                                                                               FILED
                                                                       COURT OF APPEALS OW I
                                                                        STATE OF WASHINGTON

                                                                        2017 JUL 31 tiM 10:23




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                        ),       No. 74951-0-1
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
EFRAIN ELIAS ALVARADO,                      )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: July 31, 2017
                                            )

       MANN, J. — Efrain Alvarado appeals from his conviction for unlawful possession

of a firearm, contending that his right to a public trial was violated when the trial court

considered objections during closing argument at unrecorded sidebar conferences.

Because the sidebars did not implicate Alvarado's public trial right, we affirm.

                                            FACTS

       On October 6, 2015, Ashley West woke to a loud explosion that sounded like

breaking glass. She went outside and saw that an upstairs window had been broken

outward. West went upstairs to where her roommate, Irene Alvarado, had a room. West

observed a large hole in Irene's' door, which lined up with holes in the bedroom door




       1 We refer to Irene Alvarado by her first name to distinguish her from her brother.
No. 74951-0-1/2

across the hall, which in turn lined up with the broken window. West also smelled

"[a]lmost, like, a fireworks smell."

       Standing outside Irene's locked door, West peered in through the large hole. She

saw Irene in bed across the room, underneath the blankets. She also saw Irene's

brother, Efrain Alvarado, sitting against a wall that was directly in the path of the holes.

West asked Alvarado what happened, but Alvarado said nothing and had "a blank look

on his face." When Irene opened the door, West could see that Alvarado was within

arm's reach of a shotgun. Alvarado had a prior conviction for second degree assault

and was prohibited from possessing a firearm.

       The State charged Alvarado with unlawful possession of a firearm and the matter

proceeded to trial. Following the close of evidence, the trial court instructed the jury

regarding possession as follows:

       Possession means having a firearm in one's custody or control. It may be
       either actual or constructive. Actual possession occurs when the item is in
       the actual physical custody of the person charged with possession.
       Constructive possession occurs when there is no actual physical
       possession but there is dominion and control over the item.

       In deciding whether the defendant had dominion and control over an item,
       you are to consider all the relevant circumstances in the case. A factor -
       that you may consider, among others, includes whether the defendant had
       the immediate ability to take actual possession of the item.

The trial court also instructed the jury that "The defendant's mere proximity to the

weapon and the knowledge of its presence alone do not prove constructive possession

of a firearm."

       The deputy prosecutor and defense counsel argued during closing about whether

Alvarado had constructive possession of the firearm. During the State's rebuttal closing

argument, the following exchange took place:

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No. 74951-0-1/3

      MR. NIELSEN [deputy prosecutor]: And Ms. Candler [defense counsel]
      talked about constructive possession. Right now, I am in actual
      possession of this Kleenex box. If somebody can — if this is my desk and
      somebody comes and sets that Kleenex box on my desk, now even
      without my touching it, I am in constructive possession of that Kleenex
      box. Okay? This is — this is not — the charge in this —

      MS. CANDLER: Objection, Your Honor. May we approach?

      THE COURT: Yeah, you'll need to. Why don't you come this way, folks.

      (Sidebar was held off the record.)

      MR. NIELSEN: So again, you heard from a number of witnesses. Look at
      what the evidence shows. Look at what the physical evidence shows, that
      which we know. That doesn't change. The shot through the door, through
      the other door and through the window, that hasn't changed. There is
      absolutely no evidence contradicting the defendant sitting with a gun right
      there. That's the evidence. That's what we show.

      The deputy prosecutor continued to explain how, even if the jury did not find that

Alvarado had actually possessed the shotgun, it could find constructive possession. The

following exchange then took place:

      MR. NIELSEN: What I was starting to say before is, again, based on
      defense argument, this charge is unlawful possession of a gun, of a
      firearm. It is not unlawful ownership of a firearm. It does not matter who
      owned that firearm.

      What matters is he possessed that firearm. These are two different things.
      Anybody can own that firearm. Does not matter. What is unlawful is for
      him to possess it.

      MS. CANDLER: Objection, Your Honor. May we approach?

      MR. NIELSEN: I'm done if that's —

      THE COURT: Let's have the sidebar anyway.

      (Sidebar held off the record.)

      THE COURT: Sounds like Mr. Nielsen has completed. Thank you, Mr.
      Nielsen.


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No. 74951-0-1/4

       MR. NIELSEN: Yes. Thank you, Your Honor.

The trial court immediately instructed the jury as follows:

       Members of the jury, just a reminder—there's been a couple of objections
       here during the closing argument—that evidence is what you determine it
       tote. It's not the statements by—what the attorney has said, and any
       statement made by either attorney is not the evidence. And if there's an
       argument that's beyond the evidence or beyond the instructions that you
       will have back in the jury room, you're to disregard those.

       After the jury retired to deliberate, the trial court asked parties "Anything else we

need to cover?" The deputy prosecutor stated "I don't think so, Your Honor." Defense

counsel did not reply. Neither the trial court nor the parties described the sidebars for

the record, nor does the record reflect the trial court's ruling on the objections.

       A jury convicted Alvarado as charged. Alvarado appeals.

                                         ANALYSIS

       Alvarado contends that he was deprived of his constitutional right to a public trial

when the trial court considered the two objections during unrecorded sidebar

conferences. We disagree.

       A criminal defendant has a right to a public trial under both the United States

Constitution and the Washington State Constitution. State v. Lormor, 172 Wn.2d 85, 90-

91, 257 P.3d 624 (2011); U.S. Const. amend. VI; Wash. Const. art. I, § 22. Whether a

defendant's public trial right has been violated is a question of law reviewed de novo.

State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113(2012).

       To answer that question, the court engages in a three-part inquiry: "(1) Does the

proceeding at issue implicate the public trial right? (2) If so, was the proceeding closed?

And (3) if so, was the closure justified?" State v. Smith, 181 Wn.2d 508, 521, 334 P.3d

1049(2014). If the court concludes that the right to a public trial does not apply to the

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No. 74951-0-1/5

proceeding at issue, it need not reach the second and third steps in the analysis. Smith,

181 Wn.2d at 519.

       "[Nlot 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." State v. Sublett,

176 Wn.2d 58, 71, 292 P.3d 715(2012). To determine whether the public trial right

attaches, we apply the "experience and logic" test. Sublett, 176 Wn.2d at 73. Under the

experience prong, we consider whether the proceeding at issue has historically been

open to the public. Sublett, 173 Wn.2d at 73. Under the logic prong, we ask "whether

public access plays a significant positive role in the functioning of the particular process

in question." Sublett, 176 Wn.2d at 73. If both prongs are satisfied, the public trial right

attaches. Sublett, 176 Wn.2d at 73.

       In Smith, the defendant argued that multiple sidebar discussions following

evidentiary objections during trial violated his right to a public trial. Our Supreme Court

held, based on the experience and logic test, that "reasonable and traditional sidebars

used to avoid interruption of a trial" do not implicate the public trial right. Smith, 181

Wn.2d at 521. As to the experience prong, the court noted that sidebar conferences

have historically occurred outside the view of the public, because of the practical

difficulties involved with interrupting trial to send the jury to the jury room every time an

evidentiary objection arose. Smith, 181 Wn.2d at 515. As to the logic prong, the court

concluded that evidentiary rulings during traditional sidebars "do not invoke any of the

concerns the public trial right is meant to address regarding perjury, transparency, or

the appearance of fairness." Smith, 181 Wn.2d at 518.




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No. 74951-0-1/6

       In a footnote, the court in Smith emphasized:

       We caution that merely characterizing something as a "sidebar" does not
       make it so. To avoid implicating the public trial right, sidebars must be
       limited in content to their traditional subject areas, should be done only to
       avoid disrupting the flow of trial, and must either be on the record or be
       promptly memorialized in the record.

Smith, 181 Wn.2d at 516 n.10. The court later observed, "Critically, the sidebars here

were contemporaneously memorialized and recorded, thus negating any concern about

secrecy." Smith, 181 Wn.2d at 518.

       Here, it appears that the purpose of the sidebar was to address an objection, a

traditional subject area. And the context indicates that the trial court summoned the

parties to the bench in order to avoid disrupting the flow of trial. Nevertheless, Alvarado

argues that Smith does not apply because the sidebar conferences were not recorded,

nor was the content of the discussion later placed on the record. Alvarado asserts that

the sidebars may have involved matters of prosecutorial misconduct, which "are

precisely the type of proceedings that must be subject to public scrutiny in order to

assure fair trials and deter such misconduct."

       However, we cannot speculate about the content of the sidebars other than the

fact that they appear to have involved the deputy prosecutor's analysis of the theory of

constructive possession. Parties to an unrecorded sidebar are obligated to ensure that a

record of the ruling is made for appeal purposes and failure to make a record may

preclude review. State v. Koloske, 100 Wn.2d 889, 896,676 P.2d 456(1984), overruled

on other cifounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988). In any event,




                                          -6-
No. 74951-0-1/7

the sidebars here were brief.2 And in response to the objections, the trial court merely

cautioned the jury that it was to disregard any argument that was beyond the evidence

or the instructions, and decide the evidence for itself. The record here raises no

concerns that the sidebars jeopardized the fairness of the trial or the appearance of

fairness essential to public confidence in the system.3

        Because Smith controls the analysis here, we conclude that Alvarado's public

trial right was not violated by the sidebar conferences.

        In a pro se statement of additional grounds for review, Alvarado contends that

West was an "unreliable witness" because her testimony at trial differed from the

statement she gave to the police, and that he was denied his right to a fair trial because

all of the jurors were white and he is not. But these allegations rest on matters outside

the record and therefore cannot be raised on this appeal. See State V. McFarland, 127

Wn.2d 322, 337-38, 899 P.2d 1251 (1995).

       Alvarado asks this court to deny appellate costs. We generally award costs to the

substantially prevailing party on review. RAP 14.2. However, when a trial court makes a

finding of indigency, that finding remains throughout review "unless the commissioner or

clerk determines by a preponderance of the evidence that the offender's financial


       2  It is unclear from the record how long the sidebar conferences lasted. The fact that
sidebars took place is not even noted in the clerk's minutes. However, the record does show
that the jury retired to the jury room to deliberate only 15 minutes after the deputy prosecutor
began his rebuttal closing argument.
        3 Alvarado analogizes his case to State v. Easterling, 157 Wn.2d 167, 137 P.3d 825
(2006), in which the court found the defendant's public trial rights were violated when a
courtroom was closed during a codefendant's combined motion to sever and dismiss based on
allegations the State had acted in bad faith. But the proceeding in Easterling "undermined the
fairness of the process" because the defendant and his attorney were excluded from the hearing
along with the rest of the public. Smith, 181 Wn.2d at 517. Here, in contrast, the record is clear
that defense counsel was present at and participated in both sidebars.

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No. 74951-0-1/8

circumstances have significantly improved since the last determination of indigency."

RAP 14.2. Alvarado was represented below by appointed counsel and the trial court

found Alvarado indigent for the purposes of this appeal. The State argues that we

should not presume Alvarado's continued indigency due to his youth and the relatively

short length of his sentence. Under RAP 14.2, if the State has evidence indicating that

Alvarado's financial circumstances have significantly improved since the trial court's

finding, it may file a motion for costs with the commissioner.

       Affirmed.




WE CONCUR:




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