                                                                                 COURT OF APPEALS
                                                                                      DIVISION II

                                         2014 NOV - 4 AM 10: O.
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                STATE OF WASHINGTON
                                                    DIVISION II
                                                                                 BY

 STATE OF WASHINGTON,                                                             No. 44104 -7 -II


                                         Respondent,


            v.




 JAMES L. BARTHOLOMEW,                                                    UNPUBLISHED OPINION


                                         Appellant.


            SUTTON, J. —    James L. Bartholomew appeals his jury trial convictions and sentences for

possession of a stolen motor vehicle ( count one) and attempting to elude a pursuing police vehicle

 count   two).     He argues that ( 1) the trial court' s response to a jury question was a comment on the

evidence, (      2) the trial court erred when it responded to the jury question without notifying the

parties and giving them an opportunity to respond, and ( 3) the judgment and sentence fails to

properly set forth the sentences imposed. We affirm the convictions and sentences but remand for
correction of the scrivener' s errors in the judgment and sentence.

                                                         FACTS


                                                    I. BACKGROUND


            On September 13, 2011, Aberdeen police officer Steven Gonzalez was on patrol in his

marked patrol car when he saw a car that had been reported stolen stopped at a stop light. The car

ran   the   red   light   and sped    away   when    Officer Gonzalez turned his      patrol   car around.   Officer


Gonzalez initially pursued the speeding car, but he abandoned the pursuit because the car was
                                he                   that the                               others on   the roadway.
driving     recklessly    and        was concerned              pursuit was   endangering
No. 44104 -7 -II



             Within seconds" of terminating the pursuit, the dispatcher was notified of a vehicle having

crashed;     the crashed vehicle was the        stolen car.       Verbatim Report         of    Proceedings ( VRP) ( Jan. 10,


2012)   at   11.   Officers eventually apprehended Bartholomew, who had been driving the car, and

his sister, who had been a passenger in the car.


         The car' s owner, Ashley Dion, came to the accident scene and identified the vehicle. The

only existing key to the car was in the car' s front passenger seat when she arrived.

                                                        II. PROCEDURE


         The State charged Bartholomew with possession of a stolen vehicle ( count 1) and attempt


to elude a pursuing police vehicle (count 2). 1 The case proceeded to a jury trial.

                                                        A. Testimony

         The State' s witnesses testified as described above. In addition, Dion, a student at the local

community college, testified that her car was stolen from her apartment complex parking lot on
September 6;       she reported the car stolen          that   day. She also told the officers that she had lost the

only car key; she believed it had fallen off of the carabiner -like clip that she used to hold her keys.
On September 13,        she   saw   the   car   at a    local    store,   and   her boyfriend         called   the   police.   Dion


testified that she did not know Bartholomew and that she did not give him permission to take her

car. Dion did not testify about whether she was attending school at the time her car was stolen or

give any specific dates as to when she was enrolled.

         Bartholomew       and   his   sister   testified      for the defense.        Bartholomew' s sister testified that


Bartholomew had told her that he "              got [   the car]      from   a girl   that he   was   seeing."       VRP ( Jan. 10,




1 It also alleged that while attempting to elude, Bartholomew placed someone other than himself
and law enforcement in danger. This is a sentencing aggravator. RCW 9. 94A.834( 1).


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No. 44104 -7 -II



2012)   at   52.   Similarly, Bartholomew testified that he borrowed the car from Dion, whom he had

been seeing at the time. Bartholomew further testified that he had met Dion at the local community

college they both attended; that they started a secret, intimate relationship; and that they planned

to be together after Dion broke up with her boyfriend. After they had been seeing each other for

about three months, Bartholomew went to Dion' s apartment, and she told him that she had decided


to stay with her boyfriend. Bartholomew then asked to borrow her car, telling her that he wanted

to go to the store and buy beer; and she gave him the key that was later found in the car' s

passenger' s seat. But Bartholomew also testified that he was upset with Dion and that he asked to

borrow her car because he thought that if he kept the car long enough, Dion would have to reveal

their relationship to her boyfriend.

                                  B. Jury Question and Trial Court' s Response

         During its deliberations, the jury submitted the following written question to the trial court:

         Where [      sic]   they in   summer school at     the   college?   Summer   school:   July, Aug,
         Sept.


Clerk' s Papers ( CP) at 16.


         The trial        court responded   in writing, "   You may only consider the evidence presented to

you   during trial." CP at 17. Neither the verbatim report of proceedings nor the trial court' s minutes

mentions the jury question or the trial court' s response to the question.

                                             C. Verdict and Sentencing

         The       jury   found Bartholomew guilty          as   charged.    The trial court imposed concurrent


sentences of 41 months and one day and 57 months for a total term of confinement of 57 months.

             The judgment and sentence initially correctly lists count 1 as the possession of a stolen

motor vehicle offense and count 2 as the attempt to elude a pursuing police vehicle offense in


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No. 44104 -7 -II



section   2. 1 ( " Current Offenses "). CP            at   26.    But the judgment and sentence later transposes the


sentencing data for         each offense       in   section   2. 3 ( "   Sentencing   Data "), and purports to impose both


sentences on count          1 in   section    4. 1 ( " Confinement ").2        CP at 28.

          Bartholomew appeals.


                                                            ANALYSIS


          Bartholomew argues that the ( 1) the trial court' s response to the jury was a comment on

the   evidence, (   2) the trial court erred when it responded to a jury question without notifying the

parties, and ( 3) the judgment and sentence fails to properly set forth the sentences imposed. We

affirm the convictions, but remand for correction of the judgment and sentence.

                                             I. No COMMENT ON THE EVIDENCE


          Bartholomew first argues that the trial court' s response to the jury question was an

improper comment on the evidence in violation of article IV, section 16 of the Washington State

Constitution. We disagree.


          The Washington State Constitution,                     article     IV,   section   16,   provides "[   j]udges shall not

charge    juries   with respect       to    matters of   fact,   nor comment        thereon,   but   shall   declare the law." " A


judge impermissibly comments on the evidence when he conveys a personal attitude toward the

merits of    the   case."     State    v.   Ratliff, 121    Wn.     App.     642, 646, 90 P. 3d 79 ( 2004) (        citing State v.




2 Section 4. 1( a) of the judgment and sentence reads in part:
        Confinement. RCW 9. 94A.589. A term of total confinement in the custody of the
          Department of Corrections ( DOC):
                               41 months [ plus one day] on Count 1
                                   57 months on Count 1
                                              concurrent] .

 CP at 28.




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No. 44104 -7 -II



Hughes, 106 Wn.2d 176, 193, 721 P. 2d 902 ( 1986)). "                  An instruction improperly comments on

the evidence if the instruction resolves a disputed issue of fact that should have been left to the


jury."   State   v.   Eaker, 113 Wn.   App.    111, 118, 53 P. 3d 37 ( 2002) (        citing State v. Becker, 132

Wn.2d 54, 65, 935 P. 2d 1321 ( 1997)),     review     denied, 149 Wn.2d 1003 ( 2003). We review de novo


whether an instruction amounts to a comment on the evidence. State v. Levy, 156 Wn.2d 709, 721,

132 P. 3d 1076 ( 2006).


         Bartholomew contends that the trial court' s response, which directed the jury to consider

only the evidence presented at trial, could have conveyed that the trial court did not believe there

was   any   evidence    that Bartholomew      and   Dion   were   in   college   together.   This contention, is not


well taken. The jury' s question was asking for additional evidence; the trial court' s response was

a neutral, accurate statement of the law in respect to that request. See State v. Balisok, 123 Wn.2d

114, 118, 866 P. 2d 631 ( 1994).   Accordingly, Bartholomew does not establish that the trial court' s

answer to the jury question was a comment on the evidence.

                                               II. JURY QUESTION


         Bartholomew further argues that the trial court committed reversible error in responding to

the jury question without first notifying the parties of the inquiry and allowing them the

opportunity to comment on any response. The State does not address whether the trial court erred

in failing to notify the parties of the jury question. Instead, it argues that any error was harmless.

Even assuming, but not deciding, that the trial court did not advise .the parties of the jury question

and that the court responded to the jury question without allowing the parties an opportunity to




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No. 44104 -7 -II



participate,3 Bartholomew does not show that he is entitled to relief on this ground because any

potential error was harmless beyond a reasonable doubt.


                When a jury asks questions during deliberations, the trial court " shall notify the parties of

the contents of the questions and provide them an opportunity to comment upon an appropriate

response."            CrR 6. 15( f)( 1).     This rule has both state and federal constitutional underpinnings in the


defendant' s right to be present at all critical stages of trial, including the court' s handling of jury

inquiries. Ratliff, 121 Wn. App. at 646.

                A trial court' s error in answering jury questions without complying with CrR 6. 15( f)(1)

may be harmless if the State can show the harmlessness beyond a reasonable doubt. See State v.
Johnson, 56 Wn. 2d 700, 709, 355 P. 2d 13 ( 1960),                            cert.   denied, 366 U. S. 934 ( 1961); State v.


Jasper, 158 Wn.               App.    518, 541, 245 P. 3d 228 ( 2010),         aff'd, 174 Wn.2d 96, 271 P. 3d 876 ( 2012).

If the trial          court' s answer       to   a   jury   question   is "` negative in nature and conveys no affirmative


information,'"              the defendant suffers no prejudice and the error is harmless. Jasper, 158 Wn. App.

at   541 ( quoting State           v.   Russell, 25 Wn. App. 933, 948, 611 P. 2d 1320 ( 1980)); see also Johnson,


56 Wn.2d at 709 ( communication with jury was not harmful when the court' s response was

 merely a refusal to communicate the information requested ").




3 Although neither the verbatim report of proceedings nor the trial court' s minutes mention any
jury question, the exact circumstances under which the trial court responded to the jury question
is   outside         this   record.     Arguably, Bartholomew would have had to provide a narrative report of
proceedings (            RAP 9. 3),        an agreed report of proceedings (           RAP 9. 4), or affidavits from counsel

and /or the trial court to affirmatively establish whether the trial court contacted counsel or allowed
counsel the opportunity to comment on an appropriate response. See State v. Njonge, No. 86072-
6    at *   8   n.   1 ( Wash. Sept. 25, 2014) ( Wiggins, J., concurring); State v. Jasper, 174 Wn.2d 96, 123-
24, 271 P. 3d 876 ( 2012).
No. 44104 -7 -II



         We find State v. Langdon, 42 Wn. App. 715, 713 P.2d 120, review denied, 105 Wn.2d 1013

 1986), instructive.      In Langdon, the trial court instructed the jury on the elements of first and

second   degree robbery,      accomplice          liability,      and   theft.   Langdon, 42 Wn.     App.      at   717.    During

deliberations, the jury    sent a note     to the judge reading, " Does              ` committing' mean aid in escaping ?"

Langdon, 42 Wn.       App.   at   717. The judge,        without           consulting   with counsel, responded, '         You are


bound    by   those instructions already           given     to   you.'"      Langdon, 42 Wn.      App.   at   717.        Langdon


argued that this communication violated CrR 6. 15( f)(1) and his right to be present at all stages of


the   proceedings.    Langdon, 42 Wn.            App.   at   717. Division One of our court disagreed and found


that any error was harmless because the communication was " neutral, simply referring the jury

back to the    previous   instructions."         Langdon, 42 Wn. App. at 717 -18.

         As in Langdon, the trial court here erred to the extent it communicated with the jury without

complying     with   RAP 6. 15( f)(1).      The trial court' s response however merely directed the jurors to

refer to the evidence before them, which, as we discuss above, was a wholly appropriate response

to the jury' s inquiry about evidence that was not presented at trial. The trial court' s response was

neutral in nature like that in Langdon, and no prejudice resulted from the trial court' s response.


Langdon, 42 Wn. App. at 717 -18; see also Jasper, 158 Wn. App. at 542 -43 ( holding that trial

court' s responding to a jury question without advising counsel was not prejudicial because the

court   merely   advised   jury    to   re -read   its instructions).            Any potential error is therefore harmless

beyond    a reasonable    doubt    and    this   argument         fails.
No. 44104 -7 -II



                                                 III. SENTENCING


         Finally, Bartholomew argues that sections 2. 3 and 4. 1 of his judgment and sentence

erroneously transpose the sentencing information and the sentences for each of the two counts. He

argues   that these   scrivener'   s   errors   require   remand    for   correction.   The State concedes the


scrivener' s errors on the judgment and sentence, but it argues that we are not required to remand

this matter for correction because the sentences are concurrent and the intent of the document is

clear. Although the errors here do not alter Bartholomew' s sentence, remand for correction of the


scrivener' s errors is appropriate to avoid any potential confusion in the future.

         We affirm the convictions and sentences but remand for correction of the scrivener' s errors

in the judgment and sentence.


         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.



                                                               94

                                                               Sutton, J.
 We concur:




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