                                                                                                 FILED
                                                                                          COURT OF APPEALS
                                                                                             DIVISION It
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGMT 17
                                                                                                       M1 8: 42
                                                                                         ST,
                                               DIVISION II
                                                                                         BY
 STATE OF WASHINGTON,                                                No. 45952 -3 - II
                                                                                                     TY

                                   Respondent,


         v.



 DAWAYNE CHARLES MCCASH,                                         UNPUBLISHED OPINION


                                   Appellant.


        WoRSwIcK, J. —       Dawayne Charles McCash appeals his conviction and sentence for third


degree assault, arguing that the superior court erred when it considered jury challenges at sidebar

and also erred in imposing a community custody condition requiring him to undergo a substance

abuse evaluation and comply with any treatment recommendations. We conclude that the

superior court' s jury selection procedures did not infringe McCash' s right to a public trial and

affirm his conviction. The State concedes that the superior court failed to make the findings


required to impose the challenged community custody conditions. We affirm McCash' s

conviction and -remand-for-the superior -court -to- strike the community custody provision requiring

McCash to engage in substance abuse evaluation and treatment.'


                                                       FACTS


        The State charged McCash with one count of third degree assault for assaulting a law

enforcement officer. At a pretrial conference, the parties discussed jury selection. The trial

judge proposed that he would cap the jury pool at 40 and would then question prospective jurors




1 A commissioner of this court initially considered McCash' s appeal as a motion on the merits
under   RAP 18. 14   and   then transferred   it to   a panel.
No. 45952 -3 -II



about hardships due to the length of the trial. He stated that he planned to then dismiss all


potential jurors who expressed hardship concerns. He requested the parties make challenges for

cause during voir dire. Specifically, the court stated:

             Challenge for     cause.    If there is a challenge for cause make it as soon as you feel
             it' s appropriate in the middle of voir dire. I will subtract out the time that we spend
             dealing   with   the   challenge   for   cause and add   it back   on   to the   end of your   time. I

            keep track of it up here.

Report of Proceedings ( RP) at 8 - 9. Neither party objected to the proposed procedure.

             The clerk' s minutes detail jury selection.2 After voir dire, the parties exercised

peremptory         challenges,      apparently in writing. The     clerk' s minutes also contain a notation, " The



Court       addressed   the release of juror #12 with counsel."          Suppl. Clerk' s Papers at 16.


             The judge explained that juror 12 had been excused due to medical issues. 3 The judge

placed      the   reasons   for his decision to dismiss this juror      on   the   record   because "[   ajnyone looking

at   this   would wonder       why he    was excused      because nobody talked to him." RP at 17. The court


learned of this medical issue because the juror " has a bladder condition that would have required


a recess about ten minutes before we were done, which would have been very awkward for

everyone."         RP at 17.


             After trial, which included testimony that McCash smelled of alcohol at the time of the

offense, the jury found McCash guilty. The superior court sentenced McCash to 90 days in

custody, with credit for time served, and 12 months of community custody. Proposed

community custody conditions included a prohibition on McCash' s consumption of alcohol. The




2 Voir dire was not transcribed.

3 McCash does not specifically argue that juror 12' s dismissal (or other hardship dismissals)
violated his public trial right. Under RCW 2. 36. 100, a trial court has broad discretion to excuse
prospective jurors based on undue hardship or extreme inconvenience.

                                                               2
No. 45952 -3 -I1



State did not ask the court to make a finding that chemical or alcohol dependency contributed to

the crime and the superior court did not make such a finding. Nevertheless, the judgment and

sentence requires McCash to undergo a substance abuse evaluation and comply with any

recommended treatment.


                                                  ANALYSIS


                                          SIDEBAR JURY CHALLENGES


             McCash first argues that the superior court erred when it did not hear challenges for


cause in open court. The record, however, does not support that the superior court heard any

challenges for cause, whether at sidebar or in open court. See In re Pers. Restraint of Yates, 177

Wn.2d 1, 27 -28, 296 P. 3d 872 ( 2013) (       concluding that petitioner failed to show that the

 courtroom was actually closed ").


             Here, the superior court requested the parties to present challenges for cause during voir

dire. The clerk' s minutes show that the court and both attorneys engaged in voir dire between


9: 43 AM and 10: 04 AM. There is no indication that either party presented any juror challenges

during voir dire. The clerk' s minutes next contained a detailed record of peremptory challenges.

As with the voir dire portion of the clerk' s minutes, this section does not show that either party

raised a challenge for cause. Accordingly, McCash fails to demonstrate that the superior court

heard any challenges for cause. Accordingly, his argument that the superior court violated his

right   to   an open court   by hearing   challenges   for   cause at sidebar   fails.   Cf. State v. Love, 176 Wn.

App.    911, 309 P. 3d 1209 ( 2013), review granted in part, 340 P. 3d 228 ( 2015).


             McCash next argues that the superior court erred in conducting peremptory challenges in

writing or at sidebar. We held in State v. Dunn, 180 Wn. App. 570, 321 P. 3d 1283 ( 2014),

review       denied, 340 P. 3d 228 ( 2015),   and again   in State   v.   Marks,         Wn.   App. ,      339
No. 45952 -3 -II



P. 3d 196, 198 ( 2014),    that exercising peremptory challenges does not implicate the public trial

right. Accordingly, we hold that the superior court did not violate McCash' s public trial right by

allowing counsel to make peremptory challenges at a sidebar conference. See also State v.

Smith, 181 Wn.2d 511, 334 P. 3d 1049 ( 2014) ( traditional sidebar conferences do not implicate a


public trial right).


                                               COMMUNITY CUSTODY


        McCash next argues that the superior court erred in imposing the community custody

condition that required McCash to undergo a substance abuse evaluation and comply with

recommended treatment.4 The State concedes error.

        RCW 9. 94A.607( 1) provides:


        Where the court finds that the offender has a chemical dependency that has
        contributed to his or her offense, the court may, as a condition of the sentence and
        subject to available resources, order the offender to participate in rehabilitative
        programs or otherwise to perform affirmative conduct reasonably related to the
        circumstances of the crime for which the offender has been convicted and
        reasonably necessary or beneficial to the offender and the community in
        rehabilitating the offender.

 Emphasis added.)


        Nothing in the record shows that the superior court made any findings as to whether

McCash' s substance abuse contributed to his offense. Because the record lacks such a finding,

we remand    to the    superior court   to   strike   this community custody   condition.   See State v. Jones,


118 Wn.   App.   199, 209, 76 P. 3d 258 ( 2003) (         striking mental health evaluation condition because

sentencing court did not " make a finding that Jones was a person whose mental illness had

contributed to his crimes ").




4 Although McCash did not object at sentencing, we can reach a sentencing error for the first
time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008).




                                                            4
No. 45952 -3 -II



        We affirm McCash' s conviction and remand for the superior court to strike the


community custody provision requiring McCash to engage in a substance abuse evaluation and

comply with treatment.

        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:




            A.C. J.
                      A• ;


Melnick, J.




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