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

v. CARLA ANNA FORD, Appellant. DIVISION ONE No. 70936-4-1 UNPUBLISHED OPINION
FILED: March 9, 2015 

### Dwyer, J. —Following a jurytrial, Carla Ford was convicted of one count of residentialburglary. On appeal, Fordcontends (1) that her rightto due 

### process was violated bythe prosecutortwice improperly commenting on her custodial silence, and (2) that the trial court erred byfailing 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 hisdriveway. Nance also noticed that the screen door to his front doorwas open and a lightwas on in hisNo. 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 ofthe door when he pushed itopen. 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 inthat 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 itbecause he was studying. The woman then walked away from the door, looked toward the backyard, and reentered the passenger side ofthe 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 itparked 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 ofwhat 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 ofthe women at his house. 

### Thereafter, Ludwiglocated 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 pursuantto a search warrant. Inside the truck, police found backpacks, a crowbar, a police scanner, walkie talkies, a pair ofgloves, 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 Fordwith one count of residential burglary, 

### concerning the Nance incident ofDecember 10. The State lateramended the information to include an additional count of residential burglary involving the 

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

### During directexamination, 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 byclosing her eyes and hanging her head. 

### Fordpresented an alibi defense on both counts, consisting ofwitnesses 

### testifying that she was someplace else when the burglaries occurred. 

### Ajury found Ford guilty of the Nanceburglary butacquitted her ofthe Ries burglary. The jury returned a special verdictthat the victim was present at the
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time ofthe 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 ofthe standard range. The court also stated, "I understand this is your first offense, but Ibelieve 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 

### improperlycommenting 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, postMiranda1 question. We disagree. 

### Althoughthe defendant did not object to the admission of the evidence she now challenges, we may considerthe issue if it is a manifest error affecting a 

### constitutional right. RAP 2.5(a)(3). Anasserted issue meets this criteriaifthe 

### claim of error suggests a constitutional issue, and ifthe appellant has made a plausible showing that the error had a practical and identifiable consequence in the trial ofthe case. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Here, because a comment on a defendant's exercise ofher right to remain silent 

### implicates the Fifth Amendment to the United States Constitution and articleI, 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, inpertinent part, that no person "shall be 

### compelledin any criminal case to be a witness against himself." Thisprovision 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 becompelled in anycriminal case togive evidence againsthimself." These two provisions are interpreted 

### equivalent^. State v. Easter, 130Wn.2d 228, 235, 922P.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, 130Wn.2d at 236. 

### The right against self-incrimination prohibits the Statefrom forcing the defendanttotestify attrial. Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602 (1966); Statev. Foster, 91 Wn.2d 466, 473, 589P.2d 789 (1979). Moreover, the State may notelicit commentsfrom witnesses or makeclosing 

### arguments relating to adefendant's silence so as toencouragethejuryto infer guiltfrom such silence. This rule is required because "[a]n accused's Fifth Amendmentrighttosilence can becircumvented bythe State'justas effectively 

### by questioning the arresting officerorcommenting in closing argument as by questioning defendant himself.'" Easter, 130Wn.2d at236 (quoting Statev. 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 FifthAmendment protection." United States v. Velarde-Gomez. 269 F.3d 1023, 1030 (9th Cir. 2001). As our Supreme Court explained: The FifthAmendment right to silence extends to situations 

### prior to the arrest ofthe 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 chiefto call to the attention of the trier of fact the accused's prearrest silence to imply guilt. 

### Nothing in our conclusion, however, prevents the State from introducing pre-arrestevidence 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 ofevidence 

### concerning a defendant's "slurr[ed] speech," Muniz. 496 U.S. at 592, "apparent nervousness," United States v. Barbosa, 906 F.2d 1366, 1368 (9thCir. 1990), or 

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

### test may not be admissible, Rothaebv. United States. 789 F.2d 647, 651 (8th Cir. 1986). 

### The distinctionbetween permissible evidence of a defendant's demeanor 

### and impropercomments on a defendant's silence ishelpfully elaboratedby the 

### following two cases: Velarde-Gomez. 269 F.3d 1023, andMichigan v. Rice. 235 Mich. App. 429, 437, 597N.W.2d 843 (1999). Thefirst addresses when allegedNo. 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, inVelarde-Gomez, the government elicited testimony about the defendant's lack ofresponse when confronted with the 63 pounds ofmarijuana 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 ofcomments each 

### described the same thing—that the defendant did not react at all. VelardeGomez. 269 F.3d at 1031. 

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

### government mayofferevidence ofdemeanor,"2 the "non-reaction" that the governmentsought to introduce as demeanor evidence therein was "notan 

### action or a physical response, butafailure to speak. There was nooutward physical manifestation tocomment upon other than [thedefendant's] 'state or condition of silence.'" Velarde-Gomez. 269 F.3d at 1030-31. The court concluded that itwas errorto admit the evidence ofthe defendant's "non

### reaction," because it allowed the governmentto comment on his postarrest silence. Velarde-Gomez. 269 F.3d at 1033. 

### In short, the government may notcommenton a defendant's silencein the guise ofoffering demeanor evidenceconsisting of a lack of response to
2The courtoffered "testimony that [thedefendant] was sweating orvomiting" as an example of demeanortestimony thatwould have been admissible. -8-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 lackthereof. This conclusion is entirely consistentwiththe United States Supreme Court's pronouncement in Miranda that. "[t]he prosecution may not. .. 

### use at trialthe fact that [the defendant] stood mute or claimed his privilege inthe 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 policeinterviews: "In the firstinterview, [the] defendant made some 

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

### toquestioning. In the second interview,
. . . [the] defendantmerely looked down, nodded, and cried."3 235 Mich. App. at 437. The prosecutorthen argued in 

### closing that thejury should inferdefendant's guiltfrom hisnonverbal conduct 

### during police questioning. In concluding that theofficers' testimony concerning defendant's nonverbal conduct and silence was not improper commentary on 

### constitutionally protected silence and that the prosecutor's closing arguments 

### regarding thedefendant's nod ofhis head and outburstofcrying were likewise permissible, the courtquoted an opinion ofthat state's SupremeCourt: "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 rightto remain silent or that the 'description ofpartial silence' in such a setting is an error of constitutional dimension."

3The defendant waived his Fifth Amendment rights at the outsetof each interrogation.
-9-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 ofdemeanor. The following evidence is at issue in this case: First, the following 

### exchange took place during the State's direct examination ofLudwig: 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 ofthe 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. Acrowbar can be used for a lot ofthings. Start adding them up,though, latexgloves, 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 inthe other room, when you go inand ask 

### your kids what happened, andyou ask them aboutkicking that vase offthe table and they lower their head and sigh, what do you 

### thinkyour reaction is? Whatdoyou think ishappening right herein your stomach?

10-No. 70936-4-1/11 

### In this case, the prosecutor did not comment on Ford's "silence."4 Instead, the prosecutorfocused on Ford's actions. Specifically, she elicited testimony regarding Ford's physical response—closing her eyes and lowering her head—to
a particular question fromthe police. There was no direct testimony fromthe officerthat Ford did not respond verbally, much less any argument from the 

### prosecutorthat the jury should draw a negative inference fromsuch 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 

### impropertestimony from the police officerwho had questioned the defendant and the prosecutor's argumentfrom the evidence specifically mentioned that the defendant had notverbally 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 silencewill 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. 4In fact, apartfrom the physical reactions discussed, Ford did also speak—she 

### immediatelythereafterasked for anattorney. However, thetrial courtproperly excluded evidence of her invocation ofthe right to counsel. 5The testimony was as follows: "The prosecutorthen asked, 'Okay. Whatdid Mr. Knapp doin response tothat, hearing thatinformation?' [The detective] stated, 'Well, heimmediately hung his head butdid notsay anything.'" Knapp. 148Wn. App. at 419. In closing, theprosecutorargued that theonly question waswhether Knapp was the second suspect. He listed numerous reasonswhy thejury should find Knapp guilty ofthe burglary, including: "Andanother reason to believe that this defendant, Kyle Knapp, did the 

### burglary, both times thatitwasmentioned tohim 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'tme"? [sic] No." Knapp. 148 Wn. App. at 419-20. -11

-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 itexpressed dismay at learning that the police had specific information about the alleged crime or annoyance at the line ofquestioning. 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 thejury 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 thejudgment 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.

-12-No. 70936-4-1/13 A case is moot when itinvolves only abstract propositions or questions, the substantial questions inthe trial court no longer exist, or a court can no 

### longer provide effectiverelief. 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 byMarch 2014. Moreover, we will notexercise our discretion to address the issue, notwithstanding its mootness, because itwas raised for the 

### first time on appeal. Here, the defendantdid not objecteitherwhen the courtdid 

### notspecifically articulate thatit hadconsidered alternatives tototal confinement orwhen it did not putin writing the reasons for notgranting her an alternative sentence. Nordid 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 itbeen alerted thatithad overlooked those requirements. If thedefendant hadobjected thecourteasily could havecorrected its oversight. Wewill not speculate on the need for guidance on this issue when itwas never raised to the trial court. Affirmed.

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We concur: 

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