                                                                                                                 FILED
                                                                                                        COURT OF APPEALS
                                                                                                            DIVISION 11

                                                                                                       2015 JUN 23    AM 8: 30



                                                                                                       BY
      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                           DIVISION II


 STATE OF WASHINGTON,                                                                    No. 45103 -4 -II


                                             Respondent,


           v.



ANTHONY TYRONE CLARK,                                                              UNPUBLISHED OPINION


                                             Appellant.




          LEE, J. —      Anthony Clark appeals his conviction of first degree murder, first degree robbery,

unlawful possession of a controlled substance with intent to deliver, and second degree unlawful

possession of a         firearm.      Clark argues that ( 1) the trial court erred by excluding evidence of his

mental    capacity,      absent a      diminished capacity defense, ( 2) he received ineffective assistance of


counsel because his trial counsel failed to object to the jury learning that the death penalty was not

an   issue, ( 3)    the trial court erred by instructing the jury on an uncharged alternative means of first

degree robbery; (        4) the trial court violated Clark' s right to a public trial by allowing parties to

exercise peremptory challenges in writing; and the cumulative effects of the errors deprived him

of his due process right to a fair trial.


           We hold that the trial court did not err by excluding evidence of Clark' s mental capacity,

Clark has not shown that his trial counsel' s deficient performance prejudiced him, and the trial

court    did   not violate      Clark'     s right   to   a public   trial.   Finally, because there was only one error

committed          in this   case,   the   cumulative error     doctrine is     not applicable.   Accordingly,   we affirm
No. 45103 -4 -II



Clark' s convictions for first degree murder, unlawful possession of a controlled substance with

intent to deliver, and second degree unlawful possession of a firearm. However, because the trial

court erred by instructing the jury on an uncharged alternative means of first degree robbery, we

reverse Clark' s conviction for first degree robbery and remand.

                                                       FACTS


            In 2011, Clark was walking to a friend' s house when he encountered D.D., 1 someone that
he knew from       school.   Clark and D.D. walked to Clark' s home, where he lived with his mother,

and listened to music on the computer.


            Clark then suggested that he and D.D. sell some of his mother' s jewelry to buy food for a

barbeque. Clark told D.D. that his mother kept her jewelry box in the spare room and led D.D. to

the room. Then, because Clark could not reach the top shelf where the jewelry box was kept, D.D.

offered to climb in the closet and Clark instructed him where to look. Although D.D. was slightly

taller than Clark, D.D. had to climb on a shelf in the closet to reach the top shelf. Before climbing

in the closet, D.D. removed a gun from his pocket, removed the magazine from the gun, and handed

the gun without the magazine to Clark.


            As D.D. was climbing in the closet, Clark aimed the gun towards the ceiling of the closet

and shot      D. D. in the back   of   the head,   killing him. Clark then went to his neighbors' home and

told them that     he killed D.D. because D.D. " beat his        baby' s   mom   up ...   real   bad,   real   bad."   8


Verbatim Report of Proceedings (VRP) at 907. Clark then told his neighbors that he " called [D.D.]




1
    D. D.   was a minor at   the time —initials    are used to protect the minor' s privacy.


                                                           2
No. 45103 -4 -II



over   to [ his] house, told [ D.D.] to     reach   for something in [ his]   closet" and " popped [       D.D.] in the


back of his head" with a . 22 caliber gun. 8 VRP at 907.


         After leaving his neighbors' home, Clark wheeled a garbage can from the street into his

home, and put D.D.' s body, shoes, and jacket in the can. Clark then wheeled the garbage can back

out to the street.


         Clark' s neighbors reported what Clark told them to police. Police officers went to Clark' s

                                                                            can, and arrested .Clark.        The State
home,    where    they discovered D.D.'       s   body   in the   garbage




charged   Clark   by amended information with five           crimes:   first degree   murder (count      I), first degree


felony   murder ( count    II), first degree robbery (count III),           unlawful possession of a controlled



substance with     intent to deliver ( count IV),        and second degree unlawful possession of a firearm

 count V).


         During voir dire, outside the presence of the jury venire, the trial court raised the issue of

telling the jury that the death penalty was not an issue. Clark did not object. During voir dire, the

State disclosed to the venire that the death penalty was not an issue. Clark did not object.

          The State' s psychiatrist, Dr. Brent Oneal, testified at Clark' s CrR 3. 5 hearing about his

evaluation of Clark to determine his competency to stand trial in a different court proceeding. Dr.

Oneal testified that Clark was mildly mentally retarded.

          The State moved to exclude the expert' s testimony about Clark' s " intellectual deficits,"

 mental    retard[ ation],"   or "   developmental disabil[ ities],"        arguing that the evidence was not

relevant because the defendant' s mental health and cognitive functioning were not at issue. Clerk' s

Papers ( CP) at 213 -15. The State argued that admitting evidence of Clark' s mental deficits would

 essentially   bootstrap   some      form   of mental    defense." VRP ( Dec. 17, 2012)       at   15.    Clark argued




                                                            3
No. 45103 -4 -II




that his mental capacity was relevant to whether premeditation and an intent to kill existed, and to

the juror' s perception of Clark' s credibility.

         The trial     court ruled     that   evidence "   about the fact that [ Clark] was a special education


student or that people [ who] knew him considered him slow or tended to discount his testimony,"

and that he was had an individual education program while in school was admissible and could be

raised   by   either   party.     VRP ( Dec. 17, 2012) at 20. The trial court also ruled that the facts that


Clark received disability and social security income were admissible, noting that it was " not sure

exactly how relevant they are, but they' re the kind of, perhaps, background facts that would present

the   picture   that balances things for the jury      so   they don' t   make assumptions   that he'   s   lazy."   VRP


 Dec. 17, 2012)        at   22.   However, the trial court ruled that expert testimony regarding Clark' s IQ,

developmental delays, low birth weight, and mental capacity was inadmissible because it was not

relevant without a diminished capacity defense.

          A jury found Clark guilty as charged in the amended information. At sentencing, the trial

court sentenced Clark for first degree murder, first degree robbery, unlawful possession of a




                                                              4
No. 45103 -4 -II



controlled substance with intent to deliver, and second degree unlawful possession of a firearm.2

Clark appeals.3

                                                       ANALYSIS


         Clark argues that ( 1) his constitutional right to present a complete defense was violated by

the trial   court   erroneously excluding        evidence of     his   mental   capacity, ( 2) his trial counsel was


ineffective because counsel failed to object to allowing the venire to know that the death penalty

was not an    issue, ( 3)   the trial court erred by instructing the jury on an uncharged alternative means

of   first degree robbery, ( 4)     his right to a public trial was violated by the trial court allowing the

parties to exercise peremptory challenges on paper, and ( 5) cumulative errors in the trial deprived

him of his due process right to a fair trial. We affirm Clark' s convictions except for the first degree


robbery conviction. The trial court erred by instructing the jury on an uncharged alternative means

of first degree robbery, and therefore, we reverse that conviction.




2
    The jury found Clark guilty       of       felony murder ( count II). At sentencing, Clark moved
                                           first degree
to vacate the conviction of either first degree murder (count I) or first degree felony murder (count
II) pursuant to double jeopardy. The State argued that the trial court should merge the two
convictions    into   one   for   purposes of   the   judgment   and sentence.     The record does not contain an
order vacating the felony murder conviction. Further, the judgment and sentence does not contain
reference    to the   felony   murder conviction.         However, whether the trial court vacated the felony
murder conviction or merged that conviction with the first degree murder conviction does not
affect our analysis.



3 Although the State charged Clark with unlawful possession of a controlled substance with intent
to deliver and unlawful possession of a firearm, and the jury convicted Clark of these crimes, Clark
does not raise any specific challenges to these convictions.



                                                             5
No. 45103 -4 -II



A.        EVIDENCE OF MENTAL CAPACITY, ABSENT A DIMINISHED CAPACITY DEFENSE

          Clark argues that the trial court deprived him of his constitutional right to present a

complete    defense    by   excluding   evidence of mental      capacity. 4   Clark claims that the evidence was


relevant to ( 1) his defense theory that he did not act with premeditation, intent, or recklessness;

and (   2) his credibility   as a witness.   Clark did not claim that he was not competent, or assert an


insanity or diminished capacity defense.

          The trial court did an ER 403 balancing analysis, and determined that any probative value

of evidence regarding Clark' s mental capacity was substantially outweighed by the danger of

confusing and misleading the jurors because the diminished capacity defense was not raised. The

trial   court   found that beyond " facts that     are   readily   apparent   to   lay   people,"   evidence of Clark' s


mental    capacity    was    inadmissible,   and   that Clark was "     not allowed to bootstrap a diminished

capacity defense into this case without properly pleading it and establishing the requisite

threshold."      VRP (Dec. 17, 2012) at 21 -22. Accordingly, the trial court ruled that evidence related

to Clark' s mental capacity was inadmissible because Clark did not assert a diminished capacity

defense.


          We review a trial court' s decision to exclude evidence for an abuse of discretion. State v.

Lord, 161 Wn.2d 276, 294, 165 P. 3d 1251 ( 2007).                   A trial court abuses its discretion when its


decision is based      on untenable grounds or untenable reasons.                  Lord, 161 Wn.2d       at   283 -84.   An




4 The trial court ruled that evidence that Clark was in an Individualized Education Program, that
he received supplemental security income from the State, and witnesses' perception that Clark was
 slow" was admissible. VRP (Dec. 17, 2012) at 20. The trial court also ruled that testimony from
Dr. Oneal, who performed an evaluation of Clark' s competency to stand trial in a different
proceeding; evidence of Clark' s IQ and other test results regarding Clark' s mental capacity; and
Clark' s history of developmental delays and difficulties at birth was inadmissible.

                                                            6
No. 45103 -4 -II




abuse of discretion is found when " no reasonable person would take the view adopted by the trial

court."       State    v.    Atsbeha, 142 Wn.2d 904, 914, 16 P. 3d 626 ( 2001). "                  Appellate courts cannot


substitute         their   own   reasoning for the trial    court' s   reasoning,   absent an abuse of   discretion." Lord,


161 Wn.2d at 295.


             Criminal defendants have a constitutional right to present evidence in their own defense.

State   v.   Hawkins, 157 Wn.             App.    739, 750, 238 P. 3d 1226 ( 2010), review denied, 171 Wn.2d 1013


 2011).           But, the evidence must be relevant; there is no constitutional right to present irrelevant


evidence. Lord, 161 Wn.2d at 294. Relevant evidence is " evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more probable

or   less    probable        than   it   would   be   without   the   evidence."    ER 401.     For expert testimony to be

admissible under ER 702, expert testimony must be helpful to the trier of fact to be admissible. In

re   Pers. Restraint ofMorris, 176 Wn.2d 157, 169, 288 P. 3d 1140 ( 2012).                         Expert testimony is only

helpful if it is           relevant.     Morris, 176 Wn.2d       at   169.   To be relevant, expert testimony must have

the tendency to make a fact of consequence to the trial' s outcome more or less probable. ER 401;

Atsbeha, 142 Wn.2d at 918.


             1.            Mens rea


             Clark claims that the evidence of his mental capacity was relevant to understanding his

ability to assess risks, and to his argument that although he was capable of forming the required

mens rea,          he did     not   form it.     Clark argues that evidence of his mental capacity and " decision -

making       process was relevant           to showing his      state of mind on    the   day in question."   Br. of Appellant


at 34. We disagree.




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No. 45103 -4 -II




        A diminished capacity defense allows a defendant to show that his ability to form the

required mens rea was impaired because of a mental disorder. Atsbeha, 142 Wn.2d at 918; State

v. Johnson, 150 Wn. App. 663, 670 -71, 208 P. 3d 1265, review denied, 167 Wn.2d 1012 ( 2009).

The defense must be declared pretrial. State v. Harris, 122 Wn. App. 498, 506, 94 P.3d 379 (2004).

A diminished capacity defense requires the defendant to present expert testimony " that a mental

disorder ...    impaired the defendant' s ability to form the culpable mental state to commit the crime

charged."      Atsbeha, 142 Wn.2d at 914.

         Here, Clark      contends   that the   evidence of      his   IQ,   diagnosis   of "mental retardation,"   low


birth weight, and developmental delays are relevant to because the evidence could help the jury

understand his decision making process and decide whether he possessed the required mens rea.

Br. of Appellant at 30. Effectively, Clark argues that his mental retardation affected his ability to

form   the   required mens rea.      But this is precisely   a   diminished capacity defense —which Clark did


not plead.      See Atsbeha, 142 Wn.2d at 918 -19, 921 ( holding that under a diminished capacity

defense, evidence that the defendant is diagnosed with a mental disorder is not relevant unless


expert testimony demonstrates that the defendant' s mental disorder affected his ability to form the

required mens rea).        Accordingly, the trial court did not abuse its discretion by ruling that, absent

a diminished capacity defense, the evidence of his mental capacity was inadmissible.

         Clark has not offered any Washington authority for his argument that the evidence is

relevant absent a       diminished capacity defense. " Where no authorities are cited in support of a


proposition, the court is not required to search out authorities, but may assume that counsel, after

diligent     search,   has found   none."   DeHeer v. Seattle Post -Intelligencer, 60 Wn.2d 122, 126, 372


P. 2d 193 ( 1962).




                                                             8
No. 45103 -4 -II



        Clark     cites   State   v.   Burr, 195 N.J. 119, 948 A.2d 627 ( 2008), as support for the proposition


that evidence of mental defect is properly admitted to help the jury assess the defendant' s

credibility and subjective perceptions, even in the absence of a diminished capacity defense.

However, in Burr, the evidence specifically related to the defendant' s mental disorder and how the

related characteristics manifest, and would have explained how those characteristics affected the

issues. Burr, 195 N.J.        at   129.    Here, however, beyond stating that the evidence is relevant, Clark

has not identified how the evidence ( from an expert or layperson) would be relevant to the issues

of premeditation, intent, or recklessness in the absence of a diminished capacity defense.

        Clark     also relies on         United States   v.   Pohlot, 827 F.2d 889 ( 3d Cir. 1987).       There, the


applicable federal law prohibited evidence that Washington expressly allows when a diminished

capacity defense is        pleaded.        Pohlot, 827 F. 2d     at   905 -07.    Pohlot held that that the defendant


 offered his evidence of mental abnormality in support of a legally unacceptable theory of lack of

mens rea that amounts covertly to a variation of the partially diminished capacity defense

precluded"       by   federal law. Pohlot, 827 F.2d             at   906 -07.    Contrary to federal law, Washington

permits evidence of a mental disorder not amounting to insanity as a diminished capacity defense.

Atsbeha, 142 Wn.2d at 914. However, Clark did not plead a diminished capacity defense. Pohlot

in inapplicable.


        Here, the trial court was well within its discretion to exclude evidence it found irrelevant.


See Lord, 161 Wn.2d at 295. We hold that the trial court did not abuse its discretion by excluding

Dr. Oneal'   s   testimony    and other evidence of           Clark' s developmental delays.
No. 45103 -4 -II



          2.        Credibility as a witness

          Clark. also claims that evidence of his mental capacity was relevant to his credibility as a

witness.       At trial, he    argued    that   jurors "   might      draw    negative   inferences"   from the way he

responded to questions while testifying. Br. of Appellant at 38. We disagree.

          Clark has not offered any Washington authority to support his argument that evidence of
                                                     5
mental    capacity is   relevant   to credibility.         As   noted, "[    w]here no authorities are cited in support


of a proposition, the court is not required to search out authorities, but may assume that counsel,

after   diligent   search,   has found   none."    DeHeer, 60 Wn.2d at 126.


          Clark relies on State v. Sexton, 311 N.J. Super. 70, 709 A.2d 288 ( App. Div. 1998) to

support his argument. However, in Sexton, the court held that the defendant' s mother' s testimony

about the defendant' s placement in special education was relevant to the jury' s evaluation of the

defendant' s demeanor. Sexton, 311 N.J. Super. at 88. Here, the trial court expressly allowed Clark

to present evidence that he was in special education, as well as evidence that people who knew

him     considered    him "   slow."     VRP ( Dec. 17, 2012)           at   20.   Given the absence of a diminished


capacity defense, the trial court did not abuse its discretion in excluding evidence of Clark' s mental

capacity.


B.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Clark argues that his defense counsel was ineffective by failing to object to the jury learning

that the death penalty was not an issue. Specifically, Clark argues that informing the jury that the

death penalty was not an issue made them less likely to pay attention, and that because the State' s



5 We note that ER 608 limits evidence attacking or supporting a witness' credibility to evidence in
the form of reputation for truthfulness or untruthfulness. ER 608( a).


                                                                 10
No. 45103 -4 -II



evidence " was not          overwhelming,"            there is a reasonable probability that the error affected the

jury' s verdict. Br. of Appellant at 15. Although Clark' s trial counsel' s performance was deficient,

Clark has not met his burden of demonstrating that the deficient performance prejudiced the

outcome of        his   case.   Thus, we hold that Clark did not receive ineffective assistance of counsel


based on counsel' s failure to object to the jury being told that the death penalty was not an issue.

             We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P. 3d 916 ( 2009).                A defendant claiming ineffective assistance of counsel has the

burden to         establish     that ( 1)   counsel' s        performance    was      deficient   and (   2) the performance


prejudiced        the   defendant'   s case.    Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052,


80 L. Ed. 2d 674 ( 1984).             Failure to establish either prong is fatal to an ineffective assistance of

counsel claim. Strickland, 466 U. S. at 700.

             1.         Deficient performance


             Counsel' s performance is deficient if it falls below an objective standard of reasonableness.

State   v.   Stenson, 132 Wn.2d 668, 705, 940 P. 2d 1239 ( 1997), cert. denied, 523 U. S. 1008 ( 1998).


Our scrutiny of counsel' s performance is highly deferential; we strongly presume reasonableness.

State   v.    Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).                  To rebut this presumption, a defendant


bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s

performance. Grier, 171 Wn.2d at 33.


             Washington courts have routinely held that " it is error to inform the jury during voir dire

in   a noncapital case        that the   case   is   not a   death penalty   case."    State v. Townsend, 142 Wn.2d 838,


840, 15 P. 3d 145 ( 2001).           The jury' s function is to determine the defendant' s guilt or innocence as

a   fact -finder. Townsend, 142 Wn.2d                  at    846.   With the exception of capital cases, the jury should



                                                                     11
No. 45103 -4 -II



make its determination without regard to punishment, which is an issue of legislative policy.

Townsend, 142 Wn.2d                at    846.   Defense counsel' s representation fails to meet the standard of


prevailing professional norms when she or he fails to object to either the State or the trial court

informing        the   jury   that the   death penalty is    not an      issue.   Townsend, 142 Wn.2d at 847; State v.


Mason, 160 Wn.2d 910, 929 -30, 162 P. 3d 396 ( 2007),                        cert.   denied, 533 U. S. 1035 ( 2008); State


v. Hicks, 163 Wn.2d 477, 488, 181 P. 3d 831, cert. denied sub nom. Babbs v. Wash., 555 U.S. 919

 2008).


          Defense counsel' s failure to object to the State informing the jury that the death penalty

was not an issue was deficient performance. Defense counsel' s failure to object could not be part

of a   legitimate tactic because there            was " no possible advantage          to be   gained."    See Townsend, 142


Wn.2d at 847; see also Hicks, 163 Wn.2d at 487.

          2.           Prejudice


          For the defendant to prove that the deficient performance prejudiced the defense, the

defendant        must "       prove that, but for counsel' s deficient performance, there is a ` reasonable


probability' that the          outcome would       have been different." Hicks, 163 Wn.2d             at   486. " A reasonable


probability is         a   probability    sufficient   to undermine      confidence     in the   outcome."    Strickland, 466


U.S. at 694.


           Clark argues that there is a reasonable probability that counsel' s failure to object affected

the    jury' s   verdict.        Clark    contends     that the "   State' s case for premeditated murder was not


overwhelming,"              and that the jury could have found that Clark intentionally killed D.D. or

committed manslaughter                  instead   of   finding   that he    committed     a premeditated      killing.   Br. of


Appellant at 15.




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No. 45103 -4 -II



           Premeditation is the ` deliberate formation of and reflection upon the intent to take a

human life. '         Townsend, 142 Wn.2d at 848 ( quoting State v. Gentry, 125 Wn.2d 570, 597; 888

P. 2d 1105 ( 1995)).         Here, the State       presented ample evidence of premeditation.                     Clark testified


that the clip had been removed, but he still did think that he could fire a bullet out of it. Clark also

testified that he knew guns were dangerous and could kill people, and he knew that he should not

presume a gun         is   unloaded.        Clark further testified that while D.D. was in the closet, Clark was


sitting   on   the   ground, "     aiming [ the   gun]   towards the [ inside] ceiling of the          closet,"   where he knew


D.D.    was.     13 VRP       at    1595.    Clark was " messing around with the gun" while aiming the gun

towards the inside ceiling            of   the closet and shot D. D.,       killing him. 13 VRP at 1595. Also, Clark' s

neighbors testified that Clark told them that D.D had beat " up his baby' s mom and that his mom

had taught him to          never    let   a man put   hands   on   his   baby' s mom."     8 VRP at 850. Clark' s neighbor


also   testified that Clark told her that             he had killed       a man   by   calling "[ D. D.] over to [ his] house,


told [ D. D.] to     reach   for something in [ his]       closet" and " just pointed         it   and popped   the gun."   8 VRP


at   851, 907. He just " popped him in the back                of   his head"     with a "[   d] euce.deuce. "6 8 VRP at 907.

Based on the evidence, Clark has not demonstrated that the trial outcome would have differed if

his trial counsel had objected to the State' s disclosure.


          Clark claims that his own testimony could lead to an inference that the shooting was an

accident. This argument requires this court to weigh the evidence and determine the credibility of

the witnesses, both of which are within the province of the jury. State v. Andy, 182 Wn.2d 294,




6
    A "[ d] euce deuce" is a .22 caliber gun. 8 VRP at 907.



                                                                    13
No. 45103 -4 -II



303, 340 P. 3d 840 ( 2014).              We will not weigh the evidence or determine the credibility of

witnesses. See State v. Myers, 133 Wn.2d 26, 38, 941 P. 2d 1102 ( 1997).


        Clark also claims that the jury was less careful because it knew that the death penalty was

not an issue. However, Clark fails to point to anything in the record showing that the jurors were

 less attentive during trial, less deliberative in their assessment of the evidence" because the death

penalty was not an issue. Townsend, 142 Wn.2d at 847.

        We hold that Clark' s trial counsel was deficient for failing to object to the jury learning

that the death penalty was not an issue, but that Clark has not demonstrated that the outcome would

have been different. Because Clark has not demonstrated that the error prejudiced him, his claim

of ineffective assistance of counsel fails.

C.      UNCHARGED ALTERNATIVE MEANS OF COMMITTING FIRST DEGREE ROBBERY


            Clark argues, and the State concedes, that the trial court committed reversible error by

instructing    the    jury   on an uncharged alternative means of           committing robbery. Defense counsel


did   not    object   below.     Although defense counsel did not object, instructions to the jury on

uncharged alternatives are a manifest error affecting a constitutional right that we will address for

the first time   on appeal.      State   v.   Laramie, 141 Wn.       App.   332, 342, 169 P. 3d 859 ( 2007); State v.


Chino, 117 Wn. App. 531, 538, 72 P. 3d 256 ( 2003); RAP 2. 5. We accept the State' s concession.




7 Clark contends that his counsel' s performance prejudiced him because the State' s evidence of
first degree felony murder predicated on first degree robbery was not overwhelming.
Pragmatically, this argument does not affect the outcome. At sentencing, first degree felony
murder merged          into first degree      murder, and   Clark'   s was sentenced   for first degree   murder —not


first degree felony murder.


                                                              14
No. 45103 -4 -II



          It is fundamental that the State inform an accused of the criminal charges to be met at trial,

and   the State   cannot   try     an accused       for   an uncharged crime.                   Laramie, 141 Wn.     App. at 342.      When


a crime may be committed in alternative ways or by alternative means, but the State elects to

charge only one of the alternatives, a trial court errs by instructing the jury that it may consider the

uncharged means          by   which        the   accused could           have     committed         the crime..   State v. Bray, 52 Wn.

App.   30, 34,' 756 P. 2d 1332 ( 1988).                Instructing a jury on an uncharged alternative means violates

the defendant' s right to be informed of the charges against him or her. , Laramie, 141 Wn. App. at

342 ( citing U. S. CONST.           amend.       VI; WASH, CONST.,                art.   1, §    22).


           An erroneous instruction given on behalf of the party in whose favor the verdict was

returned   is   presumed prejudicial unless                 it affirmatively           appears     that the   error was   harmless."   Bray,

52 Wn.     App.    at   34 -35.     Because a jury instruction that contains uncharged alternative means is

presumed prejudicial, "[            o] n direct appeal, it is the State' s burden to prove that the error was


harmless." In re Brockie, 178 Wn.2d 532, 536, 309 P. 3d 498 ( 2013).


          Here, the amended information charged Clark with taking property from D.D. while

 armed with a       deadly     weapon,           to -wit:   a   firearm."         CP   at   184.    The court' s instruction to the jury

provided that the jury could " convict the defendant of the crime of Robbery in the First Degree,

Count III," if    either "(   5)(   a) [   t] hat in the commission of these acts or in immediate flight therefrom


the defendant      was     armed with a             firearm       or (   b) ...        in the commission of these acts or in the

immediate flight therefrom the defendant inflicted                             bodily injury." CP at 304 ( Jury Instruction 28)

 emphasis added).




          The jury did not receive further instructions that clarified the appropriate grounds for

finding   Clark guilty        of   first degree robbery.             Further, in closing arguments, the State argued that



                                                                          15
No. 45103 -4 -II



the   jury   could    find Clark guilty based             on either ground.            Because the jury did not receive other

clarifying instructions         and       the   court    instructed the         jury   on   an uncharged      alternative (   i.e., the


defendant inflicted bodily injury during the commission of the act or in the immediate flight

therefrom),      it is   possible   that the      jury    convicted       Clark based       on   the   uncharged alternative.      See


Laramie, 141 Wn.            App.     at    343.     The State concedes error, and it has not met its burden to


demonstrate that the         error was          harmless.       Accordingly, we accept the State' s concession that the

instructional errors constitute reversible error. See Chino, 117 Wn. App. at 541 ( holding that the

instructions on an uncharged crime required reversal).


D.        PUBLIC TRIAL RIGHTS-                  PEREMPTORY CHALLENGES


             Clark argues that the trial court violated his right to a public trial by allowing peremptory

challenges to be made in writing in open court. In State v. Webb and State v. Dunn, we held that

the trial court did not violate the defendant' s right to a public trial when peremptory challenges

were made on paper or           during          a side   bar.    State v. Webb, 183 Wn. App. 242, 247, 333 P. 3d 470

 2014),      review   denied, 182 Wn.2d 1005 ( 2015);                    State v. Dunn, 180 Wn. App. 570, 574, 321 P. 3d

1283 ( 2014), review denied, 181 Wn.2d 1030 ( 2015).


             A defendant has        a constitutional right          to a public trial. Dunn, 180 Wn.             App.   at   574. We


review alleged violations of              the   public   trial   right   de   novo.    Id. " The threshold determination when


addressing an alleged violation of the public trial right is whether the proceeding at issue even

implicates the        right."   Id. In Dunn,             we   held that "[ t]he public trial right does not attach to the


exercise of challenges          during jury         selection."      Id.   at   575.   In Webb, we held that the defendant' s


right to a public trial was not violated by counsel conducting peremptory challenges on paper.

Webb, 183 Wn. App. at 246 -47 ( citing Dunn, 180 Wn. App. 575).


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        Clark argues that his right to a public trial was violated because counsel for both parties

made peremptory     challenges     in writing   and    in   private.   The parties wrote their peremptory

challenges on paper in open court and that writing was subsequently filed with the court. Although

Clark invites us to disregard the case law, Dunn and Webb control this issue, and the public trial


right does not apply to peremptory challenges during jury selection. We hold that Clark' s right to

a public trial was not violated.


E.      CUMULATIVE ERROR


        Clark argues that he is entitled to a new trial under the cumulative error doctrine based on


ineffective assistance of counsel and the trial court excluding evidence of his mental capacity. Br.

of Appellant at 42 -43. Cumulative errors may merit reversal even when each error alone could be

considered harmless. In re the Pers. Restraint of Yates, 177 Wn.2d 1, 65 -66, 296 P. 3d 872 ( 2013).

Courts apply the   cumulative error   doctrine to     cases of repetitive or   frequent   errors —one   instance


is neither repetitive nor frequent. See Yates, 177 Wn.2d at 66.

        Here, we hold that Clark did not receive ineffective assistance of counsel and that the trial


court did not err by excluding the evidence of Clark' s mental capacity. However, the court erred

by instructing the jury on an uncharged alternative means of committing first degree robbery.

Under these circumstances, we hold that the cumulative error doctrine does not apply.




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        We affirm Clark' s conviction of first degree murder, unlawful possession of a controlled


substance with intent to deliver, and second degree unlawful possession of a firearm; we reverse


Clark' s conviction of first degree robbery and remand.

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

Washington Appellate reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.



                                                                                  1
                                                                        Lee, J.
 We concur:




                    1.   1,     x.   1«
                         orgen, A.C. J.




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