                                                                              FILED 

                                                                           April 14, 2015 

                                                                  In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 31520-7-111
                                               )
                     Respondent,               )
                                               )
              v.                               )
                                               )
MATTHEW HIBBARD,                               )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       BROWN, A.C.J. - Matthew Hibbard appeals his conviction for third degree assault

with an aggravator that the injury suffered by the victim substantially exceeded the level

of bodily harm necessary to satisfy the elements of the charge. He contends the trial

court erred by (1) limiting character evidence to reputation, (2) denying his request for a

lesser included offense jury instruction, and (3) violating his public trial right when using

a passing sheet to conduct peremptory challenges. In his statement of additional

grounds for review (SAG), Mr. Hibbard expresses concerns about ineffective assistance

of counsel, prosecutor and juror misconduct, and the trial court's limits on the number of

his character witnesses. We disagree with Mr. Hibbard's contentions, find Mr. Hibbard's

SAG lacks merit, and affirm.
No. 31520-7-111
State v. Hibbard


                                         FACTS

       On the evening of July 4, 2012, Ben Ensign and three friends went to a

Kennewick bar and, without permission, sat in the very important (VIP) section. Mr.

Hibbard, the bar's general manager and experienced bouncer, told Mr. Ensign and his

friends they could not sit there. Mr. Ensign was intoxicated and disruptive. Given Mr.

Ensign's behavior, Mr. Hibbard told Mr. Ensign and his friends to leave the bar. Mr.

Ensign's friends escorted him out of the bar, but he turned around and attempted to re­

enter. Mr. Hibbard and doorman Ray Anderson barred Mr. Ensign's way. Mr. Hibbard

grabbed Mr. Ensign by the head and Mr. Anderson held his feet, suspending Mr. Ensign

in midair. Eyewitness accounts varied on what happened next. While Mr. Hibbard

testified he thought Mr. Ensign was trying to hit him, Mr. Anderson did not believe Mr.

Ensign was a threat. After telling Mr. Ensign to calm down, Mr. Hibbard either dropped

or threw Mr. Ensign head down to the concrete sidewalk. A jury later viewed a security

video of the events.

       Mr. Ensign suffered a subdural hematoma and brain contusions. He was in

intensive care for a month. Mr. Ensign had difficulty using his right arm and leg and

currently suffers from expressive aphasia, which means it is hard for him to express his

thoughts as he cannot match his thoughts to words.

      The State charged Mr. Hibbard with third degree assault and alleged an

excessive-injury sentencing aggravator. At Mr. Hibbard's trial, Mr. Hibbard sought to

call numerous witnesses to testify as to Mr. Hibbard's good character via reputation and



                                            2

    No. 31520-7-111
    State v. Hibbard


    specific instances of conduct. The trial court sustained the State's objection to proving

    character through specific instances. The court limited the number of Mr. Hibbard's

    character witnesses as cumulative.

           Mr. Hibbard unsuccessfully requested a jury instruction on fourth degree assault,




I
    arguing it was a lesser included offense of third degree assault. Mr. Hibbard was found

    guilty as charged. The jury returned a special verdict, finding Mr. Ensign's injuries

    substantially exceeded the level of bodily harm necessary to satisfy the elements of

    third degree assault. Because of this aggravating factor, the court sentenced Mr.

    Hibbard to 12 months. Mr. Hibbard appealed.

                                            ANALYSIS

                                     A. Character Evidence

           The issue is whether the trial court erred by not allowing Mr. Hibbard's witnesses

    to testify as to specific instances of conduct in which he acted in a diligent and peaceful

    manner while on the job. Mr. Hibbard contends his constitutional right to present a

    defense was thus violated because character was an essential element of his claim or

    defense and ER 405{a) implicitly allows specific instances that show his character

    without ER 405{b)'s essential elements restriction. We disagree.

           We review a trial court's evidence rulings for abuse of discretion. State v. Stacy,

    181 Wn. App. 553, 565, 326 P.3d 136, review denied, _Wn.2d _,335 P.3d 940

    (2014). "A trial court abuses its discretion when its decision is manifestly unreasonable

    or based on untenable grounds or untenable reasons." Id. at 565-66.



                                                 3

I
1
I
,J
     No. 31520-7-111
     State v. Hibbard
f

1           Criminal defendants have a constitutional right to present a defense. Id. at 566.

     However, this constitutional right is not unrestrained, as defendants have no "right to
1
1
     introduce irrelevant or inadmissible evidence." Id. Although "evidence of a person's

1
J    character or a trait of character is not admissible for the purpose of proving action in


I
j

J
     conformity therewith on a particular occasion," ER 405(b) allows evidence of specific

     instances only if the "character or a trait of character" is "an essential element of a

     charge, claim, or defense." ER 404(a). Character is rarely an "essential element" in

     criminal cases. State v. Kelly, 102 Wn.2d 188, 196,685 P.2d 564 (1984). "For

     character to be an essential element, character itself must determine the rights and

     liabilities of the parties." Id. at 197.

            ER 405(a) states "[iJn all cases in which evidence of character or a trait of

     character of a person is admissible, proof may be made by testimony as to reputation."

     Washington courts have interpreted this to mean ER 405(a) limits character evidence

     solely to reputation unless character is an essential element. State v. Mercer-Drummer,

     128 Wn. App. 625, 630-32, 116 P.3d 454 (2005) (rejecting the argument that reputation

     testimony is not the exclusive way to prove character under ER 405(a». Reading ER

     405(a) in the manner suggested by Mr. Hibbard directly conflicts with and undermines

     ER 405(b)'s limitations on proof by specific instances of conduct. See State v. Morales,

     168 Wn. App. 489, 492, 278 P.3d 668 (2012) (stating that interpretations rendering any

     portion of a statute meaningless should not be adopted). Thus, Mr. Hibbard's second

     contention fails.



                                                  4

No. 31520-7-111
State v. Hibbard


       Washington courts have held "character does not determine a party's rights and

liabilities incident to an assault." Mercer-Drummer, 128 Wn. App. at 632; see also

Stacy, 181 Wn. App. at 566. Mr. Hibbard unpersuasively attempts to distinguish both

Mercer-Drummer and Stacy. He points to the fact that Mercer-Drummer and Stacy

dealt with (1) third degree assault under RCW 9A.36.031 (g), assault of a law

enforcement officer, which requires an entirely different mens rea than negligent

assault; and (2) different defenses. He argues his defense-that he acted reasonably

and not negligently under the circumstances-necessarily means specific examples of

his peaceful conflict-resolution were essential elements of his defense. But nothing in

Mercer-Drummerand Stacy limits their holdings to assaults under RCW 9A.36.031 (g).

Both courts fashioned their holdings broadly, stating "[c]haracter is not an essential

element of any charge, claim, or'defense for the crime of assault." Stacy, 181 Wn. App.

at 566 (emphasis added). Thus, Mr. Hibbard's first contention fails.

       In sum, the trial court did not err in limiting Mr. Hibbard's evidence. Having so

concluded, we do not discuss harmless error.

                    B. Requested Fourth Degree Assault Instruction

      The issue is whether the trial court erred in denying Mr. Hibbard's request for a

jury instruction for assault in the fourth degree. Mr. Hibbard contends both the legal and




                                             5

     No. 31520-7-111
     State v. Hibbard


     factual prongs of the Workman 1 test were met, thus entitling him to an instruction on the

     assault in the fourth degree. 2

            RCW 10.61.006 provides "a defendant can be convicted of an offense that is a

     lesser included offense of the crime charged." State v. Fernandez-Medina, 141 Wn.2d

     448,453,6 P.3d 1150 (2000). To receive an instruction on a lesser included offense,
f
~    the proponent of the instruction must satisfy a legal and factual requirement. State v.
j

II   McDonald, 123 Wn. App. 85, 88, 96 P.3d 468 (2004). "To satisfy the legal requirement,

     the proponent must show ... that the proposed instruction describes an offense each

1,   element of which is included within the charged offense." Id. at 88-89. "To satisfy the
!
II   factual requirement, the proponent must show that when the evidence is viewed in the

     light most favorable to him, the jury could find that even though the defendant is not

     guilty of the charged offense, he is guilty of the ... lesser offense." Id. at 89.

            RCW 9A.36.031 (1)(f) states a person is guilty of assault in the third degree if

     "[w]ith criminal negligence, [he] causes bodily harm accompanied by substantial pain

     that extends for a period sufficient to cause considerable suffering." Assault in the

     fourth degree is simple assault at common law. State v. Davis, 60 Wn. App. 813, 820,


            1  State v. Workman, 90 Wn.2d 443,584 P.2d 382 (1978).
            2 Mr. Hibbard uses "inferior degree" and "lesser included offense"
     interchangeably throughout his brief. See Appellant's Br. at 15-17. An inferior degree
     instruction is provided for in RCW 10.61.003, while a lesser included offense instruction
     is provided for in RCW 10.61.006. While the two are closely related, they are not the
     same and have different tests. See State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6
     P.3d 1150 (2000). Because Mr. Hibbard solely argues and applies the lesser included
     offense instruction test, we do not elaborate on an instruction based on an inferior
     degree. For Mr. Hibbard, the result is the same because fourth degree assault does not
     require negligent conduct as does this charged third degree assault.

                                                   6

1


1

.~
         No. 31520-7-111
.~
i        State v. Hibbard
I
f
J,       808 P.2d 167 (1991); RCW 9A.36.041(1). An assault is defined as "an attempt, with


I        unlawful force, to inflict bodily injury upon another, accompanied with the apparent



II 
 
   present ability to give effect to the attempt if not prevented." State v. Sample, 52 Wn. 


         App. 52, 54, 757 P.2d 539 (1988) (internal quotation marks omitted) (citation marks 


         omitted). Thus, fourth degree assault requires proof of intent. Id.

                In Sample, the State charged the defendant with assault in the third degree

         under former RCW 9A.36.030(1)(b), stating a person committed third degree assault

         when he, U[w]ith criminal negligence," caused physical injury to another with a weapon.

         Sample, 52 Wn. App. at 54. The trial court convicted the defendant of simple assault as

         a lesser included offense of third degree assault. Id. The appellate court reversed the

         conviction, stating the statute "eliminate[d] the element of intent and [took] conduct­

         negligence-that would not be an assault under common law[] and [made] it an assault."

         Id. at 54-55 (holding fourth degree assault "is not a lesser-included offense of assault in

         the third degree by negligence"); see also Seattle v. Wilkins, 72 Wn. App. 753, 758, 865

         P.2d 580 (1994) (stating "[i]t may be possible to commit ... criminally negligent assault

         without committing simple assault because a person can be convicted of ... criminally

         negligent assault without proof of intent, while one cannot be convicted of simple

         assault without proof of intent").

                Mr. Hibbard was charged with criminally negligent third degree assault under

         RCW 9A.36.030(1 )(f). In order to be entitled to a lesser included offense instruction for

         fourth degree assault, he had to meet the legal and factual requirements of the test. He



                                                      7
    }

I,  I   No. 31520-7-111
    ~   State v. Hibbard


I       cannot show the legal requirement. The proposed instruction on fourth degree assault

        includes an element not included in the instruction on criminally negligent third degree
1
1
I       assault: intent. As Mr. Hibbard cannot meet the legal requirement, we need not discuss

        whether he can meet the factual requirement. Accordingly, the trial court did not err in

I       refusing to give the lesser included offense instruction.

I!                                              C. Public Trial
!
               The issue is whether Mr. Hibbard's right to a public trial was violated when the
I
 I      parties exercised their peremptory challenges using a passing sheet in open court. Mr.

II      Hibbard contends this procedure resulted in a private, unrecorded conference violating

        his right to be present at all critical stages since the record does not show he was

        present or able to participate in the peremptory challenges.

               "The Sixth Amendment to the United States Constitution and article I, section 22

        of the Washington Constitution guarantee a defendant the right to a public trial." State

        v. Dunn, 180 Wn. App. 570, 574,321 P.3d 1283 (2014). Section 22 partly provides "it is

        error ... to 'close' the courtroom to any aspect of a criminal trial that is required to be

        'open.'" State v. Love, 176 Wn. App. 911, 916, 309 P.3d 1209 (2013). Courts use the

        "experience and logic" test to determine whether a particular portion of a proceeding is

        required to be held in public. Id. Typically. "O]ury selection in a criminal case is

        considered part of the public trial right and is [ ] open to the public." Id.

               The "experience and logic" test requires courts to ask "whether the practice in

        question historically has been open to the public [the experience prong] ... and whether



                                                       8

;
~


I
I!•
      No. 31520-7-111
I~    State v. Hibbard

iI    public access is significant to the functioning of the right [the logic prong]." Id. If a court

II    answers both prongs affirmatively, then the five factor test enunciated in State v. Bone-

      Club, 128 Wn.2d 254, 261,906 P.2d 325 (1995), must be applied to determine whether

II    the court can properly close the courtroom. Love, 176 Wn. App. at 916.

i            In Love, this court applied the "experience and logic" test and concluded
!
      peremptory challenges do not have to take place in public. Id. at 920; see also Dunn,

      180 Wn. App. at 575 (agreeing that U[t]he public trial right does not attach to the

      exercise of challenges during jury selection"). The court failed to find evidence

      suggesting that historical practices required parties to make peremptory challenges in

      public. Id. at 918; see also State v. Thomas, 16 Wn. App. 1,13,553 P.2d 1357 (1976)

      (defendant's challenge to using secret, written peremptory challenges had uno merit").

      The court stated the written record of peremptory challenges "satisfies the public's

      interest in the case and assures that all activities were conducted aboveboard, even if

      not within public earshot." Love, 176 Wn. App. at 919-20.

             Given Love, Mr. Hibbard's argument lacks merit. 3 Moreover, the record does not

      support Mr. Hibbard's argument. At the conclusion of voir dire, the transcript reads:

            THE COURT: Anybody need a break at this time. Okay. We will take a
            short recess.
            (Recess taken)
            (Peremptory challenges taken and a jury was impaneled)



             3 Mr. Hibbard notes he is aware of this court's decision in Love. However, he
      states "due to the procedural posture of other public trial cases currently on review in
      the Washington Supreme Court, [he] preserves this issue for review." Appellant's Br. at
      26,n.11.

                                                    9
No. 31520·7-111
State v. Hibbard


Report of Proceedings (RP) Voir Dire at 80. These facts are similar to those seen in

Love. See Love, 176 Wn. App. at 914. The peremptory challenges were done in

writing and recorded. The judge then, in open court, replaced certain jurors and

empanelled the jury. The courtroom was not closed for peremptory challenges.

       Mr. Hibbard argues he was not present during the exercise of peremptory

challenges. Criminal defendants have the right to be present at all critical stages, which

includes voir dire and em panelling of the jury, of their criminal trials. Love, 176 Wn.

App. at 920-21. As the record is unclear whether Mr. Hibbard was present during the

exercise of peremptory challenges, his assertion partly relies on facts outside the record

on appeal. 4 We do not address issues on direct appeal relying on facts outside the

record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

                                    D. SAG Concerns

       First, regarding assistance of counsel, the Sixth Amendment to the United States

Constitution guarantees a criminal defendant the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To establish ineffective assistance of counsel, a defendant must prove (1) defense

counsel's representation was deficient, i.e., it was below an objective standard of

reasonableness under the circumstances and (2) the deficient representation prejudiced

him, i.e., a reasonable probability exists the outcome would have been different without

the deficient representation. McFarland, 127 Wn.2d at 334-35. We strongly presume




                                             10 

No. 31520-7-111
State v. Hibbard


representation was effective. Id. at 335. Defense counsel's legitimate strategic or

tactical decisions do not support ineffective assistance claims. Id. at 335-36.

       Mr. Hibbard's concerns generally relate to his counsel's trial strategy. He asserts

defense counsel never attempted to discredit the State's witnesses, however; defense

counsel did inquire into potential biases. He argues defense counsel failed to

emphasize certain evidence, however defense counsel did discuss bias with relevant

witnesses. It is not ineffective assistance of counsel merely because Mr. Hibbard would

have emphasized evidence more or differently. Mr. Hibbard argues defense counsel

did not call certain witnesses who would have been helpful to his case. But the

testimony of Mr. Hibbard's proposed witnesses is not in the record, so we cannot

conclude failure to call these witnesses prejudiced him. Mr. Hibbard's remaining

allegations, including failure to bring up Mr. Ensign's history, not requesting a venue

change, conversations disparaging defense counsel, trial court concerns, and counsel's

throwing the case, are not based on facts in our record. If it is not in the record, we do

not consider the matter on a direct appeal. McFarland, 127 Wn.2d at 335. The

appropriate means of raising such matters is through the filing of a personal restraint

petition. Id.

       Second, regarding Mr. Hibbard's misconduct concerns, nothing in our record

shows the State destroyed evidence or acted to delete any Facebook conversation. We

do not consider matters outside the record on direct appeal. McFarland, 127 Wn.2d at


      4 The State, who in this appeal is represented by the same attorney that 

prosecuted Mr. Hibbard, states Mr. Hibbard was present during peremptory challenges. 


                                            11
No. 31520-7-111
State v. Hibbard


335. The appropriate means of raising such matters is through the 'filing of a personal

restraint petition. Id.

       Third, regarding limiting character-evidence witnesses, even if relevant evidence

is admissible, it may still be excluded "if its probative value is substantially outweighed

... by considerations of ... needless presentation of cumulative evidence." ER 402;

ER 403. In State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960), the defendant was

charged with negligent homicide. 'd. at 849. At trial, one witness testified about the

defendant's reputation as a good and careful driver; however, the trial court refused to

allow defendant's four remaining witnesses testify as to the same. 'd. at 857. Because

the State never attacked the defendant's reputation as a good and careful driver, the

Washington Supreme Court found this was not error. Id. The Baker court reasoned

that allowing the remaining four witnesses to testify in the same manner "would be

merely repetitious and cumulative." 'd. at 857-58.

       The State never attacked Mr. Hibbard's reputation or the testimony of Mr.

Hibbard's character witnesses. As no reason existed to doubt the character witnesses'

testimony, allowing additional testimony on the same subject would have been

cumulative and unhelpful. The trial court did not err in limiting the number of witnesses.

Mr. Hibbard's other arguments regarding character evidence were addressed by his

counsel in his appeal. See RAP 10.10(a).

       Fourth, regarding Mr. Hibbard's concern about an alleged Facebook comment

about juror comments, nothing in our record supports this allegation. Again, we do not


Resp't Br. at 13-14.
                                             12
No. 31520-7-111
State v. Hibbard


consider such matters on direct appeal. McFarland, 127 Wn.2d at 335. The

appropriate means of raising such matters is through the filing of a personal restraint

petition. Id.

       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

206.040.




                                                   Brown, A.C.J.
WE CONCUR:




                                            13 

