                                                                          FILED 

                                                                        OCT 29,2015 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 26476-9-111
                                             )         Consol. wi No. 27294-0-111
                     Respondent,             )
                                             )
              v.                             )
                                             )
ANTHONY PARKS,                               )         PUBLISHED OPINION
                                             )
                     Appellant.              )
                                             )
                                             )
In re Personal Restraint Petition of:        )
                                             )
ANTHONY PARKS,                               )
                                             )
                      Petitioner.            )

       BROWN, J. - Anthony Parks appeals his second degree rape conviction as a

lesser included offense of first degree rape. He contends his right to a public trial was

violated when the trial court swore in the venire in the jury assembly room. In his

statement of additional grounds for review (SAG), Mr. Parks alleges the testimony did

not fit the charged crime. In his consolidated personal restraint petition (PRP), he

alleges error in instructing on the lesser included offense. We affirm and dismiss Mr.

Parks' PRP.
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State v. Parks cons. wI In re PRP of Parks


                                          FACTS

       On the evening of March 26,2007, J.M. called the police to report she had been

raped. J.M. told the responding police officer Trevor Nollmeyer the man who raped her

had stolen some money and condoms from her immediately after the rape. During

Officer Nollmeyer's interview, J.M. noticed Mr. Parks riding by on a bicycle and told

Officer Nollmeyer that bicyclist was the rapist.   Officer Nollmeyer brought J.M. to the

hospital. Mr. Parks was arrested and charged with first degree rape. 1

       Before voir dire, the court apparently2 swore in the venire and gave the venire

questionnaires in the jury assembly room because the venire would not fit in the

courtroom. Mr. Parks agreed to the process. Nothing in the record shows whether the

door to the jury assembly room was open or closed during this process or if any

members of the press or public requested or were denied access to the process.

General voir dire then occurred in open court, and the juror's oath was administered in

open court.

       At trial, J.M. testified Mr. Parks walked up to her on the street and asked if she

was working. After she answered no, he grabbed her, threatened to hurt her if she said


       1 Mr. Parks was charged and acquitted of first degree robbery and the lesser
included offense of second degree robbery.
       2 The sole indication of this in the record is the following statement by the court:

      There is a large jury panel. We probably can't get them all in the
      courtroom at anyone time. And I would propose that - I would ask if you
      have any objection to me swearing the jury in the jury assembly room and
      handing them a questionnaire regarding their history of involvement in
      sexual abuse .... (Pause in proceeding.)


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anything, and pulled her up a nearby driveway. J.M. testified Mr. Parks held a six-inch

butcher knife to her throat, but she pushed it away, cutting herself. Once in a secluded

area, Mr. Parks threw her down, pulled her pants down with his foot, and told her he

would kill her if she moved. He then raped her, again threatened her, took money and

condoms from her purse, and left.

         Emergency room nurse Jennifer Sanford and Dr. Tiffany Kuehl testified. Ms.

Sanford examined J.M. at the hospital. She noted J.M. had a cut on her hand and

bruising to her ankle and leg. Dr. Kuehl's examination revealed abdominal tenderness

and bruising, tenderness and physical debris in the vaginal area, bruising on J.M.'s right

leg and ankle, and a cut on J.M.'s left hand.

         During the State's direct examination, Dr. Kuehl testified her medical findings

were consistent with forcible intercourse. Mr. Parks testified he had approached J.M.

that night. J.M. led him to believe she was a working prostitute, and they engaged in

consensual sex in exchange for $30. He denied having a knife. No knife was ever

found.

         The State proposed instructing the jury on second degree rape as well as on the

charged crime of first degree rape. Over Mr. Parks' objection, the court submitted the

lesser included offense instruction to the jury.




Report of Proceedings (RP) at 1.

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       The jury found Mr. Parks not guilty of first degree rape but guilty of the lesser

included offense of second degree rape. Mr. Parks appealed. 3

                                         ANALYSIS

                                       A Public Trial

       The issue is whether the trial court violated Mr. Parks' right to a public trial by

swearing in the venire in the jury assembly room. He contends the court impermissibly

closed a portion of "jury selection" when it swore in the venire in the jury assembly room

not accessible to the public without conducting a Bone-Club 4 analysis.

       A criminal defendant has a right to a public trial as guaranteed by both the

federal Constitution and the Washington Constitution. U.S. CONST. amend. VI; WASH.

CONST. art. I, § 22. Defendants can raise claims of public trial rights violations for the

first time on appeal. State v. Wise, 176 Wn.2d 1, 9,288 P.3d 1113 (2012). "In general,

this right requires that certain proceedings be held in open court unless application of

the five-part [Bone-Club test] supports closure of the courtroom." State v. Miller, 184

Wn. App. 637,641,338 P.3d 873 (2014). We review de novo whether a courtroom

closure violated a defendant's right to a public trial. Id. at 641-42.

       In analyzing an alleged public trial violation, we must first determine whether the

proceeding at issue implicates the right. Id. at 642. While the public trial right has been

extended to pretrial phases such as suppression hearings, hearings on motions to


       3 This court stayed Mr. Parks' appeal to await Supreme Court public trial
decisions. The parties then filed supplemental briefing.
       4 State v. Bone-Club, 128 Wn.2d 254,258-59,906 P.2d 325 (1995).



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,
1
1   sever, and voir dire, "not every interaction between the court, counsel, and defendants
j   will implicate the right to a public trial or constitute a closure if closed to the public."
i
I
I   State v. Sublett, 176 Wn.2d 58, 71,292 P.3d 715 (2012); see State v. Njonge, 181


I
j
    Wn.2d 546,553,334 P.3d 1068 (2014). A defendant asserting a violation of his public

    trial rights bears the burden of showing a closure occurred. Njonge, 181 Wn.2d at 556.

           Courts employ a two-step process to determine whether a court closure occurred

    implicating the public trial right. Miller, 184 Wn. App. at 642. In the first step, we

    "consider whether the particular proceeding at issue 'falls within a category of

    proceedings that [the Washington] Supreme Court has already acknowledged

    implicates a defendant's public trial right.'" Id. (quoting State   v. Wilson,   174 Wn. App.

    328,337,298 P.3d 148 (2013)). If not, then we use the experience and logic test to

    determine whether a proceeding implicates the right. Id. Mr. Parks' public trial

    contention fails because: (1) he has not demonstrated a closure occurred, (2) such

    action at issue is not within the category of proceedings the Washington Supreme Court

    has already acknowledged implicates the public trial right, and (3) the court's action

    does not satisfy the experience and logic test.

           Preliminarily, we cannot definitively say Mr. Parks showed a closure occurred.

    We "will not, for the purpose of finding reversible error, presume the existence of facts

    as to which the record is silent." State v. Jasper, 174 Wn.2d 96,124,271 P.3d 876

    (2012) (quotation omitted). On this record, nothing shows spectators were totally

    excluded from the swearing on of the venire. Nothing shows whether the door to the



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jury assembly room was open or closed. However, without deciding whether a closure

occurred, Mr. Parks' public trial right was still not violated, as detailed below.

       Swearing in of a venire is not yet acknowledged as implicating a defendant's

public trial right. While the Washington Supreme Court has repeatedly held the public

trial right applies to jury selection, mere labeling of a proceeding is not determinative.

State v. Slert, 181 Wn.2d 598, 604, 334 P.3d 1088 (2014). Existing Washington case

law addresses the public trial right in the context of a specific component of jury

selection-voir dire. Wilson, 174 Wn. App. at 228. And the Washington Supreme

Court's interchangeable use of "jury selection" and "voir dire" has been viewed as

"inadvertent and not as evincing the Court's intent to treat these two terms as

synonymous for precedential purposes." Wilson, 174 Wn. App. at 338-39; see also

Siert, 181 Wn.2d at 605. Thus, whether swearing in a venire in a jury assembly room

implicates a defendant's public trial right is one of first impression.

       Application of the experience and logic test shows swearing in the venire does

not implicate the public trial right. Under this test, appellate courts must consider "(1)

whether the process and place of a proceeding historically have been open to the press

and general public (experience prong) and (2) whether access to the public plays a

significant positive role in the functioning of the proceeding (logic prong)." Miller, 184

Wn. App. at 644. It is solely when both prongs are answered affirmatively does the

public trial right attach. Id.




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I


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           In analyzing the experience prong, Mr. Parks does not cite to, and we could not

    find, any case holding (1) swearing in a venire has historically been open to the public

    or (2) the public trial right attaches to any component of jury selection that does not.

    involve "voir dire" or a similar jury selection proceeding involving the exercise of

    peremptory challenges and for cause juror excusals. It is debatable whether swearing

    in a venire constitutes a part of "jury selection." In the absence of a record otherwise,

    the trial court presumably gave the advance oral instruction before voir dire as seen in

\   11 Washington Practice, Washington Pattern Jury Instructions: Criminal 1.01 (2014).


I
I
    The notes on the use of this instruction state it is to be read before the jury is selected

    and contains basic educational information the venire needs to know before voir dire

    begins. Even if it the giving of such an instruction is considered part of jury selection, it

    is more analogous to an administrative component of the jury selection process to which

    the public trial right does not attach. See, e.g., Wilson, 174 Wn. App. at 342-47 (finding

    the experience prong not satisfied where the court engaged in the administrative

    component of the jury selection process when the bailiff excused two ill jurors before

    voir dire commenced).

           Likewise. Mr. Parks cannot satisfy the logic prong. When considering this prong,

    courts should consider "the values served by open courts." Sublett, 176 Wn.2d at 74.

    Mr. Parks has not shown (1) public access plays a significant positive role in the

    functioning of the swearing in a venire, (2) swearing in a venire is a proceeding similar




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to the trial itself, or (3) openness during swearing in would enhance the basic fairness of

his trial and the appearance offairness. 5 See Wilson, 174 Wn. App. at 346.

                                           B. SAG

       In both his SAG and consolidated PRP, Mr. Parks argues J.M.'s testimony did

not match the crime of second degree rape. 6 Mr. Parks questions whether the court

erred in instructing the jury on second degree rape. Thus, our concern is whether the

trial court erred in instructing the jury on the lesser included offense of second degree

rape where the facts do not support the instruction.

       A two-prong test is used for determining whether a lesser included offense

instruction should be given: (1) "First, each of the elements of the lesser included

offense must be a necessary element of the offense charged," and (2) "the evidence in

the case must support an inference that the lesser crime was committed." State v.

Workman, 90 Wn.2d 443, 447-48,584 P.2d 382 (1978). Mr. Parks solely challenges

the second prong.

       Under the Workman factual prong, "there must be some affirmative proof that the

defendant committed only the lesser crime." State v. Brown, 127 Wn.2d 749,754,903

P.2d 459 (1995). "It is not enough that the jury might simply disbelieve the State's




       5 The State argues, in the alternative, Mr. Parks' failure to object at trial prohibits
review under RAP 2.5(a). However, this argument was rejected in Njonge, 181 Wn.2d
at 554-55.
       6 Because the argument raised in his PRP duplicates his direct appeal, we
discuss solely Mr. Parks' SAG contention without need to separately address his PRP.

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evidence." State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990), overruled on other

grounds by State v. Blair, 117 Wn.2d 479,816 P.2d 718 (1991). Mr. Parks was charged

with first degree rape; the elements of first degree rape include engaging in sexual

intercourse with a person by forcible compulsion and using or threatening to use a

deadly weapon. RCW 9A.44.040. The elements of second degree rape include sexual

intercourse with another by forcible compulsion. RCW 9A.44.050. Second degree rape
                                                                      -
does not require the State to prove the use or threatened use of a deadly weapon.

RCW 9A.44.050.

      In Brown, the defendant was convicted of the lesser included offense of second

degree rape. Brown, 127 Wn.2d at 753-54. The defendant argued, and the

Washington Supreme Court agreed, neither party produced affirmative evidence he

committed solely second degree rape. Id. at 754-56. The victim testified the defendant

and three other men forced her to have sexual intercourse and the defendant held a

gun on her at some point. Id. at 752. On the other hand, the defendant testified the sex

was consensual in exchange for money. Id. at 753. The court of appeals upheld the

conviction, finding affirmative evidence the defendant committed only second degree

rape where the jury could have found no gun was used because there was evidence

tending to impeach her claim a gun was used. Id. at 755. The Supreme Court

disagreed, stating "Impeachment evidence that serves only to discredit the State's

witness but does not itself establish that only the lesser crime was committed cannot

satisfy the factual prong of Workman." Id. The court also disagreed with the State's



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contention some other form of forcible compulsion was used to make the victim initially

submit to the rape because the gun was not produced until late in the rape. Id. at 755­

56.

       On the surface, Mr. Parks' case looks similar to Brown. J.M. testified Mr. Parks

forced her to have sexual intercourse and he held a knife to her in order to get her to

walk into a secluded area. Mr. Parks testified the sex was consensual for money. He

contends no affirmative evidence supports the conclusion he raped J.M. but did not use

a deadly weapon. But unlike in Brown, affirmative evidence shows Mr. Parks used

forcible compulsion to rape J.M. Ms. Sanford testified about the bruising she saw on

J.M.'s leg and ankle. Dr. Kuehl testified about bruising and tenderness on J.M.'s lower

body and genital area. The doctor affirmatively answered the injuries were consistent

with forcible intercourse. When viewed most favorably to the State, this evidence

sufficiently evidence supports an inference solely the lesser crime was committed. See

State v. Fernandez-Medina, 141 Wn.2d 448, 455-56,6 P.3d 1150 (2000) {when

applying the factual prong, an appellate court should determine if the evidence, when

viewed in the light most favorable to the party requesting the instruction, was sufficient

to support the instruction}. Therefore, we conclude the trial court did not err in

instructing on the lesser included offense of second degree rape.




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      Affirmed; Mr. Parks' PRP is dismissed.




                                                    Brown, J.
WE CONCUR:



 ::hLhw"CJ I~ 

Siddoway, C.J.                                      Lawrence-Berrey, J.




                                             11 

