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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

STATE OF WASHINGTON,


                                        Respondent,                                No. 43290 -1 - 1I


         0



RONALD WILLIAM McNEAL,                                                      UNPUBLISHED OPINION




          MAXA, J. — Ronald McNeal appeals his convictions for methamphetamine possession and


methamphetamine             delivery.   He   argues: (   1) the trial court violated the right to a public trial by

discussing jury instructions with counsel in chambers and by responding to a jury question in a
closed courtroom, (         2) the admission of a criminal docket notice bearing his name violated his

due   process rights, (      3) his counsel was ineffective by failing to object to the criminal docket

notice and by failing to propose a jury instruction limiting the use of that evidence, and ( 4) the

accomplice liability statute is unconstitutionally overbroad.

          We affirm and hold that ( 1) under State v. Sublett, 176 Wn.2d 58, 75 -77, 292 P. 3d 715

 2012),   discussing jury instructions and responding to jury questions does not implicate the
public   trial   right; (   2) McNeal did not object to the admission of the criminal docket notice and

we will not review an          evidentiary     challenge made      for the first time   on appeal; (   3) McNeal' s


ineffective assistance of counsel claim fails because he cannot show that the admission of the

criminal     docket   notice prejudiced        him   and   because defense   counsel' s   failure to   request a   limiting
No. 43290 -1 - II



instruction may have been a legitimate trial tactic; and ( 4) under State v. Ferguson, 164 Wn.

App.   370, 375 -76, 264 P. 3d 575 ( 2011),          review    denied, 173 Wn.2d 1035 ( 2012), the accomplice


liability statute is not overbroad.

                                                            FACTS


         On November 16, 2011, an informant working with Centralia police made a controlled

purchase of methamphetamine from Ronald McNeal at McNeal' s residence, which was a trailer


owned by Donald Pender. The officers obtained a search warrant for Pender' s trailer and

executed it the following day. When the officers arrived at the trailer to execute the warrant,

they arrested McNeal and his girl friend, Roxanne Chipman. The search revealed a backpack in
the trailer' s bedroom containing a small " baggie" of methamphetamine, a man' s hygiene kit, a

set of clothes, and two prescription bottles bearing McNeal' s name. Officers also discovered a

canvas bag containing two digital scales, numerous baggies with a pit bull logo on theirs identical

to the one the officers received from the informant, a methamphetamine smoking device, and a

larger baggie containing methamphetamine. The officers found paperwork in the bedroom

bearing McNeal' s name, including a Lewis County Superior Court criminal docket notice.

         The State charged McNeal with unlawful possession of a controlled substance —


methamphetamine —         and delivery' of methamphetamine.

         At trial, the State introduced a copy of the criminal docket notice to McNeal that the

officers found in Pender' s trailer as evidence to establish McNeal' s control over the trailer. The

notice stated, "    This is to notify   you      that the   above entitled matter   has been   set   for:...   Sentencing

hearing: /   formal entry   of   J&   S ......       Ex. 37 ( capitalization   omitted).   McNeal did not object or


 request a limiting instruction.



                                                                2
No. 43290 -1 - II



         During a recess on the second day of trial, the trial court told counsel on the record that it

would meet with them in chambers to discuss jury instructions. After the recess, the trial court

returned and stated on          the   record, "   All right. We' re back on State versus McNeal after a recess


for the jury instructions. I prepared a set of jury instructions that are basically as proposed."

Report   of   Proceedings ( Mar. 14, 2012)            at    121.   The trial court then asked whether counsel had


the opportunity to review the instructions, and counsel responded that they had and that there

were no objections.



          The State claimed that McNeal and Chipman were accomplices in the crime of unlawful


methamphetamine delivery, and the trial court instructed the jury on accomplice liability.

          During     deliberations the trial        court received       the   following       question    from the jury,   " Was

finger   prints [ sic]   taken on      scales?    DNA      on pipe? [    A] re there phone records or confiscate [ sic]


his   phone   for   incoming     calls   to Hayden[        s]   phone[ ?]"     Clerk'   s   Papers ( CP)   at   55. On a printed


form stating that the trial court had consulted with counsel, the trial court instructed the jury,

 You have      all of    the   evidence   that    was admitted."         CP    at   55. There is no indication that either


the discussion with counsel or the written response occurred in open court.


          A jury found McNeal guilty as charged, and he appeals.

                                                                ANALYSIS


A.        PUBLIC TRIAL RIGHT


          McNeal argues that the trial court violated the right to a public trial by meeting with

 counsel in chambers to discuss jury instructions and a jury question and by responding to the jury




                                                                     3
No. 43290 -1 - II



question    inclosed       court.'   We disagree.


           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       this issue 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.    Sublett, 176 Wn.2d            at   71. "[   N] ot


every interaction between the court, counsel, and defendants will implicate the right to a public
trial,   or constitute a closure       if closed to the         public."       Sublett, 176 Wn. 2d        at   71.    In Sublett, our


Supreme Court            adopted a   two -
                                         part       " experience and          logic" test to      address    this    issue: ( 1) whether


the place and process historically have been open to the press and general public (experience

prong) and ( 2) whether public access plays a significant positive role in the functioning of the

particular process         in   question ( logic     prong).        176 Wn.2d      at   72 -73.    Only if both questions are
                                                                                           2
answered        in the   affirmative      is the   public   trial   right    implicated.        Sublett, 176 Wn.2d at 73.


           Sublett is dispositive. In Sublett, the trial court responded in chambers to a jury question

regarding       one of    the instructions     with      only   counsel present.          176 Wn.2d at 67. The question and


response were then put in the record. Sublett, 176 Wn.2d at 67. Our Supreme Court determined

that a judge' s discussion with the parties about jury questions and any response was not




     McNeal did not object when informed that the trial court had discussed the jury instructions in
 chambers or       to the trial    court' s written statement           regarding the          jury   question.      However, " a
 defendant does          not waive   his    right   to   a public    trial   by failing   to   object   to   a closure at       trial."   State

 v.    Wise, 176 Wn.2d 1, 15, 288 P. 3d 1113 ( 2012).                        Accordingly, we address this issue despite the
 absence of McNeal' s objection below.

 2
      Our Supreme Court has held that a personal restraint petitioner has the burden of satisfying the
 experience and logic test. In re Pers. Restraint of Yates, 177 Wn.2d 1, 29, 296 P. 3d 872 ( 2013).
 It remains unclear whether the same rule applies in a direct appeal.

                                                                       11
No. 43290 -1 - II



historically a proceeding to which the public trial right attached. Sublett, 176 Wn.2d at 77. In

reaching this conclusion, the court also compared the trial court' s response to the jury question to

in- chambers conferences to discuss jury instructions, which historically have not been held in

open court. Sublett, 176 Wn.2d at 75.


        Consistent with Sublett, we hold that both the trial court' s in- chambers discussion

regarding jury instructions and the trial court' s resolution of the jury question fail the experience

prong of the Sublett test. Therefore, they were not proceedings to which the public trial right

attached, and McNeal' s public trial right claim fails.

B.      ADMISSION OF CRIMINAL DOCKET NOTICE


        McNeal argues that the trial court violated his due process rights because the admission

of his criminal docket notice, coupled with the absence of an instruction limiting the use of that

evidence, allowed the jury to convict him based in part on propensity evidence. Although he did

not object to this evidence below, he argues that this was a manifest error affecting a

constitutional right     that   we   may   review     for the first time       on   appeal   under   RAP 2. 5(   a)(   3).   We


disagree.


         McNeal did not object to either the admission of the criminal docket notice or to the jury

instructions. Although generally we will not review a claim of error raised for the first time on

appeal, RAP 2. 5( a)( 3) permits a party to raise such a claim if it amounts to a " manifest error

 affecting   a constitutional right." "       Issues of constitutional interpretation and waiver are


 questions of    law,   which courts review          de   novo."   State v. Robinson, 171 Wn.2d 292, 301, 253


 P. 3d 84 ( 2011).


         To determine the applicability              of   RAP 2. 5(   a)(   3), we first must determine whether the


 alleged error   is   constitutional.   State   v.   Powell, 166 Wn.2d 73, 84, 206 P. 3d 321 ( 2009). McNeal
No. 43290 -1 - II



argues that the admission of the criminal docket notice violated his due process rights because

the trial court did not instruct the jury to consider the evidence for its intended purpose, which

permitted the jury to consider it as substantive evidence of guilt. In support of this argument,

McNeal        relies     on   Garceau    v.   Woodford, 275 F. 3d 769 ( 9th Cir. 2001),              overruled on other




grounds       by    Woodford      v.   Garceau, 538 U. S. 202, 123 S. Ct. 1398, 155 L. Ed. 2d 363 ( 2003). In


Garceau, the trial court admitted evidence of the defendant' s past crimes and instructed the jury

that it   could consider         that   evidence    for any   purpose,      including     the   defendant' s " `     character or any

trait   of   his   character' "     and " ` conduct on a specific occasion.' "              275 F. 3d    at   773.    The court held


that this instruction allowed the jury to consider past crimes to prove the defendant' s propensity

to   commit        the   crime at   issue     and violated   the defendant'     s   due   process   rights. Garceau, 275 F. 3d


at 775.


             McNeal argues that the trial court violated his due process rights because, as in Garceau,

the trial court' s instructions permitted the jury to use his criminal docket notice to show that he

had the propensity to commit the crimes with which he was charged. The challenged instruction

provided: "         In order to decide whether any proposition has been proved, you must consider all of

the     evidence     that I have       admitted   that   relates   to the   proposition."       CP at 32. However, unlike the


instruction in Garceau, this instruction did not reference evidence of other crimes and did not

 explicitly instruct the jury that the criminal docket notice could be used to prove McNeal' s

 conduct on a specific occasion. Accordingly, we hold that there was no due process issue raised

 by the admission of the criminal docket notice.

             In the absence of any due process issue, McNeal' s claim relates only to the admission of

 ER 404(b) evidence. An alleged evidentiary error, including an erroneous admission of ER

 404(b) evidence, is not an error of constitutional magnitude. Powell, 166 Wn.2d at 84.

                                                                      3
No. 43290 -1 - II



Accordingly, we hold that RAP 2. 5( a)( 3) does not apply and decline to review McNeal' s claim

for the first time on appeal.


C.        INEFFECTIVE ASSISTANCE OF COUNSEL


          McNeal argues that his counsel was ineffective for failing to object to the introduction of

the criminal docket notice, for failing to request that it be redacted, and for failing to propose a

limiting instruction regarding the notice. We disagree.

          1.      Standard for Ineffective Assistance


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

Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,


the defendant must show both that ( 1) defense counsel' s representation was deficient and ( 2) the

deficient representation prejudiced the defendant. 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 failure to show either element ends our inquiry. State v. Hendrickson, 129 Wn.2d

61, 78, 917 P. 2d 563 ( 1996),         overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127

S. Ct. 649, 166 L. Ed. 2d 482 ( 2006).          Representation is deficient if, after considering all the

circumstances, it falls below an objective standard of reasonableness. Grier, 171 Wn.2d at 33.

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.


          We give great deference to trial counsel' s performance and begin our analysis with a

          presumption       that   counsel' s performance was reasonable.      Grier, 171 Wn.2d        at   33. A
 strong


 claim that trial counsel was ineffective does not survive if trial counsel' s conduct can be

 characterized as      legitimate trial strategy   or   tactics.   Grier, 171 Wn.2d   at   33.   To rebut the strong

 presumption       that   counsel' s performance was effective, "      the defendant bears the burden of

                                                             7
No. 43290 -1 - 11



establishing the absence of any ` conceivable legitimate tactic explaining counsel' s

performance.' "      Grier, 171 Wn.2d at 42 ( quoting State v. Reichenbach, 153 Wn.2d 126, 130,

101 P. 3d 80 ( 2004)).


           The decision     of when or whether        to   object   is   a classic example of    trial tactics."   State v.


Madison, 53 Wn.       App.   754, 763, 770 P. 2d 662 ( 1989). Therefore, we presume that " the failure


to object was the product of legitimate trial strategy or tactics, and the onus is on the defendant to

rebut   this   presumption."     State   v.   Johnston, 143 Wn.          App.   1, 20, 177 P. 3d 1127 ( 2007). "    Only in

egregious circumstances, on testimony central to the State' s case, will the failure to object

constitute     incompetence      of counsel     justifying   reversal."     Madison, 53 Wn.      App.    at 763.   In order


to show that defense counsel was ineffective for failing to make a particular objection, the

defendant must show that ( 1) failure to object fell below an objective standard of reasonableness,


 2) the proposed objection would likely have been sustained, and ( 3) the result of the trial would

have differed had the objection been made. Grier, 171 Wn.2d at 33;

          2.     Failure To Object


          The trial court admitted, without objection, a criminal docket notice for McNeal stating

that he had an upcoming court date for a sentencing hearing. McNeal argues that this evidence

was   inadmissible    under    ER 402, ER 403,        and    ER 404( b). Therefore, he argues, there was no


strategic reason for trial counsel not to object to or to seek redaction of the document, and the

trial court likely would have sustained an objection to its introduction. However, here the

evidence was admissible to show McNeal' s control over items found in the search and likely

would have been admitted.


          Under ER 402,       relevant evidence       is generally        admissible.   Evidence is "[ r] elevant" if it


 makes "   the. existence   of   any fact that is   of consequence          to the determination    of   the   action more
No. 43290 -1 - II



probable or   less    probable."    ER 401.   Officers discovered the document on the nightstand in the


trailer' s bedroom where officers discovered McNeal' s canvas bag and backpack containing

methamphetamine. The existence of papers bearing McNeal' s name in the room in which the

drugs and drug paraphernalia were found was relevant to show McNeal' s occupancy of the room

and possession of the items within it. Accordingly, the trial court would not have sustained an

objection to the evidence on this ground.


        It also was unlikely that the trial court would have sustained an ER 403 objection. Under

ER 403, otherwise relevant evidence can be excluded if its. probative value is " substantially

outweighed    by    the danger     of unfair prejudice."   Because there was conflicting testimony at trial

regarding whether McNeal was living in the trailer' s bedroom at the time the contraband was

discovered, the evidence was highly probative of his occupancy. And the danger of unfair

prejudice was not great. The docket notice did not state the type of conviction for which McNeal


was being sentenced, other than that it was a criminal conviction. Although this evidence may

have been prejudicial, it was not so prejudicial that the trial court would likely have sustained an

objection given the document' s relevance.


                    Finally, it is unlikely that the trial court would have excluded the evidence
         under   ER 404( b). Under ER 404( b), [ e] vddence of other crimes, wrongs, or acts is
         not admissible to prove the character of a person in order to show action in
         conformity therewith."          But this evidence may be admissible " for other purposes,
         such    as    proof   of   motive,   opportunity,     intent,   preparation,   plan,   knowledge,

         identity, or absence of mistake or accident.

The list of other purposes for which evidence of a defendant' s prior misconduct may be

 introduced is not exclusive. State v. Baker, 162 Wn. App. 468, 473, 259 P. 3d 270, review

 denied, 173 Wn.2d 1004 ( 2011).




                                                           6
No. 43290 -1 - II



        Here, the State introduced the evidence not to show McNeal' s conformity with previous

criminal behavior but, rather, to show that he occupied the bedroom where the contraband was


discovered. And as already discussed, the trial court was unlikely to find that the probative value

of the evidence was outweighed by the danger of unfair prejudice. Accordingly, the trial court

would not have sustained an objection to the evidence on any of the grounds McNeal asserts.

        McNeal also fails to show that the docket notice' s admission prejudiced him in light of


the overwhelming evidence against him. McNeal sold methamphetamine to an informant in a

controlled buy monitored by police officers. Upon executing a search warrant on the trailer in

which McNeal was living, officers discovered methamphetamine and drug paraphernalia in a

room containing documents belonging to McNeal and in a canvas bag belonging to McNeal

containing two prescription pill bottles bearing his naive.

        McNeal has failed to show how the admission of the criminal docket notice requiring his

presence at a sentencing hearing for an unspecified crime affected the outcome of the case in

light of this overwhelming evidence against him. Therefore, McNeal cannot show that he was

prejudiced by his trial counsel' s failure to object to the document or to request that it be redacted.

         We hold that the failure to object to admission of the criminal docket notice did not


constitute ineffective assistance of counsel because the trial court likely would not have

sustained such an objection and McNeal cannot show that admission of the docket notice

prejudiced him.




                                                  10
No. 43290 -1 - II



           3.    Failure To Redact


           McNeal also argues that his counsel was ineffective for failing to request that the criminal

docket notice be redacted. We disagree.


           Although McNeal fails to specify which portions of the docket notice should have been

redacted, we assume that he refers to the portions of the docket referencing his involvement in

criminal activity. Those portions included the caption stating that it was a " criminal" docket
notice and      that there   was   to be   a "   sentencing   hearing: / formal   entry   of   J & S."   Ex. 37. However,


the problem with redaction is that it could have allowed the jury to speculate as to the purpose of

the court document, leading to confusion and possibly greater prejudice to McNeal. Therefore, it

may have been a legitimate trial tactic for McNeal' s counsel to have declined to seek redaction
of those portions of the docket notice.


           We hold that failing to request redaction of the criminal docket notice did not constitute

ineffective assistance of counsel.


           4.    Failure To Propose Limiting Instruction

           McNeal argues that his counsel was ineffective for failing to propose an instruction

prohibiting the jury from considering the criminal docket notice as evidence of McNeal' s

propensity to engage in criminal behavior. We disagree.

           McNeal argues that his counsel should have proposed an instruction based on WPIC

 5. 30,   which provides, "    Certain evidence has been admitted in this case for only a limited

 purpose. This [ evidence consists of                                   and] maybe considered by you only for the

 purpose of                                You may     not consider     it for any   other purpose."      11 WASHINGTON


 PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL5. 30, at 180 ( 3d ed. 2008)

  WPIC) (boldface        omitted) ( alterations       in   original).   However, whether to request a limiting

                                                                 11
No. 43290 -1 - II



instruction is a matter of trial tactics. State v. Yarbrough, 151 Wn. App. 66, 90, 210 P. 3d 1029

 2009).    Failure to propose the instruction could have been a legitimate trial tactic because had

defense counsel proposed this instruction, he could have risked reemphasizing the evidence. See

Yarbrough, 151 Wn.             App.   at   90 ( "[ F] ailure   to request a limiting instruction for evidence

admitted under ER 404(b) may be a legitimate tactical decision not to reemphasize damaging

evidence. ").




          We hold that the failure to request a limiting instruction relating to the criminal docket

notice did not constitute ineffective assistance of counsel.


D.        ACCOMPLICE LIABILITY STATUTE AND INSTRUCTION


          The State claimed that McNeal and Chipman were accomplices in the crime of unlawful

methamphetamine delivery, and the trial court instructed the jury on accomplice liability.

McNeal argues that Washington' s accomplice liability statute, RCW 9A.08. 020, is

unconstitutionally overbroad because it criminalizes speech protected by the First Amendment.

He also challenges the trial court' s accomplice liability instruction for the same reason. We

disagree.


           1.        Statute


           We presume that statutes are constitutional and review challenges to them de novo. State

 v.   Lanciloti, 165 Wn.2d 661, 667, 201 P. 3d 323 ( 2009). Under RCW 9A. 08. 020( 3)(                    a), a person




 is guilty      as an accomplice      if "[ ith knowledge that it will promote or facilitate the commission
                                          w]

 of [a] crime,"       he "[ s] olicits, commands, encourages, or requests [ another] person to commit [ the


 crime]"     or "[   a] ids or agrees to aid such other person in planning or committing [ the crime]."

 McNeal argues that Washington' s accomplice liability statute does not meet the standard set

 forth in Brandenburg           v.   Ohio, 395 U. S. 444, 447, 89 S. Ct. 1827, 23 L. Ed .2d 430 ( 1969), in


                                                                    12
No. 43290 -1 - II



which the United States Supreme Court held that the First Amendment protects speech


advocating criminal activity unless it "is directed to inciting or producing imminent lawless

action and      is   likely    to incite   or produce such action."             Because " aid" is not defined in the statute,


McNeal      argues     that the       statute criminalizes speech other            than that " `   directed to inciting or

producing imminent lawless                 action.' "      Br. of Appellant at 27 ( quoting Brandenburg, 395 U.S. at

447).


           We   rejected       this    same challenge      in Ferguson.         164 Wn. App. at 375 - 76 ( citing State v.

Coleman, 155 Wn.               App.    951, 960 - 61, 231 P. 3d 212 ( 2010)).           In Coleman, Division One of this


court held that


            t] he    accomplice        liability   statute ...    requires the criminal mens rea to aid or agree
           to aid the commission of a specific crime with knowledge that the aid will further
           the crime.           Therefore, by the statute' s text, its sweep avoids protected speech
           activities that are not performed in aid of a crime and that only consequentially
           further the crime.


155 Wn.      App.      at   960 -61.    In Ferguson, we adopted the reasoning in Coleman and addressed the

Brandenburg           standard,       holding   that "[   b] ecause the statute' s language forbids advocacy directed

at and likely to incite or produce imminent lawless action, it does not forbid the mere advocacy

of   law   violation        that is   protected under      the   holding   of   Brandenburg." 164 Wn. App. at 376.

We adhere to our decision and analysis in Ferguson and hold that McNeal' s challenge to the


accomplice liability statute fails.

           2.        Instruction


           McNeal also argues that the trial court' s accomplice liability instruction was erroneous

because its definition of "aid" violated the Brandenburg rule. We review jury instructions de

novo and in the context of the instructions as a whole. State v. Levy, 156 Wn.2d 709, 721, 132

P. 3d 1076 ( 2006).


                                                                     13
No. 43290 -1 - II



        The trial court' s accomplice liability instruction, modeled after WPIC 10. 51, defined

 aid" as




        all assistance whether given by words, acts, encouragement, support, or presence.
        A person who is present at the scene and ready to assist by his or her presence is
        aiding in the commission of the crime. However, more than mere presence and
        knowledge of the criminal activity of another must be shown to establish that a
        person present is an accomplice.


CP at 46. See WPIC 10. 5 1, at 217. McNeal argues that the instruction' s inclusion of "words" or

 encouragement" in the definition of "aid" was contrary to Brandenburg because it criminalized

 a vast amount of pure speech."           Br. of Appellant at 28.


        But the trial court' s accomplice liability instruction contains the same mens rea

requirement as      the   statute.   Therefore,   regardless of   the definition of "aid ", the instruction as a



whole passes constitutional muster because any aid, including " words" or " encouragement ",

must be given with knowledge that it will further the crime. See Coleman, 155 Wn. App. at 960-

61.   Accordingly, applying the reasoning in Ferguson and Coleman, we hold that the trial court' s

accomplice liability instruction was not erroneous.




                                                           14
No. 43290 -1 - II



        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 pursuant to RCW 2. 06. 040, it is

so ordered.




                                                   MAXA, J.
uTa rnnnrtr-




S    INDLER,




                                                  15
