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                                                                                           NAM OF APPEALS
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      IN THE COURT OF APPEALS OF THE STATE ("                                                   WASHI1416TO
                                                                                          STATE OF WASHINGTON
                                                                                              E
                                                    DIVISION II
                                                                                                 E,+ T
STATE OF WASHINGTON,                                                                 No. 43853 -4 -II


                                         Respondent,


          v.



ANTHONY M. SUMAIT,                                                           UNPUBLISHED OPINION


                                           Appellant.


          HUNT, J. — Anthony            M. Sumait appeals his jury trial conviction for second degree assault.

He    argues     that ( 1)    the evidence was insufficient to prove second degree assault because it


showed only his mere presence at the scene, and ( 2) a side -bar held off the record violated his

right to a public trial. We affirm.

                                                           FACTS


          Two men approached Charles Burnett outside the home he shared with his girlfriend,

Jennifer Minkler, asked about a vehicle he had for sale, and then asked him for a cigarette or " a

light."    Verbatim Report of Proceedings ( VRP) (                July   31, 2012)   at   67.    Burnett told the men to


come      back the     next   day,    and   they hit him   with   wooden " clubs."        VRP ( July 31, 2012) at 57.

Burnett    shot one of        the   men,    Daniel Holcomb; the     other ran   away.      The police found Holcomb


alive on       the   ground and a wooden stick with a metal              cap nearby. The stick later tested positive


for Burnett' s and Holcomb' s DNA (deoxyribonucleic acid).

           About a quarter of a mile from Burnett' s residence, officers found the other man who had

run   away,      Anthony      Sumait.       Sumait told one officer that ( 1) he and Holcomb had approached

Burnett to       ask about a        truck; ( 2) he ( Sumait) had   asked    Burnett for    a cigarette; and (   3) Burnett
No. 43853 -4 -II



had then   reached   into his   pocket, pulled out a gun, and started              shooting. Sumait asserted that no


one had assaulted Burnett.


         The State charged Sumait with second degree assault of Burnett with a deadly weapon,

RCW 9A.36. 021( 1)(     c),   as either a principal or an accomplice. Before calling its first witness, the
                                                                                                            1
State   asked   the trial     court    for   a   side -bar       conference;   Sumait did   not   object.       The State' s


witnesses testified as described above. In addition, Minkler testified ( 1) that both men had struck

Burnett " numerous times "2           with wooden clubs; and ( 2) that a group of four men had been at her

residence that night, two of whom had remained on the other side of the residence and had not

                                                             3
been involved in the    assault or       the shooting.            Sumait   presented no evidence.    The jury convicted

him of second degree assault.


         Sumait appeals his conviction.


                                                        ANALYSIS


                                                 I. SUFFICIENT EVIDENCE


         Sumait first argues that the evidence ( 1) was insufficient to prove that he was involved in

the assault because there was no evidence that he was the person who actually struck Burnett or

that he was an accomplice to the person who did strike Burnett, and ( 2) established only his

presence at the scene. We disagree.



1
    This side -bar was not reported, and the record on appeal does not show what the side -bar
concerned.



2 VRP ( July 31, 2012) at 62.
3 Because it was dark when the assault occurred, neither Minkler nor Burnett could identify the
assailants.




                                                                    2
No. 43853 -4 -II



         When reviewing a challenge to the sufficiency of the evidence, we ask " whether, after

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

found the    essential    elements   of   the    crime   beyond    a reasonable      doubt."    State v. Hosier, 157


Wn.2d 1, 8, 133 P. 3d 936 ( 2006).          We must draw all reasonable inferences in favor of the State,


 interpreted   most    strongly   against   the defendant."         Hosier, 157 Wn.2d          at   8. "   Circumstantial


evidence and     direct   evidence are    equally   reliable."     State v. Moles, 130 Wn. App. 461, 465, 123

P. 3d 132 ( 2005).        We defer to the jury on issues of conflicting testimony, credibility of

witnesses,   and persuasiveness       of   the   evidence.       State v. Thomas, 150 Wn.2d 821, 874 -75, 83


P. 3d 970 ( 2004). 4

         Sumait argues that this case is similar to State v. Asaeli, in which we held that the State


had failed to establish more than the mere presence of a defendant whose second degree felony

murder conviction we reversed.            See Br. of Appellant ( citing State v. Asaeli, 150 Wn. App. 543,

569 -70, 208 P. 3d 1136,      review      denied, 167 Wn.2d 1001 ( 2009)).             This    argument      fails:   There


was no evidence that Asaeli had been involved in the murder in his case; here, in contrast,

Minkler testified that both men who had approached Burnett had been active participants in


assaulting him. And Sumait admitted that he had been one of the two men who had approached


Burnett.


         Taken in the light       most    favorable to the State,         evidence    established      that ( 1)   two men



approached Burnett, ostensibly to ask him about a vehicle he had for sale, and asked Burnett for

a cigarette or   for " a light "; (2) Burnett told them to         come   back later; ( 3) the two men then struck



4
    Abrogated in part on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
 158 L. Ed. 2d 177 ( 2004).




                                                             3
No. 43853 -4 -II


Burnett "     numerous"       times   with wooden " clubs ";           and ( 4) Sumait was one of the two men who


had   approached        Burnett     and asked     for   a cigarette.    VRP ( July 31, 2012) 67, 62, 57.                 Although


Minkler testified about two men in addition to the two who had assaulted Burnett, she made clear

that ( 1) these other two men did not approach Burnett, and ( 2) both of the men who approached

Burnett      assaulted      him.    We hold that this evidence was sufficient to establish that Sumait was


directly involved in the assault of Burnett and to support the jury' s verdict.

                                                        II. PUBLIC TRIAL


             Sumait   next argues      that the        bar conference violated
                                                  side -                                 his   right    to   a public   trial.   We


cannot reach the merits of this argument.


              N]ot 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."   State v. Sublett, 176 Wn.2d


58, 71, 292 P. 3d 715 ( 2012).               To determine whether a public trial violation has occurred, we

                                                                                                    5
must examine          the   alleged closure under        the "   experience and      logic" test.       Sublett, 176 Wn.2d at


72 -73.       The first prong        of   this test is the "     experience"    prong, which requires us to examine

 whether the core values of the public trial                right are   implicated." Sublett, 176 Wn.2d                 at 73.   The


second       prong    of   the test is the "   logic" prong,      which requires us       to determine "`       whether public




access plays a significant positive role in the functioning of the particular process in question. "'

Sublett, 176 Wn.2d at 73 ( quoting Press -Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.



5 Although only four justices signed the lead opinion in Sublett, Justice Stephens' s concurrence
created amajority who adopted the " experience and logic" test. 176 Wn.2d at 136 ( Stephens, J.,
concurring).  More recently, a unanimous Supreme Court cited Sublett in applying the
  experience and logic" test in In re Personal Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d
 872 ( 2013).




                                                                   4
No. 43853 -4 -II



Ct. 2735, 92 L. Ed. 2d 1 ( 1986)).      In order to apply this test, we must be able to determine from

the record before us on appeal the nature of the alleged closure. Here, the record shows only that

there was a side -bar at the State' s request; the record reflects no information about the content of

this        bar
       side -     conference.   Because our review is limited to the record on appeal, we cannot


determine whether this side -bar conference implicated Sumait' s public trial rights; therefore, we


do not further consider this issue. 6

         We affirm.


         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.




6 The proper procedure for raising issues dependent on matters outside the record is by way of a
personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).




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