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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II

In re Personal Restraint Petition of                                                       No. 44478 -0 -II


            CHARLES J. DAVIS,
                                                                                   UNPUBLISHED OPINION
                                         Petitioner.


            HUNT, J. —         Charles J. Davis challenges his previously affirmed jury trial conviction for

first degree     rape   in   a personal restraint petition ( PRP).              He argues that ( 1) the trial court erred in


closing the courtroom when the court requested that a spectator give up her seat to make room

for the     jury, (2) he received ineffective assistance when his counsel failed to renew a motion to

admit       evidence    that the     rape    victim   may have          engaged    in   prostitution,   and (   3)   his appellate .


counsel was ineffective for failing to raise the trial court' s alleged courtroom closure in his

previous direct appeal. We deny his PRP.

                                                                  FACTS


                                                                  I. RAPE

                                                                  KC1

             On September 23, 2001, 16- year               -old          arrived at the Lacey Transit Center to take the

bus downtown. A group of men approached her from behind, told her to shut up, forced her into


1
    It is   appropriate   to   provide some      confidentiality in this          case. Accordingly, it is hereby ordered •

that initials    will   be   used   in the   body   of   the   opinion   to   identify the juvenile victim involved.
No. 44478 -0 -II



the men' s bathroom, and restrained her while at least one of the men vaginally raped her. After

waiting for the men to leave, KC cleaned up and left the transit center. Despite significant pain,

initially KC told no one about the rape.

          The next day at school, however, she told the school nurse and her mother, who took her

to the emergency           room.        Hospital staff examined KC, administered a rape kit, and collected a


deoxyribonucleic acid (DNA) sample. At the hospital, KC also spoke about the rape with Lacey

Police Department Detective                  Beverly       Reinhold.      Several weeks later, KC ran away from home

with a friend, Jenny Anderson, because according to KC, her parents did not believe that she had

been raped.


          At that time, law enforcement could not find any suspects based on the DNA sample

recovered       from KC.         But about eight years later, in April 2009, the Washington State Patrol


Crime Lab        matched        the   sample    to the DNA         profile of   Davis   and   subsequently   arrested   him. In


June 2009, the State charged Davis with one count of first degree rape.

                                                             II. PROCEDURE


          Before trial, Davis moved to admit evidence of KC' s past sexual behavior under the


 rape     shield"    statute,        former RCW 9A.44. 020 ( 1975), to support his defense that the sexual


intercourse had been             consensual, not rape.             In support, he offered a declaration from Anderson


stating her belief that KC had                 prostituted        herself in 2001.      Davis also asked the trial court to


 provisionally admit this evidence in light of corroborating testimony by Mr. Davis should he

testify   at   trial."   Br.    of   Pet' r ( Ex. G   at   22).   The trial court denied Davis' s motion, ruling that the

evidence was not admissible because ( 1) at that time there was no evidence indicating that Davis

and   KC had         sex   as    an    act   of prostitution       and,   therefore, the   evidence   was    not relevant; (   2)
No. 44478 -0 -11



Anderson'      s " prostitution"       opinion was outside         her   personal   knowledge; ( 3) the prejudicial effect


of the proferred evidence outweighed its probative value; and ( 4) exclusion of the evidence

would not result         in   a " substantial    denial   of justice"    to Davis. Br.   of   Pet' r ( Ex. G   at   26). The trial


court   further     noted,    however, "[      M]y ruling today is based on the posture of the case before me at

this time.     If   circumstances change, could             the   matter   be brought back? Well, there could at least


be   an argument        that I   should consider additional         facts." Br. of Pet' r (Ex. G at 26 -27).


           During jury selection, the trial court asked one of the spectators to give up her seat for the

jury. When the spectator did not move immediately, the bailiff walked over and whispered to the

spectator,      after   which      she   stood    up and left the         courtroom.     At no time did the trial court


expressly exclude spectators from the courtroom, nor at any point did Davis object to the trial

court' s request for the spectator to move.


           At trial, Davis testified in his own defense that he and KC had engaged in a consensual,

prostitution- related sexual encounter at the Lacey Transit Center. His counsel did not renew his

earlier request to introduce Anderson' s testimony, nor does the record show that he attempted to

call Anderson as a witness.


             When the trial court discussed the jury instructions with counsel, Davis' s counsel stated,

             Your Honor, just one          housekeeping       matter.      The defense or myself did indicate at
             the beginning of the trial that [ the trial court' s] previous ruling regarding the
             testimony of Jenny Anderson will be revisited. I have rested my case. I have not
             asked this Court to revisit that ruling, and I'm not planning on doing so.
                        THE COURT: Good.      I. think the ruling in light of the evidence presented
             is still an appropriate ruling. Okay.

Br.   of   Resp' t (App. C       at   302) (   emphasis added).         The jury found Davis guilty of first degree rape.

State   v.   Davis,     noted at   162 Wn.       App.   1037, 2011 WL 2639279,           at *   3 ( 2011), review denied, 173


Wn.2d 1007 ( 2012).



                                                                    3
No. 44478 -0 -II



                                                    B. Direct Appeal


        Davis appealed his conviction, arguing that ( 1) the trial court erred in refusing to admit

evidence of KC' s prior sexual conduct, thus violating his constitutional right to confront

witnesses; (   2) the evidence was insufficient to support his conviction; and ( 3) he had received

ineffective    assistance of    trial   counsel.    Davis, 2011 WL 2639279,                  at *   1.   Division One of our


court held that Davis had failed to preserve the first issue because he failed to renew his motion


to admit Anderson' s testimony, but that even if Davis had preserved the issue, the trial court did

not abuse     its discretion in excluding the           evidence.       Davis, 2011 WL 2639279,             at *   3.   Our court


rejected Davis' s other arguments and affirmed. Davis, 2011 WL 2639279, at * 1.


        Davis now seeks relief from his judgment and sentence by a PRP.

                                                         ANALYSIS


                                           I. No COURTROOM CLOSURE


        Davis contends that when the trial court asked a spectator to " give up a seat for the jury,"

the trial   court violated   his   right   to   a public    trial    by " effect[ ing] a courtroom closure requiring

reversal and remand       for   a new    trial."    Br.   of   Pet' r   at   21.   We agree with the State that the trial


court' s asking one spectator to give up her seat to a prospective juror was not a courtroom

closure because the trial court did not exclude the spectator from the proceedings and the

courtroom remained open to the public.


        In support of his PRP, Davis submitted a declaration that ( 1) on the day of jury selection,

the presiding    judge   asked a spectator         to   move    to   allow space      for   members of     the   jury; (2)   when


the spectator did not immediately move, the bailiff walked over and whispered to her, after

which the spectator walked out of the courtroom; and ( 3) Davis believes that the bailiff asked the




                                                                 4
No. 44478 -0 -II


spectator   to leave.    The record does not support Davis' s conclusion that the bailiff asked the


spectator to leave. Nor did Davis voice such an objection to the trial court or argue that the trial
                                                                                       Club2

court was    thereby closing    the     proceedings,   thus   triggering     a   Bone -         inquiry. Nothing in the

record even suggests       that the trial   court closed   the     proceedings      to the   public.   We hold that there


was no courtroom closure and, thus, no violation of Davis' s public trial right.


         Furthermore, the trial court' s decision to rearrange spectator seating to accommodate a

juror fell within its discretion to manage the courtroom. See State v. Collins, 50 Wn.2d 740, 747-

48, 314 P. 2d 660 ( 1957) ( where trial court permitted members of public to remain in courtroom,


court' s decision to restrict additional members of the public during State' s closing arguments did

not violate defendant' s right to public trial and fell within trial court' s discretion to manage the

courtroom); see     also   State   v.   Gregory,   158 Wn.2d 759, 816, 147 P. 3d 1201 ( 2006) ( trial court


has " inherent authority"      and "    broad discretion to       regulate   the   conduct of a   trial ").   Thus, Davis' s


courtroom closure argument fails.

                                    II. EFFECTIVE ASSISTANCE OF COUNSEL


                                                        A. Trial


         Davis also argues that he received ineffective assistance when, after testifying that his

sexual intercourse with KC had been a consensual act of prostitution, his trial counsel failed to


renew a motion to admit Anderson' s testimony ( that she had witnessed KC appear to engage in

prostitution- related activities        back in 2001).     Davis contends that even if failure to renew the


motion      could   be   considered      trial   strategy, it     was   neither "     legitimate"      nor    a "   reasonable




decision[]," thus    falling below       an " objective standard of reasonableness."               Br. of Pet' r at 11 - 12;


2
    State v. Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995).




                                                              5
No. 44478 -0 -II


see   State    v.   Thomas,          109 Wn.2d 222, 232, 743 P. 2d 816 ( 1987).                             Davis also argues that


Anderson' s statement would have been admissible to corroborate his testimony and, therefore,
                                                                                    3
his   counsel' s    failure to       renew   the     motion prejudiced       him.         Holding that Davis fails to show the

deficient performance prong of the ineffective assistance of counsel test, we do not reach the

prejudice prong, and Davis' s ineffective assistance of counsel argument fails.

          To prevail in a PRP, the petitioner must show that he or she is unlawfully restrained.

RAP 16. 4. Under RAP 16. 4( c)( 2), unlawful restraint is a conviction obtained " in violation of the


Constitution        of   the United States         or   the Constitution     or   laws     of   the State   of    Washington."   Here,


Davis'   s    claim      involves      a   constitutional       violation,       so he must demonstrate prejudice by a

preponderance of the evidence rather than the higher standard of a complete miscarriage of


justice for     most collateral claims.               In re Pers. Restraint of Brett, 142 Wn.2d 868, 874, 16 P. 3d

601 ( 2001);        see    In   re   Cook, 114 Wn.2d 802, 813, 792 P. 2d 506 ( 1990);                              In re Haverty, 101

Wn.2d 498, 504, 681 P. 2d 835 ( 1984).


             In addition to his burden to show prejudice to prevail in his PRP, in order to support his


ineffective assistance of counsel claim, Davis must show that counsel' s performance fell below

an objective standard of reasonableness and "                         a reasonable probability that the outcome of the

3
    Davis contends that Anderson' s statement about KC' s prior prostitution -
                                                                             related activities would
have been        admissible under            the "   rape shield"     statute, former RCW 9A.44. 020, because KC' s
activities     were "      distinctive     sexual patterns."          Br.   of   Pet' r   at    13.   He argues that Washington
courts have held that evidence of a complainant' s prior acts of prostitution may be admissible to
prove consensual prostitution in defending a rape charge. See State v. Morley, 46 Wn. App. 156,
158, 730 P. 2d 687 ( 1986); Gregory, 158 Wn.2d at 784 -85.
             But even if Anderson' s statement would have been relevant and admissible in light of
Davis' s testimony, Davis does not assign error to the trial court' s refusal to admit Anderson' s
testimony - only           to his     counsel' s     decision   not   to    renew   the    motion     to    admit evidence —so     this
court need not           decide      whether   the evidence was        admissible.         RAP 10. 3(       a);   see Cowiche Canyon

Conservancy         v.    Bosley,     118 Wn. 2d 801, 809, 828 P. 2d 549 ( 1992).
No. 44478 -0 -II



trial   would       have been different           absent counsel' s            deficient   performance."   State v. Humphries,


170 Wn.           App.      777, 797, 285 P. 3d 917 ( 2012) (              citing Strickland v. Washington, 466 U.S. 668,

694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)),                               review granted,   177 Wn.2d 1007 ( 2013);       see




also    In   re   Pers. Restraint of Crace, 174 Wn.2d 835, 845, 280 P. 3d 1102 ( 2012).                            Failure to meet


either   prong         of   this test " defeats   an   ineffective     assistance claim."        Humphries, 170 Wn. App. at

797 ( citing Strickland, 466 U.S. at 697).

             In Davis' s direct appeal, Division One of our court stated that even if Davis had

preserved          this evidentiary issue, "           the trial court did not abuse its discretion in ruling that

 Anderson'         s   testimony]      was not admissible."            Davis, 2011 WL 2639279,             at *   3.   Thus, Davis


cannot show deficient performance in trial counsel' s failure to renew a previously lost motion to
                                4
admit    this     evidence.          Therefore, his ineffective assistance of trial counsel argument fails.

                                                                  B. Appeal


             Davis       also' claims, "    Failure of appellate counsel to raise an open courtroom issue on


appeal is deficient and prejudicial and constitutes ineffective assistance of appellate counsel."


Br. of Pet' r at 25 ( citing In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P. 3d 291

 2004)).          Because, as we have already held, there was no courtroom closure and no denial of

Davis' s public trial rights, it was not deficient performance for appellate counsel not " to raise an


open courtroom               issue    on appeal."      Br.   of   Pet' r   at   25.   And we need not address the prejudice




4 Although we need not address the prejudice prong of the ineffective assistance of counsel test,
we note our agreement with the State that Davis cannot show a reasonable probability that a
motion to renew admission of Anderson' s testimony would have affected the outcome of the
trial.       The record shows that when Davis' s trial counsel announced he would not renew his
motion to admit Anderson' s testimony, the trial court stated that it would not have changed its
earlier ruling that the evidence was inadmissible.


                                                                           7
No. 44478 -0 -II



prong of the ineffective assistance of counsel test to hold that Davis has failed to carry his burden

to support this argument.


        We deny Davis' s PRE'.

        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:




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