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FILED MAY 2, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. EARL THOMAS CLAPPER, Appellant. ) ) ) ) ) ) ) ) ) No. 34002-3-111

UNPUBLISHED OPINION

SIDDOWAY, J. -Earl Clapper appeals his conviction for attempting to elude a police vehicle, arguing that insufficient evidence supports his identity as the driver who eluded police in a friend's car. He also contends his federal and state constitutional rights
were violatedwhenthe trial court convened a discussion about ajuryinquiry with lawyers outside his presence. Because the evidence was sufficient and Mr. Clapper fails to demonstrate thathe was notpresent or consulted when a response tothejuryinquiry
was framed, we affirm. FACTS AND PROCEDURAL BACKGROUND At about 3:30 a.m. one morning in March 2015, Spokane Police OfficerPaul Gormanwas driving home afterhis shift, heading north on Maple Street. Maple Street and Ash Street, located a blockto the west, comprise a couplet: Ash operates one-way southbound; Maple Street operates one-way northbound. In the vicinity ofBoone andNo. 34002-3-III State v. Clapper
Maxwell streets, not far north and west ofdowntown, Officer Gorman saw a car driving the wrong way toward him. Preferring notto make a traffic stop, the officer flashed his lights, hoping the driver would realize it was a one-way street and turn around. The driver immediately turned westbound and headedtowardAsh, buthis turn
was into a dirt alley and he was traveling too fast given the alley's condition. Officer Gorman turned west onthe nextpaved road and saw thatthe carhad nowturned north on Ash, once again driving the wrong way on a one-way street. Atthatpoint, the officer decided to follow the car, intending to make a stop. He activated his overhead lights and siren. The car sped up and a chase ensued. Officer Gormanradioed whatwas happening and requested assistance. The eluding driver soon moved offofarterials and onto residential streets, continuing to travel at as much as 80 miles an hour. Atthatpoint, Officer Gorman decided for safety reasons to terminate the pursuit. Because eluding drivers sometimes respond to the termination ofa pursuit by tryingto hide orby parking and fleeing, Officer Gorman and otherresponding officers continued to search the area, driving atposted speeds with their emergency equipment off. Officer Gorman occasionally sighted the eluding car, which was driving with its lights off. When the carwas seen entering the Corbin Park neighborhood, officers believed they had the driver contained; the neighborhood is backedby a hillside and egress is limitedto three arterials that could easily be monitored. 2No. 34002-3-111 State v. Clapper
It was not long before Officer Gorman spotted the errant car, pulled all the way up
a long residential driveway. The driver had abandoned it. Officer Gorman had never been able to read the license plate number ofthe eluding vehicle but he recognized the

· carby its color (red), his estimation ofits model (a newer carhe believedto be a Toyota),

and by extensive damage to its front end. The carproved to be a 2011 Toyota Corolla. The engine ofthe parked car was very hot and it smelled ofburning oil, as one would expect ofa car that hadjustbeen driven hard. Officer Gorman happened to have a K-9 partner, Axel, who was headed home with him when the wrong-way driver was encountered. Officer Gorman took Axel to the driver's car door ofthe Toyota, gave him the commandto track, and Axel began, leading the officerpast a detached garage to a high concrete fence, suggesting that whoever fled the car hadjumpedthe fence. To enter the adjacent yard, Officer Gorman took Axel around the front to enterthrough a gate. As he was entering the yard, Officer Gorman heard other officers giving commands to someone and sawthat a man had emerged, hands up, from a yard a couple ofhomes away. While other officers detained and spoke with a man who turned out to be Earl Clapper, Officer Gorman had Axel finish tracking the driver's scent. Beginning at the opposite side ofthe concrete fence to which he had tracked earlier, Axel continuedthrough two yards to where Mr. Clapperhad surrendered. In surrendering to other officers, Mr. Clapper stated "[I]t's me you're looking for, I give up, don'thurt me." Report ofProceedings (RP) at 96. He was ordered to get 3No. 34002-3-111 State v. Clapper down, complied, and was handcuffed. He was read hisMiranda 1rights, said he understood them, andvolunteeredthat he had neverbeen in any car and had neverrun from the officers. He also said thathis backpackmight be inthe car, buthe had notbeen. Afterreturning Axel to his patrol car, Officer Gorman approached Mr. Clapper and asked what he was doing in the area, to which Mr. Clapperresponded he was staying at a nearby hotel, hadbeen listeningto a police scanner, and heard thatpolice were chasing a carwhose license plate number he recognized as that ofhis girlfriend, Tracy Varner. When Officer Gorman told Mr. Clapperhe never called in the license plate number, Mr. Clapper corrected himself, saying he knew his girlfriend's carwas red and
was being driven aroundthat evening, so he assumed the carbeing chased was hers. He said he had lefthis backpack in her car and had cometo retrieve it. One ofthe responding officers inspected the Toyota following the interview of Mr. Clapper. The officerhad seen Mr. Clapper, knew he was a large man, and noticed that the Toyota's driver's seatwas in its rear-mostposition and the seatwas reclined all the way-suggestingto the officerthat someone oflarge stature had been driving it. Mr. Clapperwas charged with attemptto elude a police vehicle. "[D]efendant information" included inthe charging document indicated thatMr. Clapperwas six feet, three inches tall and weighed407 pounds. Clerk's Papers (CP) at 1.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

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Attrial, the State called Officer Gorman and two other Spokane police officers who hadparticipated in Mr. Clapper'spursuit and arrest. Officer Gorman conceded he had never seenwho was in the Toyota during the chase, but statedthat upon viewingthe vehicle in the driveway, including the engine's temperature and smell, it was "[v]ery obvious this was the car [he] was chasing." RP at 88. He testified to Axel's training and to howAxel had tracked a scent from the Toyota's driver's side doorto where Mr. Clapper surrendered. The two other officers testified to Mr. Clapper's surrenderthat evening, the position ofthe driver's seat in the Toyota, the statements Mr. Clapperhad made, and the fact that he was sweatingprofusely when encountered. Ms. Varner was the only witness called by the defense. She testified that onthe evening before the chase, she had a barbecue at herhome and Mr. Clapper, whom she described as "afriend ofa friend," attended. RP at 147. When she decidedto go to bed, four orfive guests remained, one being Mr. Clapper. None had a vehicle to leave in. She testified to makingthe following offerupon retiring: A
.... I said ifanyone feels like they can drive, I don't care ifyou take my car. Q. Did you make that offer specifically to Earl? A. No. Q. Didyou make that offer at all to Earl? A. No. RP at 151.



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Ms. Varner also testified that she did not believe Mr. Clapper drove her car that night, but without explaining her reason for that belief. The implication ofher testimony
was that she believed Mr. Clapper was too large to drive her car. Defense counsel elicited Ms. Varner's testimony that her Toyota Corolla was a compact carthat was "not made for big men." RP at 149. She was asked to describe the size ofthe guests who
were offered her carthe night ofthe chase, and she ascribed heights and weights to three ofthem that would make them materially smallerthan Mr. Clapper. She testified that a fourth "lives, like, two blocks away, so she was walking home." RP at 151. On the first morning ofthejury's deliberations, it submitted five questions to the court.2 The trial court'sjudicial assistant convened what the trial court later described as
a "three-way conversation on the phone" addressing howto respond. RP at 196. According to the court, all agreed that it was bestto "respondthat thejurywas to rely upon the instructions they had been given, and their notes and memories as to the evidence." RP at 196. That was the substance ofthe court's response. Thejury found Mr. Clapper guilty as charged. He appeals.

2 Thejurors posedthe following questions: "Wasthe driver's seat reclined? Was Clapper charged with [ ]reckless drivin[g] or DUI? Dowe know the position offront passenger seat[?] Didpolice follow up on hotel [and] scanner[? and] Where does Clapper live[?]" CP at 18.

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ANALYSIS Mr. Clapper assigns errorto (1) his conviction onthe basis ofconstitutionally insufficient evidence that he was the driver ofthe eluding car, and (2) the court's conduct ofproceedings addressing thejuror's questions outside his presence. He also asks the panel to decline to award appellate costs shouldthe State substantially prevail. We address the three issues in tum. 

### I. The Statepresentedsufficient evidence thatMr. Clapper was the driver of the eludingvehicle In criminal prosecutions the State "bearsthe burden ofestablishing beyond a reasonable doubt the identity ofthe accused as the person who committedthe offense." State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974). As with all sufficiency challenges, "[t]he test for determining the sufficiency ofthe evidence is whether, after viewing the evidence inthe light most favorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In a sufficiency challenge, "all reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly against the defendant." Id. A defendantraising such a challenge "admits the truth ofthe State's evidence and all inferences that reasonably canbe drawn therefrom." Id. As thejury was informed by the court's instructions, "The law does not distinguish between direct and circumstantial evidence in terms oftheir weight orvalue
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in finding the facts in this case. One is not necessarily more or less valuable than the other." RP at 164 (Instruction 7); accordState v. Siert, 186 Wn.2d 869, 879, 383 P.3d 466 (2016). We defer "tothe trier offact on issues ofconflicting testimony, credibility of witnesses, and the persuasiveness ofthe evidence." State v. Cordero, 170 Wn. App. 351, 361, 284 P.3d 773 (2012). In closing argument, Mr. Clapper's lawyer never challenged Officer Gorman's certitude that the driver who attempted to elude him was driving Ms. Varner's Toyota. Defense counsel argued, instead, that the State failed to prove beyond a reasonable doubt that the driver was not one ofMs. Varner's other guests, to whom the Toyota had been offered. On appeal, Mr. Clapper emphasizes evidence that Ms. Varner offered use ofher
carto several persons but not to him, that Officer Gorman could not see the car's occupant or occupants, and that about five minutes passed between when officers last saw the Toyota and when it was found parked in the driveway-yet officers failed to search for anyone else in the neighborhood after Mr. Clapper surrendered. Br. ofAppellant at 5. But all ofthe following evidence supports thejury'sverdict: Mr. Clapperwas one ofthe four or five individuals present when Ms. Varner made an unqualified offer ofuse ofher car. He surrendered to police in close proximity to where the car was found parked and abandoned, initially telling officers "[I]t's me you're looking for" and later offering changing and implausible explanations for his presence. RP at 96. Axel tracked a scent from the driver's car door to where Mr. Clapper surrendered. Mr. Clapperwas sweating 8No. 34002-3-111 State v. Clapper profusely when encountered by police, consistent with someone who had engaged in a chase, leapt a high fence, and tried to escape or hide. His backpack was in the car. Even Ms. Varner's implication that Mr. Clapper was too large to drive her Toyota was consistent with the unusual fully-back, fully-reclined position in which the driver's seat
was found. The State's evidence thatMr. Clapper was the driver was sufficient. II. Mr. Clapper does notdemonstrate that the telephone conference dealing with thejury's inquiry violatedany constitutional right A criminal defendant enjoys a right to be present at critical proceedings, rooted in the Sixth Amendment to the United States Constitution; the due process clauses ofthe state and federal constitutions (U.S. CONST. amend. V; WASH. CONST. art. I, 

### § 3); and article I,§ 22 ofour own constitution. Siert, 186 Wn.2d at 874. The core ofthe constitutional right is the right to be present when evidence is beingpresented, but beyond that the defendant has a right to be present at a proceeding "'wheneverhis presence has a relation, reasonably substantial, to the ful[l]ness ofhis opportunity to defend against the charge."' State v. Irby, 170 Wn.2d 874,881,246 P.3d 796 (2011) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruledinparton othergrounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).

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The right to bepresent is not absolute. "[B]ecausethe 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 benefitbut a shadow.'" Id. (quoting Snyder, 291 U.S. at 106-07). Where the court and counsel address legal matters not requiring a resolution ofdisputed facts, it is well settled that a defendant has no right to be present. In re Pers. Restraintof Lord, 123 Wn.2d 296,306,868 P.2d 835 (1994), ajf'd, 161 Wn.2d 276 (2007); Irby, 170 Wn.2d at 881. Nor does a defendant's right to be present extend to ministerial matters. In re Pers. Restraint of Pirtle, 136 Wn.2d 467,484, 965 P.2d 593 (1998). The few cases that have addressed a defendant's constitutional right to be present when a trial court considers how to respond to ajury inquiry during deliberations have sometimes assumed that there is such a right, but have more recently turned on whether responding to thejury's question involved apurely legal issue. Compare State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d 79 (2004) (assuming a constitutional right), with State v. Sublett, 156 Wn. App. 160, 183, 231 P.3d 231 (2010), ajf'd, 176 Wn.2d 58 (2012) (right to be present did not apply to "the purely legal issue ofhow to respond to thejury's request for a clarification in one ofthe trial court's instructions"). Requests for guidance from the court whenjurors feel deadlocked have been treated as a critical stage with "much
... at stake," and thereby one at which a defendant has a right to be present. State
v. Burdette, 178 Wn. App. 183,201,313 P.3d 1235 (2013). 10No. 34002-3-111 State v. Clapper
As the State points out, we need not determine whetherthe questions posedby Mr. Clapper'sjury implicated his constitutional right to be presentbecause he does not demonstrate thathe was notpresent or consulted when the three-way conference took place following receipt ofthejury's inquiry. Onvery similar facts, our Supreme Court held in State v. Jasper, 174 Wn.2d 96, 124,271 P.3d 876 (2012), thatthe defendant failed to shoulder his burden to demonstrate a violation ofhis constitutional right to be present. The record inJasper revealedthatthe defendant was out ofcustody duringjury deliberations and therefore mighthave beenpresent orbeen contacted when the trial court conferredwith counsel. The court cited theprinciple that on a partial orincomplete record, appellate courts will presume a conceivable state offacts consistentwiththe record that will "'sustain and supportthe ruling or decision complained of" rather than presume facts'"for thepurpose offinding reversible error."' Id. at 123-24 (quoting Barkerv. Weeks, 182 Wash. 384,391, 47 P.2d 1 (1935). Here, as inJasper, the record reveals that Mr. Clapperwas not in custody. It reveals that closing arguments were completed nearthe end ofthe day, following a short trial. Jury deliberations eitherbegan, orbegan in earnest, the following morning, and by 12: 10 p.m., theparties had returned to court to hearthejury'sverdict. It was after the trial court accepted the unanimous verdict and excused thejurythat it made its record about the handling ofthejury's inquiry. Its record establishes thatthejury's inquiry had been received at around 9:40 a.m. that morning, that thejudicial assistant had convened 11No. 34002-3-111 State v. Clapper
the three-way conference call, and that the court had responded to thejury in the manner agreed during the call. Aftermaking the record, the court stated, "I don'tknow ifeither counsel wish to comment on that. You certainly are welcome to ifthere is anything you want to say about it." RP at 197. No one commented. It is entirely conceivable that Mr. Clapper was awaiting thejury'sverdict at his lawyer's office or subjectto immediate contact, and was able to sit in on the call or be consulted. Thatno one commented when invited to do so by the court further suggests that the defendant was not excluded. 3 Assuming Mr. Clapperhad a constitutional right to be present, he fails to demonstrate a violation. We also conclude that any error would be harmless beyond a reasonable doubt. "Generally, where the trial court's response to ajury inquiry is 'negative in nature and conveys no affirmative information,' no prejudice results and the error is harmless." State v. Jasper, 158 Wn. App. 518,541,245 P.3d228 (2010), ajf'd, 174 Wn.2d 96 (2012) (quoting State v. Russell, 25 Wn. App. 933,948,611 P.2d 1320 (1980)). A court's communication with thejury is negative in nature-orneutral-when it "simply [refers] thejurybackto the previous instructions." State v. Langdon, 42 Wn. App. 715, 717-18,

3 In Siert, filed after the parties completed theirbriefing, our Supreme Court held that a violation ofa defendant's right to be present is waived ifthe defendant himself learns ofthe violation before it is too late to object, yet fails to object. 186 Wn.2d at 875- 76. Here, the record's silence as to when Mr. Clapper learned ofthe three-way conference operates in his favor. Ifhe did not learn until after thejury'sverdict was accepted and thejury was excused, his opportunity to object came too late. 12No. 34002-3-III State v. Clapper
713 P.2d 120 (1986). 

### Mr. Clapper suggests that had he beenpresent, he would have asked the courtto specifically direct thejuryto its instruction on the State's burden of proof, thereby remindingjurors oftheir duty "tohold any evidentiary shortcoming against the State." Br. ofAppellant at 11. The trial court's response directing thejurors to "[p]leasereview your instructions as to the law" did that, without emphasizing the burden ofproofinstruction to the exclusion ofothers in a way that could be viewed as a comment on the evidence. CP at 18. Ill. Appellate costs Mr. Clapper asks in his briefthat we waive costs on appeal ifhe does not prevail, claiming he is currently indigent and will unlikely be able to pay in the future. "RAP 14.2 affords the appellate court latitude in determining ifcosts should be allowed." State
v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000). By general order, this courthas created a procedure by which appellants may provide apanel with evidence and argument on the basis ofwhich the panel can exercise informed discretion whether to deny costs. See Gen. Order ofDivision III, In re the Matter of CourtAdministration Order re: Request to Deny CostAward(Wash. Ct. App. June 10, 2016). Mr. Clapper has not complied with our general order. We therefore decline to considerhis request. The denial is without prejudice to his right to demonstrate his current or likely future inability to pay such costs to our commissioner. See RAP 14.2.

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

WE CONCUR:

Lawrence-Berrey, J.

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