State Of Washington, Respondent V. Christopher William Clark, Appellant

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Siate OF

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 69899-1-
Respondent,
v. DIVISION ONE
CHRISTOPHER WILLIAM CLARK, UNPUBLISHED OPINION
Appellant. FILED: May 6, 2013

LEACH, C.J. — Christopher Clark appeals his conviction for second degree
assault of a child. He alleges that the court violated his right to a public trial by
conducting two conferences with counsel in chambers. He also contends that
the court erred by denying his request to instruct the jury on third degree assault
of a child. Lastly, Clark argues that the court violated his right to a unanimous
jury verdict because the State presented insufficient evidence to prove one of the
alternative means of committing the crime submitted to the jury. Because Clark
fails to show that the court's discussions with counsel in chambers implicated his
public trial rights, the facts did not warrant a third degree assault instruction, and
the State presented sufficient evidence to prove all aiternatives considered by the
jury, we affirm.

Background
Crystle Strong came home one day to find her four-year-old son, Q.S.,

injured. Strong’s husband, Christopher Clark, said that the boy fell off the bed

No. 69899-1-1/2
and hit his face on a dog bone. 	Strong insisted that they immediately take Q.S.
to the hospital.
The emergency room doctors felt that Q.S.'s injuries were not consistent
with Clark's explanation. 	The hospital staff also received an anonymous phone
call expressing concern that Clark may have inflicted Q.S.'s injury.1 	Suspecting
child abuse, the treating physician contacted Child Protective Services (CPS). 	A
CPS investigator and a local police officer responded to the hospital to speak
with the family. 	In an interview outside of Clark's presence, Q.S. provided details
of how Clark had 	punished 	him, demonstrating 	a 	closed-fist punch and 	two
hands choking him by the throat.
The State charged Clark with second degree domestic violence assault of
a child. The third amended information alleged that Clark intentionally assaulted
Q.S.
and thereby did recklessly inflict substantial bodily harm, 	and/or
knowingly inflicted bodily harm which by design caused such pain
or agony as to be equivalent of that produced by torture, and/or
intentionally assaulted [Q.S.] by strangulation, and/or caused bodily
harm 	that 	was 	greater 	than 	transient 	physical 	pain 	or 	minor
temporary marks, the defendant having previously engaged in a
pattern or practice of either assaulting the child which resulted in
bodily harm that was greater than transient pain or minor temporary
[sic], 	or 	causing 	the 	child 	physical 	pain 	or 	agony 	that 	was
equivalent to that produced by torture.
Immediately before trial, the judge met with counsel privately in chambers.
The court acknowledged this meeting on the record but provided no details about
1 Officials later determined that one of Strong and Clark's roommates, who
was in the house at the time Q.S. was injured, placed this call.
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No. 69899-1-1/3
what 	occurred 	in chambers. 	The 	record 	before 	us 	provides 	no 	additional
information. 	At the end of the State's case, the court granted Clark's motion to
dismiss one of the charged alternatives.
Clark also asked the court to instruct the jury on the lesser charge of third
degree assault of a child. 	After the judge held another in-chambers meeting with
counsel to discuss jury instructions, the court denied Clark's request. 	The court
instructed the jury on several alternative means of committing second degree
child assault. 	It did 	not instruct the jury that it must be unanimous as to the
means to convict. 	The jury found Clark guilty, and the court sentenced him to a
41-month standard range sentence. 	Clark appeals.
Analysis
Clark raises three issues on appeal: 	(1) the court violated his right to a
public trial by conducting in-chambers conferences to address unknown pretrial
matters and to complete the jury instructions, (2) the court erred by refusing to
give Clark's proposed instruction on a lesser degree offense, and (3) the court
violated his right to a unanimous jury verdict because the State failed to present
sufficient evidence to prove one of the alternative means submitted to the jury.
Whether a trial court denied a defendant the constitutional right to a public
trial presents a question of law, which we review de novo.2 	Both the state and
federal constitutions provide a criminal defendant the right to a public trial.3 	The
2 State v. Paumier. 176 Wn.2d 29, 34, 288 P.3d 1126(2012).
3 State v. Lormor, 172 Wn.2d 	85, 	90-91, 	257 	P.3d 	624 	(2011); 	U.S.
Const, amends. VI, XIV; Wash. Const, art. I, § 22.
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No. 69899-1-1/4
public has a related right to open criminal court proceedings.4 	Thus, 	a strong
presumption exists that courts are to be open at all stages of the trial.5
The right to a public trial, however, is not absolute, and a trial court may
close the courtroom under certain circumstances.6 	Generally, to determine the
propriety of a closure, Washington courts must conduct a Bone-Club analysis7
and make specific findings on the record to justify the closure.8 	Our Supreme
Court has recognized that "not every interaction between the court, counsel, and
defendants will implicate the right to a public trial, or constitute a closure if closed
to the public."9 	Therefore, as the first step in determining if a violation of Clark's
4 Lormor, 172 Wn.2d at 91; U.S. Const, amend. I; Wash. Const, art. I, §
10.
5 State v. 	Sublett. 	176 Wn.2d 	58, 	70, 	292 	P.3d 	715 	(2012) 	(plurality
opinion).
6 State v. Momah. 167 Wn.2d 140, 148, 217 P.3d 321 	(2009); State v.
Easterlinq. 157 Wn.2d 167, 174-75, 137 P.3d 825 (2006).
7The Bone-Club factors are as follows:
"1. The proponent of closure or sealing must make some
showing [of a compelling interest], and where that need is based
on 	a 	right 	other 	than 	an 	accused's 	right 	to 	a 	fair 	trial, 	the
proponent must show a 'serious and imminent threat' to that right.
"2. Anyone present when the closure motion is made must
be given an opportunity to object to the closure.
"3. The proposed method for curtailing open access must be
the least restrictive means available for protecting the threatened
interests.
"4. The court must weigh 	the 	competing 	interests of the
proponent of closure and the public.
"5. 	The 	order 	must 	be 	no 	broader 	in 	its 	application 	or
duration than necessary to serve its purpose."
State 	v. 	Bone-Club, 	128 	Wn.2d 	254, 	258-59, 	906 	P.2d 	325 	(1995)
(alteration in original) (quoting Allied Daily Newspapers of Wash, v. Eikenberrv,
121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
8 Momah. 167 Wn.2d at 148-49.
9 Sublett. 176Wn.2dat71.
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No. 69899-1-1/5
right to a public trial occurred, we must first consider "whether the proceeding at
issue implicates the public trial right, thereby constituting a closure at all."10
No 	Washington 	case 	law 	addresses 	whether 	the 	trial 	court's 	first
chambers conference implicates the defendant's public trial rights. 	Therefore, we
apply the "experience and logic" test adopted in State v. Sublett11 to determine
whether this proceeding must be open to the press and the public. 	Under this
test, 	"the 	experience prong 	. . . asks 'whether the place and 	process 	have
historically been open to the press and general public,'"12 while "[t]he logic prong
asks 'whether public access plays a significant positive role in the functioning of
the particular process in question.'"13 	If the answer to both prongs is yes, the
right to a 	public trial 	attaches, 	and the trial court must conduct a 	Bone-Club
analysis on the record before closing the proceedings. 	Clark has the burden of
satisfying the experience and logic test.14
The record indicates only that the court conducted the first conference
before the start of the trial. 	The conference took place before the State read the
amended information, before Clark entered his plea of not guilty, and before the
venire panel had been called into the courtroom to 	begin voir dire. 	Although
Clark's counsel attended, the record does not disclose what, if anything, occurred
10
11 176 Wn.2d 58, 72-73, 292 P.3d 715 (2012) (plurality opinion) (citing
Press-Enter. Co. v. Superior Court. 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed.
2d 1 (1986)).
12 Sublett. 176 Wn.2d at 73 (quoting Press. 478 U.S. at 8.
13 Sublett, 176 Wn.2d at 73 (quoting Press. 478 U.S. at 8.
14ln 	re Pers. Restraint of Yates, 	Wn.2d 	, 296 P.3d 872, 886
(2013).
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Sublett. 176Wn.2dat71.

No. 69899-1-1/6
in chambers. 	Clark has failed to sustain his burden to satisfy the experience and
logic test.
Sublett resolves Clark's challenge to the second chambers conference. 	In
Sublett, the court observed that jury instruction proceedings have not historically
happened in an open courtroom.15 	The parties submit proposed instructions to
the 	court 	several 	days 	in 	advance 	of 	trial 	and 	counsel 	often 	discuss 	the
instructions with the court in informal, off-the-record proceedings.16 	Therefore,
the second conference, where the court and counsel discussed jury instructions,
fails the experience prong of the Sublett test and does not constitute a closure.
Clark 	also 	claims 	that the 	court violated 	his 	statutory 	right 	to 	a 	jury
instruction on the lesser degree offense of assault of a child in the third degree.
A defendant is entitled to an instruction on an inferior degree offense when
(1) the statutes for both 	the charged 	offense and the proposed
inferior 	degree 	offense 	"proscribe 	but 	one 	offense"; 	(2) 	the
information charges an offense that is divided into degrees, and
the proposed 	offense 	is 	an 	inferior 	degree 	of 	the 	charged
offense; and 	(3) there is evidence that the defendant committed
only the inferior offense.[17]
We review alleged legal errors in jury instructions de novo.18 	We affirm the trial
court's decision that the trial evidence did not support giving the lesser degree
offense instruction.
15 Sublett. 176Wn.2dat75.
16 Sublett. 176 Wn.2d at 75-76.
17 State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998) (internal
citations omitted).
18 State v.Walker. 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
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No. 69899-1-1/7
The mens rea required for assault of a 	child 	in the second degree is
intentionally assaulting or knowingly inflicting bodily harm on the child,19 while the
mens 	rea 	required 	for 	assault 	of 	a 	child 	in 	the 	third 	degree 	is 	criminal
negligence.20 The court found:
For there to be a lesser included here, there would have to
be an indication of an act done with criminal negligence. 	There's
nothing in the State's evidence in my mind that would suggest that
only that occurred.
The clear evidence and all the inferences are that there was
an 	intentional 	striking. 	The 	defendant said 	nothing 	happened.
Therefore, I conclude that there is no evidence to support the giving
of an instruction which would include a criminal negligence aspect
to the acts here.
Clark argues that because proof of an intentional act establishes criminal
negligence,21 he was entitled to the lesser degree instruction. 	We disagree. 	The
court correctly concluded that the record included no evidence 	that Clark acted
with only criminal negligence. 	State v. 	Daniels22 supports this determination.
The State charged Daniels with second degree assault for beating his stepson
with a VCR power cord and a two-by-four repeatedly over several weeks.23 	The
court 	refused 	to 	give 	Daniels's 	requested 	instruction 	on 	the 	lesser 	degree
offense, noting that third degree assault specifically requires that the evidence
not rise to the level ofa higher degree offense.24 Thus, to convict for third degree
19SeeRCW9A.36.130, .021.
20 See RCW 9A.36.140, .031.
21 RCW9A.08.010(2).
22 56 Wn. App. 646, 651, 784 P.2d 579 (1990).
23 Daniels, 56 Wn. App. at 648.
24 Daniels. 56 Wn. App. at 651-52.
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No. 69899-1-1/8
assault, there must not be evidence to support a conviction for second degree
assault. 	Here, because the record included no evidence that Clark committed
only the lesser offense, the court properly refused to instruct the jury on the
lesser degree offense.
Lastly, Clark alleges that the court violated his constitutional right to a
unanimous 	jury 	verdict 	because 	insufficient evidence 	supported 	one 	of the
alternative means considered by the jury and the court did not give a unanimity
instruction. 	Criminal defendants have a 	right to an expressly unanimous jury
verdict.25 	When the charged crime can be committed by more than one means,
however, 	unanimity is not required as to the means by which 	the crime was
committed, so long as substantial evidence supports each alternative means.26
Where the jury is not instructed that it must be unanimous as to the means, the
State must present substantial evidence of each of the alternative means it relies
upon.27 	"[I]f the evidence is insufficient to present a jury question as to whether
the defendant committed the crime by any one of the means submitted to the
jury, the conviction will not be affirmed."28
Here, 	the information 	presented five alternative means by which Clark
may have committed the charged offense: 	(1) recklessly inflicting substantial
bodily harm; (2) knowingly inflicting bodily harm which by design causes such
25 Wash. Const, art. I, § 21; State v. Ortega-Martinez. 124 Wn.2d 702,
707,881 P.2d231 (1994).
26 State v. Kitchen. 110 Wn.2d 403, 410, 756 P.2d 105 (1988).
27 Ortega-Martinez. 124 Wn.2d at 707-08.
28 Ortega-Martinez. 124 Wn.2d at 708.
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No. 69899-1-1/9
pain or agony as to be equivalent of that produced 	by torture; (3) intentional
assault by strangulation; (4) caused bodily harm that was greater than transient
physical pain or minor temporary marks; having previously engaged in a pattern
or practice of either assaulting the child which resulting in bodily harm that was
greater than transient pain or minor temporary marks; or (5) causing the child
physical pain or agony that was equivalent to that produced by torture.
The court granted Clark's motion to dismiss the fifth alternative. 	The jury
did not receive a special verdict form about which means it used as the basis for
its verdict. 	The court's instructions allowed the jury to consider four alternative
means, all of which must be supported by substantial evidence in order to uphold
Clark's conviction. 	Clark 	challenges only the sufficiency of the evidence to
support the fourth alternative means, that he engaged in a pattern or practice of
assaulting 	Q.S. 	resulting 	in 	greater 	than 	transient 	physical pain or 	minor
temporary marks.
When reviewing the sufficiency of evidence, we view the evidence in the
light most favorable to the State and ask whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.29
Here, the State presented testimony that at various times in the past, Clark hit
and pinched Q.S. and banged his head against a wall. 	Q.S.'s mother testified
that Clark spanked Q.S. harder than she would, and at least once she saw Q.S.
flinch when Clark was around. 	Q.S. stated that Clark only hit him when Strong
29 State v. Enqel. 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).
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No. 69899-1-1/10
was away and that he didn't like it when his mother left the house. 	The State
acknowledges that it did not prove these assaults left any marks on Q.S., but it
contends, nevertheless, that the evidence is sufficient to show that the assaults
caused more than transient pain.
These 	facts 	are 	similar 	to 	those 	in 	State 	v. 	Schlichtmann.30 	In
Schlichtmann. witnesses testified that the defendant spanked the children with a
belt on several occasions, that the children were afraid 	of the belt, that the
spankings hurt the children, and that on at least one occasion, the child began
shaking 	and 	crying 	in the 	car and 	refused 	to 	go 	into 	the 	house when 	his
grandmother brought him home after a visit. 	The court found that although no
evidence indicated that these assaults left bruises or other marks, the facts were
sufficient to support a guilty verdict under the pattern or practice alternative.
Considering all of the evidence presented here—that Clark struck Q.S. on
at least several occasions, that the assaults caused Q.S. pain, and that Q.S.
feared being alone with Clark—and evaluating it in the light most favorable to the
State, we conclude that the evidence sufficiently supports the conviction under
the challenged alternative means.
Conclusion
The court's discussions with counsel in chambers, both before trial and
about jury instructions, did not implicate Clark's public trial rights. 	The evidence
presented at trial did not support a jury instruction that Clark committed only the
30 114 Wn. App. 162, 168-70, 58 P.3d 901 (2002).
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No. 69899-1-1/11
lesser degree offense. 	And the State presented sufficient evidence to prove that
Clark had a pattern or practice of assault that caused Q.S. more than transient
physical pain. We affirm.
WE CONCUR:
o^
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