                                                                                                         FILED
                                                                                         C'.OU;.:        OF APPEALS
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                                                                                                i.. E!    Si0N. 1

                                                                                         20911 SEP - 3          AM 3: 23
      IN THE COURT OF APPEALS OF THE STATE SO                                                                            QN
                                                                                                VVA IIN{ , I




                                                         DIVISION II

STATE OF WASHINGTON,                                                                    No. 44650 -2 -II


                                          Respondent,


         v.

                                                                                UNPUBLISHED OPINION
TRAVIS B. COUNTS,

                                          Appellant.


         HUNT, J. —      Travis B. Counts appeals his jury trial conviction for second degree assault

domestic      violence) with a           firearm   enhancement.         He also challenges the legality of his appeal

bond.    He    argues   that ( 1)    the trial court denied his right to a public trial by conducting two

sidebar colloquies with counsel, (            2) his trial counsel provided ineffective assistance by failing to

preserve the content of the sidebars for the record, and ( 3) the trial court erred by requiring two

sureties as his appeal bond instead of one. We affirm.


                                                            FACTS


                                                    I. DOMESTIC DISPUTE


              The    parties   do   not    dispute the facts.       Carrie Dodge and Travis Counts, former high


school    acquaintances,        reconnected         in   July    2010    and   began    dating later           that   year.    Their


relationship    was     unstable:        Dodge     moved    in   and    out    of   Counts'    home three times between


October 2010 and July 2012.

               On July 31, 2012, Dodge and Counts got into a heated argument that escalated into

screaming, foul language,            and name       calling.     Counts picked up a fully operational Ruger mini

 14   rifle   and   pointed    it   at   Dodge; according to Dodge, the                rifle   touched         her head.      Counts
44650 -2 -II



removed   the bullet from the         chamber and walked             away. Dodge called the police who arrived at


Counts' home and, after speaking with both parties, arrested Counts.

                                                    II. PROCEDURE


               The State charged Counts with second degree assault while armed with a firearm.


The State also specially alleged that Counts had committed the assault against a family or

household      member ( domestic violence).          The case proceeded to a jury trial.

               When the trial court read the charges during jury selection, Counts requested a

sidebar' to discuss the issue of whether the court' s comments about domestic violence were

grounds   for   a mistrial.    Counts did       not ask   for the     sidebar   to   be   on   the   record.   Nor did Counts


object to the trial court' s refusal to grant his request for a mistrial during the sidebar.

               During a later pretrial hearing, outside the jury' s presence, Counts noted the content

of the earlier sidebar for the record as follows:

          DEFENSE COUNSEL]:                   When the court was reading out the charge, it indicated
        assault in the second degree, domestic violence, while armed with a firearm, and
        that, of course, clicked in my mind, and I was going to say something after the
        fact with regard to that, but then [ the prosecutor], when he started addressing the
        panel, started talking about domestic violence, and that's when I asked if we could
        approach the court, and we had a little sidebar.
                   And   at   that   point   I believe   at   that time I asked      for —I know at that time I
        asked for a mistrial based on those comments, and I would on the record request a
        mistrial based on the comments from the court and from [ the prosecutor] during
        jury selection with regard to domestic violence.

Verbatim Report of Proceedings ( VRP) at 17.. The trial court denied Counts' renewed motion for

a mistrial, and the trial proceeded.




1 The record on appeal does not contain a transcript of defense counsel' s request for a sidebar or
the verbatim content of the sidebar colloquy.




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44650 -2 -II




               During Dodge' s rebuttal testimony, a dispute arose about the propriety of the State' s

line of questioning, and the trial court requested a sidebar:

         PROSECUTOR:]              One time, if I understand your testimony correctly, the sheriff
        or law enforcement was called to have you removed from his residence; is that
        correct?

         DODGE:]         Yes.
         PROSECUTOR:]             Were there any other times other than the one time?
         DODGE:] NO.
         PROSECUTOR:] You' re sure about that?
         DODGE:] Promise.
         PROSECUTOR:] Now, do you know whether or not Mr. Counts smoked

        marijuana while you and he were. dating?
         DODGE:]         Yes.
         PROSECUTOR:] And how do you know that?
                     DEFENSE COUNSEL:]            I'm going to object.
         DODGE:] Because --
                     DEFENSE COUNSEL:] This is not rebuttal.
                     PROSECUTOR:]          Absolutely it is.
                   THE COURT: Well, I'm going to allow some limited inquiry here, so let's
        see what the answer is.
         DODGE:]         Yes.
         PROSECUTOR:]              Okay.
         DODGE:] And how do I know? Because we would stand there outside and do it
        together.
         PROSECUTOR:]              Outside where?
         DODGE:]         Outside the house.
         PROSECUTOR:] And how often would that happen?
                     THE COURT: All right. Now may I see counsel at the bench, please.
                                                               SIDE -
                                                                    BAR CONFERENCE.)
         PROSECUTOR:] Did Mr. Counts ever drive you to your jobs?
         DODGE:]            Once in a while.
         PROSECUTOR:] Like how often?
         DODGE:]         Not very often.

VRP at 303 -04. Again, Counts neither objected to this sidebar colloquy nor asked the trial court

to put it on the record.


               The   jury    found Counts guilty    as   charged.   The jury also returned special verdicts

finding that Counts had been armed with a firearm at the time of the assault and that the crime


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44650 -2 -II



involved domestic violence. The trial court sentenced Counts to a standard range sentence of 42

months    in   prison.    Counts    requested an appeal         bond,   which   the trial     court granted.   Interpreting

chapter 10. 73 RCW, the trial court required two sureties for the appeal bond, each in the amount

of $150, 000. Counts did not object. He now appeals his conviction and the legality of his appeal

bond.


                                                       ANALYSIS


                                                     I. PUBLIC TRIAL


          Counts argues that the trial court violated his right to a public trial by conducting two

sidebar conferences off        the   record.      The State responds that because Counts failed to object and


to   preserve    this issue at trial,   he may     not raise    it for the first time    on appeal.     We agree with the


State.


                                                  A. Standard of Review


          We generally will not review a claim of error raised for the first time on appeal unless it

is   a " manifest" error    affecting   a constitutional right.         RAP 2. 5( a)( 3); State v. O' Hara, 167 Wn.2d


91, 98, 217 P. 3d 756 ( 2009).          An error is " manifest" if the defendant can plausibly show " that the

asserted error      had   practical and   identifiable    consequences"         at   trial.   State v. Lynn, 67 Wn. App.

339, 345, 835 P. 2d 251 ( 1992).


                                    B. No Error Affecting Constitutional Right

          We acknowledge that both federal and state constitutions guarantee a criminal defendant

the   right    to a public trial.    State   v.   Lormor, 172 Wn.2d 85, 90 -91,               257   P. 3d 624 ( 2011); U.S.


 CONST.    amends.       VI, XIV; WASH. CONST.           art.   I, §22.    But here, Counts does not show that the




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44650 -2 -I1



trial court denied him a public trial.2 On the contrary, the record shows that the sidebars were

conducted      in   open court, with no one excluded               from the       courtroom.   Second, it was Counts who


requested the first sidebar to address matters he felt were prejudicial for the jury to hear; and he

did   not    even    ask   that this   first   sidebar   be   put      on   the    record.   The second . sidebar, though


requested by the trial court, was in response to Counts' objections to the State' s rebuttal on direct
examination of        Dodge.     Counts did not object that the sidebar denied his right to a public trial;


nor did he seek to put the colloquy on the record.

            But even assuming, without deciding, that holding a sidebar off the record in open court

could be construed as implicating the right to a public trial, we apply the " experience and logic"

test to determine whether a trial court must hold a particular portion of a proceeding in public.

State   v.   Love, 176 Wn.       App.     911, 916, 309 P. 3d 1209 ( 2013) (                 quoting State v. Sublett, 176

Wn.2d 58, 141, 292 P. 3d 715 ( 2012));              State v. Dunn, 180 Wn. App. 570, 574 -75, 321 P.3d 1283

 2014) ( adopting the Love         analysis).     Under this test, we review whether a sidebar not open to the


public was necessary by considering " both history (experience) and the purposes of the open trial

provision (     logic)."     Love,     176 Wn.     App.       at   916 ( citing Sublett, 176 Wn.2d          at   73). "   The


experience prong asks whether the practice in question historically has been open to the public,




2 We note that a defendant does not waive his right to a public trial if he fails to object. State v.
Bone -Club, 128 Wn.2d 254, 261, 906 P. 2d 325 ( 1995).                              Here, however, we focus on Counts'
failure to show a courtroom closure that would have triggered a Bone -Club analysis, whether
preserved below or not.




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44650 - -II
      2



                                                                                                                                  3
while    the   logic prong      asks whether public access              is   significant to the   functioning   of   the   right. "




Love, 176 Wn. App. at 916 ( citing Sublett, 176 Wn.2d at 73).

           Sidebars have        historically    not   been   open   to the     public.   They serve the important purpose

of ensuring a fair trial by insulating potentially prejudicial discussions from the jury' s ears. See,

e.
     g. Sublett, 176 Wn.2d at 67 -68. ( public trial                  right "   does not extend to hearings on purely

ministerial or    legal issues that do         not require    the    resolution of       disputed facts "); State v. Swenson,


62 Wn.2d 259, 272, 382 P. 2d 614 ( 1963),                     overruled on other grounds by State v. Land, 121

Wn.2d 494, 851 P. 2d 678 ( 1993) (                defendant' s public trial right not implicated when holding a

sidebar conference       to      address      concerns   about      a witness' s     comfort while    testifying); Popoff v.

Mott, 14 Wn.2d 1, 9, 126 P. 2d 597 ( 1942) ( defendant' s public trial right not implicated when


holding     a sidebar   during      voir   dire   on whether     to     excuse a    juror for   cause).   See also Love, 176


Wn. App. at 920 ( defendant' s public trial right not violated by hearing for cause challenges at

sidebar    during jury      selection);       State v. Castro, 159 Wn. App. 340, 341, 246 P. 3d 228 ( 2011)

 defendant' s public trial right not implicated when, after holding a sidebar to decide motions in

limine, the trial court placed its decisions on the record in open court and counsel had an

opportunity to      object);     State   v.   Rivera, 108 Wn.        App.     645, 653, 32 P. 3d 292 ( 2001) ( defendant' s


public trial right not violated by closing the courtroom for a brief hearing on a juror' s complaint

about another      juror'   s   hygiene).       Here, Counts later put the contents of the first sidebar on the


record, out of the jury' s presence.


3 If the answer to both questions is affirmative, then the trial court must apply the Bone -Club test
before closing the courtroom. Love, 176 Wn. App. at 916 ( citing Sublett, 176 Wn.2d at 73);
Bone -Club, 128 Wn.2d at 258 -59.




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44650 - -II
      2



         Although no one put the contents of the second sidebar on the record, its contents were


obvious from its having been prompted by Counts' objection that the State' s cross -examination

was   prejudicial:         The trial court held the sidebar to discuss limiting the scope of a defense

witness' s   testimony,       which     did   not require resolution of   disputed facts.   See State v. Ortiz, 119


Wn.2d 294, 308, 83.1 P. 2d 1060 ( 1992) (              it is within trial court' s discretion to limit lay opinion

testimony).           Based on the experience and logic test, we hold that the two sidebars during Counts'

trial did not constitute courtroom closures and did not deny him his constitutional right to a
                  4
public   trial.


                                         II. EFFECTIVE ASSISTANCE OF COUNSEL


          Counts also argues that he was denied effective assistance of counsel because his trial

counsel    failed to       put   the   sidebar conversations on   the   record.   The State counters that defense


counsel' s performance was not deficient in dealing with the first sidebar and the potentially



4 The record does not show whether Counts himself participated in the sidebars or was prevented
from providing input or advice to his counsel, as he contends. Furthermore, even assuming that
he did not participate directly in the sidebars, he fails to support with specifics how his being
seated only a few feet from his counsel during the sidebars prevented his consulting with counsel
or prejudiced him in any way.
        On the contrary, our independent review of the record shows that these sidebars served to
prevent prejudice to Counts. During the first sidebar, which Counts requested, he moved for a
mistrial based on the prosecutor' s allegedly prejudicial comments about domestic violence.
Discussing these potentially prejudicial remarks outside the jury' s hearing minimized any
prejudice. And although the record does not reveal the content of the second sidebar, it, too,
prevented potential prejudice to Counts by insulating the jury from the discussion about whether
the trial court should allow the State to continue questioning Dodge about her and Counts'
marijuana use. The record clearly shows that immediately following this sidebar, the prosecutor
abandoned the marijuana inquiry and switched to a different topic. Counts fails to show any
 practical and identifiable consequences" or prejudice from either sidebar. See Lynn, 67 Wn.
App. at 345.




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44650 -2 -II.



deficient    performance            in   dealing   with      the second      sidebar   did   not prejudice     Counts.      Again, we


agree with the State.


         To     establish          ineffective     assistance     of    counsel,    Counts      must    show        both that ( 1)   his


counsel' s    performance                was    deficient,     and (   2)    this deficient performance prejudiced him.


Strickland    v.    Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v.


Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).                               The defendant' s failure to show either


element      ends       our   inquiry.         State   v.   Hendrickson, 129 Wn.2d 61,              78, 917 P. 2d 563 ( 1996).


Representation is deficient if, after considering all the circumstances, it falls " below an objective

standard     of reasonableness."                 Grier, 171 Wn.2d at 33 (              quoting Strickland, 466 U.S. at 688).

Prejudice exists if there is a reasonable probability that, except for counsel' s errors, the result of

the proceeding           would      have been different.           Grier, 171 Wn.2d at 34 ( citing State v. Kyllo, 166

Wn.2d 856, 862, 215 P. 3d 177 ( 2009)).                        We review claims of ineffective assistance of counsel de


novo.    State     v.   Sutherby,        165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009) (                citing In re Pers. Restraint

ofFleming, 142 Wn.2d 853, 865, 16 P. 3d 610 ( 2001)).

          Counts relies on State v. Koloske in support of his argument that his counsel' s failure to

record   the sidebars necessarily                  prejudiced     him.         100 Wn.2d 889, 896, 676 P. 2d 456 ( 1984),


overruled
              by    State     v.   Brown, 113 Wn.2d 520, 782 P. 2d 1013 ( 1989).                        The Koloske court noted,


  We realize that the purpose of an unrecorded sidebar conference is to dispose quickly of

uncomplicated           issues     without      repeatedly removing the           jury   from the   courtroom.        But ... [ f]ailure


to   record   the resulting ruling may                      preclude   review."        100 Wn.2d       at   896 (    emphasis   added).




Koloske does            not support        Counts'      argument       here.    Koloske did not hold that failure to put an


 unrecorded sidebar on the record always precludes appellate review; rather it merely noted that



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44650 -2 -II




such   failure has the        potential     to   curtail appellate review.       100 Wn.2d      at   896.    Thus, the burden


still remains on Counts to show how his counsel' s failure to put the second sidebar on the record

meets both prongs of the ineffective assistance of counsel test. Counts fails to carry this burden.

           We    address      only the   second     ineffective    assistance of counsel      test prong,     prejudice.   In re


Pers. Restraint of Croce, 174 Wn.2d 835, 847, 280 P. 3d 1102 ( 2012) ( concluding that where


petitioner      fails   one   prong    of   the Strickland test the      court need not consider        the    other).   Counts


fails to show how recording the content of the sidebars would have produced a different jury

verdict.   5 See Grier, 171 Wn.2d at 43 -44 ( holding that defendant could not establish that the jury

would     not   have    convicted      him but for    counsel' s   trial decisions).      That the trial court twice denied


defense counsel' s mistrial motions tends to show that the outcome of the trial would not have

been different had            counsel put     the   content of   both   sidebars on    the   record.   Because Counts fails


to   show prejudice, we           do   not reach      the   question of whether counsel' s conduct              fell " below an


objective       standard of     reasonableness."        Grier, 171 Wn.2d at 33 ( quoting Strickland, 466 U.S. at

688). Counts' ineffective assistance of counsel claim fails.


                                                            III. SURETIES


           Counts also argues that the trial court erred by ruling that RCW 10. 73. 040 required it to

impose two appeal bonds from two separate sureties in order for Counts to be released from



5
     We   are not persuaded       by    Counts'     related argument     that "[ b] ecause there was no record of what
was omitted        from the      record, [    he]   could not    have   agreed   to the   omission."        Br. of Appellant at
22.  Counts had adequate opportunity to ask the trial court to disclose the content of the
conversationsbefore, during, or after they occurred, and to put them on the record. Moreover,
defense counsel disclosed the content of the first sidebar and put it on the record, thereby
eliminating potential prejudice from the first sidebar' s not being on the record verbatim.




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44650 - -II
      2




custody pending his          appeal.    Counts asserts that to the extent that RCW 10. 73. 040 conflicts with


CrR 3. 2, the court rule controls the procedure for setting an appeal bond, and it does not require

two   separate sureties.     6 The State agrees with Counts' analysis. But because we affirm, the issue

of   Counts'      appeal   bond is   moot,      and we need not reach the threshold question of whether RAP


2. 5( a) permits Counts to raise this issue for the first time on appeal.


            We affirm.


            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.


                                                                          fi ,
                                                                   Hunt, J.
We concur:




6
    CrR 3. 2( b)    provides,   in   part: "   If the court determines that the accused is not likely to appear if
released on personal recognizance,               the   court shall[:] (    4) Require the execution of a bond. ".

7
    State   v.            App. 22, 26, 197 P. 3d 1206 ( 2008) ( emphasizing that an issue on
                 Harris, 148 Wn.
appeal is moot if reviewing court can no longer provide the party effective relief).



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