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I

                                                                                FILED
                                                                              MAY 2, 2017
                                                                      In the Office of the Clerk of Court
                                                                    WA State Court of Appeals, Division Ill


                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

    STATE OF WASHINGTON,                          )
                                                  )         No. 34002-3-111
                         Respondent,              )
                                                  )
           v.                                     )
                                                  )         UNPUBLISHED OPINION
    EARL THOMAS CLAPPER,                          )
                                                  )
                         Appellant.               )

           SIDDOWAY, J. -Earl Clapper appeals his conviction for attempting to elude a

    police vehicle, arguing that insufficient evidence supports his identity as the driver who

    eluded police in a friend's car. He also contends his federal and state constitutional rights

    were violated when the trial court convened a discussion about a jury inquiry with

    lawyers outside his presence. Because the evidence was sufficient and Mr. Clapper fails

    to demonstrate that he was not present or consulted when a response to the jury inquiry

    was framed, we affirm.

                        FACTS AND PROCEDURAL BACKGROUND

           At about 3:30 a.m. one morning in March 2015, Spokane Police Officer Paul

    Gorman was driving home after his shift, heading north on Maple Street. Maple Street

    and Ash Street, located a block to the west, comprise a couplet: Ash operates one-way

    southbound; Maple Street operates one-way northbound. In the vicinity of Boone and
No. 34002-3-III
State v. Clapper


Maxwell streets, not far north and west of downtown, Officer Gorman saw a car driving

the wrong way toward him. Preferring not to make a traffic stop, the officer flashed his

lights, hoping the driver would realize it was a one-way street and turn around.

       The driver immediately turned westbound and headed toward Ash, but his turn

was into a dirt alley and he was traveling too fast given the alley's condition. Officer

Gorman turned west on the next paved road and saw that the car had now turned north on

Ash, once again driving the wrong way on a one-way street. At that point, the officer

decided to follow the car, intending to make a stop. He activated his overhead lights and

siren. The car sped up and a chase ensued. Officer Gorman radioed what was happening

and requested assistance.

       The eluding driver soon moved off of arterials and onto residential streets,

continuing to travel at as much as 80 miles an hour. At that point, Officer Gorman

decided for safety reasons to terminate the pursuit. Because eluding drivers sometimes

respond to the termination of a pursuit by trying to hide or by parking and fleeing, Officer

Gorman and other responding officers continued to search the area, driving at posted

speeds with their emergency equipment off. Officer Gorman occasionally sighted the

eluding car, which was driving with its lights off. When the car was seen entering the

Corbin Park neighborhood, officers believed they had the driver contained; the

neighborhood is backed by a hillside and egress is limited to three arterials that could

easily be monitored.

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        It was not long before Officer Gorman spotted the errant car, pulled all the way up

 a long residential driveway. The driver had abandoned it. Officer Gorman had never

 been able to read the license plate number of the eluding vehicle but he recognized the

· car by its color (red), his estimation of its model (a newer car he believed to be a Toyota),

 and by extensive damage to its front end. The car proved to be a 2011 Toyota Corolla.

 The engine of the parked car was very hot and it smelled of burning oil, as one would

 expect of a car that had just been driven hard.

        Officer Gorman happened to have a K-9 partner, Axel, who was headed home

 with him when the wrong-way driver was encountered. Officer Gorman took Axel to the

 driver's car door of the Toyota, gave him the command to track, and Axel began, leading

 the officer past a detached garage to a high concrete fence, suggesting that whoever fled

 the car had jumped the fence. To enter the adjacent yard, Officer Gorman took Axel

 around the front to enter through a gate. As he was entering the yard, Officer Gorman

 heard other officers giving commands to someone and saw that a man had emerged,

 hands up, from a yard a couple of homes away. While other officers detained and spoke

 with a man who turned out to be Earl Clapper, Officer Gorman had Axel finish tracking

 the driver's scent. Beginning at the opposite side of the concrete fence to which he had

 tracked earlier, Axel continued through two yards to where Mr. Clapper had surrendered.

        In surrendering to other officers, Mr. Clapper stated "[I]t's me you're looking for,

 I give up, don't hurt me." Report of Proceedings (RP) at 96. He was ordered to get

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State v. Clapper


down, complied, and was handcuffed. He was read his Miranda 1 rights, said he

understood them, and volunteered that he had never been in any car and had never run

from the officers. He also said that his backpack might be in the car, but he had not been.

       After returning Axel to his patrol car, Officer Gorman approached Mr. Clapper

and asked what he was doing in the area, to which Mr. Clapper responded he was staying

at a nearby hotel, had been listening to a police scanner, and heard that police were

chasing a car whose license plate number he recognized as that of his girlfriend, Tracy

Varner. When Officer Gorman told Mr. Clapper he never called in the license plate

number, Mr. Clapper corrected himself, saying he knew his girlfriend's car was red and

was being driven around that evening, so he assumed the car being chased was hers. He

said he had left his backpack in her car and had come to retrieve it.

       One of the responding officers inspected the Toyota following the interview of

Mr. Clapper. The officer had seen Mr. Clapper, knew he was a large man, and noticed

that the Toyota's driver's seat was in its rear-most position and the seat was reclined all

the way-suggesting to the officer that someone of large stature had been driving it.

       Mr. Clapper was charged with attempt to elude a police vehicle. "[D]efendant

information" included in the charging document indicated that Mr. Clapper was six feet,

three inches tall and weighed 407 pounds. Clerk's Papers (CP) at 1.



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           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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State v. Clapper


       At trial, the State called Officer Gorman and two other Spokane police officers

who had participated in Mr. Clapper's pursuit and arrest. Officer Gorman conceded he

had never seen who was in the Toyota during the chase, but stated that upon viewing the

vehicle in the driveway, including the engine's temperature and smell, it was "[v]ery

obvious this was the car [he] was chasing." RP at 88. He testified to Axel's training and

to how Axel had tracked a scent from the Toyota's driver's side door to where Mr.

Clapper surrendered. The two other officers testified to Mr. Clapper's surrender that

evening, the position of the driver's seat in the Toyota, the statements Mr. Clapper had

made, and the fact that he was sweating profusely when encountered.

       Ms. Varner was the only witness called by the defense. She testified that on the

evening before the chase, she had a barbecue at her home and Mr. Clapper, whom she

described as "a friend of a friend," attended. RP at 14 7. When she decided to go to bed,

four or five guests remained, one being Mr. Clapper. None had a vehicle to leave in. She

testified to making the following offer upon retiring:

       A .... I said if anyone feels like they can drive, I don't care if you take my
       car.
       Q. Did you make that offer specifically to Earl?
       A. No.
       Q. Did you make that offer at all to Earl?
       A. No.

RP at 151.




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       Ms. Varner also testified that she did not believe Mr. Clapper drove her car that

night, but without explaining her reason for that belief. The implication of her testimony

was that she believed Mr. Clapper was too large to drive her car. Defense counsel

elicited Ms. Varner's testimony that her Toyota Corolla was a compact car that was "not

made for big men." RP at 149. She was asked to describe the size of the guests who

were offered her car the night of the chase, and she ascribed heights and weights to three

of them that would make them materially smaller than Mr. Clapper. She testified that a

fourth "lives, like, two blocks away, so she was walking home." RP at 151.

       On the first morning of the jury's deliberations, it submitted five questions to the

court. 2 The trial court's judicial assistant convened what the trial court later described as

a "three-way conversation on the phone" addressing how to respond. RP at 196.

       According to the court, all agreed that it was best to "respond that the jury was to

rely upon the instructions they had been given, and their notes and memories as to the

evidence." RP at 196. That was the substance of the court's response.

       The jury found Mr. Clapper guilty as charged. He appeals.




       2
        The jurors posed the following questions: "Was the driver's seat reclined? Was
Clapper charged with [ ]reckless drivin[g] or DUI? Do we know the position of front
passenger seat[?] Did police follow up on hotel [and] scanner[? and] Where does
Clapper live[?]" CP at 18.



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State v. Clapper


                                        ANALYSIS

       Mr. Clapper assigns error to (1) his conviction on the basis of constitutionally

insufficient evidence that he was the driver of the eluding car, and (2) the court's conduct

of proceedings addressing the juror's questions outside his presence. He also asks the

panel to decline to award appellate costs should the State substantially prevail. We

address the three issues in tum.

         I.   The State presented sufficient evidence that Mr. Clapper was the
              driver of the eluding vehicle

       In criminal prosecutions the State "bears the burden of establishing beyond a

reasonable doubt the identity of the accused as the person who committed the offense."

State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974). As with all sufficiency

challenges, "[t]he test for determining the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact

could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192,

201, 829 P .2d 1068 ( 1992). In a sufficiency challenge, "all reasonable inferences from

the evidence must be drawn in favor of the State and interpreted most strongly against the

defendant." Id. A defendant raising such a challenge "admits the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom." Id.

       As the jury was informed by the court's instructions, "The law does not

distinguish between direct and circumstantial evidence in terms of their weight or value



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State v. Clapper


in finding the facts in this case. One is not necessarily more or less valuable than the

other." RP at 164 (Instruction 7); accord State v. Siert, 186 Wn.2d 869, 879, 383 P.3d

466 (2016). We defer "to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence." State v. Cordero, 170 Wn. App. 351,

361, 284 P.3d 773 (2012).

       In closing argument, Mr. Clapper's lawyer never challenged Officer Gorman's

certitude that the driver who attempted to elude him was driving Ms. Varner's Toyota.

Defense counsel argued, instead, that the State failed to prove beyond a reasonable doubt

that the driver was not one of Ms. Varner's other guests, to whom the Toyota had been

offered. On appeal, Mr. Clapper emphasizes evidence that Ms. Varner offered use of her

car to several persons but not to him, that Officer Gorman could not see the car's

occupant or occupants, and that about five minutes passed between when officers last saw

the Toyota and when it was found parked in the driveway-yet officers failed to search

for anyone else in the neighborhood after Mr. Clapper surrendered. Br. of Appellant at 5.

       But all of the following evidence supports the jury's verdict: Mr. Clapper was one

of the four or five individuals present when Ms. Varner made an unqualified offer of use

of her car. He surrendered to police in close proximity to where the car was found parked

and abandoned, initially telling officers "[I]t's me you're looking for" and later offering

changing and implausible explanations for his presence. RP at 96. Axel tracked a scent

from the driver's car door to where Mr. Clapper surrendered. Mr. Clapper was sweating

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State v. Clapper


profusely when encountered by police, consistent with someone who had engaged in a

chase, leapt a high fence, and tried to escape or hide. His backpack was in the car. Even

Ms. Varner's implication that Mr. Clapper was too large to drive her Toyota was

consistent with the unusual fully-back, fully-reclined position in which the driver's seat

was found.

       The State's evidence that Mr. Clapper was the driver was sufficient.

         II.   Mr. Clapper does not demonstrate that the telephone conference
               dealing with the jury's inquiry violated any constitutional right

       A criminal defendant enjoys a right to be present at critical proceedings, rooted in

the Sixth Amendment to the United States Constitution; the due process clauses of the

state and federal constitutions (U.S. CONST. amend. V; WASH. CONST. art. I, § 3); and

article I,§ 22 of our own constitution. Siert, 186 Wn.2d at 874. The core of the

constitutional right is the right to be present when evidence is being presented, but

beyond that the defendant has a right to be present at a proceeding "' whenever his

presence has a relation, reasonably substantial, to the ful[l]ness of his opportunity to

defend against the charge."' State v. Irby, 170 Wn.2d 874,881,246 P.3d 796 (2011)

(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674

(1934), overruled in part on other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S.

Ct. 1489, 12 L. Ed. 2d 653 (1964)).




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       The right to be present is not absolute. "[B]ecause the relationship between the

defendant's presence and his 'opportunity to defend' must be 'reasonably substantial,' a

defendant does not have a right to be present when his or her 'presence would be useless,

or the benefit but a shadow.'" Id. (quoting Snyder, 291 U.S. at 106-07). Where the court

and counsel address legal matters not requiring a resolution of disputed facts, it is well

settled that a defendant has no right to be present. In re Pers. Restraint ofLord, 123

Wn.2d 296,306,868 P.2d 835 (1994), ajf'd, 161 Wn.2d 276 (2007); Irby, 170 Wn.2d at

881. Nor does a defendant's right to be present extend to ministerial matters. In re Pers.

Restraint of Pirtle, 136 Wn.2d 467,484, 965 P.2d 593 (1998).

       The few cases that have addressed a defendant's constitutional right to be present

when a trial court considers how to respond to a jury inquiry during deliberations have

sometimes assumed that there is such a right, but have more recently turned on whether

responding to the jury's question involved a purely legal issue. Compare State v. Ratliff,

121 Wn. App. 642, 646, 90 P.3d 79 (2004) (assuming a constitutional right), with State v.

Sublett, 156 Wn. App. 160, 183, 231 P.3d 231 (2010), ajf'd, 176 Wn.2d 58 (2012) (right

to be present did not apply to "the purely legal issue of how to respond to the jury's

request for a clarification in one of the trial court's instructions"). Requests for guidance

from the court when jurors feel deadlocked have been treated as a critical stage with

"much ... at stake," and thereby one at which a defendant has a right to be present. State

v. Burdette, 178 Wn. App. 183,201,313 P.3d 1235 (2013).

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       As the State points out, we need not determine whether the questions posed by Mr.

Clapper's jury implicated his constitutional right to be present because he does not

demonstrate that he was not present or consulted when the three-way conference took

place following receipt of the jury's inquiry. On very similar facts, our Supreme Court

held in State v. Jasper, 174 Wn.2d 96, 124,271 P.3d 876 (2012), that the defendant failed

to shoulder his burden to demonstrate a violation of his constitutional right to be present.

The record in Jasper revealed that the defendant was out of custody during jury

deliberations and therefore might have been present or been contacted when the trial

court conferred with counsel. The court cited the principle that on a partial or incomplete

record, appellate courts will presume a conceivable state of facts consistent with the

record that will "' sustain and support the ruling or decision complained of" rather than

presume facts'" for the purpose of finding reversible error."' Id. at 123-24 (quoting

Barker v. Weeks, 182 Wash. 384,391, 47 P.2d 1 (1935).

       Here, as in Jasper, the record reveals that Mr. Clapper was not in custody. It

reveals that closing arguments were completed near the end of the day, following a short

trial. Jury deliberations either began, or began in earnest, the following morning, and by

12: 10 p.m., the parties had returned to court to hear the jury's verdict. It was after the

trial court accepted the unanimous verdict and excused the jury that it made its record

about the handling of the jury's inquiry. Its record establishes that the jury's inquiry had

been received at around 9:40 a.m. that morning, that the judicial assistant had convened

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State v. Clapper


the three-way conference call, and that the court had responded to the jury in the manner

agreed during the call. After making the record, the court stated, "I don't know if either

counsel wish to comment on that. You certainly are welcome to if there is anything you

want to say about it." RP at 197. No one commented. It is entirely conceivable that Mr.

Clapper was awaiting the jury's verdict at his lawyer's office or subject to immediate

contact, and was able to sit in on the call or be consulted. That no one commented when

invited to do so by the court further suggests that the defendant was not excluded. 3

Assuming Mr. Clapper had a constitutional right to be present, he fails to demonstrate a

violation.

       We also conclude that any error would be harmless beyond a reasonable doubt.

"Generally, where the trial court's response to a jury inquiry is 'negative in nature and

conveys no affirmative information,' no prejudice results and the error is harmless."

State v. Jasper, 158 Wn. App. 518,541,245 P.3d228 (2010), ajf'd, 174 Wn.2d 96 (2012)

(quoting State v. Russell, 25 Wn. App. 933,948,611 P.2d 1320 (1980)). A court's

communication with the jury is negative in nature-or neutral-when it "simply [refers]

the jury back to the previous instructions." State v. Langdon, 42 Wn. App. 715, 717-18,


       3
         In Siert, filed after the parties completed their briefing, our Supreme Court held
that a violation of a defendant's right to be present is waived if the defendant himself
learns of the violation before it is too late to object, yet fails to object. 186 Wn.2d at 875-
76. Here, the record's silence as to when Mr. Clapper learned of the three-way
conference operates in his favor. If he did not learn until after the jury's verdict was
accepted and the jury was excused, his opportunity to object came too late.

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713 P.2d 120 (1986). Mr. Clapper suggests that had he been present, he would have

asked the court to specifically direct the jury to its instruction on the State's burden of

proof, thereby reminding jurors of their duty "to hold any evidentiary shortcoming

against the State." Br. of Appellant at 11. The trial court's response directing the jurors

to "[p]lease review your instructions as to the law" did that, without emphasizing the

burden of proof instruction to the exclusion of others in a way that could be viewed as a

comment on the evidence. CP at 18.

                                     Ill. Appellate costs

       Mr. Clapper asks in his brief that we waive costs on appeal if he does not prevail,

claiming he is currently indigent and will unlikely be able to pay in the future. "RAP

14.2 affords the appellate court latitude in determining if costs should be allowed." State

v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000). By general order, this court has

created a procedure by which appellants may provide a panel with evidence and

argument on the basis of which the panel can exercise informed discretion whether to

deny costs. See Gen. Order of Division III, In re the Matter of Court Administration

Order re: Request to Deny Cost Award (Wash. Ct. App. June 10, 2016).

       Mr. Clapper has not complied with our general order. We therefore decline to

consider his request. The denial is without prejudice to his right to demonstrate his

current or likely future inability to pay such costs to our commissioner. See RAP 14.2.




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      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Lawrence-Berrey, J.




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