                                                                                                                    FILED
                                                                                                    MOOT OF APPEALS
                                                                                                           Eo- ;\
                                                                                                                    i1S10   41Ii


                                                                                                  2016 JAN 22 AM a: 16



                                                                                                   13` r
                                                                                                                    EPUT



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

STATE OF WASHINGTON,                                     I                           No. 43215 -3 -II


                                   Respondent,


           V.




THOMAS E. MILLER,                                            I                 PUBLISHED OPINION




                                         1—
           QuiNN- BRINTNALL J. P. T.           A jury found Thomas Miller guilty of second degree theft

and making a false statement in application for or assignment of certificate of title to a tractor-

trailer.    Miller appeals, arguing that ( 1) the trial court violated his and the public' s right to an

open and public trial_      by meeting_with_ unsel in
                                           co_                   chambers;_(  2) the trial court violated his right to


be   present    by discussing   a statute with counsel           in   chambers; (   3) insufficient evidence supports


that his statement was false, an element of his application for or assignment of certificate of title


conviction; and ( 4) the trial court improperly commented on the evidence by instructing the jury

on the statutory process for legally claiming title to found property. We affirm.

                                                    FACTS


           In July 2010, Aubrey Cole parked his 53 -foot tractor -trailer outside the Great Wall

Chinese Restaurant in Silver Creek, Washington.                       Cole told a restaurant employee that he was



1 Judge Christine Quinn -Brintnall is serving as a judge pro tempore of the Court of Appeals,
Division II,     pursuant   to CAR 21(   c).
No. 43215 -3 - II



parking this tractor -
                     trailer, wrote down his telephone number, and asked the employee to call

him if there was any problem.

           Miller      was    secretary    and registered agent         for the Great Wall      restaurant.    Miller believed


that Cole' s tractor -
                     trailer was illegally parked at the restaurant and called the police to have it

removed.         Lewis County Sheriff's Deputy Matthew McKnight told Miller to contact a tow

company if he           wanted                  trailer civilly impounded.
                                    the tractor -                                      McKnight also gave Cole' s address


to Miller.


           On October 4, Miller mailed Cole an affidavit for lost title, the release of interest for the

        trailer,
tractor -               and    a note.   asking Cole to        contact    him.    Upon receiving the documents, Cole

immediately           tried to   contact   Miller,   leaving   Miller    a voicemail message.          Cole went to the Great


Wall restaurant to move his tractor -
                                    trailer, but Miller had blocked access to the tractor -
                                                                                          trailer

with   his      van    and    had   removed                trailer'
                                               the tractor -             s   license   plate.   A few days later, Cole met


Miller     at   the Great Wall          restaurant    parking lot.       Miller told Cole that he          needed   to pay $ 200



before Cole           could      remove                trailer.
                                           the tractor -                Cole   said    he   would   give   Miller $ 100.   Cole


returned the next             day- with    $ 100   -but found that his tractor-trailer had been -
                                                                                                moved to a locked


facility     across     the   street   from the    restaurant.    Cole reported his tractor -
                                                                                            trailer stolen on October


 13


             On October 26, Miller went to the Department of Licensing ( DOL) and signed a " Three-

Year Registration Without Title Affidavit."                        Ex. 4.        The affidavit contained the following

preprinted       language: "         I certify I am the rightful owner of this vehicle /vessel having obtained

 ownership from the last               rightful owner.     The circumstances under which I obtained ownership

 and   the   reasons      satisfactory     evidence of    ownership is         unavailable are:...."         Ex. 4.   Under this




                                                                   1)
No. 43215 -3 - II


preprinted     language,          Miller handwrote the             following: "      Trailer was left on my property,

attempted to get ahold [ sic] of owner of record by certified mail with return receipt with no

reply."     Ex. 4. The DOL issued Miller a " Vehicle Title Application/ Registration Certificate" that

stated    in the   comment          section, "[   N] o title issued - ownership in doubt."           Ex. 4 ( capitalization


omitted).



            On October 30, Miller asked Chuck Norris if he wanted to purchase a " trailer that had

been     abandoned     on        his property."       Report   of   Proceedings ( RP) ( Jan. 26, 2012)       at   28.   Norris


eventually     purchased          the tractor -
                                              trailer      from Miller for $ 1, 000. After police notified Norris that


there    was   a   dispute regarding ownership                of               trailer, he
                                                                   the tractor -             returned   it to Cole.     Norris


asked Miller to return the money he had paid for the tractor -
                                                             trailer but Miller refused.

            The State charged Miller by second amended information with second degree theft and

making a false statement in application for or assignment of a certificate of title. On the first day
of trial, the trial court referred to a discussion that had taken place in chambers before trial,

stating, "   The statute we were talking about in chambers pretrial, with respect to what a person is

obligated. t0 d0- With respect to abandoned - or- found property, the entire - chapter is RCW --

63. 21. 010    and   that'   s   for the benefit      of   both defense   and prosecution.       RP ( Jan. 26, 2012) at 22.


On the      second   day     of    trial, the trial   court stated, "    I want to see both of you in my chambers at

 1: 00 to   go over   instructions."         RP ( Jan. 27, 2012)         at   60.   The trial court instructions to the jury




                                                                     3
No. 43215 -3 -II



included an instruction based on RCW 63. 21. 010, the statute providing the procedure for legally
                                  2
claiming found property.


         The     jury   returned verdicts        finding      Miller guilty    on    both   counts.   Miller timely appeals his

convictions.




                                                               ANALYSIS


PUBLIC TRIAL RIGHT


         Miller first argues that the trial court violated his and the public' s right to an open and

                                                                                                                   3
public   trial   by    meeting   with counsel         in    chambers without        conducting    a   Bone -Club       analysis.   We


disagree.


         Article I, section 22 of the Washington State Constitution and the Sixth Amendment to


the United States Constitution give criminal defendants the right to a public trial by an impartial

jury.    State    v.   Lormor, 172 Wn.2d 85, 90 -91, 257 P. 3d 624 ( 2011).                             Additionally, article I,

section 10 of the Washington State Constitution secures the public' s right to open and accessible


proceedings and provides              that "`   U]   ustice   in   all cases shall   be   administered      openly "'   and without




2
    RCW 63. 21. 010 provides,
          1) Any person who finds property that is not unlawful to possess, the owner of
         which is unknown, and who wishes to claim the found property, shall:
                 a) Within seven days of the finding acquire a signed statement setting
          forth an appraisal of the current market value of the property prepared by a
          qualified person engaged in buying or selling like items or by a district court
         judge, unless the found property is cash; and
                        b) Within      seven         days     report   the   find    of   property    and    surrender,     if
          requested, the property and a copy of the evidence of the value of the property to
          the chief law enforcement officer, or his or her designated representative, of the
          governmental entity where the property was found, and serve written notice upon
          the officer of the finder' s intent to claim the property if the owner does not make
          out his or her right to it under this chapter.

3
    State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).

                                                                       F.
No. 43215 -3 - II



unnecessary        delay.          Lormor, 172 Wn.2d               at   91 (   alteration   in   original) (   quoting Seattle Times Co.

v.    Ishikawa, 97 Wn.2d 30, 36, 640 P. 2d 716 ( 1982)).                                     Whether a trial court' s in- chambers


proceeding        violates public         trial   rights      is   a question of     law that      we review      de   novo.   Lormor, 172


Wn.2d at 90. 4

              The public trial right serves to ensure a fair trial, to remind the officers of the court of


the importance of their functions, to encourage witnesses to come forward, and to discourage


perjury."        State        v.   Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005) (                               citing Peterson v.

Williams, 85 F. 3d 39, 43 ( 2d Cir.),                     cent.     denied, 519 U. S. 878 ( 1996)).               Generally a trial court

must conduct the five -
                      part test set forth in State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325

    1995),    to determine if a closed proceeding is warranted. 5




4 The State does not challenge Miller' s standing to raise a public trial violation under article I,
section 10 of the Washington State Constitution, an issue left unresolved by our Supreme Court.
State    v.    Wise, 176 Wn.2d 1,             16    n.   9, 288 P. 3d 1113 ( 2012).                 Because we hold that Miller has
failed to show that the right to a public trial attached to the challenged proceedings here, we need
not address his standing to assert the public' s right to an open trial under article I, section 10.
5
     The five criteria set forth in Bone -Club are
                         1. [      t]he proponent of closure or sealing must make some showing [ of a
              compelling interest],           and where that need is based on a right other than an
              accused' s right to a fair trial, the proponent must show a " serious and imminent
              threat" to that right.
                         2.        Anyone present when the closure motion is made must be given an
              opportunity to object to the closure.
                         3.The proposed method for curtailing open access must be the least
              restrictive means available for protecting the threatened interests.
                       4.  The court must weigh the competing interests of the proponent of
              closure and the public.
                         5.        The order must be no broader in its application or duration than .
              necessary to serve its purpose.
 128 Wn.2d          at    258 -59 (     alteration       in   original) (       quoting Allied Daily Newspapers of Wash. v.
Eikenberry,        121 Wn.2d 205, 210 - 11, 848 P. 2d 1258 ( 1993)).
No. 43215 -3 - II



             However, "        not    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."   State v.


Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012).                          Thus, our first step in determining whether a

public trial violation had occurred is to consider " whether the proceeding at issue implicate[ d]

the       public    trial   right, [ and]   thereby    constitute[   d]    a closure."        Sublett, 176 Wn.2d       at   71.   We


undertake this consideration by using the " experience and logic" test. Sublett, 176 Wn.2d at 72-
      6
73.         Under this test, " the          experience      prong . . .         asks ` whether the place and process have


historically         been    open    to the   press   and general public, "' and "[            t]he logic prong asks ` whether

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

question. "'         Sublett, 176 Wn.2d at 73 ( quoting Press- Enterprise Co. v. Superior Court, 478 U. S.

1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 ( 1986)).                    If the answer to both prongs is yes, the public trial


right attaches, and the trial court must conduct an on- the -record Bone -Club analysis before

closing the          proceedings.       Sublett, 176 Wn.2d         at     73.    Miller has the burden of showing that the

public trial right attached to the challenged proceeding under the experience and logic test. State

v. Halverson, -_              Wn.    App.-       309 P. 3d 795; 797 ( 2013) (          citing Sublett, 176 Wn.2d at 73)

             A.         PRETRIAL CONFERENCE


             Miller first asserts that the trial court violated his and the public' s right to an open and


public trial by discussing a statute in chambers before trial. We disagree.




6 Although four justices signed the lead opinion in Sublett, a majority adopted the " experience
and        logic"     test    with    Justice    Stephens'    s   concurrence.          176    Wn.2d      at    136 ( Stephens, J.,
concurring).   More recently, our Supreme Court cited Sublett in unanimously applying the
  experience and logic" test in In re Personal Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d
872 ( 2013).


                                                                     31
No. 43215 -3 - II


          As a threshold matter, Miller asserts that the State " should bear the burden of establishing

that   a closed   proceeding does        not   implicate the            core values    of   the   open   trial   right"   and, thus,



should bear the burden of establishing on the record what transpired during a closed in camera

proceeding.       Reply   Br.   of    Appellant       at    5.     We disagree.          In Halverson, we held that the


 appellant   bears the burden          of   establishing         a public right violation."          309 P. 3d at 797 ( citing

Sublett, 176 Wn.2d        at   75).     Further, appellants bear the burden of perfecting the record for

appellate review.      RAP 9. 2( b);        see also State v. Bennett, 168 Wn. App. 197, 207 n.9, 275 P. 3d

1224 ( 2012). We turn to whether Miller has met these burdens.


          The only evidence in the record before us concerning the trial court' s pretrial in-

chambers conference       is the      following     statement       by    the trial   court: "    The statute we were talking

about in chambers pretrial, with respect to what a person is obligated to do, with respect to

abandoned or found property, the entire chapter is RCW 63. 21. 010 and that' s for the benefit of

both defense      and prosecution."         RP ( Jan. 26, 2012)          at   22.   This single statement by the trial court

reveals little as to the nature of the challenged in- chambers conference apart from discussing

RCW 63. 21. 010. On this sparse record, Miller asserts that the trial court' s pretrial discussion of


RCW 63. 21. 010 was likely adversarial in nature and, thus, has been historically open to the

public.    But the record does not show that the in- chambers conference was adversarial; rather it

shows     merely that the trial judge         and   trial   counsel      discussed RCW 63. 21. 010.              Additionally, the

adversarial nature of a proceeding alone cannot determine whether such proceeding has

historically   been    open     to the      public.    For example, discussions on how to respond to jury

 questions during deliberations may be viewed as adversarial in nature, but our Supreme Court




                                                                    7
No. 43215 -3 - II



has held that such proceedings have not historically been open to the public and, thus, fail the

first prong of the experience and logic test. Sublett, 176 Wn.2d at 75 -76.

          Moreover, the cases Miller cites do not stand for the proposition that adversarial


proceedings are           historically     open    to the     public.    In Press -Enterprise, the United States Supreme


Court applied the experience and logic test to determine that a " qualified First Amendment right

of   access     to    criminal         proceedings"          applied to a 41 -day preliminary hearing conducted in

California,     at which         the   state presented evidence and at which "[              t] he accused ha[ d] the right to


personally      appear . . .,           to be represented by counsel, to cross -examine hostile witnesses, to

present   exculpatory         evidence, and         to    exclude     illegally   obtained evidence."   478 U.S. at 4, 12 -13.


In applying the experience prong, the Press -Enterprise Court noted that " preliminary hearings

conducted before neutral and detached magistrates [ of the type conducted in California] have

been   open     to the    public."       478 U. S.      at   10.   And in applying the logic prong, the Press -Enterprise

Court noted,


                      It is true that unlike a criminal trial, the California preliminary hearing
          cannot result in the conviction of the accused and the adjudication is before a
          magistrate        or    other judicial officer without a jury.                But these features, standing
          alone, do not make public access any less essential to the proper functioning of
          the   proceedings            in the   overall criminal        justice   process.   Because of its extensive

          scope, the preliminary hearing is often the final and most important step in the
          criminal proceeding.


478 U. S.      at   12.   In holding that the " extensive" preliminary hearing satisfied the experience and

logic test, the Press -
                      Enterprise Court did not hold that every proceeding that is adversarial in

nature    is   subject     to the      public   trial   right.     And we cannot conclude that a pretrial discussion of a


criminal statute is analogous to the extensive preliminary hearing proceedings examined in

Press -Enterprise.
No. 43215 -3 -II



          United States     v.   Simone, 14 F.3d 833, 838 -40 ( 3d Cir. 1994), and United States v. Criden,


675 F. 2d 550, 555 ( 3d Cir 1982), also do not assist Miller because the Third Circuit Court of


Appeals did not find a historical analysis relevant to its determinations that a First Amendment

right of access applied to preliminary criminal hearings ( Criden) or to a posttrial hearing on juror

misconduct (       Simone).      United States        v.   Smith, 787 F. 2d 111 ( 3d Cir. 1986), also does not assist


Miller.    In holding that a common -law right of access to judicial records applied to " transcripts

of sidebar or chambers conferences in criminal cases at which evidentiary or other substantive

rulings   have been       made,"        the Smith court did not endorse a broad right of public access to any

adversarial proceeding. 787 F. 2d at 115 ( emphasis added).

          In short, the cases Miller cites in support of the broad proposition that adversarial

proceedings        have   historically been          open   to the   public are     unavailing.   Accordingly, Miller has

failed to meet his burden to satisfy the first prong of the experience and logic test and, thus, he

cannot show that the public trial right attached to the pretrial conference here.

          B.         DISCUSSION OF JURY INSTRUCTIONS


          Next, Miller asserts that the trial court violated his and - he public' s right to an open and
                                                                     t


                                                      jury    instructions in                     Again,   we   disagree.   In
public    trial   by discussing          proposed                                   chambers.




holding that the trial court' s in- chambers consideration of a jury question did not violate the

defendants'        public   trial       rights,    the Sublett lead plurality opinion noted that proceedings

addressing        jury   questions      are "   similar in nature to proceedings regarding jury instructions in

 general."        176 Wn.2d        at   75.       The lead plurality opinion further noted that jury instruction

 conferences have not historically been held in an open courtroom, stating,

          Historically, such proceedings have not necessarily been conducted in an open
          courtroom.        Jury    instructions      are covered        by   CrR 6. 15.   Proposed instructions are


                                                                     X
No. 43215 -3 -II



             submitted     in writing       at   least three days before the        start of   trial.   CrR 6. 15( a). We
          are aware that, quite often, counsel discuss the instructions with the court during
          an informal proceeding. But before instructing the jury, counsel is to be given the
          opportunity to object in the absence of the jury. CrR 6. 15( c). Any objections to
          the instructions, as well as the grounds for the objections, must be put in the
          record      to   preserve    review.         Schmidt      v.   Cornerstone Inv., Inc., 115 Wn.2d 148,
             162 -63, 795 P. 2d 1143 ( 1990); Goehle v. Fred Hutchinson Cancer Research Ctr.,
             100 Wn.       App. 609,            615 -17,    1   P. 3d 579 (   counsel has duty to lodge formal
             objections even       if instructions discussed             during informal hearing), review denied,
             142 Wn.2d 1010 ( 2000).                Both CrR 6. 15( a) and CrR 6. 15( c) have been in effect,
             in   almost   identical form,          since   1973.    We have found no challenges to either of
          these sections of the rule or, prior to the rule' s enactment, any case requiring the
             discussion of jury instructions to be held in open court.
                                            7
Sublett, 176 Wn.2d           at   75 -76.        Accordingly, we hold that the trial court' s in- chambers conference

to discuss jury instructions fails the experience prong of the Sublett test and does not constitute a

closure for which the trial court was required to conduct a Bone -Club analysis.


RIGHT TO BE PRESENT


             Next, Miller contends that the trial court' s in- chambers discussion with counsel before


trial   violated     his   right   to be        present    during   a critical   stage   of   his trial.$ Because the record is


unclear as to whether Miller was present during the trial court' s chambers conference, he fails to

Show that his constitutional right to be present at a critical- stage of the trial was violated.


             A criminal defendant has the constitutional right to be present at all critical stages of trial.


State   v.   Irby,   170 Wn.2d 874, 880 -81, 246 P. 3d 796 ( 2011).                      But a criminal defendant " does not


have a right to be present during in- chambers or bench conferences between the court and


7
  Justice Stephens' s concurring opinion similarly compared conferences to resolve jury questions
regarding instructions with conferences addressing jury instructions in the first instance. Sublett,
176 Wn.2d at 141 ( Stephens, J., concurring).

8 Miller does not assert that the trial court' s in- chambers meeting to discuss jury instructions
violated his right to be present.


                                                                         10
No. 43215 -3 -II



counsel on legal matters, at least where those matters do not require a resolution of disputed

facts."   In re Pers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P. 2d 835, 870 P. 2d 964 ( citations

omitted), cent.    denied, 513 U. S. 849 ( 1994).              Miller has the burden of providing an adequate

record of the challenged proceeding to allow us to determine whether the proceeding constituted

a critical stage of     the trial   for   which   Miller had    a right   to be   present.   RAP 9. 2( b); Bennett, 168


Wn.   App.   at   207   n. 9.    We review de novo whether the defendant' s right to be present has been


violated. Irby, 170 Wn.2d at 880.

          Here the trial court' s single statement regarding a pretrial in- chambers discussion does

not reveal whether Miller was present during the discussion. And even assuming that Miller was

excluded from the in- chambers conference, the record fails to show whether trial court and

counsel addressed anything beyond purely legal matters that did not require a resolution of

disputed facts.     Accordingly, on this record, Miller cannot show that his right to be present at a

critical stage of trial was violated by the trial court' s pretrial in- chambers discussion.

SUFFICIENCY OF THE EVIDENCE


          Next, Miller argues that-insufficient evidence- supported his false -
                                                                              statement in application

for   or assignment of a certificate of            title   conviction.    Specifically, Miller argues that the State

failed to present evidence that he ( 1) made a false statement and ( 2) that such false statement was

made in application for a certificate of title.


           The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond     a reasonable         doubt."   State   v.   Salinas, 119 Wn. 2d 192, 201, 829 P. 2d 1068 ( 1992).        All


  reasonable inferences from the evidence must be drawn in favor of the State and interpreted


                                                                11
No. 43215 -3 -II



most    strongly   against   the defendant."           Salinas, 119 Wn.2d               at   201. "    A claim of insufficiency

admits the truth of the State' s evidence and all inferences that reasonably can be drawn

therefrom."        Salinas, 119 Wn.2d           at    201.     Circumstantial evidence and direct evidence are


deemed equally        reliable.      State     v.    Delmarter,          94 , Wn.2d 634, 638,              618         P. 2d 99 ( 1980).


 Credibility   determinations        are   for the trier     of   fact   and cannot          be   reviewed on appeal."           State v.


Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


         To convict Miller for making a false statement in application for or assignment of a

certificate of title, the State had to prove beyond a reasonable doubt the elements of former RCW

46. 12. 210 ( 2003).         Former RCW 46. 12. 210                provides        in    relevant       part, "   Any person who

knowingly makes any false statement of a material fact, either in his or her application for the
certificate of   ownership     or   in any   assignment        thereof...     is guilty of a class B felony."

         A.         FALSE STATEMENT


         Miller first contends that the State failed to present sufficient evidence that he had made a

false   statement.     Specifically,        Miller    contends       that his      statement, "[        t]railer was left on my

property, attempted to get ahold [ sic] of owner of record by certified mail with return receipt

with no   reply,"   was literally true because Cole did not reply to his certified letter in writing. Ex.

4. We disagree.


          Former RCW 46. 12. 210 does                not   define the     word "   false."         Accordingly, we ascertain the

word' s plain      meaning    as set   forth in      a standard        dictionary. State v. Sullivan, 143 Wn.2d 162,

 175,   19 P. 3d 1012 ( 2001).             Black' s Law       Dictionary defines " false"                 as "    1.    Untrue. . . .   2.


Deceitful;    lying....       3. Not       genuine;    inauthentic."         BLACK' S LAW DICTIONARY 677 ( 9th ed.


2009).     Miller   argues    that the     rule of    lenity   requires     this    court         to interpret " false" as meaning




                                                                  12
No. 43215 -3 -II



 untrue"       and       that    a   merely deceitful          statement   is insufficient to    uphold    his   conviction.       We


accept for the sake of Miller' s argument that former RCW 46. 12. 210 required a literally untrue

statement as opposed to a merely deceptive statement; nonetheless, the State presented sufficient

evidence that Miller made a false statement when he wrote on his registration application that he

received " no reply" from the tractor -
                                      trailer' s owner of record. The State presented evidence that

                                          letter, Cole             Miller                      Miller in                   Further, the
after   receiving Miller'             s                  called             and met with                   person.




State' s evidence showed that Cole had called Miller and met with him before Miller made the

statement at         issue.      Accordingly, any reasonable jury could conclude that Miller' s statement that

he received " no reply" was literally untrue.

              B.          CERTIFICATE OF TITLE


              Miller also contends that the State failed to present sufficient evidence that his false

statement was made                   in   application    for   a certificate of   title.   Specifically, Miller argues that the

 Bonded Title or Three -Year Registration Without Title Affidavit" form in which he made his

false statement does not qualify under former RCW 46. 12.210 as an " application for a certificate

of   title.        We disagree.


              Under former RCW 46. 12. 151( 1) (                  1990),    the DOL may issue a certificate of registration

but   shall "[      w]ithhold issuance of a certificate of ownership for a period of three years or until the

applicant          presents          documents reasonably           sufficient    to   satisfy [ DOL]      as   to   the    applicant' s



ownership           of   the    vehicle and    that there      are no undisclosed      security interests in it." Although this


process required Miller to wait three years before receiving ownership of Cole' s tractor -
                                                                                          trailer,

his registration with title affidavit was nonetheless an essential part of applying for a certificate




                                                                       13
No. 43215 -3 - II



of title to Cole' s tractor -trailer. Accordingly, we hold that the State presented sufficient evidence

to sustain his false statement in application for or assignment of a certificate of title conviction.

JUDICIAL COMMENT ON THE EVIDENCE


            Finally, Miller argues that the trial court improperly commented on the evidence by

instructing the jury on the procedure for legally claiming found property. We disagree.

            Article IV,          section   16       of   the Washington State Constitution          states, "   Judges shall not


charge juries with respect to matters of fact, nor comment thereon, but shall declare the law."


This provision' s purpose is to prevent the jury from being influenced by knowledge conveyed to

it   by   the court as to the          court' s opinion of       the   submitted evidence.       State v. Elmore, 139 Wn.2d


250, 275, 985 P. 2d 289 ( 1999),                    cent.   denied, 531 U. S. 837 ( 2000).       To constitute a comment on


the evidence, it must appear that the trial court' s attitude toward the merits of the cause is

                                                                                                         Elmore, 139 Wn.2d at
reasonably inferable from the                   nature or manner of         the   court' s statements.




276;      see    also    State    v.   Ciskie, 110 Wn.2d 263, 283, 751 P. 2d 1165 ( 1988) ( an impermissible


comment on the evidence is an indication to the jury of the judge' s personal attitudes toward the

merits of the cause).


               A jury instruction may be an improper comment on the evidence. See, e. g., State v. Levy,

 156 Wn.2d 709, 721 -23, 132 P. 3d 1076 ( 2006).                            But a jury instruction is not an impermissible

comment on the evidence when sufficient evidence supports it and the instruction is an accurate

statement of            the   law.     State   v.   Johnson, 152 Wn.         App.    924, 935, 219 P. 3d 958 ( 2009) ( citing


State     v.   Hughes, 106 Wn.2d 176, 193, 721 P. 2d 902 ( 1986)); see also Ciskie, 110 Wn.2d at 282-


 83.


               Here the trial court gave the following jury instruction based on RCW 63. 21. 010:


                                                                       14
No. 43215 -3 - II



                       A person may lawfully claim found property only if the following
              circumstances are satisfied:

                        1)       the owner of the property is unknown;
                        2)       within seven days of the finding, the finder acquires a signed
                                 statement setting forth an appraisal of the current market value of
                                 the property prepared by a qualified person engaged in buying or
                                 selling like items or by a district court judge; and
                        3)       within seven days of the find, the finder reports the find of
                                 property and surrenders, if requested, the property and a copy of
                                 the evidence of the value of the property to the chief law
                                  enforcement officer, or his or her designated representative, of the
                                  governmental entity where the property was found, and serves
                                  written notice upon the officer of the finder' s intent to claim the
                              property if the owner does not make out his or her right to it.
                       If                 1), ( 2), and ( 3) are satisfied, the found property becomes
                             circumstances (

              the property of the finder sixty days after the find was reported to the appropriate
              officer if no owner has been found, or sixty days after the final disposition of any
              judicial or other official proceeding involving the property, whichever is later.
                       If any     one   of circumstances (            1), (    2),   or (   3)   are not satisfied, the finder
              forfeits all right to the property.
                       A finder' s claim to found property is extinguished if the owner
              satisfactorily establishes, within sixty days after the find was reported to the
              appropriate officer, the owner' s right to possession of the property.

                                            9
Clerk'    s    Papers ( CP)      at   50.       Miller   asserts   that the trial            court     judge " signaled his belief' that


Miller was guilty by giving the instruction because the instruction was unsupported by the

evidence at trial. 10 Br. - f-Appellant at 17. But Miller testified at trial that he had an ownership
                          o

                        trailer based
interest in the tractor -                                on   Cole abandoning it                  on   his property.     Thus, sufficient




9 The trial court also instructed the jury as follows:
                       Our state constitution prohibits a trial judge from making a comment on
              the   evidence. It would be improper for me to express, by words or conduct, my
              personal       opinion    about     the    value   of    testimony            or   other   evidence.     I have not

              intentionally            If it appeared to you that I have indicated my personal
                                done this.
              opinion in any way, either during trial or in giving these instructions, you must
              disregard this entirely.
CP   at   31.       We presume that the jury followed this instruction. State v. Robinson, 146 Wn. App.
471, 483, 191 P. 3d 906 ( 2008).


io Miller does not assert that the jury instruction was an incorrect statement of the law.
                                                                          15
No. 43215 -3 -II



evidence was presented at trial to warrant the above instruction because it allowed the State. to


rebut Miller' s assertion that he had rightfully claimed title to the abandoned tractor -
                                                                                        trailer.

Accordingly, we hold that the trial court did not impermissibly comment on the evidence by

giving the challenged jury instruction.

        We affirm.




                                                 QU -     BRINTNALL, J.
We concur:




HUNT, P. J.



MAXA, J.




                                                16
