FILED

MOOT OF APPEALS

Eo- ;\ i1S10 41Ii

2016 JAN 22 AM a: 16

13` r

EPUT

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, I No. 43215 -3 -II

Respondent, 

V. 

THOMAS E. MILLER, I PUBLISHED OPINION

QuiNN- BRINTNALL J. P. T. 1 — A jury found Thomas Miller guilty of second degree theft

and making a false statement in application for or assignment of certificate of title to a tractortrailer. Miller appeals, arguing that ( 1) the trial court violated his and the public' s right to an

open and public trial_ bymeeting_with_co_unsel in chambers;_(2) the trial court violated his right to

be present by discussing a statute with counsel in chambers; ( 3) insufficient evidence supports

that his statement was false, an element of his application for or assignment of certificate of title

conviction; and ( 4) the trial court improperly commented on the evidence by instructing the jury

on the statutory process for legally claiming title to found property. We affirm. 

FACTS

In July 2010, Aubrey Cole parked his 53 -foot tractor - trailer outside the Great Wall

Chinese Restaurant in Silver Creek, Washington. Cole told a restaurant employee that he was

1 Judge Christine Quinn - Brintnall is serving as a judge pro tempore of the Court ofAppeals, 

Division II, pursuant to CAR 21( c). 
No. 43215 -3 -II

parking this tractor - trailer, wrote down his telephone number, and asked the employee to call

him ifthere was any problem. 

Miller was secretary and registered agent for the Great Wall restaurant. Miller believed

that Cole' s tractor - trailer was illegally parked at the restaurant and called the police to have it

removed. Lewis County Sheriff's Deputy Matthew McKnight told Miller to contact a tow

company if he wanted the tractor - trailer civilly impounded. McKnight also gave Cole' s address

to Miller. 

On October 4, Miller mailed Cole an affidavit for lost title, the release of interest for the

tractor - trailer, and a note. asking Cole to contact him. Upon receiving the documents, Cole

immediately tried to contact Miller, leaving Miller a voicemail message. Cole went to the Great

Wall restaurant to move his tractor - trailer, but Miller had blocked access to the tractor - trailer

with his van and had removed the tractor - trailer' s license plate. A few days later, Cole met

Miller at the Great Wall restaurant parking lot. Miller told Cole that he needed to pay $ 200

before Cole could remove the tractor - trailer. Cole said he would give Miller $ 100. Cole

returned thenext day- with $ 100 -but found that his tractor- trailer had been - moved to a locked

facility across the street from the restaurant. Cole reported his tractor - trailer stolen on October

13

On October 26, Miller went to the Department of Licensing ( DOL) and signed a " ThreeYear Registration Without Title Affidavit." Ex. 4. The affidavit contained the following

preprinted language: " I certify I am the rightful owner of this vehicle /vessel having obtained

ownership from the last rightful owner. The circumstances under which I obtained ownership

and the reasons satisfactory evidence of ownership is unavailable are:...." Ex. 4. Under this

1) 
No. 43215 -3 -II

preprinted language, Miller handwrote the following: " Trailer was left on my property, 

attempted to get ahold [ sic] of owner of record by certified mail with return receipt with no

reply." Ex. 4. The DOL issued Miller a " Vehicle Title Application/Registration Certificate" that

stated in the comment section, "[ N] o title issued - ownership in doubt." Ex. 4 ( capitalization

omitted). 

On October 30, Miller asked Chuck Norris if he wanted to purchase a " trailer that had

been abandoned on his property." Report of Proceedings ( RP) ( Jan. 26, 2012) at 28. Norris

eventually purchased the tractor - trailer from Miller for $1, 000. After police notified Norris that

there was a dispute regarding ownership of the tractor - trailer, he returned it to Cole. Norris

asked Miller to return the money he had paid for the tractor - trailer but Miller refused. 

The State charged Miller by second amended information with second degree theft and

making a false statement in application for or assignment of a certificate of title. On the first day

of trial, the trial court referred to a discussion that had taken place in chambers before trial, 

stating, " The statute we were talking about in chambers pretrial, with respect to what a person is

obligated. t0 d0- With respect to abandoned -or- found property, the entire - chapter is RCW -- 

63. 21. 010 and that' s for the benefit of both defense and prosecution. RP ( Jan. 26, 2012) at 22. 

On the second day of trial, the trial court stated, " I want to see both of you in my chambers at

1: 00 to go over instructions." RP ( Jan. 27, 2012) at 60. The trial court instructions to the jury

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No. 43215 -3 -II

included an instruction based on RCW 63. 21. 010, the statute providing the procedure for legally

claiming found property.

2

The jury returned verdicts finding Miller guilty on both counts. Miller timely appeals his

convictions. 

ANALYSIS

PUBLIC TRIAL RIGHT

Miller first argues that the trial court violated his and the public' s right to an open and

public trial by meeting with counsel in chambers without conducting a Bone -Club3

analysis. We

disagree. 

Article I, section 22 of the Washington State Constitution and the Sixth Amendment to

the United States Constitution give criminal defendants the right to a public trial by an impartial

jury. State v. Lormor, 172 Wn.2d 85, 90 -91, 257 P. 3d 624 ( 2011). Additionally, article I, 

section 10 of the Washington State Constitution secures the public' s right to open and accessible

proceedings and provides that "` U] ustice in all cases shall be administered openly "' and without

2

RCW 63. 21. 010 provides, 

1) Any person who finds property that is not unlawful to possess, the owner of

which is unknown, and who wishes to claim the found property, shall: 

a) Within seven days of the finding acquire a signed statement setting

forth an appraisal of the current market value of the property prepared by a

qualified person engaged in buying or selling like items or by a district court

judge, unless the found property is cash; and

b) Within seven days report the find of property and surrender, if

requested, the property and a copy of the evidence of the value of the property to

the chief law enforcement officer, or his or her designated representative, of the

governmental entity where the property was found, and serve written notice upon

the officer of the finder' s intent to claim the property if the owner does not make

out his or her right to it under this chapter. 

3

State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995). 

F. 
No. 43215 -3 - II

unnecessary delay. Lormor, 172 Wn.2d at 91 ( alteration in original) (quoting Seattle Times Co. 

v. Ishikawa, 97 Wn.2d 30, 36, 640 P. 2d 716 ( 1982)). Whether a trial court' s in- chambers

proceeding violates public trial rights is a question of law that we review de novo. Lormor, 172

Wn.2d at 90. 4

The public trial right serves to ensure a fair trial, to remind the officers of the court of

the importance of their functions, to encourage witnesses to come forward, and to discourage

perjury." State v. Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005) ( citing Peterson v. 

Williams, 85 F. 3d 39, 43 ( 2d Cir.), cent. denied, 519 U.S. 878 ( 1996)). Generally a trial court

must conduct the five -part test set forth in State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325

1995), to determine if a closed proceeding is warranted. 5

4 The State does not challenge Miller' s standing to raise a public trial violation under article I, 

section 10 ofthe Washington State Constitution, an issue left unresolved by our Supreme Court. 

State v. Wise, 176 Wn.2d 1, 16 n.9, 288 P. 3d 1113 ( 2012). Because we hold that Miller has

failed to show that the right to a public trial attached to the challenged proceedings here, we need

not address his standing to assert the public' s right to an open trial under article I, section 10. 

5

The five criteria set forth in Bone -Club are

1. [ t]he proponent of closure or sealing must make some showing [ of a

compelling interest], and where that need is based on a right other than an

accused' s right to a fair trial, the proponent must show a " serious and imminent

threat" to that right. 

2. Anyone present when the closure motion is made must be given an

opportunity to object to the closure. 

3. The proposed method for curtailing open access must be the least

restrictive means available for protecting the threatened interests. 

4. The court must weigh the competing interests of the proponent of

closure and the public. 

5. The order must be no broader in its application or duration than . 

necessary to serve its purpose. 

128 Wn.2d at 258 -59 ( alteration in original) ( quoting Allied Daily Newspapers of Wash. v. 

Eikenberry, 121 Wn.2d 205, 210 -11, 848 P.2d 1258 ( 1993)). 
No. 43215 -3 - II

However, " not every interaction between the court, counsel, and defendants will

implicate the right to a public trial, or constitute a closure if closed to the public." State v. 

Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012). Thus, our first step in determining whether a

public trial violation had occurred is to consider " whether the proceeding at issue implicate[ d] 

the public trial right, [ and] thereby constitute[d] a closure." Sublett, 176 Wn.2d at 71. We

undertake this consideration by using the " experience and logic" test. Sublett, 176 Wn.2d at 72- 

73. 6Under this test, " the experience prong . . . asks ` whether the place and process have

historically been open to the press and general public, "' and "[ t]he logic prong asks ` whether

public access plays a significant positive role in the functioning of the particular process in

question. "' Sublett, 176 Wn.2d at 73 ( quoting Press- Enterprise Co. v. Superior Court, 478 U.S. 

1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 ( 1986)). If the answer to both prongs is yes, the public trial

right attaches, and the trial court must conduct an on- the - record Bone -Club analysis before

closing the proceedings. Sublett, 176 Wn.2d at 73. Miller has the burden of showing that the

public trial right attached to the challenged proceeding under the experience and logic test. State

v. Halverson, -_ Wn. App.- 309 P. 3d 795; 797 ( 2013) ( citing Sublett, 176 Wn.2d at 73) 

A. PRETRIAL CONFERENCE

Miller first asserts that the trial court violated his and the public' s right to an open and

public trial by discussing a statute in chambers before trial. We disagree. 

6 Although four justices signed the lead opinion in Sublett, a majority adopted the " experience

and logic" test with Justice Stephens' s concurrence. 176 Wn.2d at 136 ( Stephens, J., 

concurring). More recently, our Supreme Court cited Sublett in unanimously applying the

experience and logic" test in In re Personal Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d

872 ( 2013). 

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No. 43215 -3 - II

As a threshold matter, Miller asserts that the State " should bear the burden of establishing

that a closed proceeding does not implicate the core values of the open trial right" and, thus, 

should bear the burden of establishing on the record what transpired during a closed in camera

proceeding. Reply Br. of Appellant at 5. We disagree. In Halverson, we held that the

appellant bears the burden of establishing a public right violation." 309 P.3d at 797 ( citing

Sublett, 176 Wn.2d at 75). Further, appellants bear the burden of perfecting the record for

appellate review. RAP 9.2( b); see also State v. Bennett, 168 Wn. App. 197, 207 n.9, 275 P. 3d

1224 ( 2012). We turn to whether Miller has met these burdens. 

The only evidence in the record before us concerning the trial court' s pretrial inchambers conference is the following statement by the trial court: " The statute we were talking

about in chambers pretrial, with respect to what a person is obligated to do, with respect to

abandoned or found property, the entire chapter is RCW 63. 21. 010 and that' s for the benefit of

both defense and prosecution." RP ( Jan. 26, 2012) at 22. This single statement by the trial court

reveals little as to the nature of the challenged in- chambers conference apart from discussing

RCW 63. 21. 010. On this sparse record, Miller asserts that the trial court' s pretrial discussion of

RCW 63. 21. 010 was likely adversarial in nature and, thus, has been historically open to the

public. But the record does not show that the in- chambers conference was adversarial; rather it

shows merely that the trial judge and trial counsel discussed RCW 63. 21. 010. Additionally, the

adversarial nature of a proceeding alone cannot determine whether such proceeding has

historically been open to the public. For example, discussions on how to respond to jury

questions during deliberations may be viewed as adversarial in nature, but our Supreme Court

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No. 43215 -3 -II

has held that such proceedings have not historically been open to the public and, thus, fail the

first prong of the experience and logic test. Sublett, 176 Wn.2d at 75 -76. 

Moreover, the cases Miller cites do not stand for the proposition that adversarial

proceedings are historically open to the public. In Press - Enterprise, the United States Supreme

Court applied the experience and logic test to determine that a " qualified First Amendment right

of access to criminal proceedings" applied to a 41 -day preliminary hearing conducted in

California, at which the state presented evidence and at which "[ t]he accused ha[ d] the right to

personally appear . . ., to be represented by counsel, to cross - examine hostile witnesses, to

present exculpatory evidence, and to exclude illegally obtained evidence." 478 U.S. at 4, 12 -13. 

In applying the experience prong, the Press - Enterprise Court noted that " preliminary hearings

conducted before neutral and detached magistrates [ of the type conducted in California] have

been open to the public." 478 U.S. at 10. And in applying the logic prong, the Press - Enterprise

Court noted, 

It is true that unlike a criminal trial, the California preliminary hearing

cannot result in the conviction of the accused and the adjudication is before a

magistrate or other judicial officer without a jury. But these features, standing

alone, do not make public access any less essential to the proper functioning of

the proceedings in the overall criminal justice process. Because of its extensive

scope, the preliminary hearing is often the final and most important step in the

criminal proceeding. 

478 U.S. at 12. In holding that the " extensive" preliminary hearing satisfied the experience and

logic test, the Press - Enterprise Court did not hold that every proceeding that is adversarial in

nature is subject to the public trial right. And we cannot conclude that a pretrial discussion of a

criminal statute is analogous to the extensive preliminary hearing proceedings examined in

Press - Enterprise. 
No. 43215 -3 -II

United States v. Simone, 14 F.3d 833, 838 -40 ( 3d Cir. 1994), and United States v. Criden, 

675 F. 2d 550, 555 ( 3d Cir 1982), also do not assist Miller because the Third Circuit Court of

Appeals did not find a historical analysis relevant to its determinations that a First Amendment

right of access applied to preliminary criminal hearings ( Criden) or to a posttrial hearing on juror

misconduct (Simone). United States v. Smith, 787 F.2d 111 ( 3d Cir. 1986), also does not assist

Miller. In holding that a common -law right of access to judicial records applied to " transcripts

of sidebar or chambers conferences in criminal cases at which evidentiary or other substantive

rulings have been made," the Smith court did not endorse a broad right of public access to any

adversarial proceeding. 787 F. 2d at 115 ( emphasis added). 

In short, the cases Miller cites in support of the broad proposition that adversarial

proceedings have historically been open to the public are unavailing. Accordingly, Miller has

failed to meet his burden to satisfy the first prong of the experience and logic test and, thus, he

cannot show that the public trial right attached to the pretrial conference here. 

B. DISCUSSION OF JURY INSTRUCTIONS

Next, Miller asserts that the trial court violated his and -the public' s right to an open and

public trial by discussing proposed jury instructions in chambers. Again, we disagree. In

holding that the trial court' s in- chambers consideration of a jury question did not violate the

defendants' public trial rights, the Sublett lead plurality opinion noted that proceedings

addressing jury questions are " similar in nature to proceedings regarding jury instructions in

general." 176 Wn.2d at 75. The lead plurality opinion further noted that jury instruction

conferences have not historically been held in an open courtroom, stating, 

Historically, such proceedings have not necessarily been conducted in an open

courtroom. Jury instructions are covered by CrR 6. 15. Proposed instructions are

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No. 43215 -3 -II

submitted in writing at least three days before the start of trial. CrR 6. 15( a). We

are aware that, quite often, counsel discuss the instructions with the court during

an informal proceeding. But before instructing the jury, counsel is to be given the

opportunity to object in the absence of the jury. CrR 6. 15( c). Any objections to

the instructions, as well as the grounds for the objections, must be put in the

record to preserve review. Schmidt v. Cornerstone Inv., Inc., 115 Wn.2d 148, 

162 -63, 795 P. 2d 1143 ( 1990); Goehle v. Fred Hutchinson Cancer Research Ctr., 

100 Wn. App. 609, 615 -17, 1 P. 3d 579 ( counsel has duty to lodge formal

objections even if instructions discussed during informal hearing), review denied, 

142 Wn.2d 1010 ( 2000). Both CrR 6. 15( a) and CrR 6. 15( c) have been in effect, 

in almost identical form, since 1973. We have found no challenges to either of

these sections of the rule or, prior to the rule' s enactment, any case requiring the

discussion ofjury instructions to be held in open court. 

Sublett, 176 Wn.2d at 75 -76. 7

Accordingly, we hold that the trial court' s in- chambers conference

to discuss jury instructions fails the experience prong of the Sublett test and does not constitute a

closure for which the trial court was required to conduct a Bone -Club analysis. 

RIGHT TO BE PRESENT

Next, Miller contends that the trial court' s in- chambers discussion with counsel before

trial violated his right to be present during a critical stage of his trial.$ Because the record is

unclear as to whether Miller was present during the trial court' s chambers conference, he fails to

Show that his constitutional right to be present at a critical- stage ofthe trial was violated. 

A criminal defendant has the constitutional right to be present at all critical stages of trial. 

State v. Irby, 170 Wn.2d 874, 880 -81, 246 P. 3d 796 ( 2011). But a criminal defendant " does not

have a right to be present during in- chambers or bench conferences between the court and

7

Justice Stephens' s concurring opinion similarly compared conferences to resolve jury questions

regarding instructions with conferences addressing jury instructions in the first instance. Sublett, 

176 Wn.2d at 141 ( Stephens, J., concurring). 

8 Miller does not assert that the trial court' s in- chambers meeting to discuss jury instructions

violated his right to be present. 

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No. 43215 -3 -II

counsel on legal matters, at least where those matters do not require a resolution of disputed

facts." In re Pers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P. 2d 835, 870 P. 2d 964 ( citations

omitted), cent. denied, 513 U.S. 849 ( 1994). Miller has the burden of providing an adequate

record of the challenged proceeding to allow us to determine whether the proceeding constituted

a critical stage of the trial for which Miller had a right to be present. RAP 9.2( b); Bennett, 168

Wn. App. at 207 n.9. We review de novo whether the defendant' s right to be present has been

violated. Irby, 170 Wn.2d at 880. 

Here the trial court' s single statement regarding a pretrial in- chambers discussion does

not reveal whether Miller was present during the discussion. And even assuming that Miller was

excluded from the in- chambers conference, the record fails to show whether trial court and

counsel addressed anything beyond purely legal matters that did not require a resolution of

disputed facts. Accordingly, on this record, Miller cannot show that his right to be present at a

critical stage of trial was violated by the trial court' s pretrial in- chambers discussion. 

SUFFICIENCY OF THE EVIDENCE

Next, Miller argues that- insufficient evidence- supported his false - statement in application

for or assignment of a certificate of title conviction. Specifically, Miller argues that the State

failed to present evidence that he ( 1) made a false statement and ( 2) that such false statement was

made in application for a certificate of title. 

The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). All

reasonable inferences from the evidence must be drawn in favor of the State and interpreted

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No. 43215 -3 -II

most strongly against the defendant." Salinas, 119 Wn.2d at 201. " A claim of insufficiency

admits the truth of the State' s evidence and all inferences that reasonably can be drawn

therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are

deemed equally reliable. State v. Delmarter, 94 , Wn.2d 634, 638, 618 P. 2d 99 ( 1980). 

Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. 

Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). 

To convict Miller for making a false statement in application for or assignment of a

certificate of title, the State had to prove beyond a reasonable doubt the elements of former RCW

46. 12. 210 ( 2003). Former RCW 46. 12.210 provides in relevant part, " Any person who

knowingly makes any false statement of a material fact, either in his or her application for the

certificate of ownership or in any assignment thereof... is guilty of a class B felony." 

A. FALSE STATEMENT

Miller first contends that the State failed to present sufficient evidence that he had made a

false statement. Specifically, Miller contends that his statement, "[ t]railer was left on my

property, attempted to get ahold [ sic] of owner of record by certified mail with return receipt

with no reply," was literally true because Cole did not reply to his certified letter in writing. Ex. 

4. We disagree. 

Former RCW 46. 12. 210 does not define the word "false." Accordingly, we ascertain the

word' s plain meaning as set forth in a standard dictionary. State v. Sullivan, 143 Wn.2d 162, 

175, 19 P. 3d 1012 ( 2001). Black' s Law Dictionary defines " false" as " 1. Untrue. . . . 2. 

Deceitful; lying.... 3. Not genuine; inauthentic." BLACK' S LAW DICTIONARY 677 ( 9th ed. 

2009). Miller argues that the rule of lenity requires this court to interpret " false" as meaning

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No. 43215 -3 -II

untrue" and that a merely deceitful statement is insufficient to uphold his conviction. We

accept for the sake of Miller' s argument that former RCW 46. 12.210 required a literally untrue

statement as opposed to a merely deceptive statement; nonetheless, the State presented sufficient

evidence that Miller made a false statement when he wrote on his registration application that he

received " no reply" from the tractor - trailer' s owner of record. The State presented evidence that

after receiving Miller' s letter, Cole called Miller and met with Miller in person. Further, the

State' s evidence showed that Cole had called Miller and met with him before Miller made the

statement at issue. Accordingly, any reasonable jury could conclude that Miller' s statement that

he received " no reply" was literally untrue. 

B. CERTIFICATE OF TITLE

Miller also contends that the State failed to present sufficient evidence that his false

statement was made in application for a certificate of title. Specifically, Miller argues that the

Bonded Title or Three -Year Registration Without Title Affidavit" form in which he made his

false statement does not qualify under former RCW 46. 12.210 as an " application for a certificate

of title. We disagree. 

Under former RCW 46. 12. 151( 1) ( 1990), the DOL may issue a certificate of registration

but shall "[ w]ithhold issuance of a certificate of ownership for a period of three years or until the

applicant presents documents reasonably sufficient to satisfy [ DOL] as to the applicant' s

ownership of the vehicle and that there are no undisclosed security interests in it." Although this

process required Miller to wait three years before receiving ownership of Cole' s tractor - trailer, 

his registration with title affidavit was nonetheless an essential part of applying for a certificate

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No. 43215 -3 -II

of title to Cole' s tractor - trailer. Accordingly, we hold that the State presented sufficient evidence

to sustain his false statement in application for or assignment of a certificate of title conviction. 

JUDICIAL COMMENT ON THE EVIDENCE

Finally, Miller argues that the trial court improperly commented on the evidence by

instructing the jury on the procedure for legally claiming found property. We disagree. 

Article IV, section 16 of the Washington State Constitution states, " Judges shall not

charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." 

This provision' s purpose is to prevent the jury from being influenced by knowledge conveyed to

it by the court as to the court' s opinion of the submitted evidence. State v. Elmore, 139 Wn.2d

250, 275, 985 P. 2d 289 ( 1999), cent. denied, 531 U.S. 837 ( 2000). To constitute a comment on

the evidence, it must appear that the trial court' s attitude toward the merits of the cause is

reasonably inferable from the nature or manner of the court' s statements. Elmore, 139 Wn.2d at

276; see also State v. Ciskie, 110 Wn.2d 263, 283, 751 P. 2d 1165 ( 1988) ( an impermissible

comment on the evidence is an indication to the jury of the judge' s personal attitudes toward the

merits of the cause). 

A jury instruction may be an improper comment on the evidence. See, e. g., State v. Levy, 

156 Wn.2d 709, 721 -23, 132 P. 3d 1076 ( 2006). But a jury instruction is not an impermissible

comment on the evidence when sufficient evidence supports it and the instruction is an accurate

statement of the law. State v. Johnson, 152 Wn. App. 924, 935, 219 P. 3d 958 ( 2009) ( citing

State v. Hughes, 106 Wn.2d 176, 193, 721 P. 2d 902 ( 1986)); see also Ciskie, 110 Wn.2d at 282- 

83. 

Here the trial court gave the following jury instruction based on RCW 63. 21. 010: 

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No. 43215 -3 - II

A person may lawfully claim found property only if the following

circumstances are satisfied: 

1) the owner of the property is unknown; 

2) within seven days of the finding, the finder acquires a signed

statement setting forth an appraisal of the current market value of

the property prepared by a qualified person engaged in buying or

selling like items or by a district court judge; and

3) within seven days of the find, the finder reports the find of

property and surrenders, if requested, the property and a copy of

the evidence of the value of the property to the chief law

enforcement officer, or his or her designated representative, of the

governmental entity where the property was found, and serves

written notice upon the officer of the finder' s intent to claim the

property ifthe owner does not make out his or her right to it. 

If circumstances ( 1), ( 2), and ( 3) are satisfied, the found property becomes

the property of the finder sixty days after the find was reported to the appropriate

officer if no owner has been found, or sixty days after the final disposition of any

judicial or other official proceeding involving the property, whichever is later. 

If any one of circumstances ( 1), ( 2), or ( 3) are not satisfied, the finder

forfeits all right to the property. 

A finder' s claim to found property is extinguished if the owner

satisfactorily establishes, within sixty days after the find was reported to the

appropriate officer, the owner' s right to possession of the property. 

Clerk' s Papers ( CP) at 50. 9 Miller asserts that the trial court judge " signaled his belief' that

Miller was guilty by giving the instruction because the instruction was unsupported by the

evidence at trial. 10 Br. -of- Appellant at 17. But Miller testified at trial that he had an ownership

interest in the tractor - trailer based on Cole abandoning it on his property. Thus, sufficient

9 The trial court also instructed the jury as follows: 

Our state constitution prohibits a trial judge from making a comment on

the evidence. It would be improper for me to express, by words or conduct, my

personal opinion about the value of testimony or other evidence. I have not

intentionally done this. If it appeared to you that I have indicated my personal

opinion in any way, either during trial or in giving these instructions, you must

disregard this entirely. 

CP at 31. We presume that the jury followed this instruction. State v. Robinson, 146 Wn. App. 

471, 483, 191 P. 3d 906 ( 2008). 

io Miller does not assert that the jury instruction was an incorrect statement ofthe law. 

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No. 43215 -3 -II

evidence was presented at trial to warrant the above instruction because it allowed the State. to

rebut Miller' s assertion that he had rightfully claimed title to the abandoned tractor - trailer. 

Accordingly, we hold that the trial court did not impermissibly comment on the evidence by

giving the challenged jury instruction. 

We affirm. 

We concur: 

HUNT, P. J. 

MAXA, J. 

QU - BRINTNALL, J. 

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