State Of Washington, V Christopher Thomas Fuller ( 2018 )

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CHRISTOPHER THOMAS FULLER, UNPUBLISHED OPINION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.
49851-1-II
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).
2
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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 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. 2d at 935 (internal quotation marks omitted) (quoting
State v. WWJ Corp., 138 Wash. 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 Wash. 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 Wash. 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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