IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JESSIE M. ALLERT,

Appellant.

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No. 36718-5-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Jessie Allert appeals after a jury found him guilty of 

multiple crimes, including hit and run, property damage. We accept the State’s 

concessions that the hit and run conviction must be vacated and the restitution order must 

be modified to exclude a witness’s travel expense. We otherwise affirm. 

FACTS

Jessie Allert, while driving erratically and on sidewalks, struck and knocked over a 

mailbox. Another driver witnessed Allert’s erratic driving and called 911. While on the 

telephone, the caller saw Allert knock over the mailbox, get out of his car, and take the 

mailbox over to some nearby storage unit sheds. Allert did not knock on any doors or 

make any calls while there. He just drove away. 

FILED

JUNE 2, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36718-5-III

State v. Allert

2

Eventually, Undersheriff Scott Coppess received the report of Allert and his erratic 

driving. Undersheriff Coppess located Allert, who stopped before the undersheriff had 

activated his emergency lights. Allert admitted to erratic driving and hitting the mailbox, 

but claimed he was tired and was planning on finding the owner of the mailbox to pay for 

it. During the stop, the undersheriff learned that Allert was driving with a suspended 

license, and placed him under arrest. A warrant search of Allert’s car found a loaded 

rifle, a vial containing methamphetamine, and multiple plastic bags. 

The State charged Allert with (1) possession of methamphetamine with intent to 

deliver, with a special allegation that, at the time of the commission of the crime, he was 

armed with a firearm, (2) driving under the influence, (3) driving with license suspended, 

(4) hit and run, property damage,

1

and (5) unlawful possession of a loaded firearm in a 

motor vehicle. 

During trial, Allert became noticeably ill and was coughing during jury selection. 

When the State rested, Allert was still sick and defense counsel was not sure whether 

Allert would testify. The trial court ended proceedings early in order to give Allert more 

 

1 The State cited RCW 46.52.010 in its charging document. Under this statute, 

there are two alternates for charging hit and run, property damage. The State’s charging 

language mirrors RCW 46.52.010(2), “damage to property fixed or placed upon or 

adjacent to any public highway.” Clerk’s Papers (CP) at 10.
No. 36718-5-III

State v. Allert

3

time to recover. The next day, Allert decided not to testify and requested a jury 

instruction regarding his right not to testify. The court then recessed. 

When court reconvened, defense counsel placed on the record a prior ex parte 

discussion she had with the trial court judge. 

[P]rior to trial I let the—I let Your Honor know that my client was very sick 

and I had talked with him, or I attempted to talk with him in the days prior 

and he simply couldn’t . . . it was my impression that Jessie wanted—

wanted to move forward with trial. . . . I had brought these concerns to 

Your Honor and counsel prior to jury selection and Your Honor did ask me, 

well, what do you want to do? And I was kind of waffling because I—I just 

wasn’t sure. I had some misgivings. However, and then State’s counsel 

mentioned that they had—they had to fly somebody here from Hawaii, that 

there was some additional costs that were incurred and I think it was 

generally decided we would soldier on and Your Honor made a remark 

yesterday about hopefully Mr. Allert would have enough time to heal if we 

left—left early. I want to just make the—a clear record that it was indeed 

my client’s decision to move forward with trial in light of his sickness . . . .

Report of Proceedings (RP) at 252-53.

The prosecutor then explained it was proper to place the pretrial ex parte chambers 

discussion on the record to avoid possible public trial issues being raised on appeal. In 

his opinion, the pretrial discussion was a ministerial issue concerning scheduling, not 

anything that touched upon the facts or the disposition of the case itself. The trial court 

agreed “there was no discussion of substantive matters.” RP at 255. Defense counsel 
No. 36718-5-III

State v. Allert

4

agreed there was no public trial issue, adding “our Judge is very competent and able to—

to protect that.” RP at 256. 

Once the evidence was presented, the trial court instructed the jury. One 

instruction purported to define hit and run, property damage. The instruction actually 

defined hit and run, personal injury or death. See RCW 46.52.020. The instruction 

provided:

(1) That on or about the 13th day of November, 2017, the Defendant 

was the driver of a vehicle; 

(2) That the Defendant’s vehicle collided with property fixed or adjacent 

to any public highway;

(3) That the Defendant knew that he had been involved in an accident;

(4) That the Defendant failed to satisfy his obligation to fulfill all of the 

following duties:

(a) Immediately stop the vehicle at the scene of the accident or as 

close thereto as possible.

(b) Immediately return to and remain at the scene of the accident 

until all duties are fulfilled,

(c) To take reasonable steps to either locate the operator or owner 

of the property struck and give that person his name and 

address and the name and address of the owner of the vehicle 

he was operating or leave in a conspicuous place upon the 

property struck a written notice giving his name and address 

and the name and address of the owner of the vehicle he was 

operating;

(5) That any of these acts occurred in Asotin County, the State of 

Washington.

Clerk’s Papers (CP) at 29.
No. 36718-5-III

State v. Allert

5

The jury returned a verdict of guilty on all charges. The trial court sentenced 

Allert and imposed $1,271.09 of restitution damages, which included reimbursement for a 

witness’s $750 plane ticket. 

Allert timely appealed to this court. 

ANALYSIS

Allert argues the trial court (1) violated his right to a public trial, (2) committed a 

manifest constitutional error by erroneously instructing the jury on the elements of hit and 

run, property damage, and (3) exceeded its statutory authority by imposing restitution to 

compensate the State for a witness’s travel expense. 

1. PUBLIC TRIAL

Allert contends the ex parte discussion between defense counsel and the court 

constituted a courtroom closure that violated his right to a public trial. He argues the 

discussion was akin to a competency hearing, and was therefore required to be held in 

public. We disagree.

Both the United States Constitution and the Washington Constitution guarantee a 

defendant the right to have an open and public trial by an impartial jury. Presley v. 

Georgia, 558 U.S. 209, 212-13, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010); State v. BoneClub, 128 Wn.2d 254, 260-61, 906 P.2d 325 (1995); Seattle Times Co. v. Ishikawa, 97 
No. 36718-5-III

State v. Allert

6

Wn.2d 30, 36, 640 P.2d 716 (1982). Whether a trial court violated a defendant’s right to 

a public trial is a question of law this court reviews de novo. State v. Paumier, 176 

Wn.2d 29, 34, 288 P.3d 1126 (2012). 

Before this court looks to whether a courtroom was actually closed, we first must 

determine if the proceeding implicated the right to a public trial at all. State v. Smith, 181 

Wn.2d 508, 514, 334 P.3d 1049 (2014). To determine whether the right to a public trial 

attaches to a particular proceeding, we apply the “experience and logic” test. State v. 

Whitlock, 188 Wn.2d 511, 521, 396 P.3d 310 (2017). Both prongs must be satisfied in 

order for the right to a public trial to attach. Id.

When analyzing the experience prong, this court looks to “‘whether the place and 

process have historically been open to the press and general public.’” State v. Sublett, 

176 Wn.2d 58, 73, 292 P.3d 715 (2012) (quoting Press-Enter. Co. v. Superior Court, 478 

U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). In analyzing the logic prong, we look 

to “‘whether public access plays a significant positive role in the functioning of the 

particular process in question.’” Id. (quoting Press-Enter., 478 U.S. at 8).

Allert’s argument reflects a misunderstanding of when the ex parte discussion 

occurred and what was discussed. Because the discussion was placed on the record about 

the time Allert waived his right to testify, he argues the ex parte discussion occurred just 
No. 36718-5-III

State v. Allert

7

prior to when he waived his right to testify and included this topic. The record does not 

support this. Rather, the ex parte discussion occurred just before trial and was about 

whether the trial would proceed. Defense counsel, upon learning the State had a witness 

flying in from Hawaii, assured the court that Allert’s illness would not require a 

continuance. She explained, “it was indeed my client’s decision to move forward with 

trial in light of his sickness and I—I just—I want to make sure that that didn’t impair his 

a—his—or factor into his ability as to testify or not testify.” RP at 253. 

Allert does not analyze the public trial issue with respect to what actually occurred 

below. We need not either. We nevertheless note that Allert provides no authority that 

the experience and logic prongs are met when a party confirms to the trial court that the 

trial will proceed. 

2. IMPROPER JURY INSTRUCTION

Allert contends the trial court erred by giving an improper jury instruction for hit 

and run, property damage. He argues, by giving the improper instruction, the trial court 

reduced the State’s burden of proof. The State concedes this issue. 

In a criminal case tried to a jury, due process requires the trial court to accurately 

instruct the jury on every element required to convict the defendant of the crime alleged. 

State v. Tyler, 191 Wn.2d 205, 216, 422 P.3d 436 (2018). Errors affecting the right to 
No. 36718-5-III

State v. Allert

8

have the State prove every element of the charged offense beyond a reasonable doubt may 

be raised for the first time on appeal. State v. Johnson, 100 Wn.2d 607, 614, 674 P.2d 

145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 

1000 (1985). We accept the State’s concession.2 

3. IMPOSITION OF RESTITUTION

Allert contends the trial court erred by imposing a restitution award that included a 

witness’s travel expense from Hawaii. The State rightly concedes this issue.

“The authority to impose restitution is not an inherent power of the court, but is 

derived from statutes.” State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). 

“When the particular type of restitution in question is authorized by statute, imposition of 

restitution is generally within the discretion of the trial court and will not be disturbed on 

appeal absent an abuse of discretion.” Id. 

The applicable statute provides in relevant part:

[R]estitution ordered by a court pursuant to a criminal conviction shall be 

based on easily ascertainable damages for injury to or loss of property, 

actual expenses incurred for treatment for injury to persons, and lost wages 

resulting from injury.

 

2

 We have considered whether the unpreserved error may be raised on appeal, and 

believe it can. We construe the erroneous instruction differently than our concurring 

colleague.
No. 36718-5-111 

State v. Aller! 

RCW 9.94A.753(3). We have previously held that witness expenses incurred for trial 

purposes are not recoverable under RCW 9.94A.753. State v. Goodrich, 47 Wn. App. 

114, 115, 733 P.2d 1000 (1987). 

Here, the trial court imposed restitution and stated that $750 of the restitution 

amount was to recover a witness's expense of buying a plane ticket to testify. This type 

of expense is not allowed by statute and the trial court exceeded its authority by imposing 

it. We direct the trial court to enter a modified restitution order that omits this travel 

expense. 

Reversed in part and remanded to modify restitution order. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: j 

Melnick, AL.wl-~- J.3 J 

3 The Honorable Rich Melnick is a Court of Appeals, Division Two, judge sitting 

in Division Three under CAR 2l(a). 

9 
No. 36718-5-111 

KORSMO, J. (concurring)- I have signed the majority opinion, but write 

separately to make one additional point. Mr. Allert did not object to the elements 

instruction at trial. Accordingly, he waived his challenge to it and could not present it to 

this court. However, the State's concession saves Allert in this instance. 

The failure to raise an issue in the trial court normally precludes a party from 

raising the issue on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 

492 (1988). The failure to challenge a jury instruction is a classic instance of waiver. Id. 

at 689-691. One exception to that rule is that a claim of manifest constitutional error can 

be asserted for the first time on appeal, if the record is adequate to address the issue. 

State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). That exception is not 

argued in this case. 

With this observation, I join the majority opinion. 

Korsmo, ~