                                                                             FILED 

                                                                           July 9,2015 

                                                                 In the Office ofthe 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. 24958-1-III
                                              )
                     Respondent,              )
                                              )
               v.                             )         UNPUBLISHED OPINION
                                              )
JON GABRIEL DEVON,                            )
                                              )
                     Appellant.               )

          LAWRENCE-BERREY, J. -    Jon DeVon appeals his conviction for homicide

by abuse. He raises several issues, but we fmd it necessary only to address three:

(1) whether Mr. DeVon's right to a public trial was violated, (2) whether the State

presented sufficient evidence to establish a pattern or practice of abuse; and (3) whether

the lower court must recuse itself on remand. We answer the first two questions in the

affirmative, reverse Mr. DeVon's conviction as required by recent Supreme Court

precedent, and remand for a new triaL We find no need for the lower court to recuse

itself.
No. 24958-1-111
State v. DeVon


                                          FACTS

        Mr. DeVon was charged by amended information with homicide by abuse. The

charges resulted from the February 1,2005, death of22 month old A.R.V. A.R.V. was

the son of Mr. DeVon's wife, Yolanda DeVon, and lived with the couple. Ms. DeVon

was also charged in A.R.V. 's death. The defendants' cases were joined at trial.

        At a pretrial hearing on December 19,2005, counsel for Ms. DeVon raised the

issue of conducting individual voir dire in chambers. The court discussed beginning

general voir dire questioning to determine which jurors had heard of the case, and then

moving to individual voir dire in chambers to weed out biased jurors. In addition, Mr.

De Von orally requested that jurors be sequestered throughout the trial to protect them

from being tainted. Ms. De Von joined in that motion. The court denied the motion to

sequester, but agreed to revisit the motion depending on the juror responses during voir

dire.

        When the court convened on January 10, 2006, the venire jurors answered general

questions and completed written questionnaires. In response to a question of whether any

had heard of the case, a large number responded that they had. In the afternoon, the court

announced that individual voir dire of all jurors would be conducted in chambers in the

presence of the parties, counsel, and the court reporter. Prior to proceeding in that



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No. 24958-1-III
State v. De Von


manner, the court did not conduct a Bone-Club I analysis. After nearly two days of

individual voir dire in chambers, the court reconvened in the courtroom to complete the

voir dire process.

       At trial, Ms. DeVon's mother, Ms. Debra Garrison, testified that she observed

bruising on A.R.V.'s legs, arms and cheeks weeks before A.R.V.'s death. Ms. Garrison

also reported that Mr. DeVon and Ms. DeVon admitted to biting A.R.V. on the arm as a

form of discipline.

       Additionally, mUltiple witnesses testified that they observed injuries to A.R.V.

between January 25 and January 31, 2005. Testimony established that A.R.V. was in the

care of the DeVons during this time frame, and A.R.V. would often spend time with Mr.

DeVon outside of Ms. DeVon's presence.

       The DeVons' explanation for the injuries given to witnesses were contradictory.

The most common explanation given and also reported to police was that A.R.V. fell off

of a woodpile sometime around January 28 or 29. However, witnesses present with Mr.

DeVon and A.R.V. on those days did not see A.R.V. fall off a woodpile. Instead, the

witnesses said that A.R.V. fell near a woodpile and/or on a porch. The witnesses also

said that A.R.V. fell onto his hands and did not seem affected by the incident. One


       1 State   v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).

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No. 24958-1-III
State v. DeVon


witness said A.R.V. suffered only a few red marks on his face and slivers in his hands,

while another witness said A.R.V. did not hit his head.

       Testimony established that Ms. DeVon reported to coworkers on January 29 and

30, two days before A.R.V.'s death, that A.R.V. was sick and vomiting. Ms. DeVon told

some of the workers, but not others, about A.R.V. 's fall from the woodpile. Witnesses

said that Ms. DeVon was not worried about the multiple bruises covering A.R.V. Ms.

DeVon did not want to take A.R.V. to the hospital because she was afraid of what others

might think.

       Testimony from those treating A.R.V. when he arrived at the hospital in the early

morning of January 31 was that A.R.V. was in full cardiac arrest and had been so for

some time. One doctor reported that A.R.V. "basically appeared dead." Report of

Proceedings at 759. One witness described A.R.V. as unrecognizable due to the swelling.

Another thought he had been in a traumatic accident due to the extent of his visible

injuries.

       A doctor who helped treat A.R.V., testified that the numerous injuries to A.R.V.

were extensive. He testified that the type of retinal hemorrhages and brain injury A.R.V.

suffered could not have resulted from a direct or accidental blow to the head. Instead, the




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No. 24958-1-III
State v. De Von


doctor described that the location, nature, and shape of many of the injuries indicated that

they were clearly inflicted injuries and not accidental.

       A pediatric neurologist who also evaluated A.R.V. noted the extensive injuries.

The neurologist indicated that A.R.V. suffered from multiple types of trauma occurring

both relatively recently and from a longer time ago. He testified that the severe injury

was not one he would expect to see from a short fall from a woodpile but that most likely

occurred as the result of non-accidental trauma or child abuse. He indicated that the

amount of retinal hemorrhages indicated significant force was applied to A.R.V.'s head

either by shaking or repeated blows.

       The jury found Mr. DeVon guilty of homicide by abuse. The court sentenced Mr.

DeVon to 450 months of confinement. The jury found Ms. DeVon guilty of second

degree manslaughter. The court sentenced Ms. DeVon to 27 months of confinement.

       Mr. DeVon appealed to this court in 2006, claiming among other errors, that his

right to a public trial was violated when the trial court allowed individual voir dire in

chambers. We stayed his appeal pending a decision by the Supreme Court in State v.

Frawley, 181 Wn.2d 452,334 P.3d 1022 (2014). We lifted the stay subsequent to the

recent decision in Frawley. We now address his appeal.




                                              5

No. 24958-1-III
State v. De Von


                                         ANALYSIS

I. 	   Whether Mr. De Von's right to a public trial was violated when the trial court
       allowed individual questioning ofvenire jurors in chambers

       Review of a defendant's public trial right challenge on direct appeal is a question

oflaw that receives de novo review. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d

150 (2005).

       Article I, section 22 of the Washington Constitution and the Sixth Amendment to

the United States Constitution guarantee a defendant the right to a public trial. State v.

Njonge, 181 Wn.2d 546, 553, 334 P.3d 1068, cert. denied, l35 S. Ct. 880, 190 L. Ed. 2d

711 (2014). However, the right to a public trial is not absolute. Jd. A trial court may

close a courtroom to the public if it finds the closure is justified. Jd. Prior to closure, the

trial court must balance several factors on the record by conducting a Bone-Club analysis.

Jd.

       "Bone-Club requires that trial courts at least: name the right that a defendant and

the public will lose by moving proceedings into a private room; name the compelling

interest that motives closure; weigh these competing rights and interests on the record;

provide the opportunity for objection; and consider alternatives to closure, opting for the

least restrictive." State v. Wise, 176 Wn.2d 1, 10,288 P.3d 1113 (2012).




                                               6

No. 24958-1-111
State v. De Von


         A defendant's right to a public trial applies to jury selection. [d. at 11. "[T]he

public trial right in voir dire proceedings extends to the questioning of individual

prospective jurors." [d. The private questioning of individual jurors in chambers is a

courtroom closure that requires a Bone-Club analysis before questioning occurs. [d. at

11-12.

         It is the trial court's responsibility to weigh the Bone-Club factors and enter

specific findings to support the closure. Bone-Club, 128 Wn.2d at 260-61. On appeal,

"[w]e do not comb through the record or attempt to infer the trial court's balancing of

competing interests where it is not apparent in the record." Wise, 176 Wn.2d at 12-13.

         A trial court's failure to give any consideration to the Bone-Club factors before

closing a courtroom for voir dire is a structural error that is presumed to be prejudicial.

Wise, 176 Wn.2d at 14.2 An improper courtroom closure violates the fundamental

constitutional right to a public trial and is not subject to a harmless error analysis. State v.




         But see State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009) where the voir dire
         2
courtroom closure without a Bone-Club analysis was not considered a structural error
because the trial court effectively considered the Bone-Club factors and the defendant
was an active proponent of the closure. "At bottom, Momah presented a unique
confluence of facts: although the court erred in failing to comply with Bone-Club, the
record made clear-without the need for a post hoc rationalization-that the defendant
and public were aware of the rights at stake and that the court weighed those rights, with
input from the defense, when considering the closure." Wise, 176 Wn.2d at 14-15.

                                                7

No. 24958-I-III
State v. DeVon


Easterling, 157 Wn.2d 167, 181-82, 137 P 3d 825 (2006). We do not consider this kind

of public trial right violation to be de minimis or trivial. Id. at 180-81. "[W]e cannot

know what the jurors might have said differently if questioned in the courtroom; what

members of the public might have contributed to either the State's or defense's jury

selection strategy; or, if the judge had properly closed the court under a Bone-Club

analysis, what objections, considerations, or alternatives might have resulted and

yielded." Wise, 176 Wn.2d at 18.

       A defendant's failure to object to a public trial violation does not preclude

appellate review under RAP 2.5. State v. Paumier, 176 Wn.2d 29,36,288 P.3d 1126

(2012). The improper closure of the courtroom during voir dire is presumed to be

prejudicial to the defendant and, correspondingly, is a manifest error affecting a

constitutional right. Id. at 36-37. Similarly, a defendant's failure to object at trial does

not equate to a waiver of his right to a public trial. Brightman, 155 Wn.2d at 514-15.

       A defendant may affirmatively waive his right to a public trial if the waiver is

knowingly, voluntarily, and intelligently given. Frawley, 181 Wn.2d at 461-62 (plurality

opinion). A valid waiver can occur in the absence of a Bone-Club analysis. Id. at 467

(plurality opinion) (Stephens, J., concurring with seven concurring and dissenting justices

in agreement). The Washington Supreme Court has not agreed on the standard or process



                                              8

No. 24958-1-111
State v. DeVon


for ensuring that a defendant's waiver is knowing, voluntary, and intelligent, but the

prevailing opinion is that waiver "can be met without the same type of 'on-the-record

colloquy' that waiver of certain other rights (like the right to counsel) requires." [d. at

473. Still, a valid wavier will not be found if the record presents no evidence that the

defendant knew that he was waiving his right to a public trial, understood what the right

entailed, and voluntarily agreed to waive his right. State v. Shearer, 181 Wn.2d 564,575­

76,334 PJd 1078 (2014) (plurality opinion) (McCloud, J., concurring).

       Here, Mr. DeVon's right to a public trial was violated. The trial court allowed

private questioning ofjurors in chambers. This courtroom closure occurred without first

conducting a Bone-Club analysis. Moreover, although a large number of venire jurors

responded that they had heard of the case, all venire jurors were questioned individually

in chambers. The trial court's failure to give any consideration to the Bone-Club factors

before allowing private questioning in chambers is a structural error that is presumed to

be prejudicial to Mr. DeVon. Furthermore, there is no evidence in the record that Mr.

DeVon knowingly, voluntarily, and intelligently waived his right to a public trial. Despite

the State's contentions, Mr. DeVon did not suggest the courtroom closure; the suggestion

was made by Mr. DeVon's wife. Also, although Mr. DeVon suggested and argued for




                                              9

No. 24958-1-111
State v. De Von


sequestration of the jury, his advocacy for sequestration does not evidence an intention to

waive his right to a public trial.

        The appropriate remedy for a violation of a defendant's constitutional right to a

public trial is reversal and remand for a new trial. Easterling, 157 Wn.2d at 182.

"Although a new trial will undoubtedly place on the affected community an extremely

difficult burden, a burden that will be particularly painful for the families and friends of

the victims of the crimes charged in this case, our duty under the constitution is to ensure

that, absent a closure order narrowly drawn to protect a clearly identified compelling

interest, a trial court may not exclude the public or press from any stage of a criminal

trial." In re Pers. Restraint o/Orange, 152 Wn.2d 795,800, 100 P.3d 291 (2004).

II. 	   Whether the State presented sufficient evidence to establish guilt beyond a
        reasonable doubt

        We address Mr. DeVon's sufficiency of the evidence challenge because, if

successful, the remedy of reversal and dismissal would alleviate the need for a new trial

to address the public trial violation.

        Mr. DeVon contends that the State failed to establish all of the elements of

homicide by abuse. Specifically, he contends that the State did not prove that he

previously engaged in a pattern or practice of assault or torture of A.R.V.




                                             10 

No. 24958-1-III
State v. DeVon


          In every criminal prosecution, due process requires that the State prove, beyond a

reasonable doubt, every fact necessary to constitute the charged crime. In re Winship,

397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). When a defendant

challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192,201, 829 P.2d

1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant." Id. Furthermore, "[a]

claim of insufficiency admits the truth of the State's evidence and all inferences that

reasonably can be drawn therefrom." Id.

       Circumstantial evidence and direct evidence are equally reliable. State v.

Goodman, 150 Wn.2d 774,781,83 P.3d 410 (2004). An appellate court "must defer to

the trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970

(2004).

       "A person is guilty of homicide by abuse if, under circumstances manifesting an

extreme indifference to human life, the person causes the death of a child or person under




                                               11 

No. 24958-I-III
State v. DeVon


sixteen years of age, ... and the person has previously engaged in a pattern or practice of

assault or torture of said child." RCW 9A.32.055.

       Here, the evidence is sufficient to show that Mr. DeVon engaged in a practice or

pattern of abuse of A.R.V. The pattern of abuse was established by the extensive medical

evidence showing a huge number of inflicted injuries, pattern injuries, observed changes

in the child's demeanor, injuries observed by other witnesses more than one week before

death, and statements made by both defendants admitting to biting and swatting A.R.V.

After viewing the evidence in the light most favorable to the State, a rational trier of fact

could have found Mr. DeVon guilty beyond a reasonable doubt. Therefore, we reverse

Mr. DeVon's conviction, but remand for a new trial.

III.   Whether Judge Allan must recuse herselffrom the new trial

       Mr. DeVon also requests that we direct Judge Allan to recuse herself from the

criminal proceeding on remand. He contends that Judge Allan could be perceived as

being impartial, and for this reason, must recuse herself.

       Judge Allan previously heard a three-hour shelter care hearing involving the

DeVons' other child. The subject of that hearing concerned the DeVons' request for

increased visitation. Judge Allan did not reduce Mr. DeVon's visitation, but rather

maintained the status quo. In denying Mr. DeVon's earlier motion to recuse, Judge Allan



                                              12 

No. 24958-1-111
State v. DeVon


stated that she did not have knowledge of personal matters as prohibited by Cannon of

Judicial Conduct, (3)D.3 Mr. DeVon presents no evidence to the contrary. Rather, he

speculates that she might have been exposed to information that made her biased.

       The appearance of fairness doctrine is based on the fundamental notion in our

system ofjustice that judges must be fair and unbiased. GMAC v. Everett Chevrolet, Inc.,

179 Wn. App. 126, 153,317 P.3d 1074 (2014). Judges must not only be impartial, but

they must also demonstrate the appearance of impartiality. Id. at 154. "Even 'a mere

suspicion of irregularity, or an appearance of bias or prejudice' should be avoided by the

judiciary." Id. (quoting Chi., Milwaukee, St. Paul & Pac. R.R. v. Wash. State Human

Rights Comm 'n, 87 Wn.2d 802, 809, 557 P.2d 307 (1976)). There must be proof by the

litigant of actual or perceived bias to support an appearance of impartiality claim. Id.

Whether a proceeding satisfies the appearance of fairness doctrine is judged by how it

appears to a reasonably prudent person. Id.

       We find no basis to order Judge Allan to recuse herself. Mr. DeVon has failed to

prove actual or perceived bias. Simply because Judge Allan presided over a hearing


       3 Former Canon 3(D) provides in relevant part: (1) Judges should disqualify
themselves in a proceeding in which their impartiality might reasonably be questioned,
including but not limited to instances in which: (a) the judge has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.

                                              13
No. 24958-I-III
State v. DeVon


which involved Mr. DeVon, and even decided that hearing adversely to him, does not

establish actual or perceived bias. Nor does it establish that she has personal knowledge

of a disputed fact in the criminal proceeding. Moreover, during the criminal trial, Judge

Allan made decisions that favored Mr. DeVon. Judge Allan dismissed the alternative

count against Mr. DeVon of first degree murder by extreme indifference and denied the

State's motion to amend the information to include a count of first degree premeditated

murder. A reasonable prudent person could not perceive that Judge Allan had any actual

or perceived bias against Mr. DeVon.

      We reverse Mr. DeVon's conviction and remand for a new trial.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                       Lawrence-B rrey,

WE CONCUR:


  ;S~tU~
   Siddoway, C.J.
                              t-/}


                                            14 

