                                                                            FILED 

                                                                         MARCH 27, 2014 

                                                                    In the Office of the Clerk of Court 

                                                                  W A State Court of Appeals, Division III 





              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                 DIVISION THREE 


    STATE OF WASHINGTON,                         )        No. 31050-7-111
                                                 )
                        Respondent,              )
                                                 )
                 v.                              )
                                                 )
    BENITO GOMEZ,                                )        UNPUBLISHED OPINION
                                                 )
                        Appellant.               )

          BROWN, J.-Today, we reverse Benito Gomez's convictions for second degree

    murder and six separate first degree assaults because the trial court, while sincerely

    concerned about courtroom safety, nevertheless failed to provide a public trial when it

    closed entry into the courtroom after court sessions began. We reject Mr. Gomez's
1
    evidence sufficiency challenge. Accordingly, we reverse and remand for a new trial

    without reaching Mr. Gomez's other error claims.

                                             FACTS 


          On May 17, 2011, Mr. Gomez joined his fellow 18th Street gang members, 


    Michael Mercado, Alberto Ramirez, and Andres Solis, in an alley brawl with 13th Street 


    gang members, Julio Martinez, Miguel Saucedo, and Joseph de Jesus. Jessica Glasby 


    and David Cloyd lounged on the porch of a nearby apartment building, while Patricia
    No. 31050-7 111
                8




    State v. Gomez

    Nelson and Roberto Cuevas slept in a first floor room. Mr. Gomez shot and killed Mr.

    Martinez. Ms. Glasby, Mr. Cloyd, Mr. de Jesus, and Mr. Saucedo ran into the

    apartment building, through the hallway, and up the stairs to the second floor while Mr.

    Gomez shot at them, firing at least two bullets through the hallway. The first bullet

    penetrated the door to the room at the end of the hallway and lodged in clothing near

    the bed where Ms. Nelson and Mr. Cuevas had slept. The second bullet lodged in the

    doorframe of the room at the beginning of the hallway.

          The State charged Mr. Gomez with one count of first degree murder and six

    counts of first degree assault, alleging he committed each crime while armed with a

    firearm. At trial, the court denied his change of venue motion and addressed his

    concerns about various security measures, stating,

          This is a public courthouse. Everyone in the public is entitled to appear in
          this courthouse for appropriate matters ... and in fact the courtroom is
          rather full today of spectators concerning this particular case .

          . . . There are allegations that this incident was as a result of a rival gang

I         confrontation. And the history of that type of activity, not only in this state,
          in this county and in this city is that there are often violent incidents that
          arise out of that type of situation.
               And so for those reasons, the Court has been proactive in ...
          attempting to protect the people ... involved in this case from any
          potential harm.

          . .. [T]here are other matters going on in the other courtroom ... , which
          is just down the hallway from ... the third floor of the courthouse ....
          And because there are other members of the public involved in those
          activities, it's incumbent upon this Court ... to make sure that there is not
          somebody who is interested in somehow influencing the outcome of this
          case or interfering with the outcome of this case feigning an excuse to be
          in courthouse, going to that other courtroom without appropriate business
          there and then somehow assimilating themselves to the people involved in
          this particular activity without the security staff knowing that because they


                                                 2

No. 31050-7-111
State v. Gomez

      at the threshold of coming up to the third floor that was not identified and
      then presenting a problem for us.
          So the Court has considered all of these things and has made an
      appropriate decision concerning what security would be used here.
      There's no difference in security for this trial than any other trial. . . . We
      continue to have rules of procedure where people have to be on time for
      proceedings here. We do not allow people to come into the courtroom
      after the court is in session for not only security reasons but as well as the
      distraction that that causes when people come in.
      . .. [W]hen a jury is impaneled in a case such as this, it doesn't make any
      difference what type of case it might be, but when people come into the
      courtroom after the matter is in session, they stop listening to the
      attorneys or to the witness who is testifying and they immediately direct
      their attention to the person that is coming in the door. And even though
      that person may be very innocent in coming in late, that distracts from the
      proceeding. And you run the potential that whatever is being said or
      addressed by the testimony, by the questions, by the Court's instructions
      is not going to be heard by the jury or members of that jury. And again,
      that then leads to problems and distractions and the orderly processing of
      that case.

Report of Proceedings (RP) at 150-54 (emphasis added). The court made this ruling

without first addressing the public trial factors enunciated in State v. Bone-Club, 128

Wn.2d 254,258-59,906 P.2d 325 (1995).

       Mr. Mercado and Mr. Ramirez identified Mr. Gomez as the shooter while

neighbors testified they saw Mr. Gomez present at the crime scene. The jury found Mr.

Gomez guilty of one count of second degree murder as a lesser included offense and

six counts of first degree assault as charged, all while armed with a firearm. The court

sentenced Mr. Gomez to serve nearly 115 years confinement. He appealed.




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No. 31050-7-111
State v. Gomez

                                        ANALYSIS

                                      A. Public Trial

       The issue is whether the trial court violated Mr. Gomez's public trial right by

declaring U[w]e do not allow people to come into the courtroom after the court is in

session." RP at 153. He contends the trial court did not weigh the Bone-Club factors

on the record before closing the trial proceedings to the public. He may raise this error

claim for the first time on appeal. See RAP 2.5(a)(3); State v. Marsh, 126 Wash. 142,

146,217 P. 705 (1923); see also State v. Wise, 176 Wn.2d 1,9, 16-18 & nn.10-11, 288

P.3d 1113 (2012); State v. Paumier, 176Wn.2d 29, 36-37, 288 P.3d 1126 (2012). We

review alleged public trial violations de novo. State v. Brightman, 155 Wn.2d 506, 514,

122 P.3d 150 (2005).

       Both the federal and state constitutions provide a criminal defendant the right to a

public trial. U.S. CONST. amend. VI; CONST. art. I, § 22. But in Bone-Club, our Supreme

Court held a trial court may close trial proceedings to the public after weighing five

factors on the record:

           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.



                                             4

No. 31050-7-11/
State v. Gomez

128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers of Wash.

v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993» (citing Seattle Times Co.
v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982); Federated Publ'ns, Inc. v. Kurtz,
94 Wn.2d 51,62-65,615 P.2d 440 (1980»; see also Waller v. Georgia, 467 U.S. 39,48,

104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). If a trial court does not weigh the Bone-Club

factors on the record before closing trial proceedings to the public, we must reverse and

remand for a new trial because the error is structural, presumptively prejudicial, and

never harmless. Wise, 176 Wn.2d at 14-19; Paumier, 176 Wn.2d at 35-37.

        Trial proceedings are closed to the public "when the courtroom is completely and

purposefully closed to spectators so that no one may enter and no one may leave."

State   v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011); accord State v. Sublett,     176

Wn.2d 58, 71, 292 P.3d 715 (2012). "[O]nce the plain language of the trial court's ruling

imposes a closure," this court strongly presumes the trial proceedings were indeed

closed to the public. Brightman, 155 Wn.2d at 516,517 {citing In re Pers. Restraint of

Orange, 152 Wn.2d 795,813-14, 100 P.3d 291 (2004». Thus, to show a public trial

violation occurred, the defendant need not prove the ruling was carried out. Id at 516.

Rather, to show no public trial violation occurred, the State must overcome this

presumption by proving the ruling was not carried out. Id.

        Here, the plain language of the trial court's ruling, "[w]e do not allow people to

come into the courtroom after the court is in session," completely and purposefully

prohibits the public from entering the courtroom after trial proceedings begin. RP at

153. Therefore, we strongly presume the trial proceedings were closed to tardy


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No. 31050-7-111
State v. Gomez

spectators. The State does not attempt to overcome this presumption by proving the

ruling was not carried out. While generally arguing other parts of the trial were open,

the State does not deny the trial proceedings were closed to tardy spectators.

       The State unpersuasively stresses the trial court's ruling was a security measure

ensuring courtroom safety. See, e.g., State v. Hartzog, 96 Wn.2d 383, 400-01, 635

P.2d 694 (1981); State v. Turner, 143 Wn.2d 715, 725,23 P.3d 499 (2001); State v.

Damon, 144 Wn.2d 686,691,25 P.3d 418 (2001); State v. Jaime, 168 Wn.2d 857, 865,

233 P.3d 554 (2010). Additionally, the State unpersuasively argues the trial court's

ruling was a decorum protocol ensuring courtroom order. See, e.g., People v. Colon, 71

N.Y.2d 410, 416-17,521 N.E.2d 1075, 526 N.Y.S.2d 932 (1988) (quoting Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18, 100 S. Ct. 2814, 65 L. Ed. 2d 973

(1980»; McCrae v. State, 908 SO.2d 1095, 1096-97 (Fla. Dist. Ct. App. 2005); Spencer

v. Commonwealth, 240 Va. 78, 86-87, 393 S.E.2d 609 (1990); Davidson v. State, 591

So. 2d 901, 902-03 (Ala. Crim. App. 1991); State v. Williams, 742 S.W.2d 616, 621 (Mo.

Ct. App. 1987). Considering the constitutional importance of a public trial, tardiness is a

minor annoyance.

       In sum, because the trial court did not weigh the Bone-Club factors on the record

before closing the trial proceedings to the public, we must reverse and remand for a

new trial. Considering our analysis, we decline to address Mr. Gomez's remaining

contentions, except for his evidence sufficiency challenge.




                                            6

No. 31050-7-111
State v. Gomez

                                     B. Evidence Sufficiency

          The issue is whether sufficient evidence supports Mr. Gomez's convictions for

first degree assault of Ms. Glasby, Mr. Cloyd, Mr. de Jesus, and Mr. Cuevas. First, Mr.

Gomez contends the State did not prove attempted battery because it did not show the

bullets he shot into the apartment building had the apparent present ability to injure

these victims. Second, he contends the State did not prove common law assault

because it did not show the bullets he shot into the apartment building caused these

victims to reasonably fear injury.

       The State must prove all essential elements of a charged crime beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368

(1970). And, the State cannot try a criminal defendant a second time if it failed to

muster sufficient evidence the first time. Burks v. United States, 437 U.S. 1, 11, 98 S.

Ct. 2141, 57 L. Ed. 2d 1 (1978). Evidence is sufficient to support a guilty finding if '''after

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

fact could have found the essential elements of the crime beyond a reasonable doubt.'"

State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979». An

evidence sufficiency challenge "admits the truth of the State's evidence and all

inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,

201,829 P.2d 1068 (1992). We defer to the jury's assessment of witness credibility and

evidence weight. State v. Carver, 113 Wn.2d 591, 604, 781 P .2d 1308, 789 P .2d 306

(1989).


                                               7

No. 31050-7-111
State v. Gomez

       A person is guilty of first degree assault if, "with intent to inflict great bodily

harm,"1 he or she "[a]ssaults another with a firearm." RCW 9A.36.011(1)(a). Assault

has three common law definitions: "actual battery," "attempted battery," and "common

law assault." State v. Wilson, 125 Wn.2d 212,218,883 P.2d 320 (1994) (quoting State

v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993), abrogated on other grounds by

State v. Smith, 159 Wn.2d 778,786-87, 154 P.3d 873 (2007) (establishing sufficient

evidence need not support all three of these definitions because they are not alternative

means but "means within a means")); see 11 WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL (WPIC) 35.50 & cmt. at 547-50 (3d ed. 2008).

Our focus is not actual battery, but attempted battery and common law assault.

       Attempted battery is "an act, with unlawful force, done with intent to inflict bodily

injury upon another, tending but failing to accomplish it and accompanied with the

apparent present ability to inflict the bodily injury if not prevented." CP at 191; RP at

597; accord WPIC 35.50 & cmt. at 547, 549; see Howell v. Winters, 58 Wash. 436, 438,

108 P. 1077 (1910) (quoting THOMAS M. COOLEY, A TREATISE ON THE LAw OF TORTS 278­



       1 Intent is "the objective or purpose to accomplish a result which constitutes a
crime." RCW 9A.08.010(1)(a). Great bodily harm is "bodily injury which creates a
probability of death, or which causes significant serious permanent disfigurement, or
which causes a significant permanent loss or impairment of the function of any bodily
part or organ." RCW 9A.04.110(4)(c). "[O]nce the intent to inflict great bodily harm is
established, usually by proving that the defendant intended to inflict great bodily harm
on a specific person, the mens rea is transferred under RCW 9A.36.011 to any
unintended victim [of the actus reus]." State v. Elmi, 166 Wn.2d 209, 218, 207 P.3d 439
(2009); State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994). Actus reus is U[t]he
wrongful deed that comprises the physical component of a crime and that generally
must be coupled with mens rea to establish criminal liability; a forbidden act." BLACK'S
LAw DICTIONARY 41 (9th ed. 2009). Mens rea is "[t]he state of mind that the prosecution,
                                               8

No. 31050-7-111
State v. Gomez

81 (3d ed. 1906}); State v. Shaffer, 120 Wash. 345, 349, 207 P. 229 (1922). Common

law assault is "an act, with unlawful force, done with the intent to create in another

apprehension and fear of bodily injury, and which in fact creates in another a

reasonable apprehension and imminent fear of bodily injury even though the actor did

not actually intend to inflict bodily injury." CP at 191; RP at 598; accord WPIC 35.50 &

cmt. at 547,549-50; see State v. Frazier, 81 Wn.2d 628, 631,503 P.2d 1073 (1972)

(quoting United States v. Rizzo, 409 F.2d 400, 403 (7th Cir. 1969»; State v. Byrd, 125

Wn.2d 707, 712-13,887 P.2d 396 (1995).

       Ms. Glasby testified she was the first to run up the stairs, followed immediately by

Mr. Cloyd. She heard Mr. Gomez fire several shots at the group during their ascent.

The bullets flew past the group and splintered wood at the bottom of the stairs. The

group thought Mr. Gomez was following the group up the stairs to shoot more bullets at

them. Mr. Cloyd recounted he was the last to run up the stairs. When he was at the

bottom of the stairs, about three or four strides up, he heard Mr. Gomez fire several

shots at the group through the hallway. The bullets sounded like they were coming from

outside the apartment building and hitting the walls and the bottom of the stairs. Mr.

Cloyd later recounted he had already reached the top of the 15 to 20 steps when Mr.

Gomez fired these shots. The group was scared they would have to violently confront

Mr. Gomez at the top of the stairs.

      Mr. de Jesus testified he was the last to run up the stairs, where he found Ms.

Glasby and Mr. Cloyd. Mr. Saucedo followed but stopped at the bottom of the stairs,


to secure a conviction, must prove that a defendant had when committing a crime;

                                             9
1
I
I
    No. 31050-7-111
    State v. Gomez

    flattened himself against the wall, and shut the door leading into the stairs. Mr.

    Saucedo recounted he initially ran down the alley along with Mr. Martinez, who Mr.

i   Gomez shot as they fled. Mr. Saucedo then stopped on the porch to survey the



I
I
    incident. When Mr. Gomez came into view, he fired two shots at Mr. Saucedo that

    came right in his face. Mr. Saucedo stepped backward into the door leading into the

    stairs and waited several seconds. Mr. Gomez left.

           Ms. Nelson testified she was sleeping in bed with Mr. Cuevas when she awoke to



l
,
    the sound of Mr. Gomez firing several shots. Someone outside the room made racket

    and said "they are coming." RP at 236. Ms. Nelson and Mr. Cuevas jumped out of bed.

    After they did, she heard a bullet penetrate the door to the room and lodge in clothing

    near the bed. The bullet would have hit Ms. Nelson in the forehead if she had not

    moved. Mr. Cuevas related he was sleeping in bed when he awoke to the sound of

    emergency sirens. He found a bullet had earlier penetrated the door to the room and

    lodged in clothing near the bed.

          Viewing this evidence in the light most favorable to the State, a rational jury could

    find Mr. Gomez assaulted Ms. Glasby, Mr. Cloyd, Mr. de Jesus, and Mr. Cuevas beyond

    a reasonable doubt. We reject Mr. Gomez's arguments and defer to the jury's

    assessment of witness credibility and evidence weight. We conclude the State

    produced sufficient evidence to show either attempted battery or common law assault

    supporting Mr. Gomez's convictions for first degree assault of Ms. Glasby, Mr. Cloyd,

    Mr. de Jesus, and Mr. Cuevas.


    criminal intent." Id. at 1075. This case concerns actus reus but not mens rea.

                                                10
No. 31050-7-111
State v. Gomez

      Reversed and remanded for a new trial.

      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 records pursuant to RCW

2.06.040.



                                                       Brown, J.
WE CONCUR: 





Siddoway, A.C.J.




                                           11 

