                                                                                                    Filed
                                                                                              Washington State
                                                                                              Court of Appeals
                                                                                               Division Two

                                                                                            November 22, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                                No. 47957-5-II

                                 Respondent,

         v.

    BRIAN L. STREATER,                                           UNPUBLISHED OPINION

                                 Appellant.

        JOHANSON, J. — Brian L. Streater appeals his jury trial convictions for second degree

assault with a firearm sentencing enhancement, second degree malicious mischief, and two counts

of fourth degree assault.1 The State concedes that the trial court improperly imposed the firearm

sentencing enhancement because the jury found that he was armed with only a deadly weapon,

and we accept this concession. We further hold that (1) for-cause exceptions exercised during jury

selection in a sidebar did not violate Streater’s right to a public trial, and (2) the trial court did not

err by refusing to instruct the jury on the lesser-included offense of unlawful display of a weapon.

Accordingly, we affirm Streater’s convictions, but we remand to the trial court to strike the firearm

sentencing enhancement and to impose a deadly weapon enhancement.


1
 Streater was convicted of second degree malicious mischief and the two counts of fourth degree
assault in his first trial; his second degree assault conviction and its accompanying firearm
sentencing enhancement followed a second trial.
No. 47957-5-II


                                              FACTS

                                        I. BACKGROUND2

       From November 2014 through the beginning of January 2015, Streater was in a relationship

with his co-worker, Kristy Boatner. According to Boatner, she ended the relationship with Streater

shortly after moving to an apartment in Olympia, but the two continued to be friends and saw each

other frequently. According to Streater, the two were still in a relationship as of January 24.

       In the early morning hours of January 24, Boatner was in her new apartment with another

co-worker, Kalai Cababat, talking. While they were in the kitchen, Streater arrived at the back

door. According to Boatner, she opened the door and let him in; according to Streater, he let

himself in with his own key. A few minutes after entering the apartment and talking with Cababat

and Boatner, Streater pushed Boatner to the floor. Cababat told Streater to leave and placed

himself between Streater and Boatner.

       Streater and Cababat stepped outside, and Boatner went upstairs and locked herself in a

bedroom. Streater then asked Cababat if he (Streater) could get his “‘bags’” from upstairs. 3

Report of Proceedings (RP) at 544. Cababat and Streater then went upstairs. Streater went into a

bedroom and picked up a couple of bags, but he put them back down. He then went to the bedroom

where Boatner was, broke open the door, and started yelling at Boatner.

       Cababat told Streater that he needed to leave, and they both went downstairs. On his way

out of the apartment, Streater broke a window. Streater then left the apartment and walked away.

Cababat and Boatner did not call the police at that time.



2
  Because the background facts relate exclusively to the second degree assault, they are based on
the record from the second trial.

                                                 2
No. 47957-5-II


          Between 30 and 45 minutes after Streater left, Boatner and Cababat heard a car drive up.

Cababat went outside and saw Streater come running through a gate onto the patio area. Cababat

observed that Streater had a handgun, and he heard and saw Streater pull the slide of the gun back

as he passed by and entered the apartment. Another co-worker, Thavaro Som, was right behind

Streater.3 Cababat called 911.

          According to Boatner and Cababat, Streater pointed the gun at Boatner when he reentered

the apartment. Som quickly entered the room, took the gun from Streater, and walked back outside.

          Streater then went upstairs and returned with what appeared to be luggage. According to

Boatner, as he walked towards the back door, he said. “‘I’ll see you at work.’” 3 RP at 473. When

she did not respond, he threw a glass light fixture at her and then pulled her off the counter and hit

her in the face, arms, and ribs. When she fell to the floor, he then kicked her in the shin. Streater

then left with Som.

          Officers stopped Som’s vehicle and arrested Streater. At one point, Streater admitted to

one of the officers that he had entered the apartment with a gun, but he asserted that he had held

the gun at his side and that he did not point it at anyone.

                                           II. PROCEDURE

          The State charged Streater with second degree assault while armed with a deadly weapon,

third degree malicious mischief, and two counts of fourth degree assault. 4 The State also alleged




3
 Som later testified that Streater had unexpectedly opened his glove box and took out the gun
when he got out of Som’s car.
4
    The State also alleged that each offense was a domestic violence offense.

                                                  3
No. 47957-5-II


a firearm sentencing enhancement as to the second degree assault charge. The case proceeded to

a jury trial.

                                             A. FIRST TRIAL

          During jury selection at the first trial,5 the trial court and the parties discussed which jurors

to excuse in a sidebar that was not transcribed. Following the sidebar, the trial court made the

following statement on the record:

          Counsel, I want to just make a record of the sidebar that we had. It was actually
          after the first questioning period and four jurors were excused at that time. Jurors
          5 and 10 were excused for hardship, and Jurors 9 and 39 were excused for cause
          based on answers they had given. There were no challenges for cause or hardship
          after the second questioning period when we had another sidebar before we began
          the jury selection.

1 RP at 21. The trial court then asked the parties if there was anything else that needed to be put

on the record, and they both agreed that there was not.

          After hearing evidence and argument, the jury was unable to reach a verdict on the second

degree assault charge, and the trial court declared a hung jury on this charge. But the jury found

Streater guilty of the two fourth degree assault charges and the third degree malicious mischief

charge.

                                            B. SECOND TRIAL

          The second trial addressed only the second degree assault charge and the accompanying

firearm sentencing enhancement. The State’s witnesses testified as described above.

          In addition, Streater testified that he brought the gun with him when he returned to the

apartment out of concern that Cababat would attempt to harm him, that he did not point the gun at



5
    We note that the verbatim transcript of jury voir dire is not part of the appellate record.

                                                     4
No. 47957-5-II


Boatner, that he had merely kept the gun at his side, and that he never intended to threaten anyone

with the gun. Streater also testified that he had rented the apartment and considered it “[his] place,”

that he had keys, and that he had moved his “things” into the apartment on the day of the incident.

4 RP at 650, 655. Som also testified that when he took the gun away from Streater, Streater was

holding it at his side and not pointing it at Boatner.

          After both parties rested, the trial court and parties discussed jury instructions. Defense

counsel requested that the trial court give a lesser-included instruction for unlawful display of a

weapon, arguing that the evidence supported an inference that Streater had committed only that

crime.

          The State opposed this instruction. In addition to arguing that the evidence did not support

an inference that Streater had committed only the lesser offense, the State argued that the

instruction was improper because “in this case, the State never could have charged Mr. Streater

with unlawful display of a firearm” since the incident occurred when Streater was in his place of

abode.6 4 RP at 694. Defense counsel replied that Streater had established that the evidence

supported an inference that he had committed the lesser crime. In response to the State’s argument

that it could not have charged Streater with unlawful display because the incident occurred in



6
    RCW 9.41.270 provides in part,
        (1) It shall be unlawful for any person to carry, exhibit, display, or draw any
        firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any
        other weapon apparently capable of producing bodily harm, in a manner, under
        circumstances, and at a time and place that either manifests an intent to intimidate
        another or that warrants alarm for the safety of other persons.
                ....
                (3) Subsection (1) of this section shall not apply to or affect the following:
                (a) Any act committed by a person while in his or her place of abode or
        fixed place of business.

                                                   5
No. 47957-5-II


Streater’s place of abode, defense counsel stated that he did not “think these are the types of facts”

that were contemplated by the place-of-abode limitation, but he “would need to follow up with the

case law in regards to that subsection.”7 4 RP at 697-98. The trial court ruled that (1) Streater had

not shown that the evidence supported an inference that Streater had committed only unlawful

display of a weapon and (2) an unlawful display of a weapon charge was unavailable to the State

since the incident occurred in Streater’s place of abode.

         The jury found Streater guilty of second degree assault. It also found by special verdict

that Streater was “armed with a deadly weapon at the time of the commission of the crime of

assault in the second degree.” Clerk’s Papers (CP) at 83 (emphasis added). In addition, the jury

found that Streater and Boatner were members of the same family or household. Despite the jury’s

special verdict, the trial court imposed a 36-month firearm sentencing enhancement at sentencing.

RCW 9.94A.533(3)(b).

         Streater appeals his convictions and the firearm sentencing enhancement.

                                              ANALYSIS

                                           I. PUBLIC TRIAL

         Streater argues that the trial court violated his right to a public trial at his first trial by

striking jurors for cause during a sidebar without first conducting a Bone-Club8 analysis on the

record or making a contemporaneous record of the sidebar. We disagree.




7
  There is nothing in the record regarding whether defense counsel supplied any additional
information to the trial court on this issue.
8
    State v Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

                                                   6
No. 47957-5-II


                                      A. LEGAL PRINCIPLES

       Whether the trial court has violated a defendant’s right to a public trial is a question of law

that we review de novo. State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011). When evaluating

a public trial challenge, we apply a three-step framework. State v. Love, 183 Wn.2d 598, 605, 354

P.3d 841 (2015), cert. denied, 136 S. Ct. 1524 (2016). We first determine if the public trial right

attached to the proceeding at issue. Love, 183 Wn.2d at 605. Second, if the appellant establishes

that the public trial right attaches, we next determine whether the courtroom was closed. Love,

183 Wn.2d at 605. And third, if the appellant establishes that there was a closure, we determine

whether the closure was justified. Love, 183 Wn.2d at 605. “The appellant carries the burden on

the first two steps; the proponent of the closure carries the third.” Love, 183 Wn.2d at 605.

                              B. RIGHT TO PUBLIC TRIAL ATTACHES

       We first address whether Streater has established that the right to public trial attached to

the proceedings in question. “[I]t is clear that for cause and peremptory challenges implicate the

public trial right. Love, 183 Wn.2d at 605. Where prior cases set a clear precedent, we need not

engage in the full ‘experience and logic’ analysis.” State v. Effinger, 194 Wn. App. 554, 560, 375

P.3d 701 (2016). Thus, Streater has met his burden on this issue.

                                         C. NO CLOSURE

       We now turn to whether Streater has established a closure. We conclude that he fails to

meet his burden on this issue.




                                                 7
No. 47957-5-II


         This case is almost identical to State v. Anderson, 194 Wn. App. 547, 337 P.3d 278 (2016).

In Anderson, we held that no closure occurred when (1) the potential jurors were questioned in

open court, (2) the trial court struck jurors for cause at an untranscribed sidebar conference without

first conducting a Bone-Club analysis, and (3) the trial court later memorialized the sidebar on the

record by means of a colloquy in which it identified the jurors that were excused for cause.

Anderson, 194 Wn. App. at 549, 552-53. Other than the fact that the trial court here failed to also

identify which party had sought the for-cause dismissals, the facts here are the same as in

Anderson. See 194 Wn. App. at 549. Streater does not, however, show that the public could not

have discerned who sought the excusal based on the record of the voir dire. Because this case is

nearly identical to Anderson, we adopt the reasoning in Anderson and hold that there was no

closure in the first trial. Because there was no closure, Streater fails to show that his public trial

rights were violated.9

                                 II. LESSER-INCLUDED INSTRUCTION

         Streater next argues that the trial court erred when it denied his request for a lesser-included

instruction of unlawful display of a weapon in his second trial because he established both the

legal and factual prongs of the Workman10 test.11 Regardless of whether Streater satisfied the

Workman test, this argument fails.



9
    Because there was no closure, we need not address whether any closure was justified.
10
     State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).
11
  Streater also argues that if defense counsel failed to preserve this issue for appeal, that failure
amounted to ineffective assistance of counsel. Because it is clear from the record that defense
counsel preserved this issue, we do not address Streater’s ineffective assistance of counsel
argument.

                                                    8
No. 47957-5-II


       The trial court refused to give the lesser-included instruction on unlawful display of a

weapon on two grounds. First, it found that Streater had failed to meet the factual prong of the

Workman test. Second, it found that the State could not have charged Streater with unlawful

display of a weapon because the incident occurred in his place of abode. Streater does not

challenge the trial court’s reliance on the place-of-abode exception to unlawful display of a

firearm.12 Thus, he does not show that the trial court erred in refusing to instruct the jury on the

lesser-included offense of unlawful display of a weapon.

                      III. IMPROPER FIREARM SENTENCING ENHANCEMENT

       Finally, Streater argues that the trial court erred when it imposed a firearm sentencing

enhancement despite the jury having found that he committed the offense while armed with a

deadly weapon rather than a firearm. The State concedes that this was error and asks that we

remand this matter for the trial court to impose the proper sentencing enhancement. We accept

the State’s concession. See State v. Williams-Walker, 167 Wn.2d 889, 901-02, 225 P.3d 913 (2010)

(trial court’s imposition of firearm sentencing enhancement when jury returned a special verdict

finding that the defendant had been armed with only a deadly weapon was error).




12
   RCW 9.41.270(3) establishes the place-of-abode exception. We note that although the State
argues in its response that the place-of-abode exception supported the trial court’s refusal to give
this instruction, Streater did not file a reply addressing this argument.
                                                    9
No. 47957-5-II


        Accordingly, we affirm Streater’s convictions, but we remand this matter to the trial court

to strike the improper firearm sentencing enhancement and to impose a deadly weapon

enhancement.

        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.



                                                     JOHANSON, J.
 We concur:



 MAXA, A.C.J.




 MELNICK, J.




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