                                                                                                  FILED
                                                                                          COURT OF APPEALS
                                                                                             DIVISION II

                                                                                        20 5 FEB - 3 Al 8: 58
                                                                                         STATE OF WASHINGTON

                                                                                         BY
                                                                                                  DE      I




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

    STATE OF WASHINGTON,                                                                No. 45236 -7 -II


                                         Respondent,


          v.



    SYLVESTER TUGGLES,                                                           UNPUBLISHED OPINION


                                         Appellant.


         JOHANSON, C. J. —             Sylvester Tuggles appeals his jury trial convictions for first degree
                                                                  2
trafficking in   stolen   property,' third degree theft,              and witness   tampering. 3 He argues that the trial

court violated   his   right   to   a public   trial   under art.     I, § 22 of the Washington State Constitution and


the Sixth Amendment of the United States Constitution, as well as his right to be present at all

critical stages of     the   proceedings when           it held   eight sidebars    during his   trial.   Because Tuggles




1 RCW 9A.82. 050.

2 RCW 9A.56. 050.

3
    RCW 9A.72. 120( 1)( b).
No. 45236 -7 -II



fails to establish that any of these sidebars violated either his public trial rights or his right to be

present, we affirm.



                                                          FACTS


         The State charged Tuggles with first degree trafficking in stolen property and third degree

theft, after he stole and pawned several items from his sister' s home, and with a witness tampering

charge   based   on several calls        he   made   to his   sister and   brother -in -law.   During the trial, the trial

court held numerous, unrecorded sidebars outside of the hearing of the defendant, the jury, and the

public. Tuggles challenges eight of these sidebars.


         The first     sidebar    that Tuggles    challenges addressed an          evidentiary issue.      Specifically, it

addressed      Tuggles'     s   authentication   objection      to the     admission   of exhibit    5,   a written letter


allegedly from Tuggles to his sister. Following the sidebar, the trial court overruled the objection

on the record. It also described the objection on the record more fully following a later sidebar.

         During the second sidebar that Tuggles challenges, the State apparently informed the trial

court that it was presenting a different witness from the pawn shop than it had previously intended

to present; defense counsel also apparently requested a short recess. Following this sidebar, while

the jury was absent, the trial court described this sidebar on the record and called a recess.

         During the third sidebar that Tuggles challenges, the trial court and the parties had

apparently attempted to discuss the " logistics" of playing portions of a recorded telephone call that

originated from the jail, but the parties advised the trial court that they had not yet discussed this

issue. Following this sidebar, the trial court advised the jury that the court was taking a 15- minute

recess   to   allow   the   parties   to discuss this issue.
No. 45236 -7 -II



          During the fourth sidebar that Tuggles challenges, the parties and the trial court apparently

discussed Tuggles' s authentication objection to the admission of a recording of a jail telephone

call.   Following this sidebar, without specifying what the specific objection was, the trial court

stated on the record that it had overruled an objection and had admitted the recording.

          The fifth sidebar that Tuggles challenges apparently addressed scheduling issues.

Following this sidebar, the trial court stated on the record that there were no more witnesses that

day and excused the jury for the day. The trial court also discussed on the record the schedule for

the following day.

          The sixth sidebar that Tuggles challenges addressed a hearsay objection and a related
                         4
limiting instruction. Following this objection, the trial court advised the jury that it was admitting

the relevant testimony for impeachment purposes only.

          The seventh sidebar that Tuggles challenges apparently addressed whether Tuggles could

refresh   his memory from      a   recording   of a call   he had   made   from jail. Defense counsel did not


want to explain the grounds for his objection before the jury. Following the sidebar, the trial court

stated on the record that it had overruled the objection and that it would allow the State to play the

recording.


          The eighth and final sidebar that Tuggles challenges occurred immediately before

Tuggles'   s   closing   argument at   defense   counsel' s request.   Following this sidebar, the trial court




4 Tuggles argues that the trial court did not explain what this sidebar addressed on the record. But
it is clear from the context that the parties and the trial court discussed the hearsay objection and/or
a limiting instruction related to the hearsay testimony.

                                                           3
No. 45236 -7 -II



called a short recess; it did not explain why the recess was necessary or otherwise describe what

had been discussed during the sidebar.

         The jury found Tuggles guilty of first degree trafficking in stolen property, third degree

theft, and witness tampering. Tuggles appeals.

                                                    DISCUSSION


         Tuggles argues that each of these eight closures violated his public trial rights because the


trial court did not examine the Bone -Clubs factors before engaging in the sidebars and that the

same eight sidebars also violated his right to be present. We disagree.


                                                   I. PUBLIC TRIAL


                              A. APPLICABLE LAW AND STANDARD OF REVIEW


          The Sixth Amendment to the United States Constitution              and art.   I, § 22 of the Washington


State Constitution guarantee a defendant the right to a public trial. State v. Wise, 176 Wn.2d 1, 9,


288 P. 3d 1113 ( 2012).       Generally, this right requires the trial court to hold certain proceedings in

open court unless it first applies the five -factor Bone -Club test and determines that these factors


support   the   courtroom closure.          Whether a courtroom closure violated a defendant' s right to a


public   trial is   a question of   law   we review   de   novo.   Wise, 176 Wn.2d at 9.


          The threshold determination when addressing an alleged violation of the public trial right

is   whether   the proceeding       at   issue implicates the defendant'   s public   trial   right.   State v. Sublett,


176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012). "[           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."




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


                                                             4
No. 45236 -7 -II



Sublett, 176 Wn.2d             at   71.   The appellant has the burden of establishing an alleged public trial right

violation. See Sublett, 176 Wn.2d at 75 ( noting that the petitioner failed to establish a public trial

violation);   State       v.   Wilson, 174 Wn.         App.     328, 346 -47, 298 P. 3d 148 ( 2013) ( noting that the


appellant had failed to establish that his public trial right was implicated).


          To address whether there was a court closure implicating the public trial right, we first

consider whether the particular proceeding at issue " falls within a category of proceedings that our

Supreme Court has already                  acknowledged   implicates        a   defendant'   s public   trial   right."   Wilson, 174


Wn.    App.   at   337;   see also        Wise, 176 Wn.2d       at   11.   If the proceeding at issue does not fall within

an acknowledged protected category, we determine whether the proceeding implicates the public

trial right using the Sublett experience and logic test.6 176 Wn.2d at 73; Wilson, 174 Wn. App. at
335.


                                    B. SIDEBARS ADDRESSING ADMISSION OF EVIDENCE


          We first turn to the four sidebars that addressed evidentiary issues. This includes the first,

fourth, sixth, and seventh sidebars described above.


          Our Supreme Court recently held in State v. Smith, 181 Wn.2d 508, 512, 518 -19, 334 P. 3d

1049 ( 2014),      that sidebars addressing evidentiary matters do not implicate the defendant' s public




6
    The   experience       and       logic test   requires us   to consider ( 1)      whether the process and place of a

proceeding historically have been open to the press and general public (experience prong) and (2)
whether access to the public plays a significant positive role in the functioning of the proceeding
    logic prong). Sublett, 176 Wn.2d at 73. If the answer to both prongs is yes, then the defendant' s
public trial right " attaches" and a trial court must apply the Bone -Club factors before closing the
proceeding to the public. Sublett, 176 Wn.2d at 73.


                                                                      5
No. 45236 -7 -II



trial   right.   Accordingly, under Smith, Tuggles fails to show that these four sidebars violated his

right to public trial.


                                              C. ADMINISTRATIVE ISSUES


           The next three sidebars that Tuggles challenges ( the second, third, and fifth sidebars)


addressed the substitution of a witness, the logistics of playing a recording for the jury and the

need for a recess to allow the parties to address this issue, and scheduling issues. Tuggles fails to

address whether sidebars addressing these types of issues fall within a category of proceedings that

our courts have already acknowledged implicate his public trial right. Additionally, he has failed

to argue that these types of sidebars implicate his public trial right under the Sublett experience

and     logic test. 176 Wn.2d      at   73.   Because it is Tuggles' s burden to establish that these allegedly

closed proceedings implicated his public trial right, see Sublett, 176 Wn.2d at 75, Wilson, 174 Wn.


App. at 346 -47, and he fails to present any argument relevant to that issue, we decline to further

address these sidebars.


                                                D. UNIDENTIFIED ISSUES


           Finally,   we address    the   eighth sidebar   that Tuggles   challenges.   All we know from the


record is that following this sidebar, the trial court called a short recess; it did not explain why the

recess was necessary or otherwise describe what had been discussed during the sidebar.

           Because the record is unclear as to what happened during this sidebar and the resolution of

this issue relies on facts outside the record, we cannot address this issue on direct appeal. State v.




7 The briefing in this appeal does not address Smith because the briefing was filed before our
Supreme Court issued Smith.              Neither party has moved to file supplemental briefing addressing
Smith.



                                                            6
No. 45236- 7- 11



Koss, 181 Wn.2d 493, 502 -03, 334 P. 3d 1042 ( 2014); State v. McFarland, 127 Wn.2d 322, 335,


899 P. 2d 1251 ( 1995).           Thus, on the record before us, Tuggles has not established that a public

trial right violation occurred in regard to this sidebar.


                                                 II. RIGHT TO BE PRESENT


          Tuggles next argues that the same eight sidebars violated his right to be present at critical


stages of   the proceedings        because the      sidebars were     held   outside of   his   hearing. 8 We disagree.

          We review whether a defendant' s constitutional right to be present has been violated de

novo.     State   v.   Irby,   170 Wn.2d 874, 880, 246 P. 3d 796 ( 2011). "                A criminal defendant has a


fundamental       right   to be   present at all critical stages of a         trial."   Irby, 170 Wn.2d at 880 ( citing

Rushen    v.   Spain, 464 U. S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 ( 1983)).                       This right exists


when     a . defendant' s "'     presence has a relation, reasonably substantial, to the fullness of his

opportunity to defend             against     the   charge. '
                                                                    Irby,   170 Wn.2d      at    881 (   quoting Snyder v.

Massachusetts, 291 U. S. 97, 105 -06, 54 S. Ct. 330, 78 L. Ed. 674 ( 1934), overruled in part on


other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 ( 1964).

          But " because the relationship between the defendant' s presence and his ` opportunity to

defend'    must   be ` reasonably        substantial,'   a defendant does not have a right to be present when his


or   her `presence     would    be   useless, or    the benefit but   a shadow. '       Irby, 170 Wn.2d at 881 ( quoting

Snyder, 291 U.S.        at   106 -07).   For instance, a defendant does not have the right to be present during

an in- chambers conference between the court and counsel on legal or ministerial matters, at least


to the   extent   these      matters   do   not require a resolution of      disputed facts.      In re Pers. Restraint of



8 Although Tuggles does not expressly identify this issue in his assignment of error, we reach this
issue because it is part of Tuggles' s Sixth Amendment rights, which he identifies in his assignment
of error, and he presents argument directly related to this issue.
                                                                7
No. 45236- 7- 11



Pirtle, 136 Wn.2d 467, 484, 965 P. 2d 593 ( 1998);     In re Pers. Restraint ofLord, 123 Wn.2d 296,

306, 868 P. 2d 835 ( 1994).


        As to the eighth sidebar that Tuggles challenges, as we noted above, the record does not


show what was addressed during this sidebar. Thus, we decline to address whether Tuggles was

denied his right to be present during this sidebar. McFarland, 127 Wn.2d at 335.

        As to the remaining seven sidebars, all of these sidebars involved matters that were either

legal ( evidentiary objections) or ministerial ( scheduling, how to present evidence, the substitution

of a witness).   Even assuming, but not deciding, that a sidebar could violate a defendant' s right to

be present, Tuggles does not show that these sidebars were critical stages of the proceedings.


Accordingly, this argument fails.

        Because Tuggles has failed to establish a public trial right violation or a violation of his


right to be present, 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.




 We concur:




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