                                                                                                 FILED
                                                                                         COURT OF APPEALS
                                                                                               DIVISION 11
                                                                                       20I JUN —4          8: 37
                                                                                        STAT   0E `   S et, i,T1H
                                                                                        BY


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                               DIVISION II

    STATE OF WASHINGTON,                                                   No. 46008 -4 -II




              v.



    DANIEL MICHAEL PIERRE,                                            UNPUBLISHED OPINION




             WORSWICK, P. J. —     A jury returned verdicts finding Daniel Pierre guilty of third degree

assault, felony harassment, and bail jumping. Pierre appeals his convictions, asserting that the

trial court violated his public trial right by addressing for -cause challenges to potential jurors at

sidebars, and that the trial court' s harassment to- convict jury instruction relieved the State of its

burden of proof by omitting an essential element of the offense. Following our recent decision in

State   v.   Anderson, No. 45497 -1, 2015 WL 2294961 ( Wash. Ct.        App. May 19,   2015), we hold


that the trial court violated Pierre' s public trial right by addressing for -cause juror challenges at

sidebars without first conducting a Bone -Club analysis. We also hold that the trial court erred

by giving a harassment to- convict jury instruction that omitted an essential element of the

offense and that the error was not harmless beyond a reasonable doubt. Accordingly, we reverse

Pierre' s convictions and remand for a new trial.



1
    State    v.   Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).
No. 46008 -4 -II


                                                            FACTS


         The State charged Pierre with third degree assault, felony harassment, and bail jumping.

The matter proceeded to jury trial.

         During the jury selection process, the trial court addressed for -cause challenges to

potential jurors at sidebar and later stated on the record:


         Trial   court]:...   I want to go ahead and put the sidebars on the record. During jury
         selection, we had two sidebars. At the first sidebar, we all agreed that Juror No. 25
         should be dismissed for cause based upon a health issue that Juror No. 25 described
         during the course of jury selection briefly.
                   The defense       made a motion          to dismiss Number 1 for   cause. [   The State]
         indicated that he would leave it to the court and the court' s recollection of what
         Juror No. 1 indicated. I dismissed Number 1 for cause based upon her statements
         of  being a victim 20 years ago and that it was still affecting her. And then she
         talked about that and brought it up more than one time during the course of the jury
         selection process.

                   There was a second sidebar after jury selection had started, and that was the
         defense requesting that Juror No. 10 be dismissed for cause based upon the fact that
         he had disclosed that he was good friends with Officer Winner' s brother and that
         Officer Winner'      s   brother was his       supervisor. [   The State] objected and indicated
         that he had not made an unequivocal statement that he could not be fair. I ultimately
         agreed with [ the        State'   s]   argument.   I too did not hear a definitive statement, so I
         denied the request for cause as to Juror No. 10.

Report   of   Proceedings ( RP) ( Jan. 21, 2014) at 37 -38.


         The trial court provided the jury with the following harassment to- convict instruction:

                   To convict the defendant of the crime of harassment as charged in Count II,
         each of the following elements of the crime must be proved beyond a reasonable
         doubt:
                1) That on or about July 24, 2012, the defendant knowingly threaten [ sic]
         Jason Winner immediately or in the future;
                 2) That the words or conduct of the defendant placed Jason Winner in
         reasonable fear that the threat would be carried out;
                 3) That at the time the threat was made Jason Winner was a criminal justice
         participant who was performing his official duties;
                    4) That the defendant acted without lawful authority; and
                    5) That the threat was made or received in the State of Washington.




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No. 46008 -4 -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.
             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.


CP   at      80.   The jury returned verdicts finding Pierre guilty of third degree assault, felony

harassment, and bail jumping. Pierre appeals from his convictions.

                                                   ANALYSIS


                                            I. PUBLIC TRIAL RIGHT


             Pierre first contends that the trial ,court violated his public trial right by addressing for-

cause challenges to potential jurors at sidebars without first considering the factors set forth in

State   v.   Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).       Following our recent decision in

Anderson, No. 45497 -1, 2015 WL 2394961, we agree that the trial court' s consideration of for

cause challenges at sidebars violated Pierre' s public trial right. Accordingly, we reverse Pierre' s

convictions and remand for a new trial. Because we reverse Pierre' s convictions and remand for

a new trial based on the violation of his public trial right, we need not address his remaining

claims of instructional error and ineffective assistance of counsel.2

                                      II. TO- CONVICT JURY INSTRUCTION


             Next, Pierre contends that the trial court' s harassment to- convict jury instruction relieved

the State of its burden of proof by omitting an essential element of the offense. We agree.

             We review challenges to the adequacy of to- convict jury instructions de novo. State v.

Mills, 154 Wn.2d 1, 7, 109 P. 3d 415 ( 2005).         In general, to- convict jury instructions must



2 Although we need not review Pierre' s remaining claims of error, we address Pierre' s challenge
to the trial court' s harassment to- convict jury instruction as an alternative basis for reversing his
harassment conviction.



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No. 46008 -4 -II


contain   every   essential element of       the   offense.   Mills, 154 Wn. 2d        at   7. "   The jury has a right to

regard the `to convict' instruction as a complete statement of the law and should not be required

to   search other   instructions to   add elements        necessary for    conviction."            State v. Oster, 147 Wn.2d


141, 147, 52 P. 3d 26 ( 2002).        Although jury instructions relieving the State of its burden to prove

every   element of    the   crime charged     beyond      a reasonable    doubt    require automatic reversal, " not




every   omission or misstatement        in   a   jury   instruction   relieves   the State     of   its burden." State v.


Brown, 147 Wn. 2d 330, 339, 58 P. 3d 889 ( 2002).                  Accordingly, an instruction omitting an

essential element may be harmless beyond a reasonable doubt if the omitted " element is

supported   by    uncontroverted evidence."             Brown, 147 Wn.2d at 341 ( citing Neder v. United

States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 ( 1999)).


          To convict Pierre of harassment as charged here, the State was required to prove beyond


a reasonable doubt that Pierre ( 1) without lawful authority (2) knowingly threatened ( 3) to cause

bodily harm immediately or in the future (4) to a criminal justice participant performing official

duties at the time the threat was made and ( 5) the criminal justice participant had a reasonable

fear that the threat    would   be   carried out.       RCW 9A.46. 020( 1)(       a)( i),   ( 2)( b)( iii). The State


acknowledges that the trial court' s to- convict jury instruction for harassment omitted the

essential element that Pierre' s threat was to cause bodily harm immediately or in the future, but

the State argues that the omission of this essential element was harmless beyond a reasonable

doubt because the uncontroverted evidence at trial showed that Pierre threatened to cause bodily

harm to Winner. We agree that the to- convict instruction omitted an essential element, but

disagree that the error here was harmless.




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No. 46008 -4 -II


          The State asserts that the evidence at trial demonstrated that there was no dispute as to


what words Pierre used to threaten Winner, and that those words irrefutably constituted a threat

to cause bodily harm.3 But the record belies the State' s assertion. Pierre did not concede in his

testimony   that he threatened to " beat            or   kick Winner' s          ass,"   as the State asserts. Instead,


although Pierre agreed that he was irate and uttered something threatening at Winner, he stated

that he did not recall the exact words that he used to threaten Winner:

                    Defense       counsel]:    Okay. Did you have any intention in the future to cause
         any bodily harm to—
                    Pierre]: No.
                    Defense       counsel] :—      Officer Winner or follow through with anything that
         you said?

                    Pierre]:      I' m sorry. What do you mean? As to what I said?
                    Defense        counsel]: That you were going to beat him up or going to kick his

         ass or—

                    Pierre]: Um, I —I don' t recall, the exact words that I said, but it was

         something along the lines of the fact that he came in the bathroom and pointed the
         pistol at me and         told   me   to   get   the   fuck   on   the    ground —or get     the   fuck —put   you


         fucking hands up. And at some point along afterwards, itthe female had had the
         Taser pointed at me and said that were [ sic] going to tase me, and I was just irate at
         this point.
                    Defense       counsel]:    Here'     s   the -   here'   s   the —here'   s a question, an important
         one. I' m sure we' re wondering. Why did you say those things at that time?
                  Pierre] : I was irate.
                    Defense       counsel]:    You were upset?
                    Pierre]:      And I was being assaulted.

RP ( Jan. 22, 2014) at 398 -99.


         On cross -examination, Pierre stated that he did not recall whether he had told Winner that

he   would " beat   his   ass,"   and he specifically denied threatening Winner in other ways to which

Winner had testified:


                    State]:...      Did you tell [Winner] you were going to beat his ass?


3 RCW 9A.04. 110( 4)( a) defines " bodily harm" as " physical pain or injury, illness, or an
impairment of physical condition."



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No. 46008 -4 -II



                   Pierre]: I don' t recall.
                   State] :   Okay. Did you tell him you were going to find him on the streets
       and   hunt him down? Did you tell him that?
                   Pierre]: No.
                   State]: You didn' t —you        don' t recall, or you didn' t say that?
                   Pierre]: No. I never said that.
                   State]:
                         Okay. Did you tell him you didn' t care if he had a badge; you were
       going to come after him?
                 Pierre] : No. I told him I didn' t care if he had a badge. He has no try [ sic]

       right to try to sit there and assault me.
                 State]: Okay. And did you tell him, quote, you don' t know who you' re

       messing     with, unquote?     Did you tell him that?
                   Pierre] : No, I don' t believe so.


                   State]: You    weren'   t   threatening him   at   any time— [
                   Pierre] : Nope.
                   State]: — in that exchange —
                   Pierre] : —no.
                   State]: — so " beat my ass" was not a threat —or to beat his ass?
                   Pierre] : No. There was something said along the lines of —  with the scuffle,

        after he had told me to get the fuck on the ground. And it was at some point, I' ll
        beat your ass. And then that' s when I repeated you' re going to come into my house
        and tell me you' re going to beat my ass and shoot me?
                 State]: So he told you he was going to beat your ass?


        RP ( Jan. 22, 2104) at 433 -34.


        At best, Pierre' s testimony established that he had made a vague threat toward Winner

while Winner was attempting to restrain him and, thus, the evidence at trial did not definitively

establish that Pierre' s threat was to inflict bodily harm. Therefore, we cannot conclude that the

jury would have returned the same verdict of guilt as to Pierre' s harassment charge had it been

properly instructed that it must have found beyond a reasonable doubt that Pierre' s threat to




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No. 46008 -4 -II



Winner   was   to inflict   bodily harm   on   him. Brown, 147 Wn.2d   at   341.   Accordingly, we reverse

Pierre' s harassment conviction and remand for a new trial.4

                                                 CONCLUSION


         We hold that because the trial court violated Pierre' s public trial right by addressing for -

cause juror challenges at sidebars without first conducting a Bone -Club analysis, his convictions

must be reversed and remanded for trial. We also hold that the trial court' s error in giving a

harassment to- convict jury instruction that omitted an essential element of the offense is an

alternative basis for reversing his harassment conviction. Accordingly, we reverse Pierre' s

convictions and remand for a new trial.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




4 Because we reverse Pierre' s convictions and remand for a new trial, we decline to address his
remaining claims of error.




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