### COURT OF APPEALS DIVISION II 2014 

### NOV - 

### 4 

### AM 10: O. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON 

### BY No. 44104 -

7 -II STATE OF WASHINGTON, DIVISION II
Respondent,

v. JAMES L. BARTHOLOMEW, Appellant. UNPUBLISHED OPINION
SUTTON, J. — 

### James L. Bartholomew appeals hisjury trial convictions and sentences for possession ofa stolen motor vehicle (count one) and attempting to elude a pursuing police vehicle
count two). He argues that (1) the trial court's response to ajury question was a comment on the evidence, (

### 2) the trial court erred when it responded to the jury question without notifying the 

### parties and giving them an opportunity to respond, and ( 3) thejudgment and sentence fails to 

### properlysetforththe sentences imposed. We affirmthe convictions and sentences butremand for correction ofthe scrivener' s errors in thejudgment and sentence. FACTS I. BACKGROUND On September 13, 2011, Aberdeen police officer Steven Gonzalez was on patrol in his 

### marked patrol car when he saw a carthat had been reported stolen stopped at a stop light. The car

ran the red light and sped away when Officer Gonzalez turned his patrol car around. Officer 

### Gonzalez initially pursued the speeding car, but he abandoned the pursuit because the car was driving recklessly and he was concerned that the pursuit was endangering others on the roadway.No. 44104 - 7 -II 

### Within seconds" ofterminatingthe pursuit,the dispatcherwas notified ofavehicle having crashed; the crashed vehicle was the stolen car. Verbatim Report of Proceedings (VRP) (Jan. 10, 2012) at 11. 

### Officers eventually apprehended Bartholomew, who had been driving the car, and his sister, who had been a passenger in the car. 

### The car' s owner, Ashley Dion,came to the accident scene and identified the vehicle. The 

### only existing keyto the car was in the car' s front passenger seatwhen she arrived. II. PROCEDURE The State charged Bartholomew with possession of a stolen vehicle (count 1) and attempt 

### to elude apursuing police vehicle (count2).1 The case proceeded to ajurytrial. A. Testimony The State' s witnesses testified as described above. In addition, Dion, a student at the local 

### community college, testified that her car was stolen from her apartment complex parking lot on September 6; she reported the car stolen that day. She also told the officers that she had lost the 

## onlycarkey;shebelieved ithad fallen offofthe carabiner - like clipthatshe usedto hold herkeys. On September 13, she saw the car at a local store, and her boyfriend called the police. Dion testified that she did not know Bartholomew and that she did not give him permission to take her 

### car. Dion did nottestify about whether shewas attending school atthe time hercarwas stolen or give any specific dates as to when she was enrolled.

Bartholomew and his sister testified for the defense. Bartholomew' s sister testified that Bartholomew had told her that he " got [ the car] from a girl that he was seeing." VRP (Jan. 10, 

### 1 It also alleged that while attempting to elude, Bartholomew placed someone other than himself and law enforcement in danger. This is a sentencing aggravator. RCW 9.94A.834(1).

2No. 44104 - 7 -II 2012) at 52. 

### Similarly, Bartholomew testified that he borrowed the car from Dion,whom he had been seeing atthetime. Bartholomewfurthertestifiedthat hehad met Dion atthe local community college they both attended; that they started a secret, intimate relationship; and that they planned 

### to be together after Dion broke up with her boyfriend. After they had been seeing each other for aboutthree months, Bartholomewwentto Dion' s apartment, and she told him that she had decided 

### to staywith her boyfriend. Bartholomewthen askedto borrow her car,telling herthat he wanted to go to the store and buy beer; and she gave him the key that was later found in the car's passenger' s seat. But Bartholomew also testified that he was upset with Dion and that he asked to 

### borrow her car because he thought that ifhe keptthe car long enough, Dion would have to reveal their relationship to her boyfriend. 

### B. Jury Question and Trial Court' s Response 

### During its deliberations,thejurysubmitted the following written questiontothetrial court: Where [ sic] they in summer school at the college? Summer school: July, Aug, Sept. Clerk' s Papers ( CP) at 16.

The trial court responded in writing, " 

### You may only consider the evidence presented to
you during trial." CP at 17. Neither the verbatim report ofproceedings northe trial court' s minutes 

### mentions thejury question or the trial court's response to the question. 

### C. Verdict and Sentencing The 

### jury found Bartholomew guilty as charged. The trial court imposed concurrent 

### sentences of41 months and one day and 57 months for atotal term ofconfinement of57 months. The judgment and sentence initially correctly lists count 1 as the possession of a stolen 

### motor vehicle offense and count 2 as the attempt to elude a pursuing police vehicle offense in
3No. 44104 - 7 -II

section 2. 1 ( " Current Offenses "). CP at 26. But the judgment and sentence later transposes the sentencing data for each offense in section 2.3 ( " Sentencing Data "), and purports to impose both
sentences on count 1 in section 4. 1 ( " Confinement ").2 CP at 28.

Bartholomew appeals. ANALYSIS 

### Bartholomew argues that the ( 1) the trial court' s response to the jury was a comment on the evidence, (2) the trial court erred when it responded to ajury question without notifying the 

### parties, and (3) thejudgment and sentence fails to properly set forth the sentences imposed. We affirm the convictions, but remand for correction ofthejudgment and sentence. I. No COMMENT ON THE EVIDENCE Bartholomew first argues that the trial court' s response to the jury question was an improper comment on the evidence in violation of article IV, section 16 ofthe Washington State Constitution. We disagree.

The Washington State Constitution, article IV, section 16, provides "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." " A 

### judge impermissibly comments on the evidence when he conveys a personal attitude toward the
merits of the case." State v. Ratliff, 121 Wn. App. 642, 646, 90 P. 3d 79 ( 2004) ( citing State v.
2 Section 4. 1( a) ofthejudgment and sentence reads in part: Confinement. RCW 9.94A.589. A term oftotal confinement in the custody ofthe Department of Corrections (DOC):



### 41 months [plus one day] on Count 1 57 months on Count 1

concurrent] . CP at 28.

4No. 44104 - 7 -II Hughes, 106 Wn.2d 176, 193, 721 P. 2d 902 ( 1986)). " An instruction improperly comments on the evidence if the instruction resolves a disputed issue of fact that should have been left to the jury." State v. Eaker, 113 Wn. App. 111, 118, 53 P.3d 37 ( 2002) ( 

### citing State v. Becker, 132 Wn.2d 54, 65, 935 P. 2d 1321 ( 1997)), review denied, 149 Wn.2d 1003 ( 2003). We review de novo whether an instruction amounts to a comment onthe evidence. State v. Levy, 156 Wn.2d 709, 721, 132 P. 3d 1076 (2006). Bartholomew contends that the trial court's response, which directed thejury to consider 

### only the evidence presented at trial, could have conveyed thatthe trial court did not believe there

was any evidence that Bartholomew and Dion were in college together. This contention,is not 

### well taken. Thejury's question was asking for additional evidence; the trial court' s response was a neutral, accurate statement ofthe law in respect to that request. See State v. Balisok, 123 Wn.2d 114, 118, 866 P. 2d 631 ( 1994). 

### Accordingly, Bartholomew does not establish thatthe trial court' s answer to thejury question was a comment on the evidence. II. JURY QUESTION 

### Bartholomewfurther argues thatthe trial court committed reversible error in responding to 

### the jury question without first notifying the parties of the inquiry and allowing them the opportunity to comment on any response. The State does not address whetherthe trial court erred 

### in failing to notify the parties ofthejury question. Instead, it argues that any error was harmless. Even assuming, but not deciding,that the trial court did not advise . the parties ofthejury question and that the court responded to the jury question without allowing the parties an opportunity to

5No. 44104 - 7 -II 

### participate,3 Bartholomew does not show that he is entitled to relief on this ground because any potential error was harmless beyond a reasonable doubt. 

### When ajury asks questions during deliberations, the trial court " shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response." CrR 6. 15( f)( 1). This rule has both state and federal constitutional underpinnings in the 

### defendant' s right to be present at all critical stages oftrial, including the court' s handling ofjury inquiries. Ratliff,121 Wn.App. at 646. 

### A trial court' s error in answering jury questions without complying with CrR 6. 15(f)(1) 

### may be harmless ifthe State can showthe harmlessness beyond a reasonable doubt. See State v. Johnson, 56 Wn.2d 700, 709, 355 P.2d 13 ( 1960), cert. denied, 366 U.S. 934 ( 1961); State v. Jasper, 158 Wn.App. 518, 541, 245 P. 3d 228 ( 2010), 

### aff'd, 174 Wn.2d 96, 271 P.3d 876 (2012). If the trial court' s answer to ajury question is "` negative in nature and conveys no affirmative information,'" the defendant suffers no prejudice and the error is harmless. Jasper, 158 Wn.App.
at 541 ( quoting State v. Russell, 25 Wn.App. 933, 948, 611 P.2d 1320 ( 1980)); see also Johnson, 

### 56 Wn.2d at 709 ( communication with jury was not harmful when the court's response was 

### merely a refusal to communicate the information requested ").

3 Although neither the verbatim report of proceedings nor the trial court' s minutes mention any 

### jury question,the exact circumstances underwhich the trial court responded to thejury question is outside this record. 

### Arguably, Bartholomew would have had to provide a narrative report of proceedings ( RAP 9. 3), an agreed report of proceedings ( RAP 9. 4), or affidavits from counsel and / orthetrial courtto affirmatively establish whetherthe trial court contacted counsel or allowed 

### counsel the opportunityto comment on an appropriate response. See State v. Njonge, No. 86072- 6 at * 8 n. 1 ( Wash. Sept. 25, 2014) (Wiggins, J., concurring); State v. Jasper, 174 Wn.2d 96, 123- 24, 271 P.3d 876 (2012).No. 44104 - 7 -II 

### Wefind State v.Langdon, 42 Wn.App. 715, 713 P.2d 120, review denied, 105 Wn.2d 1013 1986), instructive. 

### In Langdon, the trial court instructed the jury on the elements of first and
second degree robbery, accomplice liability, and theft. Langdon, 42 Wn. App. at 717. During deliberations, the

### jury sent a note to thejudge reading, " Does `committing' mean aid in escaping ?" Langdon, 42 Wn.App. at 717. The judge, without consulting with counsel, responded, ' You are bound by those instructions already given to you.'" Langdon, 42 Wn. App. at 717. Langdon argued that this communication violated CrR 6. 15( f)( 1) and his right to be present at all stages of the proceedings. Langdon, 42 Wn. App. at 717. Division One of our court disagreed and found 

### that any error was harmless because the communication was " neutral, simply referring the jury back to the previous instructions." 

### Langdon, 42 Wn.App. at 717 -18. As in Langdon,thetrial court here erred to the extent it communicatedwith thejurywithout complying with RAP 6. 15( f)( 1). 

### The trial court's response however merely directed thejurors to referto the evidence before them, which, as we discuss above, was a wholly appropriate response 

### to thejury' s inquiry about evidence that was not presented at trial. The trial court's response was neutral in nature like that in Langdon, and no prejudice resulted from the trial court' s response. 

### Langdon, 42 Wn. App. at 717 -18; see also Jasper, 158 Wn. App. at 542 - 43 ( holding that trial court's responding to ajury question without advising counsel was not prejudicial because the
court merely advised jury to re - read its instructions). 

### Any potential error is therefore harmless beyond a reasonable doubt and this argument fails.No. 44104 - 7 -II III. SENTENCING 

### Finally, Bartholomew argues that sections 2.3 and 4.1 of his judgment and sentence 

### erroneouslytranspose the sentencing information andthe sentences foreach ofthetwo counts. He
argues that these scrivener' s errors require remand for correction. The State concedes the scrivener' s errors on the judgment and sentence, but it argues that we are not required to remand this matter for correction because the sentences are concurrent and the intent ofthe document is clear. Although the errors here do not alter Bartholomew' s sentence, remand for correction ofthe 

### scrivener' s errors is appropriate to avoid any potential confusion in the future. We affirm the convictions and sentences but remand for correction ofthe scrivener' s errors in the judgment and sentence. 

## 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 94 Sutton, J.