          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                                     No. 73553-5-1                r-n        O-""•'
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                         Respondent,                     DIVISION ONE

                v.



MAXIMO BERNAL-ROSAS,                                     UNPUBLISHED

                        Appellant.                       FILED: September 26, 2016



          COX, J. - A jury found Maximo Bernal-Rosas guilty of attempting to elude

a pursuing police vehicle and driving under the influence. On appeal, he

contends that the trial court violated his public trial rights by conducting a sidebar

to address defense counsel's objection during closing argument. But the

challenged sidebar was analogous to those addressed by our supreme court in

State v. Smith,1 and Bernal-Rosas has failed to demonstrate that the sidebar

implicated public trial rights. Because there was no public trial violation, we

affirm.

          The state of Washington charged Bernal-Rosas with attempting to elude a

pursuing police vehicle, taking a motor vehicle without permission in the second

degree, and driving while under the influence (DUI) following an incident in which

he drove off in a police vehicle and crashed into a tree.

          At trial, Earl Steele testified that at about 11:00 a.m. on December 25,

2013, he heard someone knocking on the door of his Burlington residence.



           181 Wn.2d 508, 334 P.3d 1049 (2014).
No. 73553-5-1/2




When Steele opened the door, a man later identified as Bernal-Rosas said that

he had been tied up in his house with his wife and kids and that he had escaped.

Steele let the man inside and called 911. Steele reported that a "distressed" and

possibly injured man had appeared at his house.

      Skagit County Sherriffs Deputy Jason Moses responded to the 911 call.

After arriving at Steele's house, Moses spoke to Bernal-Rosas, who appeared

"paranoid [and] fidgety" and was moving constantly. Bernal-Rosas repeatedly

told Moses that he had been tied up and mentioned witches and black magic.

Moses also smelled the odor of alcohol on Bernal-Rosas, who acknowledged he

had "a lot" to drink. At some point, Bernal-Rosas' wife and uncle arrived at the

house and spoke with Moses.

       Meliton Bernal, Bernal-Rosas' uncle, testified that Bernal-Rosas started

drinking on the afternoon of Christmas Eve and continued drinking during an
evening party. In the early morning hours of Christmas Day, Bernal-Rosas
suddenly became scared and started acting abnormally. After Bernal-Rosas
kicked a hole in a door and broke a lamp, Bernal and Bernal-Rosas' wife tied his

hands and feet. At around 5:00 a.m., Bernal-Rosas was able to free himself and

leave the house. Bernal did not see Bernal-Rosas again until he appeared at

Steele's house.

       After a second deputy arrived at Steele's house, Moses placed Bernal-

Rosas into the back seat of his patrol car. Moses told Bernal-Rosas that he was
No. 73553-5-1/3




not under arrest and was not going to jail. Bernal-Rosas asked to be taken to

jail. Moses eventually decided to transport Bernal-Rosas to a hospital for a

mental evaluation.

      After about 15 minutes in the patrol car, Bernal-Rosas managed to crawl

into the front seat. Moses, who stood nearby speaking with Bernal-Rosas'

relatives, heard his patrol car shift into gear. Moses then saw "the bumper drop

suddenly, as if it was high acceleration," and Bernal-Rosas drove off. During the

ensuing chase, Washington State Patrol Trooper Anthony Pasternak pursued

Bernal-Rosas at speeds up to 95 mph in a 35 mph zone.

       Bernal-Rosas eventually lost control of the car during a turn, plowed

through a picket fence, and crashed into a tree, causing a small car fire.

Pasternak pulled Bernal-Rosas out of the car and, with some difficulty,

handcuffed him. After turning Bernal-Rosas over to the sheriff's deputies,

Pasternak put out the car fire.

       Bernal-Rosas continued to struggle and thrash around as the officers

attempted to restrain him. At one point, Bernal-Rosas began "gurgling and

grunting and making some very abnormal noises," raising concerns that he was
having a seizure. Bernal-Rosas calmed down after officers restrained him on a

backboard for transport to the hospital.

       After Pasternak observed Bernal-Rosas at the hospital and conducted a

horizontal gaze nystagmus test, he concluded that Bernal-Rosas was impaired



                                            -3-
No. 73553-5-1/4




from the consumption of alcohol. A test of Bernal-Rosas' blood showed an

alcohol level of .084 at the time of the draw. The State's forensic toxicologist

estimated that based on the appropriate "burnoff rate," Bernal-Rosas would have

consumed 25 standard drinks during the preceding 22 hours to reach that alcohol

level.

         Doctors at the hospital admitted Bernal-Rosas after determining that his

symptoms, including mental confusion, were consistent with sepsis arising from

an infection. After reviewing Bernal-Rosas' medical record, Dr. Anthony Eusanio,

a psychologist, testified that at the time of the crash, Bernal-Rosas was suffering

from sepsis-related delirium resulting from an upper-respiratory infection and

fever. Dr. Eusanio concluded that the delirium, which was exacerbated by

alcohol consumption, prevented Bernal-Rosas from understanding right from

wrong at the time he drove off in the patrol car.

         Bernal-Rosas testified that he did not remember very much about the

charged incidents. He maintained that he had not consumed enough alcohol on

Christmas Eve to become drunk. He claimed he initially felt "normal" after

returning from the Christmas Eve party. At some point, however, there was a

"change," and he recalled becoming nervous and afraid of his wife and uncle. He

felt that a witch had cast "evil spirits" on his relatives. At some point, Bernal-

Rosas ran to a neighbor's house to ask for help because his family had been

kidnapped.
No. 73553-5-1/5




      Bernal-Rosas also recalled becoming increasingly anxious and desperate

while he was sitting in the patrol car. Bernal-Rosas felt he needed to escape and

eventually crawled through a small window into the front seat. After removing the

ammunition from the guns in the front seat, Bernal-Rosas drove off, hoping to

reach the house of a different uncle.

      The trial court instructed the jury on the defense of not guilty by reason of

insanity. The jury found Bernal-Rosas not guilty by reason of insanity of the
taking charge, but guilty as charged of attempting to elude and DUI. The court

sentenced Bernal-Rosas to 3 months in jail on the attempting to elude count and

364 days on the DUI count, with 363 days suspended.

                                  PUBLIC TRIAL

       Bernal-Rosas contends the trial court violated his right to a public trial

when it conducted a sidebar conference following defense counsel's objection

during closing argument. Bernal-Rosas' primary defense to the charged offenses
was temporary insanity resulting from a sepsis-associated delirium. The trial
court instructed the jury that Bernal-Rosas bore the burden of proving the

defense of insanity by a preponderance of the evidence.

       During closing argument, the prosecutor first discussed at length the
evidence supporting the State's case. The prosecutor then commented on
Bernal-Rosas' defense:

       [Prosecutor]: That's when it comes to the preponderance of
       evidence. Did they convince you that it's more likely true than not
       that the alcohol - or the sepsis was the cause of these deliriums?

                                             -5-
No. 73553-5-1/6



       Or was it the alcohol, which was reaching its highest level, and
       compute - and you can compute it back to what it would have
       been, about that time, using those figures that we gave you. It was
       that's what was causing this defendant to go off the rails. That's
       their burden, to show you that that happened.

       [Defense counsel]: Objection.

       THE COURT: Approach.

       (BENCH CONFERENCE OFF THE RECORD.)

       [Prosecutor]: Just to be clear, the state is not saying that -- that the
       defense has the burden of proof on anything, other than when they
       claim insanity, they have the burden of proof preponderance of the
       evidence. And if I -- if their testimony is that it was caused by
       sepsis, then they have to prove that. We think what the - the
       evidence shows that it is the alcohol. That's all.

       So in closing, we have to prove beyond a reasonable doubt that
       this car was stolen, and I went through the elements, and I think
       we've done that. We have to prove that this car was driven while
       he was - the defendant was under the influence, and I believe
       we've shown, the state -- we believe the evidence shows that he
       was.[2J

       Bernal-Rosas claims that because the sidebar was unrecorded and

unmemorialized, it implicated his public trial rights and therefore constituted an

unjustified closure of the proceedings. We disagree.

       Both the state and federal constitutions guarantee a defendant the right to

a public trial.3 In general, the right to a public trial requires that trial proceedings

be held in open court unless the trial court finds that a closure of the courtroom is


       2 Report of Proceedings (January 16, 2015) at 29-31.
       3 See State v. Wise. 176Wn.2d 1,9, 288 P.3d 1113 (2012); Wash. Const, art. I,
§ 22; U.S. CONST, amend. VI.
No. 73553-5-1/7



justified after considering the five-factor test set forth in State v. Bone-Club.4 An

alleged violation of the right to a public trial is a question of law that we review de

novo.5

         Our supreme court has adopted a three-step framework for analyzing

alleged violations of the public trial right:

         First, we ask if the public trial right attaches to the proceeding at
         issue. Second, if the right attaches we ask if the courtroom was
         closed. And, third, we ask ifthe closure was justified.161

         "But not every interaction between the court, counsel, and defendants will

implicate the right to a public trial or constitute a closure if closed to the public."7

In determining whether a proceeding implicates the public trial right, courts utilize

the two-part "experience and logic" test.8 The experience prong "asks 'whether

the place and process have historically been open to the press and general

public.'"9 The logic prong "asks 'whether public access plays a significant

positive role in the functioning of the particular process in question.'"10 Only if

both questions are answered in the affirmative is the public trial right implicated.11



      4128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
      5 State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).
      6 State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015) (citing State v. Smith.
181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014)).
         7 Sublett. 176Wn.2dat71.
         8 id at 72-75.
       9 Id. at 73 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.
Ct. 2735, 92 L Ed. 2d 1 (1986)).
         10 Id (quoting Press-Enterprise Co., 478 U.S. at 8).
         11 Id.
No. 73553-5-1/8



The defendant bears the burden of demonstrating that the challenged process

implicates the public trial right.12

       In State v. Smith,13 the defendant argued that multiple sidebar discussions

following evidentiary objections during trial violated his public trial rights. After

applying the experience and logic test, our supreme court concluded that

"reasonable and traditional sidebars used to avoid interruption of a trial do not

implicate the public trial right."14

       In analyzing the experience prong, the Smith court noted that sidebar

conferences have historically occurred outside the view of the public.15 The court

stressed the "practical difficulties" that would result from extending public trial

jurisprudence to sidebar conferences on evidence without any resulting public

benefit:

       In the case of sidebar discussions, issues arising with the jury
       present would always require interrupting trial to send the jury to
       the jury room, often located some distance from the courtroom,
       thereby occasioning long delays every time the court wishes to
       caution counsel or hear more than a simple "objection, Your
       Honor." This would do nothing to make the trial more fair, to foster
       public trust, or to serve as a check on judges by way of public
       scrutiny.'161




       12 Love. 183Wn.2dat605.
       13 Smith, 181 Wn.2d 508, 334 P.3d 1049(2014).
       14 id at 521.
       15 jd at 515.
       16 id (quoting In re Detention of Ticeson, 159 Wn. App. 374, 386 n.38, 246 P.3d
550(2011)).


                                              -8-
No. 73553-5-1/9



      The Smith court also concluded that the logic prong weighed against

implicating a public trial right. The court again explained the problems

associated with "forcing the jury in and out of the courtroom repeatedly whenever

an objection is made."17 The court further concluded that, more importantly,

evidentiary rulings during traditional sidebars "do not invoke any of the concerns

the public trial right is meant to address regarding perjury, transparency, or the

appearance of fairness."18

       Although Smith involved only evidentiary sidebars during trial, the court

recognized that the analysis could apply to other traditional sidebars:

       We caution that merely characterizing something as a "sidebar"
       does not make it so. To avoid implicating the public trial right,
       sidebars must be limited in content to their traditional subject areas,
       should be done only to avoid disrupting the flow of trial, and must
       either be on the record or be promptly memorialized in the
       record.[19]

       The sidebar at issue here appears only to have addressed a single

speaking objection during closing argument. Defense counsel's objection was
clearly directed to the prosecutor's comments on burden of proof, a common
subject of objections during closing argument. Such objections routinely require
the trial court to resolve legal, evidentiary, and instructional issues. The
"practical difficulties"20 in managing juries during evidentiary sidebars apply


       17 ]d at 518.
       18 id
       19idat516n.10.
       20 id at 516.
No. 73553-5-1/10




equally to sidebars during closing arguments that are frequently contentious in

light of the parties' wide latitude to draw inferences from the evidence. Nothing in

the record suggest that the sidebar here was anything other than a brief

interruption, intended to avoid disrupting the flow of the parties' arguments as

much as possible.

       Bernal-Rosas contends the sidebar violated his public trial rights because

the discussion was not recorded or contemporaneously memorialized. The

Smith court explained that recording or memorializing the discussion is a key

factor in determining whether a sidebar implicates the public trial right. Placing

sidebar discussions on the record not only permits the public to determine

precisely what happened during the sidebar, but also serves to negate any

concern about secrecy.21

       As Bernal-Rosas acknowledges, however, the record clearly shows that

defense counsel's objection was specifically directed to the prosecutor's

reference to the burden of proof. After the brief sidebar, the prosecutor resumed

closing argument by immediately referring to the prior comment that had
triggered the objection and clarifying both the nature and scope of the State's
burden of proof and the defense's burden of proof on the insanity defense.
Defense counsel raised no further objection. So we must assume that the

prosecutor fully complied with the court's decision made during the sidebar.


       21 id at 518.


                                            -10-
No. 73553-5-1/11




       The record indicates the trial court recognized the prosecutor's reference

to burden of proof might not be completely clear and acted quickly to direct the

prosecutor to negate any potential confusion. On this record, the nature of

defense counsel's objection and the trial court's resolution of the objection are

clear. Neither recording nor memorialization of the side bar was necessary to

avoid the "concerns the public trial right is meant to address regarding perjury,

transparency, or the appearance of fairness."22

       Bernal-Rosas also contends that the experience and logic test implicated

his public trial rights because defense counsel's objection involved "flagrant"

prosecutorial misconduct. He argues that objections involving such misconduct

raise concerns about fairness and the appearance of fairness in criminal trials

that cannot be resolved in secret. But Bernal-Rosas cites no relevant authority to

support such an analysis. More importantly, although the prosecutor's reference

to the burden of proof was possibly confusing, Bernal-Rosas has failed to identify

anything in the record suggesting flagrant misconduct. And we see no such

misconduct in our careful review of the record. Nor has he demonstrated that the

routine sidebar during closing argument here was fundamentally different than

sidebars involving evidentiary objections.

      We conclude that the challenged sidebar conference was analogous to

the evidentiary sidebars in Smith. The Smith analysis is therefore controlling,



       22 id


                                             -11-
No. 73553-5-1/12




and the single sidebar during closing did not implicate Bernal-Rosas' public trial

rights. Because the sidebar did not implicate Bernal-Rosas' public trial rights, we

need not address whether there was a closure or whether any closure was

justified.23

        We affirm the judgment and sentence.
                                                               Czk3.
WE CONCUR:




                                                          l^c^etf




          23 Id at 519 (if the court determines that a process does not implicate the public
trial right, it need not address the remaining steps ofthe analytical framework).

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