                                                                                     PALED
                                                                             COURT OF APPEALS
                                                                                  DIVISION II

                                                                            2015HAY 27 AM 9 34
                                                                            STATE OF WASHINGTON
                                                                            BY
                                                                                        UT




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

 STATE OF WASHINGTON,                                                     No. 45971 -0 -II


                                    Respondent,


            v.




 BRIAN GLENN COX,                                                  UNPUBLISHED OPINION


                                    Appellant.


           JOHANSON, C. J. —      Brian Glenn Cox appeals his jury trial convictions and his sentence

for two counts of criminal solicitation of first degree murder and one count of violating a protection

order.     He successfully argues that the trial court violated his public trial rights when it excused

jurors for cause during a sidebar conference. We follow our recent precedent in State v. Anderson,

No. 45497 -1 - II (Wash. Ct.    App. May   19, 2015),    and hold that the trial court violated his public

trial   rights.   Because we vacate Cox' s convictions and remand to the trial court, we do not reach


his other arguments or his statement of additional grounds ( SAG) except we address, and reject,


his challenge to the sufficiency of the evidence.

                                                  FACTS


           In 2013, despite a recent protection order that restrained Cox from harassing, following, or

having any contact whatsoever with his estranged wife, Cox drove up behind his wife' s car, close
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enough so that if she had applied the brakes, their cars would have collided; honked his horn

repeatedly      at   her; "[   e] xtend[ ed]   his   middle    finger towards" her;         and yelled at   her from his   car.   1


Report    of Proceedings         ( RP)   at   153.   Cox also offered half of a $250, 000 life insurance policy, and

later   agreed   to pay $ 10, 000, to          a co- worker     to "   make    his   wife   permanently disappear."    2 RP at


281.    After he      was arrested,      Cox    asked    his   cellmate, "[     H] ow much it would cost to have [ his co-


worker]       disappear,"      and Cox agreed to pay the cellmate $ 20, 000 so that the co- worker could not

testify against him. 3 RP at 485.

          The State charged Cox with two counts of criminal solicitation of first degree murder and

one count of         violating    a protection order.'         A jury convicted Cox on all three counts.

          Prior to voir dire, the trial court excused three jurors for cause during a sidebar, stating,

                       THE COURT: ...                I' d like to make a record of sidebar we had before we
          selected     jury. At that time, there were requests to excuse for cause No. 6, 40
                        the
          and    43.     state did not object to 6 or 40.
                         The                              The state did object to 43. They

          indicated in my thinking we were not going to reach 43 anyway and we did not, but
          I granted the challenges for cause for each of those three, 6, 40 and 43.
                       Does anybody need to put anything else on the record in that regard?
                        THE STATE]:            Your Honor, just to be specific, I think with 6 and 40, it
          was actually the state that made the request.

                        THE COURT:]             Is there anything else I need to memorialize about any
          sidebars or actions outside the record?


1 RP     at   126 -27.     The record does not establish what the parties said during the sidebar or the

specific reasons         that the court excused the three                  jurors. The trial court also did not analyze the




1
    RCW 9A.28. 030; RCW 9A.32. 030( 1)( a); RCW 26. 50. 110( 1)( a).


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No. 45971 -0 -II



Bone -Club2 factors either before or after the sidebar conference. The full voir dire appears in the


record   only    as "(   The   jury was   selected and sworn)."      1 RP at 100.


                                                        ANALYSIS


                I. FOR CAUSE SIDEBAR CHALLENGE VIOLATED COX' S PUBLIC TRIAL RIGHTS


             Cox argues that the trial court violated his public trial rights when it conducted for cause


challenges at a sidebar without considering the Bone -Club factors. We follow our recent precedent

in Anderson, agree with Cox, and hold that the trial court violated Cox' s public trial rights when


it conducted for cause challenges at a sidebar. Because the violation of a defendant' s public trial


right is structural error, we remand for a new tria1.3

                                     II. STATEMENT OF ADDITIONAL GROUNDS


             In his SAG, Cox argues that his convictions for two counts of criminal solicitation of first


degree murder and one count of violating a protection order are not supported by sufficient

evidence. We disagree.


              Evidence is sufficient to support a finding of guilt if, after viewing the evidence in the

light most favorable to the State, a rational trier of fact could find the essential elements of the


crime    beyond     a reasonable     doubt."    State   v.   Rose, 175 Wn.2d 10, 14, 282 P. 3d 1087 ( 2012). " A


claim of insufficient evidence admits the truth of the State' s evidence and all inferences that


reasonably       can   be drawn from that      evidence."      State v. Caton, 174 Wn.2d 239, 241, 273 P. 3d 980

    2012).    We consider circumstantial and direct evidence to be equally reliable. State v. Delmarter,




2 State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).

3
 Accordingly, we decline to address his remaining arguments other than his challenge to the
sufficiency of the evidence to sustain his convictions.
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No. 45971 -0 -II



94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). We also defer to the trier of fact where there are questions


of conflicting testimony, witness credibility, and the persuasiveness of evidence. State v. Thomas,

150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).


         A defendant is guilty of criminal solicitation when,

         with intent to promote or facilitate the commission of a crime, he or she offers to
         give or gives money or other thing of value to another to engage in specific conduct
         which would constitute such crime or which would establish complicity of such
         other person in its commission or attempted commission had such crime been
         attempted or committed.



RCW 9A. 28. 030. A defendant is guilty           of   first degree   murder   if, "[
                                                                                   w] ith a premeditated intent to


cause the death of another person, he or she causes the death of such person or of a third person."


RCW 9A.32. 030( 1)( a).


         Here, there was both video and testimonial evidence that Cox offered to give his co- worker


money to kill his wife and testimonial evidence that he later offered his cellmate money to kill his

co- worker. From their testimony, a rational trier of fact could find that Cox offered his co- worker

and his cellmate money with the intent to promote or facilitate his wife' s murder and his co-

worker' s murder. This evidence is sufficient to support Cox' s conviction on two counts of criminal


solicitation of first degree murder.


         To prove the violation of a protection order, the State must submit sufficient evidence to


persuade a rational trier of fact that a protection order is granted, the person restrained knows of


the   order, and violates   its   provisions.   RCW 26. 50. 110( 1)(    a).   Here, there was evidence that Cox


was served with and signed a protection order that restrained him from following, harassing, or

having any contact with his estranged wife. Yet, despite knowing about the protection order, Cox




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No. 45971 -0 -II



followed his   wife' s vehicle   very closely,   made obscene gestures,   and yelled at   her. Again, this


evidence is sufficient to support his conviction for violation of a protection order.


        Because Cox' s convictions were each supported by sufficient evidence, he is not entitled

to dismissal   with prejudice.   However, because of the public trial rights violation, we vacate his


convictions and remand for a new trial.


        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.




 We concur:




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