                                                                                                  COURT QF
                                                                                                              APPEALS
                                                                                                        DIVISION 11
                                                                                                2015 FEB 24
                                                                                                            Al        9: 26
                                                                                                STATE OF
                                                                                                              WASHINGTO I
                                                                                                BY
                                                                                                               UTY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

    STATE OF WASHINGTON,                                                                 No. 44756 -8 -II


                                          Respondent,


              v.




    JAMES JOHN SHARPLES,                                                         UNPUBLISHED OPINION


                                          Appellant.


             JOHANSON, C. J. —         James John Sharples appeals his jury trial conviction for driving under

the influence (DUI) —refusals            and his sentence. Sharples argues that ( 1) the trial court violated his


and the public' s right to a public trial by holding an in- chambers conference with counsel to discuss
                                                                                     Club2
matters      concerning jury     voir   dire   without   first conducting   a   Bone -       analysis, ( 2)   under Alleyne


v.   United States,          U. S. ,      133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013),           the charging information

was deficient because it failed to allege " elements" of the " refusal" enhancement, and ( 3) under


Alleyne, the jury instructions relieved the State of its burden to prove an essential " element" of the




s
     Former RCW 46. 61. 502 ( 2011); former RCW 46. 61. 5055 ( 2011).

2
     State   v.   Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).
No. 44756 -8 -II



    refusal" enhancement, or, in the alternative, he received ineffective assistance of counsel when


his counsel proposed these instructions. Holding that ( 1) the matters discussed in the in- chambers

conference did not implicate any public trial rights under the " experience and logic" test,3 ( 2) the

charging information          was sufficient, (      3) any potential instructional error was invited error, and ( 4)

Sharpies does not establish deficient performance, we affirm.


                                                             FACTS


                                                        I. BACKGROUND


            On May 6, 2012, Skamania County Deputy Sheriff Summer Scheyer stopped the vehicle

Sharpies         was   driving    after   observing him speeding          and   driving "   erratic[   ally]."   2 -A Report of


Proceedings ( RP) at 124. When his vehicle came to a stop, Sharpies jumped out of the car. After

a struggle,       Deputy    Scheyer       restrained   Sharpies.       Deputy Scheyer noticed that Sharpies appeared

intoxicated.           Sharpies    refused    to   participate   in any field sobriety tests.            The deputy arrested

Sharpies for DUI and transported him to the jail.


            At the jail, Deputy Scheyer read Sharpies the informed consent warnings for the blood

alcohol concentration (BAC) breath test; he refused to sign the form. Although Sharpies initially

agreed to the breath test, when the deputy asked Sharpies to blow into the DataMaster BAC

machine, he did not attempt to blow into it. After asking him twice and giving him time to comply,

Deputy Scheyer concluded that Sharpies had refused the breath test.



3
    State   v.   Sublett, 176 Wn.2d 58, 72 -73, 292 P. 3d 715 ( 2012).
                                                                Although only four justices signed
the lead opinion in Sublett, Justice Stephens' s concurrence created a majority who adopted the
  experience and logic" test. Sublett, 176 Wn.2d at 136 ( Stephens, J., concurring). More recently,

a unanimous            Supreme Court        cited   Sublett in applying the " experience and logic" test in In re

Personal Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d 872 ( 2013).


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No. 44756 -8 - II



                                                      II. PROCEDURE


                                                       A. CHARGES


          The State    charged     Sharples    with   DUI— refusa1.4   Because Sharples had one previous DUI

conviction in 2012, the refusal allegation increased the potential minimum time Sharples would


have to   spend   in jail   by   45 days. Former RCW 46. 61. 5055( 2)( b)( i).    The case went to a jury trial.

                                           B. IN- CHAMBERS CONFERENCE


          Before jury selection started, the trial court announced that it would meet with counsel in

chambers to discuss a variety of matters in preparation for the jury trial. Neither party objected to

the in- chambers conference.


          The conference was not contemporaneously transcribed, but the trial court described it on

the record following the conference:

          Okay. First of all, counsel and I did have a conference in chambers. We discussed
          the procedure for selecting a jury. On voir dire each side will be permitted thirty
          minutes of questioning on the first go- around, and if needed, ten minutes of follow -
          up.
                     If counsel feels that that' s insufficient after the ten minutes, you can request
          additional    time; however, I think probably --       both counsel I think agreed that thirty
          plus ten is sufficient.
                     We discussed     general questions.      The Court will ask the standard general
          questions. Both counsel indicate they did not have any general questions of their
          own at this point.
                     We discussed      alternate   jurors. The one alternate will be seated; therefore,
          each side will get seven peremptory challenges. And juror No. 13 will be seated as
          the alternate juror.
                     Witnesses     will   be   excluded.   Both sides are cautioned to instruct their
          witnesses that after they testify they are not to discuss their testimony with any
          other --   any of the witnesses who have not yet testified.

4 The State also charged Sharples with custodial assault and two counts of intimidating a public
servant. The jury found him not guilty of the two intimidating a public servant charges, and the
trial court declared a mistrial as to the custodial assault charge. These charges /convictions are not
at   issue in this   appeal.
No. 44756 -8 -II


                    We     also   discussed the   potential witnesses       that   would   be   called.   The State
        has provided to the Court five potential witnesses, and the Defense indicated that
        they did not have any witnesses other than possibly the defendant, if he decides to
        testify.
                    Motions in limine have already been dealt with this morning earlier.
                    Both sides have presented to the Court its proposed jury instructions. We' ll
          have an instructions conference toward the end of the trial to determine the final
       jury instructions.
               Also the Court requested that each party if they have any physical exhibits
       that they present them to the clerk and have them pre -marked just so we can save
          some time during trial.

2 -A RP    at   90 -92 ( emphasis    added).   Both parties agreed that nothing else had happened during the

in- chambers      conference      that   needed   to be   put on   the   record.   At no point before or after the in-


chambers conference did the trial court discuss the Bone -Club factors.

                                                  C. TRIAL TESTIMONY


          At trial, the State' s witnesses testified as described above. Sharpies was the only defense

witness.




          Sharpies admitted that he had been driving while intoxicated. But he testified that he had

attempted to blow into the BAC, but his attempts did not register.


                                                  D. JURY INSTRUCTIONS


          The trial court' s DUI to- convict instruction was substantially the same as the one Sharpies

offered except that it omitted references to whether Sharpies was under the combined influence of


or affected by intoxicating liquor and drugs:

                 To convict the defendant of driving under the influence, as charged in count
          one, each of the following three elements of the crime must be proved beyond a
          reasonable doubt:
                     That on or about May 6, 2012, the defendant drove a motor vehicle.
                      1)
                     2)
                     That the defendant at the time of driving a motor vehicle was under the
          influence of or affected by intoxicating liquor.
                     3)    That this act occurred in the State of Washington.



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No. 44756 -8 -II



                    If you find from the evidence that each of these elements has been proved
           beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as
           to count one.

                    On the other hand, if,after weighing all the evidence, you have a reasonable
           doubt as to any one of these elements, then it will be your duty to return a verdict
           of not guilty as to count one.

Clerk' s Papers ( CP) at 83.


           The trial court also instructed the jury,

                    A person refuses a law enforcement officer' s request to submit to a test to
           determine the person' s breath alcohol concentration when the person shows or
           expresses a positive unwillingness to do the request or to comply with the request.

CP   at   86.   Sharples had requested an identical instruction.


           In addition, the trial court provided the jury with the following special verdict form:

                    We, the jury, answer the question submitted by the court as follows:
                    QUESTION:       Did the defendant refuse to submit to a test of his breath
           which was requested by a law enforcement officer for the purpose of determining
           the alcohol concentration of the defendant' s breath?


CP at 107. Although the trial court' s special verdict form had a different format, it contained the

exact language Sharples had proposed in his special verdict instruction.

                                        E. VERDICT AND SENTENCE


           The jury found Sharples guilty of DUI. The jury also answered " yes" to the special verdict.

CP   at   107. Sharples appeals.


                                               DISCUSSION


                                              I. PUBLIC TRIAL


           Sharples first argues that the trial court' s failure to conduct a Bone -Club inquiry before

discussing various preliminary matters with counsel in-chambers violated both the public' s and




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No. 44756 -8 -II



his   right   to   a public   trial.   We disagree.     Sharples has failed to show the in- chambers conference


here implicated any public trial right under the " experience and logic" test.

                                                A. STANDARD OF REVIEW


            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 alleged violations of the public trial right de novo.


Wise, 176 Wn.2d at 9.


                                            B. EXPERIENCE AND LOGIC TEST


            The threshold determination we must make when addressing an alleged violation of the

public trial right is whether the proceeding at issue even implicates the right. State v. Sublett, 176

Wn.2d 58, 71, 292 P. 3d 715 ( 2012).               Sharples bears the burden of establishing that a public trial

violation has occurred. In re Pers. Restraint of Yates, 177 Wn.2d 1, 29, 296 P. 3d 872 ( 2013).

            Our Supreme Court adopted the two -part " experience and logic" test to address whether a


particular     proceeding implicates          public   trial   rights.   Sublett, 176 Wn.2d    at   72 -73.   This test asks,


 1) "` [   W]hether the place and process have historically been open to the press and general public '

 experience         prong),   and (    2) "' whether the public access plays a significant positive role in the


functioning of the particular process            in   question ' (     logic prong).   Sublett, 176 Wn.2d at 73 ( quoting

Press -Enterprise Co. v. Superior Court of Calif.for Riverside County, 478 U.S. 1, 8, 106 S. Ct.

2735, 92 L. Ed. 2d 1 ( 1986)).              Only if we can answer both questions affirmatively does the trial




                                                                   6
No. 44756 -8 -II



court' s action    implicate any     public        trial   right.   Sublett, 176 Wn. 2d        at   73.   Sharples fails to carry his

burden under the logic prong.'

         Sharples argues that the public trial right existed here because ( 1) the matters discussed in-

chambers     were
                        largely   part    of   the    jury     selection     process, (   2)    such matters are traditionally


addressed in open court, and ( 3) discussions about the court' s questioning of the venire is an

important   part    of the jury    selection process, and "[              e] xcluding the public from a proceeding where

the court' s questions are formulated shrouds the process in mystery" and could undermine the

tenets   of "[   b] asic fairness, the appearance of fairness, and the confidence in the criminal justice

system."    Br.    of   Appellant    at   8 -9 (   emphasis added).          Even assuming, but not deciding, that such

matters are traditionally addressed in open court, Sharples does not present any argument as to

whether public access plays a significant positive role in the following matters addressed during

the   in- chambers      conference: (     1) the amount of time each party would have to question the potential

jurors   during    voir    dire, ( 2) the      number and selection of             the    alternate       juror, ( 3) the number of


peremptory       strikes each     party   would      have, ( 4) the       exclusion of witnesses, (         5) cautioning witnesses

not   to discuss their    testimony       with     any     other witnesses, ( 6)   the identities of the potential witnesses,


 7) the submission of, but not discussion of, jury instructions, or ( 8) having the clerk premark the

physical exhibits.        Thus, we will not address whether the public trial right attached to discussion

of these matters. RAP 10. 3( a)( 6).


          At best, Sharples' s argument refers to the trial court' s statement that they had " discussed

general questions" related to the jury voir dire during the in- chambers conference. Br. of Appellant



  Because Sharples fails to carry his burden under the logic prong, we need not examine the
experience prong.



                                                                      7
No. 44756 -8 -II



at 7. Although this statement mentions the type of questions the court would be asking the venire,

it does not establish that the parties and the court discussed the content of those questions during

the in- chambers      hearing.         Because we do not know exactly what was discussed, we cannot

determine whether public access to this proceeding would or would not have played a role in this

discussion. See State        v.   Njonge, 181 Wn.2d 546, 556, 334 P. 3d 1068 ( " We cannot presume the


existence of     facts to   which      the   record   is   silent. "), cert.   denied, 135 S. Ct. 880 ( 2014). Regardless,


it does not appear that any of the values served by the public trial right were violated by this

proceeding.


            The purposes of the public trial right are " 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).               There is


nothing in this record suggesting that any witnesses or testimony was involved in the discussion

of the standard jury venire questions, so there was no need to encourage witnesses to come forward

and no risk of      perjury.      And the appearance of fairness doctrine was satisfied by the trial court' s

statement on the record describing the proceeding and by the fact any of the court' s questions were

later presented in public when the trial court instructed the venire. For these reasons, we hold that


Sharples has not established that public access plays a significant positive role in the functioning

of   the   particular process     in   question ( the      logic prong). Thus, he does not show that the public trial


right attached to this in- chambers proceeding, and this argument fails.




                                                                     8
No. 44756 -8 - II



                                          II. ADEQUACY OF INFORMATION


           Sharples next argues for the first time on appeal that the State' s information was deficient


because it failed to advise him of every " element" of the " refusal" enhancement.6 He argues that
under     Alleyne, the State        was required   to    allege   the "   essential       elements"    of the enhancement,



namely ( 1) that the arrest was a lawful arrest based on reasonable grounds to believe that he had

driven under the influence and (2) that the test he refused was a breath test to determine his breath

alcohol concentration.             Even presuming, but not deciding, that the statutory language from the

    refusal" enhancement statute were " elements" that the State had to allege in the information under


Alleyne, this argument fails because the facts can be found by fair construction, and nothing in the

record suggests that any lack of specificity in the information impeded Sharples' s ability to defend

against the " refusal" allegation.


                                        A. STANDARD OF REVIEW AND TEST


            We review challenges to the sufficiency of a charging document de novo. State v. Williams,

162 Wn.2d 177, 182,               170 P. 3d 30 ( 2007).       An appellant may challenge the constitutional

sufficiency of a charging document for the first time on appeal. State v. Kjorsvik, 117 Wn.2d 93,

103, 812 P. 2d 86 ( 1991); see also State v. Zillyette, 178 Wn.2d 153, 161, 307 P. 3d 712 ( 2013).


But where, as here, the appellant challenges the information' s sufficiency for the first time on


6
    The   Sixth Amendment to the United States Constitution provides in part, " In all                      ...   prosecutions,

the    accused shall ...      be informed   of   the   nature and cause of          the   accusation."   Similarly, article I,
section     22   of   the Washington Constitution        provides   in    part, "   In criminal prosecutions the accused
shall     have the    right ...   to demand the nature and cause of the accusation against him."


7 We acknowledge that our Supreme Court recently issued State v. McEnroe, 181 Wn.2d 375, 333
P. 3d 402 ( 2014), in        which a similar     issue   was raised.       But the court does not reach the issue of
whether      Alleyne     expanded    the definition    of "essential element,"            so it is not useful here.



                                                              9
No. 44756 -8 -II



appeal, we construe the document liberally in favor of validity. Kjorsvik, 117 Wn.2d at 105; see

also     Zillyette, 178 Wn.2d          at   161.   Under the liberal construction rule, we will uphold the charging

document if an apparently missing element may be " fairly implied" from the document' s language.

Kjorsvik, 117 Wn.2d              at    105 -06;    see also   Zillyette, 178 Wn.2d       at   162.   We   ask, "(   1) [   D] o the


necessary facts appear in any form, or by fair construction can they be found, in the charging

document;      and,   if so, (   2) can the defendant show that he or she was nonetheless actually prejudiced

by the    inartful language           which caused a     lack   of notice ?"   Kjorsvik, 117 Wn.2d at 105 -06. We read


the charging document •as a whole, according to commonsense and including implied facts.

Kjorsvik, 117 Wn.2d at 109; see also Zillyette, 178 Wn.2d at 162.


                                 B. FAIR CONSTRUCTION AND NO ACTUAL PREJUDICE


           We first examine whether the facts .appear in any form or whether they can be found by

fair construction. We hold that they can.

           Former RCW 46. 61. 5055 provided increased minimum penalties for defendants convicted


of DUIs " for whom by reason of the person' s refusal to take a test offered pursuant to [ former]

RCW 46. 20. 308 [( 2008)] there is no test result indicating the                  person' s alcohol concentration."            See,


e. g.,   former RCW 46. 61. 5055( 2)( b).              Former RCW 46.20.308( 1) stated that anyone operating a

motor vehicle in the state has given implied consent to tests of his breath for purposes of


determining alcohol or drug concentration if the arresting officer has reasonable grounds to believe

the person has been driving or in physical control of a motor vehicle while under the influence of

drugs or alcohol.


            The charging information provided,

            That he, JAMES JOHN SHARPLES,                            in the     County    of   Skamania, State of

            Washington, on or about May 6, 2012, did drive a vehicle while under the influence

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No. 44756 -8 -II



           of or affected by intoxicating liquor or any drug; and /or while under the combined
           influence of or affected by intoxicating liquor and any drug; contrary to Revised
           Code    of   Washington 46. 61. 502( 1);              and furthermore, the Defendant did refuse to
           take a test offered pursuant to RCW 46.20.308; contrary to Revised Code of,
            Washington 46.61. 5055.


CP    at   2(   emphasis added).          Even assuming, but not deciding, that Alleyne required the State to

allege that ( 1) the arresting officer had reasonable grounds to believe that Sharples had driven

under the influence and ( 2) the test Sharples refused was a breath test, a liberal reading of the

information       would allow a          defendant to "        fairly imply"        these "   elements."     Kjorsvik, 117 Wn.2d at


105 -06.


           The fact this was a DUI charge clearly implies that the " test" mentioned in the information

was to determine whether Sharples was driving under the influence. That, in conjunction with the

information'       s cite   to "   a   test   offered pursuant          to RCW 46.20. 308,"           CP at 2, and former RCW


46.20. 308( 1)'     s specific reference            to " tests   of   his   or   her breath ...    for the purpose of determining

the   alcohol concentration ...               in his   or   her breath ...        if arrested for any offense where, at the time

of the arrest, the arresting officer has reasonable grounds to believe the person has been driving

      while under       the influence         of   intoxicating       liquor,"    is sufficient to imply the alleged elements.

            Sharples argues that under Zillyette, a mere citation to the statute is insufficient to provide


notice.     Sharples reads Zillyette too broadly.

            In Zillyette,     the defendant challenged the information charging her with controlled

substances homicide because it did not identify the controlled substance she had allegedly

delivered to the        victim.        178 Wn.2d at 157. Although the court stated that the specific identity of

a controlled substance is not necessarily an essential element of controlled substances homicide, it

held that       some    degree     of specification was           necessary to         establish   the "`   illegality of the behavior


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No. 44756 -8 -II



charged '      because not all controlled substances can be the basis for controlled substances


homicide. Zillyette, 178 Wn.2d         at   160 ( internal   quotation marks omitted) (   quoting State v. Ward,

148 Wn.2d 803, 811, 64 P. 3d 640 ( 2003)).           Accordingly, the court held that if the information for

controlled substances homicide does not identify the controlled substance, it must at least specify

the applicable subsection under which the charge was made or identify the schedule of controlled

substance that caused the user' s death. Zillyette, 178 Wn.2d at 160. Because the information did


not provide any basis for identifying the controlled substance, the court concluded that the

information failed to allege facts necessary to charge the defendant with controlled substance

homicide      and   dismissed the   charge without prejudice.       Zillyette, 178 Wn.2d     at   163 - 64. Here, in


contrast, the statute that the information cites refers to only one test, a breath test, and it refers in

the same sentence to the arresting officer having reasonable grounds to believe the defendant was

driving while intoxicated. This provides clear information about the charge and there is no chance

of confusion. Thus, a liberal reading of the information informed Sharples of the " elements" that

he now asserts were missing.

            We next turn to the second prong of the test: Does Sharples show that he was nonetheless

actually    prejudiced   by   the inartful language   which caused a     lack   of notice?   Kjorsvik, 117 Wn.2d


at   106.    Sharples does not attempt to argue that he was prejudiced by the allegedly defective

information.        And nothing in the record suggests that any lack of specificity in the information

impeded Sharples' s ability to defend against the " refusal" allegation. Accordingly, this argument

fails.




                                                             12
No. 44756 -8 -II



                                                III. JURY INSTRUCTIONS


         Sharpies next argues that the jury instructions failed to allege all the essential elements of

the crime because they omitted " elements" of the enhancement that were required after Alleyne.

He    again contends   that,   under     Alleyne, " the ` refusal' enhancement requires proof of a lawful arrest


based   on reasonable grounds           to believe that the   accused person   drove   under   the influence."   Br. of


Appellant at 14 -15.


         The trial court' s DUI to convict instruction was substantively identical to Sharples' s

proposed DUI to convict instruction, and the trial court' s enhancement instructions were identical


to those Sharpies proposed. Thus, any potential instructional error was invited error, and we will

not   further   address   this issue.      State v. Henderson, 114 Wn.2d 867, 868, 792 P. 2d 514 ( 1990)


 invited error doctrine applies to alleged constitutional errors).

                                       IV. EFFECTIVE ASSISTANCE OF COUNSEL


         Finally, in a related argument, Sharpies argues that if we reject his jury instruction

argument under the invited error doctrine, his trial counsel provided ineffective assistance of


counsel   in offering these instructions. To succeed on his ineffective assistance of counsel claim,


Sharpies must establish that his counsel' s conduct was deficient and that this deficient performance


was prejudicial. State      v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011). Counsel' s representation


is deficient if it falls below an objective standard of reasonableness based on consideration of all


the   circumstances.      State   v.   McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).            Sharpies


must    overcome a     strong     presumption      that   counsel' s performance was reasonable.          Grier, 171


Wn.2d at 33; McFarland, 127 Wn.2d at 336. Sharpies fails to establish deficient representation.




                                                              13
No. 44756 -8 -II



           Defense counsel' s proposed jury instructions were based on Washington Pattern Jury

Instructions.8 He proposed these instructions on March 11, 2013, and the jury returned its verdict

the following day. The Supreme Court did not, however, decide Alleyne until June 17, 2013, three

months     later.   Sharples' s instructional error argument is based entirely on Alleyne, but because

Alleyne had    not   been decided     at   the time   of   Sharpies'   s   trial, " his   counsel can hardly be faulted for

requesting ...      jury instruction[ s]   based   upon ...      then -unquestioned WPIC[ s]."          State v Studd, 137


Wn.2d 533, 551, 973 P. 2d 1049 ( 1999).               Sharpies fails to overcome the presumption of effective


counsel and because Sharples cannot establish deficient performance, his ineffective assistance of

counsel claim fails.


           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 2. 06. 040,


it is so ordered.




    We concur:




    LSE,




8
    See 11A WASHINGTON PRACTICE:                   WASHINGTON PATTERN JURY INSTRUCTIONS:                         CRIMINAL
92. 02, 92. 03, 92. 13    at   274 -75, 278, 290 ( 3d      ed.   2008) ( WPIC).

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