### FILED April 14,2015 In the Office oftheClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OFTHE STATE OFWASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31520-7-111 ) Respondent, ) ) 

### v. ) ) MATTHEW HIBBARD, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, A.C.J.
- Matthew Hibbard appeals his conviction forthird degree assault with an aggravatorthatthe injury suffered by the victim substantially exceededthe level ofbodily harm necessaryto satisfy the elements ofthe charge. He contends thetrial court erred by (1) limiting characterevidenceto reputation, (2) denying his requestfor a lesser included offensejury instruction, and (3) violating his publictrial right when using
a passing sheetto conduct peremptory challenges. In his statement ofadditional groundsfor review (SAG), Mr. Hibbard expresses concerns about ineffective assistance ofcounsel, prosecutor and juror misconduct, and the trial court's limits on the numberof his characterwitnesses. Wedisagreewith Mr. Hibbard's contentions, find Mr. Hibbard's SAG lacks merit, and affirm.No. 31520-7-111 State v. Hibbard
FACTS On the evening ofJuly 4, 2012, Ben Ensign and three friends wentto a Kennewick bar and, without permission, sat in thevery important (VIP) section. Mr. Hibbard, the bar's general managerand experienced bouncer, told Mr. Ensign and his friends they could notsitthere. Mr. Ensign was intoxicated and disruptive. Given Mr. Ensign's behavior, Mr. Hibbard told Mr. Ensign and his friends to leavethe bar. Mr. Ensign'sfriends escorted him out ofthe bar, but he turned around and attempted to reenter. Mr. Hibbard and doorman Ray Anderson barred Mr. Ensign's way. Mr. Hibbard grabbed Mr. Ensign bythe head and Mr. Anderson held his feet, suspending Mr. Ensign in midair. Eyewitness accounts varied on what happened next. While Mr. Hibbard testified hethought Mr. Ensign wastrying to hit him, Mr. Anderson did not believe Mr. Ensign was a threat. Aftertelling Mr. Ensign to calm down, Mr. Hibbard eitherdropped
orthrew Mr. Ensign head down tothe concrete sidewalk. A jury laterviewed a security video ofthe events. Mr. Ensign suffered a subdural hematoma and brain contusions. Hewas in intensive care for a month. Mr. Ensign had difficulty using his right arm and leg and currently suffersfrom expressive aphasia, which means it is hard for him to express his thoughts as he cannot match histhoughts towords. The State charged Mr. Hibbard with third degree assault and alleged an excessive-injury sentencing aggravator. At Mr. Hibbard'strial, Mr. Hibbard soughtto call numerouswitnesses totestify asto Mr. Hibbard's good charactervia reputation and

2

# I No. 31520-7-111 State v. Hibbard specific instances ofconduct. The trial court sustained the State's objection to proving characterthrough specific instances. The court limited the number of Mr. Hibbard's characterwitnesses as cumulative. Mr. Hibbard unsuccessfully requested ajury instruction on fourth degree assault, arguing itwas a lesser included offense ofthird degree assault. Mr. Hibbard was found guilty as charged. Thejury returned a special verdict, finding Mr. Ensign's injuries substantially exceeded the level ofbodily harm necessaryto satisfythe elements of third degree assault. Because ofthis aggravating factor, the court sentenced Mr. Hibbard to 12 months. Mr. Hibbard appealed. ANALYSIS A. Character Evidence The issue is whetherthe trial court erred by not allowing Mr. Hibbard'switnesses to testify as to specific instances ofconduct in which he acted in a diligent and peaceful
mannerwhile on thejob. Mr. Hibbard contends his constitutional rightto present a defense was thus violated because characterwas an essential element of his claim or defense and ER 405{a) implicitly allows specific instances that show his character without ER 405{b)'s essential elements restriction. Wedisagree. We review a trial court's evidence rulings for abuse ofdiscretion. State v. Stacy, 181 Wn. App. 553, 565, 326 P.3d 136, reviewdenied, _Wn.2d_,335 P.3d 940 (2014). "Atrial court abuses its discretion when its decision is manifestly unreasonable
or based on untenable grounds or untenable reasons." Id. at 565-66.



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No. 31520-7-111 ,J State v. Hibbard 

## f Criminal defendants have a constitutional right to presenta defense. Id. at566. 

# 1 However, this constitutional right is not unrestrained, as defendants have no "rightto 

# 1
1 introduce irrelevant or inadmissible evidence." Id. Although "evidence ofa person's 

# 1 character or a trait ofcharacter is not admissible forthe purpose of proving action in 

# I J conformity therewith on a particular occasion," ER 405(b) allows evidence ofspecific j instances only ifthe "character or a trait ofcharacter" is "an essential elementofa 

### J charge, claim, ordefense." ER 404(a). Character is rarely an "essential element" in criminal cases. State v. Kelly, 102Wn.2d 188, 196,685 P.2d 564 (1984). "For characterto be an essential element, character itself must determine the rights and liabilities ofthe parties." Id. at 197. ER 405(a) states "[iJn all cases in which evidence ofcharacteror atrait of character ofa person is admissible, proof may be made by testimony as to reputation." Washington courts have interpreted this to mean ER 405(a) limits character evidence solelyto reputation unless character is an essential element. State v. Mercer-Drummer, 128Wn. App. 625, 630-32, 116 P.3d 454 (2005) (rejecting the argumentthat reputation testimony is notthe exclusive way to prove character under ER 405(a». Reading ER 405(a) in the manner suggested by Mr. Hibbard directly conflicts with and undermines ER 405(b)'s limitations on proof by specific instances ofconduct. See State v. Morales, 168Wn. App. 489, 492, 278 P.3d 668 (2012) (stating that interpretations rendering any portion ofa statute meaningless should not be adopted). Thus, Mr. Hibbard's second contention fails.



### 4No. 31520-7-111 State v. Hibbard Washington courts have held "character does notdetermine a party's rights and liabilities incidentto an assault." Mercer-Drummer, 128Wn. App. at 632; see also Stacy, 181 Wn. App. at566. Mr. Hibbard unpersuasively attempts to distinguish both Mercer-Drummerand Stacy. He points to the factthat Mercer-Drummerand Stacy dealtwith (1) third degree assault under RCW 9A.36.031(g), assault ofa law enforcement officer, which requires an entirely different mens rea than negligent assault; and (2) different defenses. He argues his defense-that he acted reasonably and not negligently underthe circumstances-necessarily means specific examples of his peaceful conflict-resolution were essential elements of his defense. But nothing in Mercer-Drummerand Stacylimits their holdingsto assaults under RCW 9A.36.031(g). Both courts fashioned their holdings broadly, stating "[c]haracter is not an essential elementofanycharge, claim, or'defenseforthe crime ofassault." Stacy, 181 Wn. App. at 566 (emphasis added). Thus, Mr. Hibbard's first contention fails. In sum, the trial court did not err in limiting Mr. Hibbard's evidence. Having so concluded, we do not discuss harmless error. B. Requested Fourth Degree Assault Instruction The issue is whetherthe trial court erred in denying Mr. Hibbard's request for a jury instruction for assault in the fourth degree. Mr. Hibbard contends both the legal and



### 5No. 31520-7-111 State v. Hibbard
factual prongs ofthe Workman 1testwere met, thus entitling him to an instruction on the assault in the fourth degree.2 RCW 10.61.006 provides "a defendant can be convicted ofan offense that is a lesser included offense ofthe crime charged." State v. Fernandez-Medina, 141 Wn.2d 448,453,6 P.3d 1150 (2000). To receive an instruction on a lesser included offense, 

### f the proponent ofthe instruction must satisfy a legal and factual requirement. State v.

### ~ 

# I j McDonald, 123Wn. App. 85, 88, 96 P.3d 468 (2004). "To satisfy the legal requirement, the proponent must show

...thatthe proposed instruction describes an offense each 

# I 1 

### , element ofwhich is included within the charged offense." Id. at 88-89. "To satisfythe 

### ! 

# I factual requirement, the proponent must showthatwhen the evidence is viewed in the 

### I light mostfavorable to him, thejury could find that even though the defendant is not guilty ofthe charged offense, he is guilty ofthe

... lesseroffense." Id. at 89. RCW 9A.36.031(1)(f) states a person is guilty ofassault in the third degree if "[w]ith criminal negligence, [he] causes bodily harm accompanied by substantial pain that extends for a period sufficientto cause considerable suffering." Assault in the fourth degree is simple assault at common law. State v. Davis, 60 Wn. App. 813, 820,

1 State v. Workman, 90 Wn.2d 443,584 P.2d 382 (1978). 2 Mr. Hibbard uses "inferiordegree" and "lesser included offense" interchangeablythroughout his brief. SeeAppellant's Br. at 15-17. An inferiordegree instruction is provided for in RCW 10.61.003, while a lesser included offense instruction is provided for in RCW 10.61.006. While thetwo are closely related, they are notthe same and have differenttests. See State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000). Because Mr. Hibbard solely argues and applies the lesser included offense instruction test, we do not elaborate on an instruction based on an inferior degree. For Mr. Hibbard, the result is the same because fourth degree assault does not require negligent conduct as does this charged third degree assault. 

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# 1**.~ .~**  No. 31520-7-111 

### i State v. Hibbard 

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## f 808 P.2d 167 (1991); RCW 9A.36.041(1). An assault is defined as "an attempt, with 

# I J , unlawful force, to inflict bodily injury upon another, accompanied with the apparent 

# I present abilityto give effectto the attempt if not prevented." State v. Sample, 52 Wn. 

# I App. 52, 54, 757 P.2d 539 (1988) (internal quotation marks omitted) (citation marks omitted). Thus, fourth degree assault requires proofofintent. Id. In Sample, the State charged the defendantwith assault in the third degree underformer RCW 9A.36.030(1)(b), stating a person committed third degree assault when he, U[w]ith criminal negligence," caused physical injuryto anotherwith a weapon. Sample, 52 Wn. App. at 54. Thetrial court convicted the defendant ofsimple assaultas a lesser included offense ofthird degree assault. Id. The appellate court reversed the conviction, stating the statute "eliminate[d] the element ofintent and [took] conductnegligence-thatwould not be an assault undercommon law[] and [made] it an assault." Id. at 54-55 (holding fourth degree assault "is not a lesser-included offense ofassault in the third degree by negligence"); see also Seattle v. Wilkins, 72 Wn. App. 753, 758, 865 P.2d 580 (1994) (stating "[i]t may be possible to commit

... criminally negligent assault without committing simple assault because a person can be convicted of

... criminally negligent assaultwithout proofofintent, while one cannot be convicted ofsimple assault without proofof intent"). Mr. Hibbard was charged with criminally negligentthird degree assault under RCW 9A.36.030(1)(f). In orderto be entitled to a lesser included offense instruction for fourth degree assault, he had to meetthe legal and factual requirements ofthe test. He



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# I , I No. 31520-7-111**~** State v. Hibbard 

# I cannot showthe legal requirement. The proposed instruction on fourth degree assault includes an element not included in the instruction on criminally negligentthird degree 

## 1 1 assault: intent. As Mr. Hibbard cannot meetthe legal requirement, we need not discuss 

# I I whether he can meetthefactual requirement. Accordingly, thetrial court did not err in refusing to give the lesser included offense instruction. 

# I C. PublicTrial 

# ! ! The issue is whether Mr. Hibbard's right to a public trial was violated when the 

## I 

# I parties exercised their peremptory challenges using a passing sheet in open court. Mr. 

# I Hibbard contends this procedure resulted in a private, unrecorded conference violating 

### I his right to be present at all critical stages since the record does not show he was present or able to participate in the peremptory challenges. "The Sixth Amendmentto the United States Constitution and article I, section 22 ofthe Washington Constitution guarantee a defendantthe right to a publictrial." State
v. Dunn, 180Wn. App. 570, 574,321 P.3d 1283 (2014). Section 22 partly provides "it is
error ...to 'close' the courtroom to any aspect ofa criminal trial that is required to be 'open.'" State v. Love, 176 Wn. App. 911, 916, 309 P.3d 1209 (2013). Courts usethe "experience and logic" testto determine whether a particular portion ofa proceeding is required to be held in public. Id. Typically. "O]ury selection in a criminal case is considered part ofthe public trial right and is [ ] open to the public." Id. The "experience and logic" test requires courts to ask "whetherthe practice in question historically has been open to the public [the experience prong]

... and whether



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# I ;**~** 

# I ! 

### • No. 31520-7-111 

# I State v. Hibbard 

# i**~** 

# I public access is significantto thefunctioning ofthe right [the logic prong]." Id. Ifa court 

# I answers both prongs affirmatively, then the five factor test enunciated in State v. Bone

# I 

# I Club, 128Wn.2d 254, 261,906 P.2d 325 (1995), must be applied to determinewhether the court can properly close the courtroom. Love, 176Wn. App. at 916. 

# I i In Love, this court applied the "experience and logic" test and concluded 

## ! peremptory challenges do not have to take place in public. Id. at 920; see also Dunn, 180Wn. App. at 575 (agreeing that U[t]he public trial right does not attach tothe exercise ofchallenges duringjury selection"). The court failed to find evidence suggesting that historical practices required parties to make peremptory challenges in public. Id. at 918; see also State v. Thomas, 16Wn. App. 1,13,553 P.2d 1357 (1976) (defendant's challenge to using secret, written peremptory challenges had uno merit"). The court stated the written record ofperemptory challenges "satisfies the public's interest in the case and assures that all activities were conducted aboveboard, even if notwithin public earshot." Love, 176Wn. App. at919-20. Given Love, Mr. Hibbard's argument lacks merit.3 Moreover, the record does not support Mr. Hibbard's argument. Atthe conclusion ofvoir dire, the transcript reads: THE COURT: Anybody need a break at this time. Okay. Wewill take a short recess. (Recess taken) (Peremptory challenges taken and ajurywas impaneled)

3 Mr. Hibbard notes he is aware ofthis court's decision in Love. However, he states "due to the procedural posture ofother publictrial cases currently on review in theWashington Supreme Court, [he] preserves this issue for review." Appellant's Br. at 26,n.11. 

### 9No. 31520·7-111 State v. Hibbard Report of Proceedings (RP) Voir Dire at 80. These facts are similarto those seen in Love. See Love, 176Wn. App. at 914. The peremptory challenges were done in writing and recorded. Thejudgethen, in open court, replaced certain jurors and empanelled thejury. The courtroom was not closed for peremptory challenges. Mr. Hibbard argues he was not present during the exercise ofperemptory challenges. Criminal defendants havethe right to be present at all critical stages, which includes voir dire and empanelling ofthejury, oftheir criminal trials. Love, 176Wn. App. at920-21. As the record is unclearwhether Mr. Hibbard was present during the exercise ofperemptory challenges, his assertion partly relies on facts outside the record
on appeal.4 Wedo not address issues on direct appeal relying on facts outside the record. State v. McFarland, 127Wn.2d 322, 335, 899 P.2d 1251 (1995). D. SAG Concerns First, regarding assistance ofcounsel, the Sixth Amendment to the United States Constitution guarantees a criminal defendantthe right to effective assistance ofcounsel. Stricklandv. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance ofcounsel, a defendant must prove (1) defense counsel's representation was deficient, i.e., itwas below an objective standard of reasonableness underthe circumstances and (2) the deficient representation prejudiced him, i.e., a reasonable probability exists the outcome would have been differentwithout the deficient representation. McFarland, 127 Wn.2d at 334-35. We strongly presume

10No. 31520-7-111 State v. Hibbard representation was effective. Id. at 335. Defense counsel's legitimate strategic or tactical decisions do not support ineffective assistance claims. Id. at 335-36. Mr. Hibbard's concerns generally relate to his counsel's trial strategy. He asserts defense counsel never attempted to discreditthe State's witnesses, however; defense counsel did inquire into potential biases. He argues defense counsel failed to emphasize certain evidence, however defense counsel did discuss bias with relevant witnesses. It is not ineffective assistance ofcounsel merely because Mr. Hibbard would have emphasized evidence more ordifferently. Mr. Hibbard argues defense counsel did not call certain witnesseswho would have been helpful to his case. But the testimony ofMr. Hibbard's proposed witnesses is not in the record, so we cannot concludefailure to call these witnesses prejudiced him. Mr. Hibbard's remaining allegations, including failure to bring up Mr. Ensign's history, not requesting a venue change, conversations disparaging defense counsel, trial court concerns, and counsel's throwing the case, are not based on facts in our record. If it is not in the record, we do not considerthe matter on a direct appeal. McFarland, 127Wn.2d at 335. The appropriate means of raising such matters is through the filing ofa personal restraint petition. Id. Second, regarding Mr. Hibbard's misconduct concerns, nothing in our record shows the State destroyed evidence or acted to delete any Facebook conversation. We do not consider matters outside the record on direct appeal. McFarland, 127Wn.2d at

4 The State, who in this appeal is represented by the same attorney that prosecuted Mr. Hibbard, states Mr. Hibbard was present during peremptory challenges. 11No. 31520-7-111 State v. Hibbard
335. The appropriate means ofraising such matters is through the 'filing ofa personal restraint petition. Id. Third, regarding limiting character-evidence witnesses, even ifrelevant evidence is admissible, it may still be excluded "if its probative value is substantially outweighed

... by considerations of

... needless presentation ofcumulative evidence." ER 402; ER 403. In State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960), the defendantwas charged with negligent homicide. 

### 'd. at 849. Attrial, one witness testified about the defendant's reputation as a good and careful driver; however, the trial court refused to allowdefendant'sfour remaining witnesses testify as to the same. 

### 'd. at 857. Because the State never attacked the defendant's reputation as a good and careful driver, the Washington Supreme Courtfound this was not error. Id. The Bakercourt reasoned that allowing the remaining four witnesses to testify in the same manner "would be merely repetitious and cumulative." 

### 'd. at 857-58. The State never attacked Mr. Hibbard's reputation or the testimony of Mr. Hibbard's characterwitnesses. As no reason existed todoubtthe characterwitnesses' testimony, allowing additional testimony on the same subjectwould have been cumulative and unhelpful. Thetrial court did noterr in limiting the number ofwitnesses. Mr. Hibbard's other arguments regarding character evidencewere addressed by his counsel in his appeal. See RAP 10.10(a). Fourth, regarding Mr. Hibbard's concern about an alleged Facebook comment aboutjuror comments, nothing in our record supports this allegation. Again, we do not Resp't Br. at 13-14. 12No. 31520-7-111 State v. Hibbard
consider such matters on direct appeal. McFarland, 127Wn.2d at 335. The appropriate means of raising such matters is through thefiling ofa personal restraint petition. Id. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 206.040.

Brown, A.C.J. WE CONCUR:

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