PUBLISHED IN PART
Appeal from Kitsap Superior Court. Docket No: 11-1-00241-0. Date filed: 05/09/2012. Judge signing: Honorable Jeanette M Dalton.
Catherine E. Glinski, for appellant.
Russell D. Hauge, Prosecuting Attorney, and Jeremy A. Morris, Deputy, for respondent.
AUTHOR: Bradley A. Maxa, J. We concur: Jill M Johanson, A.C.J., Thomas R. Bjorgen, J.
[179 Wn.App. 176] ¶ 1 -- Robert Barry appeals his conviction of first degree child molestation (domestic violence), claiming that the trial court erred in admitting child hearsay statements and erred in instructing the jury that it could consider Barry's courtroom demeanor as evidence. In the published portion of this opinion, we hold that the trial court's instruction regarding consideration of Barry's demeanor was erroneous, but Barry cannot show prejudice from the trial court's instruction. In the unpublished portion, we hold that the record supports the trial court's child hearsay findings. Accordingly, we affirm.
[179 Wn.App. 177] FACTS
¶ 2 The State charged Barry with first degree child molestation (domestic violence) committed against CC, his grandson. The case proceeded to trial. During its deliberations, the jury sent a note asking the court, " Can we use as 'evidence', for deliberation, our observations of the defendant's - actions - demeanor during the court case[?]" Clerk's Papers (CP) at 115. The trial court instructed the jury, " Evidence includes what you witness in the courtroom." CP at 115. Barry objected to this instruction.
¶ 3 The jury found Barry guilty as charged. Barry appeals.
¶ 4 Barry argues that the trial court erred in instructing the jury that " [e]vidence includes what you witness in the courtroom," in response to the jury's question about whether during deliberations it could use as evidence Barry's actions and demeanor during the case. CP at 115. He asserts that allowing the jury to consider his demeanor violated both his Fifth Amendment  privilege against self-incrimination and his Sixth Amendment  right to a verdict based solely on the evidence.
¶ 5 We disagree that the trial court's instruction violated the Fifth Amendment. And although we agree that the trial court's instruction misstated the law, we do not find a constitutional error. We hold that the absence of any record regarding the nature of Barry's demeanor precludes him from showing that the improper instruction prejudiced him.
A. Right To Not Testify
¶ 6 The Fifth Amendment to the United States Constitution states that " [n]o person ... shall be compelled in [179 Wn.App. 178] any criminal case to be a witness against himself." Article I, section 9 of the Washington State Constitution also states that " [n]o person shall be compelled in any criminal case to give evidence against himself." Under both provisions, a defendant has a right to not testify at trial. RCW 10.52.040; State v. Epefanio, 156 Wn.App. 378, 388, 234 P.3d 253 (2010). Barry apparently argues that by equating his demeanor with evidence, the trial court violated this right. We disagree.
¶ 7 Under the plain language of the constitutional provisions, the violation of the right against self-incrimination must involve some form of government compulsion. State v. Foster, 91 Wn.2d 466, 473, 589 P.2d 789 (1979). Here, neither the State nor the trial court forced Barry to do anything with regard to his demeanor. He had full control over how he acted in the courtroom. Other than citing the Fifth Amendment, Barry does not explain how he was compelled to give evidence against himself. We hold that allowing the jury to consider the defendant's demeanor as evidence does not violate the Fifth Amendment or article I, section 9.
B. Defendant's Demeanor as Evidence
¶ 8 Barry argues that the trial court's instruction violated his Sixth Amendment right to a verdict based solely on the evidence. Implicit in this argument is that a defendant's demeanor at trial is not evidence and therefore that the instruction misstated the law. We review claimed errors in instructions de novo. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). We agree that Barry's demeanor at trial was not " evidence" and therefore that the instruction was improper. But we hold that Barry cannot establish prejudice.
¶ 9 Initially, we note that the trial court's instruction was improper in its overbreadth. The State cites no authority for [179 Wn.App. 179] the proposition that anything a jury witnesses in the courtroom constitutes evidence. And many things a jury might witness in the courtroom would not constitute " evidence." For example, our Supreme Court has held that trial spectators may be allowed to display buttons showing a photograph of the victim. State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007). Such buttons obviously would not constitute " evidence" the jury could consider in determining the defendant's guilt.
¶ 10 Barry limits his argument to the jury's observations of his demeanor as evidence and not some other courtroom observations. Accordingly, we limit our analysis to that issue and conclude that a defendant's demeanor was not evidence in this case.
1. Court's Introductory Jury Instruction
¶ 11 The trial court instructions to the jury included an introductory instruction (instruction number 1) modeled after 11 Washington Practice: Washington Pattern Jury ...