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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. SARAH JANE WIXOM, Appellant. NO. 69542-8-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 28, 2014
Lau, J. —Sarah Wixom appeals her drug possession convictions on the ground that she was unlawfully seized when a police officer asked herto identify herselfwhile investigating a report that a male driver may have punched his female passenger. Because Wixom failed to move for suppression ofthe drug evidence on this basis below, and because she has not demonstrated "manifesterroraffecting a constitutional right" under RAP 2.5(a)(3), we decline to review her untimely claim. We affirm. FACTS Wixom assigns no errorto any ofthe trial court's findings offact entered after her pretrial suppression motions. Unchallenged findings are verities on appeal. State v.69542-8-1/2 

### O'Neill. 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Those findingsestablish the following facts. 

### On October 17, 2011, City of Mount Vernon Police Officers Shaddy, Oster, and Gerondale responded to an eyewitness report that a male driver may have punched his 

### female passengerbefore stopping in aWalmartparking lot. When OfficerShaddy located the vehicle, Wixom was standing outside. The driver exited the vehicle and 

### immediately approached OfficerShaddy while fidgeting and speaking rapidly. Wixom, who was clearly upset, yelled profanity at Officers Shaddy and Osterwhile they handcuffed the driver. OfficerGerondale left the sceneto locatethe eyewitness. OfficerShaddy frisked the driver and found methamphetamine in his pocket. Wixom continued to yellas Officer Oster attempted to discuss the reported assaultwith her. Wixom insisted the driver did not hither and said the eyewitness must have called in a false report. At this point, Officer Oster asked Wixom to identify herself. 

### Wixom said her name was "Sarah J. Bixom"and her birth date was August 6, 1986. A computer search using this information turned up no results. Officer Oster, having just learned the driver's vehicle was registered to a "Barbara Wixom," asked Wixom ifher last name was actually "Wixom." Wixom acknowledged itwas. She maintained, however, that her birth date was August 6, 1986. Following another unsuccessful computer search, Wixom acknowledged her birth date was actually August 6, 1983. Officer Oster arrested Wixom for providing a false statement. During a search of Wixom'sjacket, Officer Shaddy located methamphetamine in a wallet. The police impounded the vehicle and laterexecuted a search warrant. The search revealed methamphetamine inthe vehicle's trunk and center console. A search of a purse on the
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passengerfloorboard revealed a receipt and a pillbottle bearing Wixom's name, as well
as an Alprazolam pillbottle bearing the name "William Carnahan." The State charged Wixom by amended information with two counts of methamphetamine possession and one count ofAlprazolam possession. Following a bench trial on stipulated facts, the court convicted Wixom ofAlprazolam possession and
one count ofmethamphetamine possession. Wixom appeals her convictions. ANALYSIS 

### Wixom's assignment oferror states, "The officerviolated article I, section 7, when he demanded that Ms. Wixom provide identifying information." Br. ofAppellant at 1. She claims she was "seized as a matterof law when the officerfirst asked herto identify 

### herself." Br. ofAppellant at 8. She concludes, "Because Ms. Wixomwas unlawfully seized, the evidence obtained during the subsequent search ofher person and car must 

### be suppressed, and her case dismissed." Br. ofAppellant at 13. Forthe reasons discussed below, we conclude Wixom failed to preserve this issue for appeal. 

### "As a general rule, appellate courts will not consider issues raised for the first 

### time on appeal." State v. McFarland. 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995);


### see also RAP 2.5(a) ("The appellate court may refuse to review any claim of errorwhich
was not raised in the trial court."). Anappellantwaives a suppression issue ifhe or she 

### failed to move forsuppression on the same basis below. See Statev. Garbaccio, 151 Wn. App. 716, 731, 214 P.3d 168 (2009) ("Because [thedefendant's] presentcontention
was not raised in his suppression motion, and because he did not seek a ruling on this issue from the trial court, we will not consider it forthe first time on appeal.").

-3-69542-8-1/4 Wixom waived her assignment oferror by raising it for the first time on appeal. As discussed below, Wixom filed three suppression motions. None raised the present issue—whether all physical evidence must be suppressed because Officer Oster unlawfully seized Wixom when he first asked herto identify herself. Wixom filed herfirst suppression motion on March 21, 2012. She raised no unlawful seizure issue and limited her request to suppression ofthe methamphetamine 

### found on her person.1 She claimed the search ofher person was unconstitutional because the police officer lacked probable cause to arrest herfor obstructing a law enforcement officer. At a hearing on the motion held on April4, 2012, the trial court displayed some confusion regarding the issues presented by the motion. The prosecuting attorney stated, "It's whetherthere was PC to arrest." Report of Proceedings (RP) (Apr. 4, 2012) at 19. Defense counsel expressed no disagreement. He merely added, "Andwe're asking to suppress the evidence thatwas on her person at this point." RP (Apr. 4, 2012) at 19. Inan oral ruling, the court agreed thatthe police lacked probable cause to arrestWixom for obstruction. But itdeclined to order 

### suppression, ruling an evidentiary hearing was needed to determine ifthe police had 

### probablecause to arrestWixom formaking false statements to a public servant.2

1Atthe time Wixom filed herfirst suppression motion, she faced a single 

### possession charge associated withthe methamphetamine found during the search of her person incidentto arrest. Approximately a week later, the State charged two additional counts to accountfordrugs found during the postarrestvehicle search. As stated above, Wixom now seeks suppression of all physical evidence—that is, of the drugs found both on her person and inthe vehicle. 2On June 8, 2012, the court entered written findings and fact and conclusions of 

### law memorializing itsApril 4, 2012 oral ruling. Itmade no rulingas to whetheran unlawful seizure occurred when Officer Oster asked Wixom to identify herself.69542-8-1/5 

### The court set an evidentiary hearing for May9, 2012. Prior to the hearing, Wixom filed a second suppression motion. Again, she raised no unlawfulseizure issue. 

### She instead argued, "The search of Ms. Wixom's person, pursuantto an arrestfor an 

### alleged violation of RCW9A.76.175 [thecriminal statute prohibiting material false statements to a public servant], was illegal because the statute is unconstitutional as 

### applied to her and upon statutory construction."3 Although she asserted she was "clearlyseized and searched without a warrant," context shows this assertion supported her overarching claim that the arrestwas unlawful. Atthe May 9, 2012 evidentiary hearing, the court identified the dispositive issues
as "whetheror not the statement by [Wixom] was material, and whether itwas made to
an officer who was inthe officialdischarge of his duties." RP (May 9, 2012) at 101-02. In written orders entered on June 13, 2012, the court ruled (1) probable cause supported Wixom's arrestfor making a false statement and (2) "RCW 9A.76.175 is not unconstitutionally vague or overbroad." Itmade no ruling as to whether an unlawful seizure occurred when Officer Oster asked Wixom to identify herself. Wixom filed a third suppression motion on August 3, 2012. This time she challenged the sufficiency ofthe affidavit supporting issuance ofthe vehicle search warrant. Again, she raised no unlawful seizure issue. In a written order entered on October4, 2012, the court upheld the search warrant. Itmade no ruling as to whether
an unlawful seizure occurred when Officer Oster asked Wixom to identify herself.


### 3RCW 9A.76.175 provides: "Aperson who knowingly makes a false or misleading material statementto a public servant is guilty of a gross misdemeanor. 'Material statement' means a written or oral statement reasonably likely to be relied 

### upon by a public servant inthe discharge of his or her officialpowers or duties." -5-69542-8-1/6 

### The record shows Wixom raised the present seizure issue forthe first time on 

### appeal. She cites to nothing in the record indicating that she raised this issue before the trial court. Review is discretionary unless Wixom can demonstrate the issue 

### constitutes "manifest erroraffecting a constitutional right." RAP 2.5(a)(3). To take advantage of RAP 2.5(a)(3), Wixom bears the burden to showthe 

### alleged error is "truly ofconstitutional dimension," and that it resulted in actual prejudice. 

### State v. O'Hara. 167Wn.2d 91, 98, 217 P.3d 756 (2009). Wixom fails to carry this burden because she never cites RAP 2.5(a)(3) ordiscusses itsapplicability.4 "In analyzing the asserted constitutional interest, we do notassume the alleged error is of constitutional magnitude." O'Hara, 167 Wn.2d at 98: see also State v. Montgomery. 

### 163 Wn.2d 577, 595, 183 P.3d 267 (2008) (construing RAP 2.5(a)(3) narrowly). Further, "[i]fthe facts necessary to adjudicate the claimed errorare not inthe record on appeal, no actual prejudice is shown and the error is not manifest." 

### McFarland. 127 Wn.2d at 333. Ourrecord lacks necessary facts. "Not every encounter between an officer and an individual amounts to a seizure." 

### State v. Nettles. 70 Wn. App. 706, 709, 855 P.2d 699 (1993). For purposes of article I, section 7, a seizure occurs when, "when considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe he
or she is free to leave or decline a request due to an officer's use offorce or display of authority." State v. Rankin. 151 Wn.2d 689, 695, 92 P.3d 202 (2004). Generally speaking, "[a]n officer's request for identification, without more, is not a seizure." State 4The State argues, "[T]he situation does not present a manifest error affecting a constitutional rightthat permits [Wixom] to raise the issue ofwhen she was seized for the first time on appeal under RAP 2.5(a)." Resp't's Br. at 14. -6-69542-8-1/7

v. Smith. 154 Wn. App. 695, 700, 226 P.3d 195 (2010); see also State v. Bailev. 154 

### Wn. App. 295, 300, 224 P.3d 852 (2010) ("[A]n officer may askfor an individual's identification in the course of a casual conversation."). BecauseWixom did not make her suppression argumentbelow, few details surrounding the alleged unlawful seizure were developed. Accordingly, the record is 

### insufficienttoreview the issue forthe firsttime on appeal and the alleged error is not manifest. We decline to consider itfor the firsttime on appeal. RAP 2.5(a); State v. Mierz. 127 Wn.2d 460, 468, 901 P.2d 286 (1995); State v. Baxter. 68 Wn.2d 416, 422- 23, 413 P.2d 638 (1966). We affirm the convictions.

WE CONCUR: 

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