

not warranted.


                                         Ill


        Ford next contends that the trial court erred in failing to comply with RCW

9.94A.680, which governs alternatives to total confinement. This is so, she

asserts, because the court did not "state its reasons in writing on the judgment

and sentence form" when no alternative sentencing was used, as required by the

statute. Because Ford has already finished serving her sentence, this issue is

moot.



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No. 70936-4-1/13



       A case is moot when it involves only abstract propositions or questions,

the substantial questions in the trial court no longer exist, or a court can no

longer provide effective relief. Westerman v. Carv, 125 Wn.2d 277, 286, 892

P.2d 1067 (1994). However, this court has the power to decide a technically

moot case to resolve issues of continuing and substantial public interest. State v.

Slattum, 173 Wn. App. 640, 647, 295 P.3d 788, review denied, 178 Wn.2d 1010

(2013).

       The issue here is moot because the defendant completed serving her

sentence by March 2014. Moreover, we will not exercise our discretion to

address the issue, notwithstanding its mootness, because it was raised for the

first time on appeal. Here, the defendant did not object either when the court did
not specifically articulate that it had considered alternatives to total confinement
or when it did not put in writing the reasons for not granting her an alternative

sentence. Nor did the prosecutor alert the court to the error. There is no

indication that the court would have refused to comply with the statutory

requirements had it been alerted that it had overlooked those requirements. If
the defendant had objected the court easily could have corrected its oversight.
We will not speculate on the need for guidance on this issue when it was never

raised to the trial court.

          Affirmed.




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We concur:




-Aau




                   14
