IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ADAM EDWIN POWELL,

Appellant.

)

)

)

)

)

)

)

)

)

No. 31487-1-III

UNPUBLISHED OPINION

FEARING, J. — Adam Powell assigns constitutional infirmity to his trial on 

the theory that the trial court violated his public trial rights when engaging in 

unrecorded sidebar conferences during jury selection. He also contends 

insufficient evidence supports his conviction for second degree murder and an 

aggravated domestic violence exceptional sentence. We disagree with all 

assignments of error and confirm Powell’s conviction and sentence. 

FACTS

This prosecution of Adam Powell for murder arises from the death of Sabrina 

Flores from a gunshot wound on October 23, 2010, while inside Powell’s Tieton home. 

The two were romantically involved. Since Powell challenges, in part, the sufficiency of 

FILED

APRIL 30, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 31487-1-III

State v. Powell 

2

the evidence, we draw facts from lengthy trial testimony. 

During trial, Adam Powell testified on his own behalf. According to Powell, he 

and Sabrina Flores met in March 2010 and started a dating relationship within a month. 

In July 2010, Flores began residing with Powell in one side of a duplex at 905 Tieton 

Avenue, Tieton. Powell described the relationship with Flores as volatile. 

During trial, the State presented testimony of alleged abuse of Adam Powell, 

preceding Sabrina Flores’ death, inflicted on Flores in order for the State to prove an 

aggravated domestic violence sentencing factor. Brenda McCoy testified that, on 

September 12, 2010, she observed a young lady sobbing as she walked on the street in 

front of McCoy’s residence. A car then struck the woman from the rear. The young 

woman flew five feet off the street. McCoy ran from her house and helped the victim 

from the pavement. McCoy implored the woman to enter McCoy’s house. The victim 

declined, and the offending car returned minutes later. The driver ordered the victim into 

the car. McCoy called law enforcement. During trial, McCoy identified Powell as the 

driver of the car, but only because he sat in the courtroom and she knew he was the 

defendant. 

On September 12, 2010, Yakima Police Officer Juan Ceja responded to 905 Tieton 

Avenue, Adam Powell’s residence, to investigate a report of domestic violence. Officer 

Ceja heard a female screaming inside the residence, and he immediately entered the 

home. Officer Ceja saw a female sitting on the couch with ripped pants and fresh scrapes 
No. 31487-1-III

State v. Powell 

3

on her knees. Ceja escorted Powell from the residence, and Powell informed the officer 

that he and the woman were driving in Naches when she jumped from the car. The 

woman got in front of the car and he “tapped her” with the vehicle. Report of 

Proceedings (RP) at 851-52. 

Griselda Vaca and Ernesto Amonzo, wife and husband, resided in the other side of 

the duplex in which Adam Powell and Sabrina Flores lived. At trial, Vaca testified that 

she sometimes heard “mumbling” coming from the other side of the duplex walls and a 

loud male using the “F” word. RP at 920-21. She also often heard the male talking and 

the female sobbing in the living room. Vaca was not home at the time of the October 23 

shooting. Ernesto Amonzo, at trial, averred that he heard yelling and crying on an 

average three times weekly in Powell’s side of the duplex. 

Adam Powell testified that, earlier on October 23, 2010, he went shooting with his 

.40 caliber hi-point handgun. When he arrived home, Sabrina Flores told him she was 

preparing for a shower and would later return a computer to her father. Powell answered 

a cell phone ring. Flores’ father was the caller, and Powell handed the phone to Flores. 

After ending the call, Flores showered, and Powell walked to the post office two blocks 

away. According to Powell, when he returned home, Flores accused him of spying on 

her. He sat on the couch, removed his firearm from his pants, and placed the gun on the 

coffee table. Powell intended to walk upstairs to change his pants, but became distracted 

by a pile of Flores’ belongings in the kitchen. He noticed his pants on top of the pile, 
No. 31487-1-III

State v. Powell 

4

and, as he retrieved them, he found a methamphetamine pipe. An argument ensued, and 

both Powell and Flores screamed at each other. Powell exclaimed: “since your stuff is 

packed, you can go live with your father because I’m done with this.” RP at 1425. 

According to Adam Powell’s trial testimony, he threw the pipe away and 

proceeded up the stairs to change his pants. When Powell returned downstairs, he saw 

Sabrina Flores, in the living room, with his handgun to her forehead. He yelled at her to 

stop. When she told him to leave, Powell lunged at her in an attempt to remove the gun. 

Flores and Powell fought over the firearm, fell to the floor, and Flores shot herself. 

Powell did not explain whether Flores shot herself accidently or on purpose. Powell 

rolled Flores over and checked her breathing. She did not breathe and lacked a pulse. 

Powell moved the firearm from her, but he did not try to put the gun in her hand. 

Duplex neighbor Ernesto Amonzo was home at the time of the shooting. Amonzo 

testified that he heard Powell yelling and a female crying for one half hour before hearing 

a gunshot. He overheard Powell shout: “[S]hut the fuck up. Fuck you, fuckin’ bitch, 

stupid.” RP at 895. After hearing a gunshot, Amonzo listened and heard Powell talking 

and pacing from one side to the other in his duplex. 

After the shooting, Adam Powell first called a friend and then his grandmother. 

He later called 911 and reported that Sabrina Flores committed suicide. During trial, 

Powell admitted that he lied when reporting the shooting as a suicide because he feared 

law enforcement would blame him for murder, when he did not shoot Flores. 
No. 31487-1-III

State v. Powell 

5

Apparently, he considered the story he told at trial consistent with an accidental shooting, 

rather than suicide. Powell testified that he never intended the gun to discharge and never 

wished the death of Flores. 

Officer Juan Ceja of the Tieton Police Department responded to Adam Powell’s 

emergency call of a suicide at Powell’s residence. As Officer Ceja entered the dwelling, 

he saw Adam Powell kneeling on the ground while speaking on the phone with a 911 

operator. Sabrina Flores lay on her back on the living room floor with left hand over her 

face and left foot crossed over the right foot. Blood puddled to the right side of her head. 

After ending the call, Powell sobbed hysterically and sweated. Powell told Officer Ceja 

that Flores shot herself. 

Officer Juan Ceja escorted Adam Powell from the residence and into the backseat 

of his patrol car because the .40 caliber hi-point firearm rested next to Sabrina Flores’ 

body. Officer Ceja returned to the residence to process the scene. He photographed the 

scene and secured the firearm. The officer did not reposition Flores’ body and did not 

see anyone else move her. 

Officer Juan Ceja found the positioning of Sabrina Flores’ body on the floor 

suspicious. Officer Ceja concluded that someone had likely rolled over the body after the 

death. The blood stains on the firearm also raised Ceja’s suspicions. 

Detective Brian Jackson of the Yakima County Sheriff’s Office traveled to Adam 

Powell’s Tieton residence to investigate the death of Sabrina Flores. Detective Jackson 
No. 31487-1-III

State v. Powell 

6

spotted a bullet hole on the right side of Sabrina Flores’ head. Jackson also observed that 

blood drained from a wound on the left side of Flores’ face and across her nose. Gravity 

would not have permitted the blood to move across the nose if Flores had always lay on 

her back. Jackson also concluded that someone had rolled Flores’ body because feet 

cross if the body is limp and moved in that manner. Jackson also noticed blood on 

Flores’ left palm, but not on her right hand. 

Sergeant Jeff Gillespie arrived at the Tieton home and approached Adam Powell 

as the latter sat unrestrained in the patrol vehicle. Sergeant Gillespie read Powell his 

Miranda rights and briefly interviewed Powell. Powell told Gillespie that Sabrina Flores 

held the handgun to the side of her head, and, as he ambled toward her, she fired the gun 

and fell to the floor. After viewing the crime scene, Sergeant Gillespie spoke again with 

Powell and asked him with which hand Flores shot herself. After a long pause, Powell 

replied that the gun was in Flores’ left hand and in direct contact with the side of her 

head. 

Detectives from the Yakima County Sheriff’s Office interviewed Adam Powell at 

10:30 p.m. on October 23, 2010. At the conclusion of the interview, law enforcement 

arrested Powell on an unrelated felony warrant and transported him to the Yakima 

County jail. Authorities later announced to Powell that he was also under arrest for the 

murder of Sabrina Flores. 

Dr. Gina Fino, a forensic pathologist, conducted an autopsy on Sabrina Flores. Dr. 
No. 31487-1-III

State v. Powell 

7

Fino found evidence of a gunshot wound to the head and a gunshot wound to the right 

arm. The body contained an entrance wound to the left side of the head and an entrance 

wound to the right anterior upper arm. The entrance wound on the head was located 

behind the left ear with an exit wound on the right side of the face near the right eyebrow. 

Dr. Fino testified at trial that she found soot on soft tissue, evidence that someone held 

the gun muzzle close to the entrance wound. Fino noticed no skin splitting or stippling 

near the wound, such that she opined that fabric came between the muzzle and scalp. Dr. 

Fino also found an oval defect in the jacket worn by Flores. 

Based on the blood pattern, Dr. Gina Fino concluded that Sabrina Flores did not 

stand and fall on her back when shot. Dr. Fino opined that, based on the evidence, Flores 

could not have held the gun in her left hand. Fino found the gunshot wound to be 

inconsistent with a self-inflicted shot. 

On cross-examination during trial, Dr. Gina Fino conceded that Sabrina Flores 

may have fallen and hit the floor shortly before or as the gun fired. Fino could not 

“absolutely positively exclude” a scenario under which the gun fired when between 

Flores and someone on top of her. RP at 1302. On redirect examination, Dr. Fino 

testified that the hypothetical presented to her by Adam Powell’s counsel was “not 

likely.” RP at 1301. She opined that, given this hypothetical, the trajectory of the bullet 

would go from front to back. She further explained:
No. 31487-1-III

State v. Powell 

8

[b]ut with this trajectory the muzzle of the weapon has to be behind 

the ear. Because it’s a contact wound and it’s behind the ear. And then the 

weapon has to be positioned as such that the trajectory can come from back 

to front. 

RP at 1301. According to Fino, the hypothetical that Powell and Flores fell down 

together, causing the gun to discharge, defied gravity because of the bullet trajectory. 

Anthony Jennings met Adam Powell, in October 2010, while both resided in jail. 

According to Jennings, Powell informed him he employed the name “Twisted.” RP at 

1144. Within twenty-four hours of meeting Powell in prison, Powell told Jennings that 

he killed Sabrina Flores, and Powell described the murder in detail. Powell disclosed that 

he and Flores fought the night of the murder. Flores angered Powell by wanting to leave 

and soliciting her father’s assistance. Powell pushed her head down, placed the gun to 

her head, and “blew her head off.” RP at 1147. Powell added that he used a .40 caliber 

chrome Smith and Wesson. Powell described in detail the crime scene to Jennings. 

During trial, Jennings depicted Powell’s demeanor when Powell described the killing: 

[a]rrogant...[a] smile on your (sic) face saying, Ha, ha that’s what 

the bitch gets Ha, I had her like this, and . . . [t]here was no remorse . . .

[t]here wasn’t no tears or nothing . . . [i]t was a smile on his face thinking 

he was cool.

 

RP at 1150. 

During trial, Anthony Jennings further testified that Adam Powell told the story of 

the murder of Sabrina Flores over thirty times. In addition, Powell admitted mistakenly 

placing the gun in Flores’ wrong hand, the opposite hand from where the bullet entered
No. 31487-1-III

State v. Powell 

9

her head. Powell told Jennings he attempted to make the killing appear as a suicide. 

Jennings also testified that Powell spoke of a time when he attempted to run Flores over 

with a car and the neighbor came outside yelling. Powell claimed to have choke

slammed Flores, punched her, and bounced her head off the walls on other occasions. 

PROCEDURE

The State of Washington charged Adam Powell with one count of murder in the 

second degree with a firearm enhancement. The State later amended the information to 

charge Powell with one count of murder in the first degree with a domestic violence 

aggravator. Still later, the State filed another amended information that returned the 

firearm enhancement to the information. Before trial, the trial court ruled as admissible 

certain ER 404(b) evidence as to domestic violence and Adam Powell’s statements to 

police. 

Because Adam Powell’s major contention involves events that occurred during 

jury selection, we outline some of the voir dire. During voir dire, the trial court 

conducted six unrecorded sidebar conferences with counsel. On the first day of trial, 

January 30, 2013, the court conducted a sidebar at 12:21 p.m. and another at 12:22 p.m. 

Immediately after the first unrecorded bench conference, the following colloquy 

occurred: 

JUDGE: Is Sylvie Perrault here?

JUROR: Yes.

JUDGE: Sylvie Perrault?
No. 31487-1-III

State v. Powell 

10

JUROR: Yes.

JUDGE: Yes, I, I think someone related to you is going to testify in 

this case so I’m going to excuse you right now, okay? Thank you. Call in 

tonight and just give your questionnaire to the bailiff. Thank you. 

RP at 525. Twelve lines later on page 525 of the report of proceedings, the trial court 

memorialized what occurred in the two sidebars: 

JUDGE: Sure. I’ll also put on the record that we had a brief side bar 

during the time that the jurors were filling out the instructions. We 

discussed one of our potential jurors who is related to one of the witnesses 

and was excused. Juror Perrault. And, see if I can find the number.

[STATE]: Number forty-eight, Your Honor.

JUDGE: Thank you. Number forty-eight. Yes, Sylvie Elsie Perrault 

has been excused. Also we discussed timing and agreed the jurors will 

come back tomorrow at nine and then we will meet before we bring them 

back in here to discuss the questionnaires or make any challenges for cause.

RP at 525-26. 

On the afternoon of the second day of trial, January 31, 2013, juror 23 spoke 

during voir dire. Juror 23 reported that his daughter was raped and eventually committed 

suicide. He added that some events or conversations trigger “ambushes,” and he might 

miss some testimony if sitting on a jury. The trial court then conducted the third 

unrecorded sidebar on January 31, 2013. Immediately after the sidebar, the court excused 

juror 23. The State’s attorney later addressed the sidebar:

[STATE]: Your Honor, I just remembered one other thing. We had 

a side bar earlier?

JUDGE: Yes.

[STATE]: And I guess my understanding is, and it’s a concern for 

me because of the, the Bone-Club analysis and cases from that, when we’re 
No. 31487-1-III

State v. Powell 

11

having these side bars, it’s my understanding a lot of the judges in our 

superior courts aren’t even doing those anymore—

JUDGE: Right.

[STATE]:—because of those cases and it causes concern about 

what’s said there, even if it’s being recorded over there versus just putting it 

on the record here, that people in, you know, these courtrooms are open to 

the public, that we shouldn’t even be doing that at all anymore. That if 

we’re gonna say something, we just do it outside the presence of the jury on 

the record instead of doing the side bar kind of how we did the last one.

JUDGE: And I have no problem at all with that once we get the jury 

we can send them out, but when we have this group of people I don’t know 

how we do that. But I do appreciate what you’re saying and I’m, and I 

don’t disagree with it. Basically what we did during that side bar, and I’ll 

put it on the record right now, and also another point to that is that the 

defendant is sitting over here and can’t necessarily hear what we’re saying 

although I trust that counsel would have reviewed it. I believe it had to do 

with letting one of our jurors go, which one was it?

[STATE]: [Juror 23], I think.

JUDGE: [Juror 23], oh yes, it was [Juror 23] who[se] daughter had

been raped and then committed suicide and everyone agreed that he’d be a 

great juror but, on the other hand, it was a very emotional and traumatic 

experience for him and that there was high likelihood really that it would 

sidetrack him and distract him from the presentation of the evidence and 

everyone agreed to take him off. So, thank you for bringing that to my 

attention, I appreciate it.

[STATE]: Thank you, Your Honor.

RP at 703-04. 

On the third day of trial, February 1, 2013, the trial court conducted, during voir 

dire, three additional unrecorded sidebars. Immediately after the first sidebar, Adam 

Powell’s counsel forwarded a lengthy challenge, on the record, to a juror seated on the 

panel. Following the second sidebar, the State’s attorney raised outside the presence of 
No. 31487-1-III

State v. Powell 

12

the jury but in open court a Batson challenge. Following the third sidebar, the trial court 

stated, “[a]ll right, ladies and gentlemen. We have our panel.” RP at 760. 

Trial witness Anthony Jennings, who befriended Adam Powell in jail, testified that 

he was serving a fourteen-year prison sentence for robbery at the time of trial. Evidence 

of Anthony Jennings’ prior crimes of dishonesty were admitted to impeach his 

credibility. Jennings acknowledged that he would be labeled a “jailhouse snitch,” but he 

denied receiving a deal from the State for his testimony. Jennings declared that he 

testified because he did not value Powell’s shooting of Sabrina Flores. 

Jeffrey Kelso testified for the defense. Kelso declared that he knew Anthony 

Jennings and that Jennings knew Sabrina Flores and her family. During crossexamination, Kelso admitted that Jennings and the Flores family were merely 

acquaintances. The State impeached Kelso with evidence that he had been convicted of a 

crime of dishonesty. 

The trial court gave a jury instruction for the lesser included offense of second 

degree murder. The jury returned a verdict of guilty of the lesser included offense of 

murder in the second degree. The jury also returned a special verdict that Adam Powell 

was armed with a firearm when he committed the crime and a special verdict that the 

crime constituted an aggravated domestic violence offense. 

The trial court sentenced Adam Powell to an exceptional sentence upward of 340 

months’ confinement, including sixty months for the firearm enhancement. The trial 
No. 31487-1-III

State v. Powell 

13

court also based the exceptional sentence on the domestic violence aggravator. During 

the sentencing hearing, the trial court commented about aggravated domestic violence:

He [Adam Powell] would say but they [Sabrina Flores and him] 

were s[oul] mates but admitted to calling her a fucking bitch. The 

neighbors heard that. If you want to know what this relationship was like 

because Sabrina can’t tell us, we can hear about it from people that 

witnessed it. And like a lot of acts of domestic violence there often are not 

very many witnesses and that’s done by design. People get are isolated, 

people are cut off from family from friends they’re not allowed to leave. In 

this case it’s pretty clear that she was packed up. All of her belongings her

personal effects were out of the bedroom, they were piled in a bags and 

suitcases and plastic bags in the kitchen. She’d been apparently looking for 

a way to get her stuff out of the house. The yellow pages were turned to a 

page that showed U-Haul if I’m not mistaken. So she intended to leave. 

Mr. Powell testified that she was free to go anytime; that he never stopped 

her didn’t ring true. Obviously she wanted to leave that’s why her things 

packed up and she never was able to get out. The neighbors testified that 

and they lived in a duplex so there was close as neighbors can possible be, 

thin walls between the living room and they heard screaming and crying as 

often as three times a week. The gentlemen that lived in the house actually 

heard the incident that led up to this homicide. And heard screaming crying 

he turned up the TV and tried to get away from it. 

RP at 1704. The sentencing court continued:

So we know that there is an ongoing pattern of abuse here by what 

was heard by the neighbors. But we also have an incident that is very 

interesting and that’s the incident with the car. Where Miss McCoy was so 

concerned that she called the police and then came in to testify. 

. . . .

I think it says a lot about Sabrina’s state of mind and her relationship 

with Mr. Powell because she was terrified and she was not she didn’t think 

that anybody could help her. Apparently she didn’t think that her parents 

could help her, she didn’t think that Miss McCoy could help her, she was 

terrified of Mr. Powell. And there’s lots of evidence to support that. 

RP at 1705-06. 
No. 31487-1-III

State v. Powell 

14

The trial court entered findings of fact and conclusions of law justifying an 

exceptional sentence. In its findings of fact, the trial court wrote:

Under the domestic violence aggravator the jury found that Mr.

Powell committed second degree murder when he and the victim were in a 

dating relationship and as part of an ongoing pattern of psychological or 

physical abuse of the victim manifested by multiple incidents over a 

prolonged period of time. Based on the jury’s finding of the aggravated 

domestic violence offense, the court concludes, considering the purposes of 

the Sentencing Reform Act (SRA), that the facts found by the jury are

substantial and compelling reasons justifying an exceptional sentence, a 

sentence above the standard range is in the interest of justice and is 

consistent with the purposes of the Sentencing Reform Act, and the 

exceptional sentence is appropriate to ensure that punishment is 

proportionate to the seriousness of the offense.

Clerk’s Papers (CP) at 268. 

After Adam Powell filed an appeal, the superior court conducted a hearing to 

determine the content of the unrecorded sidebar conferences during voir dire. Powell’s 

trial defense counsel submitted a declaration that stated he lacked specific recollection of 

the sidebar discussion, but he inferred the subject of the discussion from the context of 

the record. The trial prosecutor filed a sworn statement, wherein he averred he also 

lacked recall of comments uttered during the sidebars. The trial court concluded that the 

sidebar conferences on February 1, 2013, entailed discussions of a challenge to a juror, 

the State’s Batson challenge, and confirming members of the jury. 
No. 31487-1-III

State v. Powell 

15

LAW AND ANALYSIS

Sufficiency of Evidence for Murder

On appeal, Adam Powell assigns error to the sufficiency of evidence to convict 

him of second degree murder and to impose an aggravated domestic violence increased 

sentence. He also contends the trial court violated his public trial rights when conducting

unrecorded sidebar conferences during voir dire. We address the sufficiency of evidence 

for the conviction first, because acceptance of this assignment of error would moot the 

other challenges. 

When reviewing a challenge to the sufficiency of the evidence, this court asks 

whether, viewing the evidence in a light most favorable to the State, any rational trier of 

fact could find the essential elements of the crime beyond a reasonable doubt. State v. 

Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). We draw all reasonable inferences 

from the evidence in favor of the State and interpret the evidence most strongly against 

the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The 

elements of a crime can be established by both direct and circumstantial evidence. State 

v. Kroll, 87 Wn.2d 829, 842, 558 P.2d 173 (1976). This court must defer to the trier of 

fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the 

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). 

Adam Powell contends that the State failed to prove, beyond a reasonable doubt, 

that the homicide was not excusable. The to-convict instruction for the lesser crime of 
No. 31487-1-III

State v. Powell 

16

second degree murder read:

To convict the defendant of the lesser crime of Second Degree 

Murder, each of the following elements of the crime must be proved 

beyond a reasonable doubt:

(1) That on or about October 23, 2010, the defendant shot Sabrina 

Flores;

(2) That the defendant acted with intent to cause the death of Sabrina 

Flores;

(3) That Sabrina Flores died as a result of the defendant’s acts; and

(4) That the acts occurred in the State of Washington.

CP at 224. The trial court then instructed the jury on the defense of excusable homicide:

It is a defense to a charge of Murder in the First Degree and to a 

charge of Murder in the Second Degree that the homicide was excusable as 

defined in this instruction.

Homicide is excusable when committed by accident or misfortune in 

doing any lawful act by lawful means, or without any unlawful intent.

The State has the burden of proving the absence of this defense 

beyond a reasonable doubt. If you find that the State has not proved the 

absence of this defense beyond a reasonable doubt, it will be your duty to 

return a verdict of not guilty.

CP at 225. 

Adam Powell highlights that, although a jury decides credibility, the jury cannot 

resort to guess and speculation. State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 

(1972). Powell contends that, since Dr. Gina Fino could not conclusively rule out an 

accidental gunshot wound, the State did not establish beyond a reasonable doubt that the 

homicide was not excusable. Powell also labels Anthony Jennings’ testimony as 

unreliable.

We conclude that the jury had sufficient evidence to reject the excusable homicide 
No. 31487-1-III

State v. Powell 

17

defense and to convict Adam Powell of second degree murder. When testifying at trial, 

Powell admitted to lying to law enforcement about a suicide. His story evolved from 

suicide to an accidental shooting when he and Flores wrestled over the firearm and the 

gun fired, striking Flores in the head. Anthony Jennings provided damning testimony 

about Powell admitting to intentionally killing Flores. Jennings declared that Powell told 

him he put the gun in the wrong hand when he tried to stage a suicide. Powell boasted 

thirty times of murder. The jury could accept or reject Jennings’ testimony at its 

discretion. 

Forensic pathologist, Dr. Gina Fino, testified that Sabrina Flores likely did not die 

from a self-inflicted wound. Dr. Fino added that the shooting scenario presented by 

Adam Powell defied science. Adam Powell presented no countering expert testimony. 

Powell cites no authority for the proposition that an expert must rule out all possibility of 

an accidental shooting in order to convict the accused of murder. 

Public Trial Right

Adam Powell contends the trial court violated his right to a public trial when it 

entertained unrecorded sidebars without conducting a Bone-Club analysis. State v. BoneClub, 128 Wn.2d 254, 906 P.2d 325 (1995). The State argues no violation occurred, and, 

assuming any violation, the violation was de minimis under State v. Schierman, 192

Wn.2d 577, ___ P.3d ___ (2018). We agree no violation occurred and thus do not 

address the de minimis contention. 
No. 31487-1-III

State v. Powell 

18

Under our state and federal constitutions, criminal defendants have a right to a 

public trial. State v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011); U.S. CONST. 

amend. VI; WASH. CONST. art. I, § 22. Whether a right to a public trial has been violated 

is a question of law. State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113 (2012). The error

may be raised for the first time on appeal. State v. Wise, 176 Wn.2d at 9. 

Washington courts have devised a three-part inquiry when determining if a trial 

procedure violated an accused’s right to a public trial: (1) Did the proceeding implicate 

the public trial right? (2) If so, was the proceeding closed? (3) And if so, was the closure 

justified? State v. Smith, 181 Wn.2d 508, 521, 334 P.3d 1049 (2014). The accused 

carries the burden of establishing “yes” as the answer to the first two questions. State v. 

Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015). The proponent of the closure carries 

the burden of justification. State v. Love, 183 Wn.2d at 605. 

We first ask whether the voir dire sidebars, during Adam Powell’s trial, implicated 

the public trial right. Courts apply an “experience and logic” test to determine whether 

the public trial right attaches to a particular proceeding. State v. Smith, 181 Wn.2d at 

511. Under the experience prong, this court considers whether the challenged proceeding 

has historically been open to the public. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 

(2012). Under the logic prong, this court asks “whether public access plays a significant 

positive role in the functioning of the particular process in question.” State v. Sublett, 

176 Wn.2d at 73. If we answer “yes” to both questions, the public trial right attaches. 
No. 31487-1-III

State v. Powell 

19

State v. Whitlock, 188 Wn.2d 511, 521, 396 P.3d 310 (2017). 

When clear precedent has been set by prior case law, this court need not engage in 

an independent “experience and logic” analysis. State v. Love, 183 Wn.2d at 605. We 

confront two competing lines of cases, one dealing with jury selection, and the other 

dealing with sidebar conferences. 

Adam Powell emphasizes the nature of voir dire. The right to a public trial 

extends to jury selection, including for cause and preemptory challenges. State v. Love, 

183 Wn.2d at 605; State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005). 

Unlike administrative or hardship excusals, for cause and peremptory challenges can 

raise questions about a juror’s neutrality and a party’s motivation for excusing a juror that 

implicate the core purpose of the right, and questioning jurors in open court is critical to 

protect that right. State v. Love, 183 Wn.2d at 606 (2015). Open and transparent 

questioning fosters public confidence in subsequent challenges to jurors and the 

composition of juries in criminal trials. State v. Love, 183 Wn.2d at 606. 

The State highlights the nature of sidebar conferences. After applying the 

experience and logic test, our Supreme Court, in State v. Smith, held that traditional 

sidebar conferences do not implicate the public trial right. The Smith court defined 

“[p]roper sidebars” as proceedings that “deal with the mundane issues implicating little 

public interest.” State v. Smith, 181 Wn.2d at 516. The court also cautioned that “[t]o 

avoid implicating the public trial right, sidebars must be limited in content to their 
No. 31487-1-III

State v. Powell 

20

traditional subject areas, should be done only to avoid disrupting the flow of trial, and 

must either be on the record or be promptly memorialized in the record.” State v. Smith,

181 Wn.2d at 516 n.10. 

We must navigate between decisions involving sidebar conferences and decisions 

entailing jury selection. The State asserts that each sidebar during Adam Powell’s voir 

dire process involved ministerial matters, avoided disrupting the flow of jury selection, 

and was contemporaneously memorialized for the record. We partially agree with the 

State. The second conference held on January 31 and the final conference held on 

February 1, functioned as traditional sidebars involving scheduling. The February 1 

conference confirmed that selection had ended for purposes of proceeding further with 

the trial. Thus, those two conferences do not implicate Powell’s public trial right. 

Nevertheless, we agree with Adam Powell that the remaining four bench conferences 

addressed more than mundane scheduling questions and thereby implicated the public 

trial right. The remaining conferences involved challenges to potential jurors. 

We must next analyze whether a closure occurred during the four remaining 

sidebars. Adam Powell fails to explicitly analyze this second inquiry of closure. He may 

argue that a closure must have occurred since the trial court did not record or later 

memorialize the purpose of the sidebars. The State fails to address this second prong of 

the inquiry. 

We disagree with Adam Powell that the trial court failed to memorialize all four 
No. 31487-1-III

State v. Powell 

21

remaining sidebar conferences. After the first sidebar, the trial court confirmed on the 

record that the first conference on January 30 involved dismissal of a juror because of a 

relationship with a witness. The trial court confirmed, on January 31, that the sidebar 

involved dismissing the juror who explained on the record his disability resulting from 

the rape and suicide of his daughter. We agree with Powell that the trial court failed to 

place on the record, at the time of trial, the reasons for the three sidebar conferences on 

February 1. Nevertheless, the trial court later found, during a special hearing after the 

commencement of the appeal, that the conferences dealt with a for cause challenge, a 

Batson challenge, and scheduling. 

Under Washington law, the trial court may discuss for cause challenges outside 

the hearing of the jury panel and the public and perform preemptory challenges on paper

without an appellate court declaring a closure. State v. Love, 183 Wn.2d at 607. The 

Love court stated:

Yet the public had ample opportunity to oversee the selection of 

Love’s jury because no portion of the process was concealed from the 

public; no juror was questioned in chambers. To the contrary, observers 

could watch the trial judge and counsel ask questions of potential jurors, 

listen to the answers to those questions, see counsel exercise challenges at 

the bench and on paper, and ultimately evaluate the empaneled jury. The 

transcript of the discussion about for cause challenges and the struck juror 

sheet showing the peremptory challenges are both publicly available. The 

public was present for and could scrutinize the selection of Love’s jury 

from start to finish, affording him the safeguards of the public trial right 

missing in cases where we found closures of jury section

State v. Love, 183 Wn.2d at 607. 
No. 31487-1-III

State v. Powell 

22

We deem State v. Anderson, 194 Wn. App. 547, 377 P.3d 278 (2016) controlling. 

In Anderson, questioning of jurors occurred in open court, but the defendant challenged 

prospective jurors for cause at a sidebar conference, and the judge dismissed those jurors. 

The court made no verbatim record of the sidebars and instead summarized the sidebar 

proceedings on the record. This court, after remand from the Supreme Court, held no 

courtroom closure occurred because counsel questioned jurors in open court, courtroom 

attendees could observe the parties’ exercise of juror challenges, and the trial court 

summarized the sidebar proceedings on the record and in open court. The court 

concluded that a lack of a transcript did not necessarily render the sidebars a closure. 

The only distinction between Anderson and our facts is that the trial court did not 

contemporaneously declare for the record what occurred at the final three sidebars. 

Nonetheless, one can infer from the record preceding and succeeding the sidebar 

conferences the subject of the conferences. The trial court later confirmed those 

purposes. 

The Supreme Court, in State v. Love, determined important factors in determining 

a closure to be questioning of jurors in public, exercising challenges on the record, and 

allowing challenges to be observed. All occurred in Adam Powell’s voir dire. Counsel 

questioned jurors in public, a record exists as to for cause and preemptory challenges, and 

trial attendees could observe who the parties excused. We prefer that the trial court 

immediately declare on the record the nature of a sidebar conference after completion of 
No. 31487-1-III

State v. Powell 

23

the conference. Nevertheless, we discern no error in failing to memorialize the content of 

a sidebar when we may determine the content by the conference’s context. 

Aggravated Domestic Violence

Finally, Adam Powell contends the trial court erred when imposing an exceptional 

sentence when the State’s evidence failed to show beyond a reasonable doubt aggravated 

domestic violence. The trial court gave the following jury instruction number 20: 

To find that either of these crimes is an aggravated domestic 

violence offense, each of the following two elements must be proved 

beyond a reasonable doubt:

(1) That the victim and the defendant were in a dating relationship; 

and

(2) That the offense was part of an ongoing pattern of psychological, 

physical, or sexual abuse of the victim manifested by multiple incidents 

over a prolonged period of time. An “ongoing pattern of abuse” means 

multiple incidents of abuse over a prolonged period of time. The term 

“prolonged period of time” means more than a few weeks;

If you find from the evidence that each of these elements has been 

proved beyond a reasonable doubt, then it will be your duty to return a 

verdict of guilty.

CP at 234. 

Adam Powell contends that the testimony of Brenda McCoy, Griselda Vaca, 

Ernesto Amonzo, and Officer Juan Ceja failed to prove beyond a reasonable doubt that he 

psychologically or physically abused Sabrina Flores over a prolonged period of time. We 

disagree. 

To reverse an exceptional sentence, this court must find: (1) under a clearly 

erroneous standard, insufficient evidence supports the reasons for imposing an 
No. 31487-1-III

State v. Powell 

24

exceptional sentence, (2) under a de novo standard, the reasons supplied by the 

sentencing court do not justify a departure from the standard range, or (3) under an abuse 

of discretion standard, the sentence is clearly excessive or clearly too lenient. RCW 

9.94A.585(4); State v. France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013). We apply 

the first standard of review because Adam Powell argues the evidence did not support the 

imposition of the exceptional sentence. 

In applying the “clearly erroneous” standard in reviewing a trial court’s reasons 

for imposing an exceptional sentence beyond the standard range, this court will reverse 

the trial court’s findings only if no substantial evidence supports its conclusion. State v. 

Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997). Substantial evidence constitutes 

evidence in sufficient quantum to persuade a fair-minded person of the truth of the 

declared premises. State v. Jeannotte, 133 Wn.2d at 856; Olmstead v. Department of 

Health, Medical Section, 61 Wn. App. 888, 893, 812 P.2d 527 (1991). 

We admit the paucity of the written findings of fact of aggravated domestic 

violence. Nonetheless, when a trial court’s written findings are incomplete, this court 

may look to the trial court’s oral findings to aid its review. State v. Manion, 173 Wn. 

App. 610, 633, 295 P.3d 270 (2013). The trial court’s oral ruling mentions frequent

screaming and yelling with vulgar language, ramming Sabrina Flores with a car, Flores’ 

isolation from others, Officer Juan Ceja’s response to an earlier domestic violence 
No. 31487-1-III 

State v. Powell 

incident, and Flores' attempting to escape the clutches of Adam Powell. The evidence 

painted a picture of domestic terror that finally led to homicide. 

CONCLUSION 

We affirm Adam Powell's conviction for second degree murder and his 

exceptional sentence based on the aggravated domestic violence factor. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Fearing, J. 

WE CONCUR: 

25