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                                                                                                     1
                                                                                           COURT 01=APPEALS
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                                                                                         1013 MAR        QM 8: 3 9
    IN THE COURT OF APPEALS OF THE STATE OF WASHINQTON_
                                                                                                           I r"
                                                                                                              MO N
                                          DIVISION II                                     0Y
                                                                                                    EP
STATE OF WASHINGTON,                                                 No. 41904 1 II
                                                                               - -


                               Respondent,

        V.




THOMAS R. STEPHENS,                                            UNPUBLISHED OPINION




        WORSWICK, C. . — jury found Thomas Stephens guilty of second degree assault with a
                   J    A

deadly weapon, witness tampering, and violation of a no contact order. On appeal he argues (1)

the trial court violated his right to a unanimous verdict by failing to instruct the jury that it must

be unanimous on which weapon he used to commit the assault; 2) trial court violated his
                                                            ( the

right to a public trial by closing the courtroom to replay an admitted audio recording for the jury

during a pause in deliberations, and by responding to a jury inquiry without a public hearing; and

3) trial court violated his right to be present at trial by responding to the same jury inquiry in
 the
his absence. We affirm.

                                                FACTS


        In July 2010,a neighbor of Stephens and Stephens's wife,Danielle, called 911 to report a
                      -

domestic violence incident at Stephens's residence. Police arrived at the residence, finding

Danielle visibly shaking and crying. Danielle told the police Stephens had stabbed her in the

back.
No. 41904 1 II
          - -


       At the hospital the same day, Danielle told a nurse practitioner that Stephens had hit her

and held a knife to her throat but had not cut her. The nurse practitioner observed injuries

consistent with this statement.


       The next day, Trooper Russell Sanders stopped Stephens's vehicle and arrested him.

Trooper Sanders obtained a search warrant for Stephens's vehicle and seized a knife found in the

glove box. While in jail, Stephens made repeated phone calls to Danielle, in violation of a no

contact order, attempting to influence her to not testify against him.

       The State accordingly.charged Stephens with second degree assault with a deadly

weapon, witness tampering, and violation of a no contact order. On the assault charge, the State

alleged sentence enhancements for Stephens being armed with a deadly weapon, for domestic

violence, and for committing a violent offense against a victim he knew was pregnant.

       At trial,the trial court admitted into evidence and the jury heard an audio recording of the

911 call that brought the police to Stephens's residence. The trial court also admitted

photographs of a knife found in Stephens's bathroom, but the State did not attempt to admit the

knife itself. The trial court admitted the knife found in Stephens's glove box. Further, the State
                  -

elicited the testimony of Deputy Mark Millet that, in August 2010, Danielle gave him two

additional knives from her residence. Neither of these knives   was   admitted.'

       During closing arguments, the State discussed all four knives, but it did not argue that

Stephens used any particular knife to commit the assault against Danielle. The trial court

instructed the jury that it must return a unanimous verdict. And the trial court properly instructed


 The State sought to admit one of the knives that Danielle gave to Deputy Millet,but the trial
court sustained Stephens's objection that such admission was improper during rebuttal. The
State did not seek to admit the other knife that Danielle gave to Deputy Millet.


                                                 1A
No. 41904 1 II
          - -



the jury on.the elements of second degree assault with a deadly weapon. The trial court did not

instruct the jury that it must unanimously agree on which deadly weapon Stephens used during
the assault.


         During jury deliberations, the jury sent a note to the trial court requesting to hear the

recording of the 911 call again. The trial court responded, This will be allowed, but we will
                                                            "

bring you back into court to do this as soon as arrangements can be made."Clerk's Papers (CP)

at 34.


         On the record, outside the presence of the jury, the trial court stated,

         I think probably since this is a sort of substitute for having the jury hear this in the
         jury room we do it in the courtroom to have a little more control of it,but I think I
         should ask counsel who are not involved in the case to leave and we'll clear the
         courtroom....


                 I think, counsel, there would be circumstances under which we would set
         this up in the jury room and simply have the bailiff start it. But since we have to
         stop at a very precise point, I think he [sic]we better err on the side of caution.

Report of Proceedings (RP)Jan. 14, 2011)at 2 3. Stephens's counsel responded, Yeah,
                           (                 -                                "

definitely."RP (Jan. 14, 2011)at 3.

         The trial court then closed the courtroom and brought the jury in. The trial court told the

jury,

         The last question we got was a request to hear the 911 tape again. We really don't
         have the ability to do that in the jury room so we need to do it in the courtroom. I
         have closed the courtroom to try to facilitate doing this as closely as you would in
         your jury deliberations room.

RP (Jan. 14, 2011)at 3. The trial court then.replayed the recording for the jury, after which the

jury returned to deliberations.




                                                    3
No. 41904 1 II
          - -



       The jury sent a second note to the trial court asking, Can we look at the blade of the
                                                              "
knife ?"   CP at 35. Five minutes after the inquiry was made, the trial court replied in writing,

Yes." at 35. The preprinted inquiry form states that the trial court's written response was
    CP

given " FTER AFFORDING ALL COUNSELPARTIES OPPORTUNITY TO BE HEARD."
      A                           /
CP at 35.


       The jury found Stephens guilty as charged, and it returned special,verdicts of yes"on
                                                                                      "

each of the sentence enhancements. Stephens appeals.

                                             ANALYSIS


                                  I. RIGHT TO UNANIMOUS VERDICT


       Stephens argues that the trial court violated his right to a unanimous verdict by failing to

instruct the jury that it had to be unanimous on which knife he used to assault Danielle. We

disagree because the State alleged only a single act to support the assault charge and because the

particular knife used was not an element of the offense on which the jury was required to

unanimously find proof beyond a reasonable doubt.

       Article I,
                section 21 of the Washington State Constitution gives criminal defendants the

right to a unanimous jury verdict. State v. Ortega -Martinez, 124 Wn. d 702, 707, 881 P. d 231
                                                                    2                  2

1994).When the State presents evidence of multiple acts that could form the basis of the crime

charged, either the State must elect to rely on just one of the acts, or the jury must be instructed

to reach a unanimous verdict on the specific act that supports a finding of guilt. State v.

Coleman, 159 Wn. d 509, 511, 150 P. d 1126 (2007).The State's failure to make such an
               2                  3

election or the trial court's failure to properly instruct the jury requires reversal unless the error is




                                                   rd
No.41904 1 II
         - -



harmless beyond a reasonable doubt. Coleman, 159 Wn. d at 512. We review alleged error in
                                                   2

jury instructions de novo. State v. Sibert, 168 Wn. d 306, 311, 230 P. d 142 (2010).
                                                  2                  3

        Stephens relies principally on Coleman for the argument that the trial court failed to give

a proper unanimity instruction, but Coleman is distinguishable. In Coleman, a "multiple acts"

unanimity   instruction was required because Coleman was charged with two counts of child

molestation against two victims, and there was evidence of multiple acts of molestation of each

victim. 159 Wn. d at 511, 514. But in contrast here, there was evidence of only one act of
              2

assault of one victim.


        Stephens also cites State v. Vander Houwen, 163 Wn. d 25, 38, 177 P. d 93 (2008),
                                                          2                3            but

that case is also distinguishable. There, Vander Houwen was charged with unlawfully killing 10

elk. 163 Wn. d at 30 31. The jury found Vander Houwen guilty of killing two of the elk,but
           2         -

the State did not link any particular elk to any of the charges, nor was the jury instructed that it

must be unanimous which elk Vander Houwen killed. 163 Wn. d at 38 39. Under those facts,
                                                        2         -

where Vander Houwen was charged with separately killing 10 different elk " ictims,"
                                                                         v        our

Supreme Court held that it was error not to give a " ultiple acts"Unanimity instruction. 163
                                                   m

Wn. d at 38 39. But here, again, Stephens was charged with one crime against one victim.
  2         -

Vander Houwen is thus distinguishable as well.




2 For ease of reference, we refer to the jury instruction required in multiple acts"cases, that the
                                                                      "
jury must be unanimous on which of multiple acts supports the charges, as a "` multiple acts'
unanimity instruction."


                                                   5
No. 41904 1 II
          - -



       Here,the evidence showed just one act supporting Stephens's second degree assault with

a deadly weapon charge: holding a knife to Danielle's throat. The possibility that Stephens used

one of four knives to commit this act does not alter the fact that the assault was a single act.

Stephens cites no applicable authority to the contrary and his argument accordingly fails.

       Moreover, that the defendant used a particular deadly weapon is not an element of.
                                                                                        second

degree assault with a deadly weapon. RCW 9A. 6.
                                         c). requires that
                                         021(
                                            1)( simply
                                            3  The statute

the defendant assaulted the victim with " deadly weapon."RCW 9A. 6.
                                        a                    c)
                                                             021(
                                                                1)(
                                                                3 emphasis                          (

added).Where a unanimous verdict is required, as is the case in our state, the jury must
       "

unanimously agree that every element of the crime is established beyond a reasonable doubt.for

convictions to be valid."
                        State v. Franco, 96 Wn. d 816, 832, 639 P. d 1320 (1982).Because
                                              2                  2

the fact that a specific weapon was used is not an element of second degree assault with a deadly

weapon, the jury was not required to unanimously agree on the particular knife Stephens used.

Here,the State presented almost no evidence as to which knife Stephens used to assault Danielle.

But the jury could have validly concluded that even though the State had not proved which knife

Stephens used beyond a reasonable doubt, it had proved beyond a reasonable doubt that he used
         -

a knife. The trial court accordingly did not err by failing to give a " ultiple acts"unanimity
                                                                      m

instruction as to the weapon used.

        Only a single act supported the State's charge against Stephens, and the exact knife was

not an element of the crime charged. As such, unanimity was not required on which particular

knife Stephens used, and a " ultiple acts"unanimity instruction was not required. We affirm
                           m

Stephens's second degree assault conviction.




                                                  2
No. 41904 1 II
          - -


                                            II. RIGHT TO PUBLIC TRIAL


         Stephens next argues that the trial court violated his right to a public trial by closing the

courtroom in order to play the 911 tape for the jury. He also argues that the trial court violated

his right to a public trial by answering the jury's request to view the knife without any public

hearing on the matter. Because the right to a public trial was not implicated in either instance,
we disagree.

         The Sixth Amendment to the federal constitution and article I,section 22 of the

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

155 Wn. d 506, 514, 122 P. d 150 (2005).Whether a defendant's right to a public trial has been
      2                  3

violated is a question of law,reviewed de novo. Brightman, 155 Wn. d at 514.
                                                                 2
         A trial court   generally   errs   by failing   to   analyze   the five Bone Club 4
                                                                                      -        factors on the record

before closing the courtroom. See State v. Easterling, 157 Wn. d 167, 175, 137 P. d 825 (2006).
                                                             2                  3

But we cannot determine whether there has been a " losure"for public trial purposes without
                                                 c

first addressing whether the proceeding at issue implicated the right to a public trial in the first

place. State v. Sublett, No - 84856 4,slip op. at 12, 2012 WL 5870484 ( ash.Nov. 21,2012).
                                    -                                 W

We address this question under the " xperience and logic"test. Sublett, slip op. at 14 15. The
                                   e                                                   -

experience prong of this test asks "`
                                   whether the place and process have historically been open to

the press and general public."'
                             Sublett, slip op. at 15 (quoting Press -
                                                                    Enter. Co. v. Superior

3
 Stephens also argues that the trial court violated the public's right to open court proceedings
under article I,section 10 of the Washington Constitution. But the analysis for this issue mirrors
that for the defendant's right to a public trial. State v. Easterling, 157 Wn. d 167, 175, 137 P. d
                                                                             2                  3
825 (2006).And Stephens provides no separate analysis regarding the public's right to an open
trial. As such, we do not address the public's right to an open trial.
4
    State v. Bone Club, 128 Wn. d 254, 258 60,906 P. d 325 (1995).
                  -           2            -       2



                                                              7
    No. 41904 1 II
              - -



    Court, 478 U. . 1, 8, 106 S. Ct.2735, 92 L.Ed. 2d 1 ( 1986)). logic prong asks "`
                S                                              The                 whether

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

    question. "' Sublett, slip op. at 15 (quoting Press-
                                                       Enter., U. . at 8). both questions are
                                                             478 S       If

    answered in the affirmative, then the right to a public trial is implicated. Sublett, slip op. at 15.

             The Sublett court addressed whether a trial court's response to jury questions regarding

    the jury instructions implicated the right to a public trial, concluding that such proceedings do

    not satisfy the experience prong of the experience and logic test. Sublett, slip op. at 18. The

    court noted that under CrR 6.5( trial court's responses to jury inquiries must be made
                               f)(
                                1),
                                1 a

    part of the record, but the rule does not specify how, i..,
                                                            e does not specify that responses must be

    put on the record in open court. Sublett, slip op. at 19 20. The court found that CrR 6.5(
                                                             -                            f)(
                                                                                           1)
                                                                                           1 is

    the only authority governing the response to a jury inquiry, showing that there is no historical

    requirement that such proceedings be conducted in open court. Sublett, slip op. at 20. Under this

    holding of Sublett, Stephens's public trial arguments fail.

    A.       Playing 911 Tape in Closed Court

1            There is no question that the trial court closed the -courtroom without conducting a Bone- -
                      -                                                                         -

    Club analysis when it played the 911 recording for the jury. While no Washington court has

    addressed this precise situation,. hold that the jury's listening to an already-
                                     we                                            admitted piece of

    evidence during a pause in deliberations did not implicate Stephen's right to a public trial. Just

    as in Sublett, CrR 6.5(
                       f)( show that there is any historical right for the public to be
                        1)
                        1 does not

    present during such a proceeding. Stephens's argument accordingly fails the experience prong of .

    the   experience   and   logic   test.
No. 41904 1 II
          - -



       As the Sublett court noted, CrR 6.5(
                                       f)(the trial court with discretion how to
                                        1)
                                        1 vests

respond to jury questions. Sublett, slip op. at 20. " he court shall respond to all questions from
                                                    T

a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's

request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a

comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes

the possibility that jurors will give undue weight to such evidence."CrR 6.5(
                                                                         f)(
                                                                          1).
                                                                          1

       Thus, not only does CrR 6.5(
                               f)( trial court discretion as to how it puts its
                                1)
                                1 give a

responses to a jury question on the record, CrR 6.5(also gives the trial court discretion in
                                                f)(
                                                 1)
                                                 1

how the court permits the jury to rehear evidence. There is no authority aside from CrR

f)(
6.5(
 1)
 1 regarding the manner in which a trial court permits a jury to rehear evidence. As such,

just as in Sublett, we.cannot conclude that the jury's rehearing of evidence is a process that has

historically been open to    the press and   general public. "' Sublett, slip op at 15 (quoting Press-

Enter.,
      478 U. .at 8).
           S

        We thus hold that the jury's rehearing of evidence in the courtroom fails the experience

prong ofthe experience and logic test:The proceeding did not implicate Stephens's right to a
      -                               -                                              -
public trial, and his argument on this point fails.

B.      Jury's Request To See the Knife

        As to the trial court's response to the jury's request to see the knife, Sublett is directly on

point. Sublett explicitly held that the public trial right is not implicated by a trial court's

addressing a jury inquiry. Sublett, slip op. at 20 21. There is no distinction between the jury
                                                   -

inquiry here and that addressed in Sublett. Stephens's argument on this point is without merit
under Sublett.




                                                    E
No. 41904 1 II
          - -



                               III. DEFENDANT'S RIGHT To BE PRESENT


        Stephens finally argues that the trial court violated his right to be present during the

critical stages of trial when the trial court responded to the jury's request to see the knife without

his presence. Because the record does not support Stepehens's claim that he was absent for the

trial court's response to this request, we do not address this issue.

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

State v. Irby, 170 Wn. d 874,.
                     2 81, P. d 796 (2011).A defendant's right to be present
                            880-246 3

attaches "`
         whenever his presence has a relation, reasonably substantial,to the fullness of his

opportunity to   defend   against   the   charge. "' Irby, 170 Wn. d at 881 (quoting Snyder v
                                                                 2

Massachusetts, 291 U. . 97, 105 06,54 S. Ct. 330, 78 L.Ed. 674 (1934)). does not attach
                    S           -                                    It

when the defendant's presence "`
                              would be useless, or the benefit but a shadow."'
                                                                             Irby, 170

Wn. d at 881 (quoting Snyder, 291 U. .at 106 07). review de novo whether the defendant's
  2                                S         -  We

right to be present has been violated. Irby, 170 Wn. d at 880.
                                                   2

        However, under State v. Jasper, 174 Wn. d 96, 123 24 271 P. d 876 ( 012),
                                              2           -       3       2     appellate

courts will not presume a defendant's absence based solely on the lack of a record to show his

presence. Jasper argued that the trial court violated his right to be present by responding to a

jury inquiry in his absence. 174 Wn. d at 124. Our Supreme Court noted that
                                   2

        o] a partial or incomplete record, the appellate court will presume any
         n
        conceivable state of facts within the scope of the pleadings and not inconsistent
        with the record which will sustain and support the ruling or decision complained
        of, but it will not, for the purpose of finding reversible error, presume the.
        existence of facts as to which the record is silent."


174 Wn. d at 123 24 quoting Barker v. Weeks, 182 Wash. 384, 391, 47 P. d 1 (1935)).
      2          - (                                                 2




                                                        10
No. 41904 1 II
          - -



       The only evidence of Jasper's absence during the trial court's response to the jury inquiry

was the eight minute delay between the question and response, and the absence of an entry in the

court's minutes indicating that Jasper was present. 174 Wn. d at 124. Furthermore, the court's
                                                          2

response to the jury inquiry contained the preprinted statement that the trial court contacted the

parties before responding. 174 Wn. d at 124. Noting that the trial court had signed the form
                                 2

bearing this pre -printed statement, the Supreme Court held, W] do not lightly assume that a
                                                             "[ e

judge falsely attaches a signature to a court form."174 Wn. d at 124. Under such facts, the
                                                          2

Supreme Court declined to consider Jasper's argument that the trial court violated his right to be

present by responding to the jury inquiry in his absence. 174 Wn. d at 124.
                                                                2

        Here, as in Jasper, there is no record of a conference on the jury inquiry at issue, aside

from the preprinted form stating that the trial court had contacted the parties and counsel. The

only distinction between the instant case and Jasper is that Jasper was.not in custody during his

trial,while here, the record is silent as to whether Stephens was in custody during his trial. 174

Wn. d at 124.
  2


        However, despite this distinction, the rationale of Jasper applies. in the absence of a

record, we do not presume a violation of the right to be present. Stephens relies on nothing more

than the absence of a record that he was present to show that he was not present. While the State

does not contest that Stephens was absent, neither does it explicitly concede the issue. As in

Jasper, we decline to consider Stephens's right to be present claim based on this inadequate,

record.




                                                  11
No. 41904 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 in accordance with RCW
040,
2.6.it is so ordered. ,
 0




                                                                    W
We concur:




                                                 12
