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       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 69899-1-1
                     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CHRISTOPHER WILLIAM CLARK,                        UNPUBLISHED OPINION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 alternatives 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



       1Officials 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.
                                        -3-
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
            Sublett. 176Wn.2dat71.
       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).
                                           -5-
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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.
                                           -8-
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).
                                        -9-
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).
                                         -10-
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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