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

STATE OF WASHINGTON,

v. SYLVESTER TUGGLES, DIVISION II
Respondent,

Appellant. No. 45236 - 7 -II

UNPUBLISHED OPINION
JOHANSON, C.J. — 

### Sylvester Tuggles appeals his jury trial convictions for first degree trafficking in stolen property,' third degree theft,2 and witness tampering.3 He argues thatthe trial
court violated his right to a public trial under art. I, § 22 ofthe 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 ofthese 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 awitness 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 ofthe hearing ofthe defendant,thejury,andthe 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 onthe record. It also described the objection on the record more fullyfollowing a later sidebar. 

### During the second sidebarthat Tuggles challenges, the State apparently informed the trial courtthat itwas presenting adifferentwitness fromthe pawn shop than ithad previously intended to present; defense counsel also apparently requested ashort recess. Following this sidebar,while thejury 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 attemptedto discuss the " logistics" ofplaying portions ofarecordedtelephone call that originated from thejail, but the parties advised the trial courtthatthey had not yet discussed this 

### issue. Following this sidebar,thetrial court advised thejurythatthe courtwas taking a 15-minute

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

### During the fourth sidebarthat Tuggles challenges, the parties andthe trial court apparently 

### discussed Tuggles' s authentication objection to the admission of a recording of ajail 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 excusedthejury forthe day. The trial court also discussed onthe record the schedule for the following day. The sixth sidebar that Tuggles challenges addressed a hearsay objection and a related 

### limiting instruction.4 

### Following this objection,thetrial court advisedthejurythat itwas 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 

### wantto explain the grounds for his objection before thejury. Following the sidebar,thetrial court stated on the record that it had overruled the objection and that it would allowthe State to playthe 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 clearfrom the contextthatthe parties andthe trial courtdiscussed the hearsay objection and/or 

### a limiting instruction related to the hearsaytestimony. 3No. 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 ofthese 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 LAWAND STANDARD OF REVIEW The Sixth Amendment to the United States Constitution and art. I, §22 ofthe 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 courtto 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 ofthe 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). 4No. 45236 - 7 -II Sublett, 176 Wn.2d at 71. The appellant has the burden ofestablishing an alleged public trial right 

### violation. See Sublett, 176 Wn.2d at 75 ( noting thatthe petitionerfailed 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 considerwhetherthe particularproceeding at issue "falls within acategory ofproceedings thatour 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. 

### Ifthe proceeding at issue does not fall within 

### an acknowledged protected category, we determine whetherthe proceeding implicates the public 

### trial rightusingtheSublettexperience and logic test.6 176 Wn.2d at 73; Wilson, 174 Wn.App. at 335. B. SIDEBARS ADDRESSING ADMISSION OF EVIDENCE We firstturn 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 ofthe proceeding logic prong). Sublett, 176 Wn.2d at 73. Ifthe answer to both prongs is yes, then the defendant' s 

### public trial right "attaches" and atrial court must apply the Bone - Club factors before closing the proceeding to the public. Sublett, 176 Wn.2d at 73. 5No. 45236 - 7 -II trial right. 

### Accordingly, under Smith, Tuggles fails to showthat 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 allowthe parties to address this issue, and scheduling issues. Tuggles fails to 

### address whether sidebars addressingthese types ofissues fall within acategory ofproceedingsthat 

### 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 isthatfollowing this sidebar,the trial court called ashort recess; it did not explain whythe recess was necessary orotherwise describe whathad been discussed during the sidebar. Because the record is unclear asto what happened during this sidebar andthe 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. 6No. 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 ofthe 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 defendantdoes not have the rightto bepresent 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 notexpressly identifythis issue in his assignment oferror, we reachthis issue because it is part ofTuggles' s Sixth Amendment rights, which he identifies in his assignment oferror, and he presents argument directly related to this issue. 7No. 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 rightto be present during this sidebar. McFarland, 127 Wn.2d at 335. As to the remaining seven sidebars, all ofthese sidebars involved matters thatwere either 

### legal (evidentiary objections) or ministerial (scheduling, howto 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:

8