### FILED 

### MARCH 3, 2015 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31382-4-III Respondent, ) ) 

### v. ) ) STEVEN P. HARRINGTON, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, J.

- Steven Harrington appeals his convictions for second degree rape and unlawful imprisonment ofhis girlfriend, arguing that his public trial rights were violated andthe evidencewas insufficientto supportthe convictions. Becausethe record does not supportthe public trial argument andthe evidence does supportthe convictions,
we affirm. FACTS This matter arose from a trip taken byMr. Harrington and C.P. from their home 

### in Spokaneto his family in Okanogan County. In late 2011 and early 2012, the couple were involved in an intimaterelationship and lived together. Late on February 5, 2012, the two left on a trip to visit Mr. Harrington's family in Oroville. Priorto leaving, the two had engaged in consensual sexual acts and smoked oxycodone together. Ontheir way

### No. 31382-4-III State 

### v. Harrington

out oftown, the two bought a variety ofalcoholic beverages, which they consumed during the drive. At some point relatively early in the drive, they stopped briefly to engage in more consensual sexual acts. After they hadresumed driving the two got into an altercation sparkedby a song playing on the stereo, during which Mr. Harrington struck C.P. a number oftimes in the face and gave her a bloody nose. c.P. exited the vehicle and began walking down the road, looking for a house. Mr. Harrington followed her in the vehicle, pleading with her to get back in. Because they were in a remote area with no houses, she eventually reentered the vehicle andthe two resumed driving. A few minutes later, Mr. Harrington stopped the vehicle and told C.P. hehad cheated on her the previous day. She openedthe door and attempted to get out, buthe grabbed herhair andpulledher back in, commandingherto close the door. He then slammed herhead against the window several times. After this he pulled down his pants, but when she pleadedthat she did not want to have sex, he grabbed her by the hair and forced her to engage in oral sex. He thenpicked her up and set her onhis lap, forcibly penetrating her. Afterwards, the two continued on to the house ofMr. Harrington's sister in Omak. There, C.P. asked Mr. Harrington for the keys to herpickup, but was thrown to the ground and kicked several times. Shortly thereafter, the two went to bedtogether. Once



### 2No. 31382-4-III State v. Harrington
Mr. Harrington had fallen asleep, c.P. found the keys and left-immediatelyreporting the incident to the police. Mr. Harrington was tried in the Okanogan Superior Court. At trial, he testified to substantially the sametimeline ofevents given by C.P., but differing on a number of details. He minimized his own drug and alcohol consumption, testified to more substantial earlier incidents ofconsensual sex, and statedthat C.P. initiated the physical altercation. Hethen denied that any further sexual contact orviolence occurred afterthe altercation. He also highlighted C.P.'spropensities forjealousy and drama in claiming that she had fabricated the incident. Ultimately, thejury found Mr. Harrington guilty of second degree rape and unlawful imprisonment. ANALYSIS The issues presented on appeal involve a claim that Mr. Harrington's rightto a publictrial was violated on three occasions, as well as contentions thatthe evidence was insufficient to support either charge. We address the arguments in the order noted. Public Trial Rights Mr. Harrington contends that the court violated his Washington Constitution article I, sections 10 and 22 public trial rights when it allowed voir dire ofa prospective jurorconcerning answers given to thejurorquestionnaire, when it permittedthe questioning ofajuroroutside the presence ofthe public, and when itredactedthe names



### 3No. 31382-4-III 

### State 

### v. Harrington

onthejurorquestionnaires. However, the record does not factually supportthe claim that there was any actual closure ofthe courtroom. Article I, sections 10 and 22 guarantee a defendant the right to a trial open to the public. In order for a defendant's public trial rights to be breached (1) the proceeding must implicate the public trial right, (2) there must in fact be a closure ofthe courtroom, and (3) that closure must not bejustified. 

### State v. 

### Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). A closure occurs where the courtroom is "completely andpurposefully closed to spectators." 

### State v. 

### Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011). Mr. Harrington first claims a public trial right violation wherejuror23 was struck because ofa previous criminal trial ofan undisclosed nature and disposition. He claims that she was struck based upon answers given in thejurorquestionnaire. However, this claim is not supported by the facts in the record. Duringjury selection, the prosecutor asked all the potentialjurors whether any ofthem had ever been accused ofacrime, and then followed up individually with each affirmative answer. Whilejuror23 declined to provide details on the nature and disposition ofher own trial, she stated that she hadhard feelings stemming from that trial that would affect her ability to make a decision based solely upon the evidence presented. The court struck thejurorfor cause. There is nothing in the record indicating any reliance uponthejurorquestionnaires or any event duringjury selection occurring outside the presence ofthe public. Accordingly, the

4No. 31382-4-111 

### State v. Harrington
record does not support the contention that there was a closure ofthe courtroom during jury selection. Mr. Harrington next claims that during trial the court improperly interviewedjuror 8 outside the presence ofthe public. However, the record clearly indicates thatthe interview in fact took place in open court, but merely outside the presence ofthe other jurors. Public trial rights require that the public be allowed access to the proceeding, not that every portion ofthe proceeding be conducted in front ofthejury. Accordingly, there
was no closure ofthe courtroom. Finally, Mr. Harrington claims that his public trial rights were violated bythe court redacting the names on thejurorquestionnaires prior to entering them into the public record. Itis well established that wherejuror questionnaires serve merely as a framework for oral voir dire and have no independent effect on the trial, sealing those questionnaires is not considered a closure. 

### State v. Beskurt, 176 Wn.2d 441, 293 P.3d 1159 (2013); 

### In re Yates, 177 Wn.2d 1,29-30,296P.3d 872 (2013). The names ofthe jurors cannotpossibly be seen as having any independent effect upon the trial. Consequently, redacting thejurors' names in the interests of jurorprivacy does not constitute a closure.

5No. 31382-4-III State v. Harrington
Because Mr. Harrington has failed to show that there was any closure ofthe courtroom, we conclude that his public trial rights have not been violated. Sufficiency of the Evidence to Establish Rape Mr. Harrington argues that C.P.'s tendencies to dramatics, anger, andjealousy weigh in favor ofbelieving his version ofthe events over hers, so thatthejury could not have found him guilty ofrape. Well-settled standards govern our review ofthis appeal. Evidence is sufficientto support a verdict ifthe trier offact has a factual basis for finding each element ofthe offenseproven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,99 S. Ct. 2781, 61 

### L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). This court will considerthe evidence in a light most favorable to the prosecution. Id. Itis not the function ofan appellate court toreweigh evidence; accordingly, this court will defer to thejury as to the credibility ofwitnesses and the weight ofthe evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). With this in mind, the outcome ofthis appeal is clear. As charged, the State was required to show (1) thatMr. Harrington engaged in sexual intercourse with C.P., which (2) occurred by forcible compulsion. RCW 9A.44.050; Clerk's Papers at 90. Forcible compulsion means "physical force which overcomes resistance." RCW 9A.44.01O(6). The victim vocally expressed a lack ofconsent and physically resisted throughout the incident. Her story was bolstered at trial by evidence ofher numerous injuries, 

### 6No. 31382-4-II1 State v. Harrington
evidence ofblood and semen from the vehicle and her clothes, and witnesses to her mental state after the fact. Mr. Harrington's argument on appeal is merely an assertion that his story is more credible than hers. However, this court does not reweigh evidence, and there is a factual basis for finding that sexual intercourse occurred by physical compulsion. Accordingly, the evidence was sufficient. Sufficiency of the Evidence to Establish UnlawfulImprisonment Mr. Harrington also claims that the evidence was insufficient to establish the charge ofunlawful imprisonment. He claims that escape was possible, because at some point C.P. could get out ofthe vehicle and flee. Itis a defense to unlawful imprisonment that the victim had a reasonably available
avenue ofescape. See State v. Washington, 135 Wn. App. 42, 50, 143 P.3d 606 (2006) (citing State v. Kinchen, 92 Wn. App. 442, 452 n.16, 963 P.2d 928 (1998». However, immediately priorto the rape, C.P.'s attempted escape was thwarted when Mr. Harrington grabbed her hair and forced herto remain withinthe vehicle. This establishes that for some period oftime, including the period establishing the charge, there was no available avenue ofescape because Mr. Harrington was actively preventing it. The mere fact that she might have been able to escape at some other point does notnegate this. Accordingly, the evidence was sufficient. The convictions are affirmed.

7No. 31382-4-111 State 

### v. Harrington
A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

# ~;4mO'J' WE CONCUR:

Lawrence-Berre 

### ,J.

8