                                                                                                       FILED
                                                                                            COURT OF AP SEA S
                                                                                                   DIVISION

                                                                                          2011    APR - 8      AM 8; 53

                                                                                           STATE OF WASHINGTON




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II

STATE OF WASHINGTON,                                                                  No. 43855 -1 - II


                                            Respondent,


         v.



BRYAN VANCE DUNN,                                                              PART PUBLISHED OPINION


                                            Appellant.


         JOHANSON, J. —                 A jury found Bryan Vance Dunn guilty of one count of residential

burglary and three counts of unlawful imprisonment. Dunn argues that ( 1) the trial court violated

his   right   to    a public    trial, (   2) the information was defective as to the unlawful imprisonment

counts, (     3) the   jury   instruction    defining    knowledge     was erroneous, (     4) the prosecutor engaged in


misconduct         during     closing      argument, (   5) the trial court erred by excluding videos taken on a

victim' s cell phone, and (            6) the trial   court violated    Dunn'   s right   to be   present.     We address his


arguments       regarding the       right    to   a public   trial in the   published portion of       this   opinion.   Dunn' s


                   arguments     are    addressed     in the    unpublished     portion    of   this   opinion.     We affirm
remaining


Dunn'   s convictions.
No. 43855 -1 - II



                                                                        FACTS


           On    May     13, 2012, three         minors,         J. P., A. P.,   and    M. C.,   were at   J. P.   and   A.P.'    s   house.'   J.P.


was   14   at   the time; A.P., J.P.' s          younger sister, was                 11; M.C.,   a close   friend    of   J. P.   and   A.P.,   was




13.   Shortly after the girls woke up, someone knocked on the door. A.P. answered the door and a

Hispanic        man she       did   not   know, later identified             as      Luciano Cruz,      was at     the door.          A.P. closed


the door and went to ask J. P. what to do. J. P. returned to the living room with A.P. and M.C. and

saw   that Cruz      and      two    white men        had       entered    the       house   and were   sitting     on   the   couch.      One of


the   white men was              later identified         as   Dunn.     J.P. repeatedly told the men to leave the house, but

they just laughed at her. Cruz told the girls to go get dressed because they were leaving.

           After the girls got dressed, Cruz, Dunn, and the third man took the girls to a two -door car.

The three girls got into the car' s backseat with Cruz. Dunn was driving and the third man sat in

the   front     passenger seat.           Dunn drove to a house on St. John' s Street, where Cruz and the other

man got out of the car and went into the house. The three girls remained in the car and spoke to

each other        in Spanish.           When Cruz and the other man returned to the car, Cruz was carrying a

plate of food with hot sauce on it. Some hot sauce dripped onto A.P.' s leg, and Cruz wiped it off

with his finger and then licked his finger.


           Dunn took          everyone      to   a   Burgerville drive -
                                                                       thru.                 Dunn then stopped at a house the girls


said was        M. C.'   s   house   although        it   was not       M.C.'    s   house.    When the car stopped, Cruz got out;


then all three girls          got out,     jumped          a   fence,   and ran across a         field. The girls ran to a video store


and   they      called   J. P.    and   A.P.'   s older sister          to pick them up.         About the same time, J.P. was able




  We refer to the minor victims by their initials to protect their privacy.

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No. 43855 -1 - II



to   contact    her   mother,       Anita Carvajal,    who    immediately              returned   home.   Carvajal and the girls


arrived home at approximately the same time and they contacted the police.

          Vancouver Police Department officers and detectives responded to Carvajal' s home.


Detective Julie Carpenter interviewed each girl separately. Then the girls directed the detectives

to   the St. John' s Street house. A few days later, Detective Edward Letarte met A.P. and J. P. at


school    where        both    girls    identified Dunn      as    the        car' s   driver.    Letarte spoke with each girl


separately. After his arrest, Dunn gave a statement to the police.

          The State filed a second amended information charging Dunn with one count of

residential     burglary       and     three counts   of unlawful            imprisonment.        After a CrR 3. 5 hearing, the

trial   court   found that Dunn' s         statement   to   police was admissible.                Dunn also asked to admit cell


Phone     videos      that J. P. had     recorded   during   the incident.             The trial court excluded the cell phone


videos, ruling that the videos lacked relevance, contained nothing that would be helpful to the

jury and that they were relevant only to collateral issues that " would simply distract from the
evidence."       Report       of   Proceedings ( RP) ( Aug.       14, 2012) at 83.

          At trial, J.P.; A.P.; and M.C. testified to the facts related above, although there were some


minor discrepancies in their testimony. For example, M.C. and A.P. testified that the girls ran to

the video store, then went to M.C.' s house, then went back to the video store so that J. P. and

A.P.'   s older' sister could pick         them up.    J.P. testified that the girls went to M.C.' s house and then

to the    video store.         The girls' mothers testified that they never gave anyone permission to take

their daughters anywhere.


           Dunn' s      statement was played          for the     jury. In the statement, Dunn said that he had just

met     Cruz    and was       doing     some work on        Cruz'   s       truck.     He was driving Cruz because Cruz had

 been    drinking      and could not       drive.   Dunn stated that he picked up the girls from the house and

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No. 43855 -1 - II



drove them around, first to the St. John' s house, then to Burgerville, and then to the house the

girls identified as M.C.' s house. However, he believed that Cruz had permission to pick the girls


up   and   take them to M. C.'           s   house.    He did not realize that something was wrong until the girls

ran out of the car and across the field.


           Jury   voir   dire     was    conducted          in   open   court with      Dunn       present.    After the prospective


jurors were questioned and the attorneys exercised their challenges for cause, the trial court


invited counsel to exercise peremptory challenges and to finalize jury selection at the clerk' s

station.    The jury found Dunn guilty of one count of residential burglary and three counts of

unlawful imprisonment. Dunn appeals.

                                                                 ANALYSIS


           Dunn argues that the trial court violated his right to a public trial and his right to be


present by allowing the attorneys to exercise peremptory challenges during a side bar. Following

Division Three'       s opinion         in State      v.   Love, 176 Wn.         App.      911, 309 P. 3d 1209 ( 2013), we hold


that the trial court did not violate Dunn' s right to a public trial by allowing the attorneys to

exercise peremptory challenges during a side bar.

                                                            PUBLIC TRIAL RIGHT


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

Washington State Constitution                    guarantee a        defendant the          right   to   a public   trial.    State v. Wise,


 176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012).                         We review alleged violations of the public trial right de

novo.      Wise, 176 Wn.2d          at       9. The threshold determination when addressing an alleged violation


of   the   public   trial   right   is       whether       the proceeding       at   issue   even       implicates the      right.   State v.


Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012).                              In Sublett, our Supreme Court adopted a two -


part " experience           and   logic"        test to      address    this    issue: (     1)    whether the place and process


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No. 43855 -1 - II



historically have     been    open    to the   press and general public ( experience               prong), and ( 2) whether


the public access plays a significant positive role in the functioning of a particular process in

question (    logic prong).        176 Wn.2d    at   72 -73.   Both questions must be answered affirmatively to

implicate the public trial right. Sublett, 176 Wn.2d at 73.


            Dunn argues that the trial court violated his public trial right because the trial court


conducted       the peremptory challenges            portion of     jury   selection   at   the   clerk' s   station.   In Love,


Division Three of this court addressed whether challenges during voir dire implicate the public

trial right. There, the court held that neither " prong of the experience and logic test suggests that

the   exercise of cause or        peremptory    challenges must        take   place    in   public."   Love, 176 Wn. App.

at   920.    The public trial right does not attach to the exercise of challenges during jury selection.

Love, 176 Wn.        App.    at    920.   We agree with Division Three that experience and logic do not


suggest that exercising peremptory challenges at the clerk' s station implicates the public trial

right.      Accordingly, we hold that the trial court did not violate Dunn' s public trial right and we

affirm.




            A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.

            Dunn   makes    five   additional arguments.        First, he argues that the information charging the

three counts of unlawful imprisonment was defective because it did not include the statutory

language       defining "   restrain."    Second, Dunn argues that the jury instructions were erroneous

because the instruction defining knowledge created an improper mandatory presumption. Third,

Dunn argues that the prosecutor committed misconduct during closing argument by misstating

the law. Fourth, he argues that the trial court erred by excluding the video that J.P. recorded on

                                                                5
No. 43855 -1 - II



her   cell phone    during     the incident.     Fifth, he argues that the trial court violated his right to be


present by allowing the attorneys to exercise peremptory challenges during a side bar. We reject

Dunn' s arguments.


                                                DEFECTIVE INFORMATION


         Dunn argues that the information charging him with three counts of unlawful

imprisonment was defective because it did not include the statutory definition of " restrain."

However, the case law on which Dunn relies has been overruled. Under the controlling law, the

information charging Dunn with unlawful imprisonment is not constitutionally defective.

         The    second         amended     information     charged        Dunn with    three   counts   of unlawful


imprisonment as follows:


         That BRYAN VANCE DUNN, in the County of Clark, State of Washington, on
         or about May 13, 2012 ... did knowingly restrain [ the victim], a human being,
         contrary to Revised Code           of   Washington 9A.40. 040( 1),     and /
                                                                                    or was an accomplice

         to said crime pursuant to RCW 9A.08. 020.


Clerk' s Papers     at   11.   Dunn argues that the information is defective under State v. Johnson, 172

Wn.    App.    112, 138 -39, 297 P. 3d 710 ( 2012),              review   granted,   178 Wn. 2d 1001 ( 2013).    In


Johnson, Division One of this court held that definitional elements are essential elements of a


crime which must be included in the charging document. 172 Wn.2d at 140.

         But after our Supreme Court' s decision in State v. Allen, 176 Wn.2d 611, 294 P. 3d 679

 2013), Division One           overruled   its decision in Johnson.        State v. Rattana Keo Phuong, 174 Wn.

App.    494, 545     n. 42,    299 P. 3d 37 ( 2013).       In Rattana Keo Phuong, the court held that the

statutory     definition       of " restrain"    is   not an essential      element   of the    crime   of unlawful




2 The language regarding unlawful imprisonment is consistent throughout all three informations
filed in this case.


                                                             6
No. 43855 -1 - II



imprisonment     and,   thus,    does   not need   to be included in the charging document.      174 Wn. App.

at 545.


          Dunn' s argument relies exclusively on the information' s failure to include the statutory

definition   of "   restrain."    But under Rattana Keo Phuong, the information contains all the

essential    elements      of   unlawful   imprisonment ( i. e.,    knowingly     restrained).   Therefore, the


information was not constitutionally defective. Rattana Keo Phuong, 174 Wn. App. at 544 -45.

                                                 JURY INSTRUCTIONS


          Dunn alleges that the jury instruction defining knowledge created a mandatory

presumption that relieved the State of its burden of proof. The instructional error is invited error


that Dunn may        not   challenge     on   appeal. "   Under the doctrine of invited error, even where


constitutional rights are involved, we are precluded from reviewing jury instructions when the

defendant has    proposed an       instruction   or agreed   to its wording."   State v. Winings, 126 Wn. App.

75, 89, 107 P. 3d 141 ( 2005).


          Here, Dunn did not propose the knowledge instruction he now objects to; however, he did


affirmatively agree to its wording. During the discussion regarding jury instructions, Dunn noted

an error in the knowledge instruction. After the error was corrected, Dunn stated he had no other

exceptions    to the instructions.       By noting an error in the instruction and then stating there were

no additional problems with the instruction, Dunn agreed to the knowledge instruction as given

and, thus, invited the error. Accordingly, we are precluded from reviewing the alleged error.

          Although we do not reach the merits of Dunn' s claim, we note that Dunn' s claims


regarding both the jury instructions and prosecutorial misconduct are based on an incorrect

premise.      Specifically, Dunn posits that under the unlawful imprisonment statute, Dunn was



                                                             7
No. 43855 -1 - II



required to know that taking a child under the age of 16 without a parent' s consent was a crime.

RCW 9A.40. 010( 6).            Dunn is mistaken.


         The unlawful imprisonment statute requires that the defendant knowingly restrains

another person. RCW 9A.40. 040. Restrain means


         to restrict a person' s movements without consent and without legal authority in a
         manner which interferes substantially with his or her liberty. Restraint is " without
         consent" if it is accomplished by ( a) physical force, intimidation, or deception, or
          b) any means including acquiescence of the victim, if he or she is a child less
         than sixteen years old or an incompetent person and if the parent, guardian, or
         other person or institution having lawful control or custody of him or her has not
         acquiesced.




RCW 9A.40. 010( 6).             Thus, the State needs to prove that Dunn knew that ( 1) he did not have

lawful authority to        restrict     the girls'   movements (      i. e., Dunn was not the girls' parent or legal


guardian), (   2) the girls were under the age of 16, and ( 3) the girls' parents had not given their

consent. Dunn did not need to know that these actions were a crime. See RCW 9A.08. 010( 1)( b)

  A   person   knows       or acts     knowingly     or with   knowledge      when: (       i) he or she is aware of a fact,


facts, or circumstances or result described by a statute defining an offense. ").

         Dunn       relies on    State   v.   Warfield, 103 Wn.      App.    152, 5 P. 3d 1280 ( 2000), to support his


proposition,        but Dunn'    s    reliance on    Warfield is     misplaced.      In Warfield, the defendants were


private citizens who believed that they had the lawful authority to arrest, detain, and transport the

victim   based      on   the   victim' s arrest warrant       from Arizona.        103 Wn.      App.   at   155.   However, it


was   discovered that the         misdemeanor warrant          had   no   lawful   effect   in Washington. Warfield, 103


Wn.   App.     at   155.   The       court   held that "   knowingly"     applied to all the elements of restraint, not


                                                                     Warfield, 103 Wn.          App.   at   156.   Because the
simply the     restriction      of a person' s movement.




defendants acted under the good faith belief that the Arizona warrant gave them the authority to


 arrest, detain, and transport the victim, they did not knowingly act without lawful authority.

                                                                 8
No. 43855 -1 - II



Warfield, 103 Wn.       App.     at      159.    Warfield does not require that a defendant know that his actions

constitute the crime of unlawful imprisonment.


                                                 PROSECUTORIAL MISCONDUCT


        Dunn argues that the prosecutor engaged in misconduct during closing argument by

misstating the law.          Specifically, Dunn argues that the prosecutor argued that the jury could find

Dunn    guilty   of    unlawful           imprisonment          simply   for   intentionally driving   the   car.    Dunn


mischaracterizes       the   prosecutor' s argument.              The prosecutor' s argument, although inartful, was


not improper. Further, Dunn cannot show that an instruction to the jury could not have cured the

error. Accordingly, Dunn' s prosecutorial misconduct claim fails.

        To prevail on a prosecutorial misconduct claim, a defendant must show that in the

context' of the record and all the trial circumstances, the prosecutor' s conduct was improper and

prejudicial.   State   v.    Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).                To show prejudice, a


defendant must         show         a    substantial         likelihood that the    misconduct   affected the       verdict.


Thorgerson, 172 Wn.2d               at   442 -43.       In analyzing prejudice, we do not look at the comment in

isolation but in the context of the total argument, the issues in the case, the evidence, and the

instructions   given    to    the   jury.       State   v.   Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007),         cert.




denied, 554 U.S. 922 ( 2008).                   If a defendant fails to object to misconduct at trial, he fails to

preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned

that it caused an enduring prejudice that could not have been cured with an instruction to the

jury.   Thorgerson, 172 Wn.2d               at   443.    The focus of this inquiry is more on•whether the resulting

prejudice could have been cured, rather than the flagrant or ill-intentioned nature of the remark.


State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012).



                                                                    9
No. 43855 -1 - II


                                                                                                                      3
         Dunn identifies          one   instance in   which    he   alleged   the   prosecutor misstated   the law:



         All I have to show to you is that he himself did it intentionally or his accomplice
         did it intentionally. I submit to you that both fit and that' s what I have to prove to
         you.




RP (   Aug.   16, 2014)      at   40.   However, the prosecutor' s statement was not made in relation to the


unlawful      imprisonment          charge.     The prosecutor made the statement while discussing the

elements of       the   residential     burglary    charge.    To prove residential burglary, the State is required

to prove that the defendant entered or remained unlawfully with the intent to commit a crime.

RCW 9A. 52. 025.             In this case, the predicate crime for the residential burglary charge was

unlawful      imprisonment ( i. e., removing the              girls without permission).        The State was explaining

that to meet the required element of residential burglary he had to show that Dunn intentionally

committed unlawful           imprisonment ( i. e.,      intentionally removed the girls from the house without

permission).       Although the State' s argument may have been inartful, it was not a misstatement of

the law when considered in the context of the entire argument.


         Further, Dunn cannot show that the prejudice from the comment would not have been

cured   by    an   objection      and    curative   instruction.         Here, the prosecutor' s statement was a brief


statement made within an extensive                  closing    argument.      Had Dunn objected, any prejudice could

have been cured by referring the jury back to the proper elements of the charged crimes.

Accordingly, Dunn cannot meet his burden to show prosecutorial misconduct.



3 At oral argument, Dunn' s appellate counsel argued that she incorporated all the prosecutor' s
closing arguments that she referenced in earlier sections of her briefing into her argument
regarding        prosecutorial misconduct.            Counsel'   s argument     is   not well   taken.   Even assuming her
brief adequately assigned error to the additional sections of the State' s closing arguments for the
purposes of prosecutorial misconduct, counsel fails to present any argument supporting her
contention        that the   additional     sections    of    the prosecutor' s      argument    were    misconduct.      RAP
10. 3( a)( 6).


                                                                    10
No. 43855 -1 - II



                                                   EXCLUSION OF CELL PHONE VIDEOS


           Dunn argues that the trial court improperly excluded the cell phone videos because they

were relevant             to impeach the girls'            testimony      that ( 1)   they   were    fearful   while   in the   car, (   2)


inappropriate touching occurred in the car, and ( 3) the girls cowered in the car at the first house.

Further, Dunn argues that the trial court erred by excluding the cell phone videos because they

were of poor             quality     and   there   would   be   difficulty    showing them to the         jury.   Because the videos


were irrelevant, the trial court did not abuse its discretion by excluding the cell phone videos.

           We review the 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 "            manifestly unreasonable or exercised on untenable grounds or for untenable

reasons."           Lord, 161 Wn.2d at 283 -84.


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

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


 2011).         The evidence must be admissible; there is no constitutional right to present irrelevant

evidence:           State     v.   Lord, 161 Wn.2d      at   294. "    Evidence tending to establish a party' s theory, or to

               or   disprove the testimony            of an     adversary, is     always relevant and admissible."              State v.
qualify


Harris, 97 Wn.                App.   865, 872, 989 P. 2d 553 ( 1999), review denied, 140 Wn.2d 1017 ( 20.00).


               Dunn moved for admission of four separate cell phone videos that J. P. recorded on her

                     4
cell phone.              In   one of   them, the      screen     is black for    almost      the   entire video.     Two of the other


videos are only a few seconds long and, at best, the video establishes the cell phone was either in

4
     The   cell phone videos were                  designated    as part of    the    record on appeal.        During oral argument
both attorneys stated that they were able to play the video with sound; however, it does not
appear that the video designated with the record contained the proper audio files. Even accepting
Dunn'      s    allegations         regarding the      audio     as   true ( i. e., the   girls    were   giggling   and   talking),   our


analysis regarding the relevance of the videos does not change.
                                                                         11
No. 43855 -1 - II



the house    or     in the    car.     Dunn argued that one of the videos was relevant as impeachment


evidence because it showed the three girls getting in the car after stopping at the St. John' s Street

house when all three girls testified they did not leave the car, although one video shows the girls

getting into the      car.     However, there is no indication where the car is or when this occurred.


Furthermore, all the girls testified that when Cruz returned from the St. John' s Street house, he

had    a plate of   food     and    there   was no plate of     food in the    video.   Therefore, it is unknown what


the video shows. Further, the entire video is approximately two minutes long and, at best, shows

the girls getting into the back of a car. There is no dispute that Dunn drove the girls around in a

car.    The dispute was whether. Dunn knew or should have known that he did not have the legal

authority to drive the girls. The video was not relevant on this point.

          Moreover, the State did not have to prove that the girls were fearful while they were in

the    car with   Dunn.      The State had to prove that Dunn knew he did not have legal authority to

take the girls, that the girls were under the age of 16, and that he did not have the girls' parents'

permission       to take the       girls.   The trial court did not abuse its discretion by finding that the cell

phone videos were irrelevant to the facts at issue in this case.


          Dunn points specifically to the trial court' s statement referring to the videos as the

equivalent of a "       blurry       photograph"       and   argues    that the videos "   show far more than a blurry

photograph and        demonstrate the         girls'   casual   demeanor in the    men' s presence."   Br. of Appellant


at 30. The only video in which the viewer can even see the girls only shows one of the girls for a
few brief    seconds.        The videos do not show the girls interacting with any of the men in the car.

 The only thing that can be discerned from the video is that the girls got into the car with the men

 and a   brief    glimpse of a girl' s       face.     Nothing in the video establishes that the girls had a casual



                                                                  12
No. 43855 -1 - II



demeanor    with    the   men or      that   they lacked fear       as    Dunn   suggests.   The trial court did not abuse


its discretion by excluding the cell phone video.

                                                      RIGHT TO BE PRESENT


         Dunn argues that the trial court violated his right to be present by allowing the attorneys

to   exercise   peremptory       challenges       at   the    clerk' s    station.   Here, the record is unclear whether


Dunn     was present when        the attorneys         exercised       their peremptory    challenges.   Dunn was present


during jury voir dire, and it appears that Dunn' s claim is based on the allegation that he did not

join   counsel at   the clerk' s station       when      they    exercised    their peremptory   challenges.   At best, this


allegation is supported by the trial court' s statement,

          All   right,   very   well.        It sounds like we' re ready to proceed with peremptory
          challenges.  So when you' re ready, Counsel, I' ll ask you to step up to the clerk' s
          station and she will be passing a chart back and forth.

RP ( Aug. 13, 2012        Jury   Voir Dire)       at   95.    Although the trial court did not specifically call Dunn

to the clerk' s station with his attorney, there is no indication that he did or did not accompany

counsel    when     counsel      exercised      the peremptory             challenges.    Because the record is unclear


whether Dunn was present at the clerk' s station during the exercise of peremptory challenges, the

claim relies, at    least in    part, on      facts    outside   the     record on appeal.   We do not address issues on


direct   appeal   that rely     on   facts   outside    the   record.     State v. McFarland, 127 Wn.2d 322, 335, 899


P. 2d 1251 ( 1995).




                                                                    13
No. 43855 -1 - II



          Accordingly, we affirm Dunn' s convictions.




Werncur:




   ORSWICK, C. J.




LEE, J.




                                                  14
