### FILED June 21, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. IAN JONATHAN ANDERSON, Appellant. ) ) ) ) ) ) ) ) ) No. 33141-5-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, J.
- IanAnderson appeals his conviction for possession ofa stolenvehicle. He argues the trial courtviolatedhis rightto apublictrial andhis rightto bepresent at all critical stages when it directed a court staffmemberto speakwith a venirejuroroutside ofthe courtroomto determine ifhis civil right to be ajurorhadbeen restored afterhis felony conviction. Mr. Anderson also argues thetrial court abused its discretion by allowing evidence ofhis flight, resisting arrest, andbeing subduedby a stun gun, andthis errorwas not harmless. Mr. Anderson further argues the trial court erredby imposing legal financial obligations (LFOs). In his statement ofadditional grounds for review (SAG), Mr. Anderson argues the State introduced irrelevant andprejudicial evidence attrial and also failed to prove he knewthe vehicle was stolen. We disagreeNo. 33141-5-III State v. Anderson
with Mr. Anderson's constitutional, LFO, and SAG arguments. We agree that allowing evidence ofhis being subdued by a stun gun was an abuse ofdiscretion, but determine the
error to be harmless. We, therefore, affirm. FACTS Bryan Dugdale had a green Nissan MaximawithMontana license plates. Mr. Dugdale did notuse the carbutkept it behind his apartment. Mr. Dugdale's father, a Montanaresident, was the car's registered owner. In June 2014, Mr. Dugdale arranged to sell the Maximato his neighbor. Mr. Dugdale removed the registration from the car and locked it. Onthe morning ofJune 23, 2014, Mr. Dugdale's neighbor senthim a text asking where the Maximawas. It was then that Mr. Dugdale learnedthat the carwas recently stolen, and he reported the theft to the Spokane Police Department. On June 24, 2014, Spokane Police Sergeant Kurt Vigesaawas onpatrol when he
saw a green Maximawith Montana license plates. The sergeantrecalledthat a vehicle with a similar description had beenreported stolen. He confirmedthe carmatchedthe
one reported stolen and then followed the Maximauntil backup could assist him. He saw the Maxima's drivertum into a parking lot andparkthe car. The sergeantthen parked his patrol carbehind the Maximato preventthe driver from fleeing in the car.
2No. 33141-5-III State v. Anderson Sergeant Vigesaa instructed the driver, later identified as Mr. Anderson, to remain in the car with his hands on the steering wheel. The sergeant told Mr. Andersonthe Maxima had been reported stolen. Mr. Anderson replied he wasjustborrowing it. When backup arrived, Sergeant Vigesaa instructed Mr. Anderson to step out ofthe
car. The sergeant then instructed Mr. Anderson to tum and face the Maxima and sidestep toward the rear ofthe vehicle. Mr. Anderson complied with the sergeant's instructions. But when the sergeant instructed Mr. Anderson to place his hands behind his back, Mr. Anderson fled. As Mr. Anderson fled past one ofthe officers, the officer grabbed him and forced him to the ground. Mr. Anderson continued to resist. Up to four officers assisted in trying to subdue him. The officers informed Mr. Anderson he was under arrest and to stop resisting. Mr. Anderson continued to struggle until an officer deployed a stun gun. The State charged Mr. Anderson with one count ofpossession ofa stolen motor vehicle. Prior tojury selection, each venirejurorreceived an identification number. The State notified the trial court that venirejuror31 had a prior felony conviction, and it was unclear ifthejuror's civil rights had been restored so he could serve as ajuror. The trial court suggested that a court staffmember speak withjuror 3 1outside the courtroom and determine his status. The trial court further suggested, if juror 31 told the staffmember
3No. 33141-5-III State v. Anderson
his rights had not been restored, orhe was unsure, the trial courtwould excusejuror 31. Neitherthe State norMr. Anderson objected to the trial court's suggestions. The court staffmemberpresumably spoke withjuror 31, but a summary ofthe discussion was not placed on the record. According to a clerk's notation,juror31 was struck for cause. Thejury found Mr. Anderson guilty ofpossession ofa stolen motorvehicle. At sentencing, the trial court imposed LFOs on Mr. Anderson. These LFOs consist ofa $500 victim assessment fee, a $200 criminal filing fee, and a $100 deoxyribonucleic acid (DNA) collection fee. Thetrial court stated it would waive these fines and costs but it could not. Mr. Anderson appeals. ANALYSIS A. Right to apublic trial Defendants have a constitutional right to a public trial. U.S. CONST. amend. VI; CONST. art. I, § 22. A violation ofthe public trial right canbe raised for the first time on appeal. State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113 (2012). Failure to object at trial does not constitute a waiver ofa defendant's public trial right. State v. Shearer, 181 Wn.2d 564, 569, 334 P.3d 1078 (2014). Violation ofa defendant's public trial right is a question oflaw reviewed de novo. Wise, 176 Wn.2d at 9 (quoting State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006)).
4No. 33141-5-III Statev. Anderson
The right to apublic trial is not absolute. Shearer, 181 Wn.2d at 569. Competing rights and interests often require trial courts to limit public access to a trial. Id. Trial courts assess these competing interests by using the five factor analysis articulated in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). A trial court must consider the five Bone-Club factors on the record before closingthe courtroom. Wise, 176 Wn.2d at 10. Closing the courtroom without considering the Bone-Club factors is structural error and is presumed to be prejudicial. Shearer, 181 Wn.2d at 569. However, before determining ifa public trial right violation has occurred, this court must first determine whether the courtproceeding implicates the right. State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012). The Washington Supreme Court has adopted the "experience and logic" test developed by the United States Supreme Courtto determine ifa courtproceeding implicates the public trial right. Id. at 72-75. The "experience prong" asks "'whether the place and process have historically been open to the press and general public.'" Id. at 73 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1(1986)). The "logicprong" asks "'whether public access plays a significantpositive role in the functioning ofthe particularprocess in question."' Id. (quoting Press-Enterprise Co., 478 U.S. at 8). Ifboth questions are answered yes, then the courtproceeding implicates the public trial right. Id.


### 5No. 33141-5-III State v. Anderson "[I]t is well settled that the right to a public trial also extends tojury selection." State v. Brightman, 155 Wn.2d 506,515, 122 P.3d 150 (2005). However, "the mere label ofaproceeding is not determinative." State v. Siert, 181 Wn.2d 598,604,334 P.3d 1088 (2014). Recent Washington Supreme Court decisions demonstrate the individual questioning of jurors conducted outside open court during voir dire is a violation ofa defendant's public trial right. State v. Paumier, 176 Wn.2d 29, 32, 288 P.3d 1126 (2012); Shearer, 181 Wn.2d at 566; Wise, 176 Wn.2d. at 5-6. But more recent cases have drawn a distinction between individual questioning of jurors occurring before and after the start ofvoir dire. See, e.g., State v. Russell, 183 Wn.2d 720, 722-33, 357 P.3d 38 (2015) (chambers work session, occurring before voir dire, to excusejurors for statutory reasons did not implicate the public trial right); Siert, 181 Wn.2d at 604-08 (chambers discussion, occurring before voir dire, ofanswers tojury questionnaires and subsequent dismissal of jurors with knowledge ofcase did not implicate the public trial right); State v. Wilson, 174 Wn. App. 328, 331, 298 P.3d 148 (2013) (excusal oftwojurors for illness-related reasons before voir dire began did not implicate the defendant's public trial right). A defendant's public trial right does not apply to every aspect of jury selection. Siert, 181 Wn.2d at 604-05; Wilson, 174 Wn. App. at 338-40. Experience demonstrates
6No. 33141-5-III State v. Anderson
the public trial right historically has not attached to the dismissal ofcertain statutorily excusedjurors. Wilson, 174 Wn. App. at 342-46. Also, given how a trial court and its agents have "broad discretion" to excuse members ofthejury for administrative reasons, logic does not suggestpublic openness during pre-voir dire dismissals would in any way enhance the fairness ofthe criminaljustice system. Id. at 346-47. Here, a court staffperson questioned venirejuror 31 before thejurypool was
sworn in andbefore voir dire began. The record is clearthe trial court was concerned with only whetherjuror 31, a convicted felon, was statutorily eligible to serve. 1 Venire juror 3 1's dismissal was merely a pretrial administrative dismissal ofa statutorily ineligiblejuror. BothSiert and Wilson indicate such administrative dismissals do not implicate a defendant's right to a public trial. We conclude Mr. Anderson'spublic trial right was not implicated under these facts. B. Right to bepresentduring all criticalstages of trial Due process affords a criminal defendant the right to be present at all critical stages oftrial. State v. Jones, No. 89321-7, 2016 WL 1594034, slip op. at 16 (Wash., Apr. 21, 2016) (quoting State v. Irby, 170 Wn.2d 874,880,246 P.3d 796 (2011)). Mr.

1RCW 2.36.070(5)provides that any person who has been convicted ofa felony and has not had his or her civil rights restored is not eligible forjury service in Washington. 7No. 33141-5-III State v. Anderson
Anderson argues his right to be present was violated when the court staffmember questioned venirejuror 3 1outside the courtroom. An appellate court may refuse to review any claim oferrorthat was notraised in the trial court. RAP 2.5(a). However, a party may raise an unpreserved claim for the first time on appeal ifthe claim concerns a manifest error affecting a constitutional right. RAP 2.5(a)(3). For such a claim to warrant review, the appellant must show, (1) the error is ofconstitutional magnitude, and (2) the error is manifest. State v. O'Hara, 167 Wn.2d 91, 98,217 P.3d 756 (2009). To be "manifest,"the defendant must show the claimed
error had "practical and identifiable" consequences at trial. Id. at 99. In State v. Jones, the alternatejurorswere chosen by a random drawing during an afternoon recess while Martin Jones was not present. Jones, slip op. at 3-6. When court reconvened and the trial court announced the alternatejurors, neitherparty was surprised, confused, nor objected. Id. at 6. TheJones court held the defendant's failure to object at trial waived his right-to-presence challenge and the court declined to address its merits. Id. at 17. Here, Mr. Anderson did not objectto the trial court's suggestedprocedure for determining whether venirejuror31 could statutorily serve as ajuror. Mr. Anderson's failure to object at trial strongly indicates he did not perceive the procedure as prejudicial.
8No. 33141-5-III State v. Anderson
We also fail to see any prejudice in the procedure. We therefore decline to address the merits ofMr. Anderson's right-to-presence challenge. C. Evidence of flight, resisting arrest, andbeingsubduedby a stungun Mr. Anderson argues the trial court erred when it denied his motion in limine to exclude evidence ofhis flight, resisting arrest, and being subdued with a stun gun. A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583 (2010). An abuse ofdiscretion occurs ifa trial court adopts a view no reasonable person would take. Id. at 669 (quotingIn re Pers. Restraint of Duncan, 167 Wn.2d 398, 402-03, 219 P.3d 666 (2009)). All relevant evidence is admissible unless its admissibility is otherwise limited. ER402. Facts tending to establish a party's theory ofthe case will generally be found to be relevant. State v. Mak, 105 Wn.2d 692, 703, 718 P.2d 407 (1986). The threshold for relevance is very low, and minimally relevant evidence may be admitted by a trial court. Salas, 168 Wn.2d at 669 (quoting State v. Gregory, 158 Wn.2d 759, 835, 147 P.3d 1201 (2006)). Relevant evidence should be excluded by a trial court ifthe danger ofunfair prejudice substantially outweighs its probative value. ER403. Evidence likely to elicit
9No. 33141-5-III State v. Anderson

an emotional response rather than a rational decision carries a risk ofunfairprejudice. Salas, 168 Wn.2d at 671. The burden ofshowing unfair prejudice is on the party seeking to exclude the evidence. Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994). Trial courts are given wide discretion in balancing the probative value ofevidence against the danger ofunfair prejudice. Id. at 225-26. Evidence offlight is admissible ifthe trier offact can reasonably infer the defendant's consciousness ofguilt ofthe charged crime. State v. McDaniel, 155 Wn. App. 829, 854, 230 P.3d 245 (2010) (quoting State v. Freeburg, 105 Wn. App. 492, 497- 98, 20 P.3d 984 (2001)). Such inferences are too attenuated ifsubstantial time elapses between the defendant's criminal conduct and arrest, or ifthe defendant is unaware ofthe
reason for his arrest. UnitedStates v. Borders, 693 F.2d 1318, 1324-27 (11th Cir. 1982). Here, Mr. Anderson fled almost immediately after the arresting officertold him he
was driving a stolen car. When deciding to admit the evidence offlight, resisting, and being subdued by a stun gun, the trial court stated: But this is a series ofevents where contacted by law enforcementthe defendant initially tries to, well, he tries to flee at one point. He then has to be taken to the ground. He then continues to resist and cannotbe handcuffed. Eventually, because the resistance is so extreme, he is tasered by one ofthe officers and then they're able to finally handcuffhim. This all happens in a very shortperiod oftime when he's trying to flee the scene. I do think that's relevant. I do think its relevance outweighs any potential prejudice and I do think it should come into evidence. 10No. 33141-5-III State v. Anderson Report ofProceedings (RP) at 125-26. In addition, evidence offlight and resisting was relevant because it tended to contradict Mr. Anderson's recent statementthat he had borrowed the car. Because Mr. Anderson's flight and resisting occurred almost immediately after the arresting officer informed himhe was driving a stolen car, ajury could reasonably infer consciousness ofguilt ofthe charged crime. We hold that the trial court did not abuse its wide discretion in allowing the State to present evidence offlight andresisting.2 Having admitted evidence that it took four officers to subdue Mr. Anderson, there is almost no relevance to the fact an officer employed a stun gun to subdue him. Such evidence risks an emotional rather than a thoughtful response from ajury. The trial court's denial ofthis aspect of

### Mr. Anderson's motion in limine was an abuse of discretion. But we are firm in our determination the error was harmless. Mr. Anderson's defense was he borrowedthe car from a woman. This woman testified attrial. She testified she purchased the car from a person she nevermetbefore. The State's cross2 Mr. Anderson argues consciousness ofguilt was speculative because he hadtwo outstanding warrants, and his flight and resistance were related to the warrants. Mr. Anderson's two outstanding warrants were mentioned during the motion in limine. But the connection between those warrants and his flight was not made on the oral record, and the written motion in limine is notpart ofthe appellate record. Because we are unable to 11No. 33141-5-III State v. Anderson
examination ofthis witness made her story unbelievable. She testified she looked at the car, but did not notice the out-of-state plate, nor did she askto look atthe car's registration. She claimedto have received a bill ofsale when she purchased the car. She admitted she had not seenthe car since Mr. Anderson's arrest, but claimed to have the bill ofsale in herpossession. [Prosecutor:] Okay. Andyou have the bill ofsale now? [Witness:] I do have the bill ofsale. [Prosecutor:]
. . . Ifthe bill ofsale were inthe glove box ofthe carthatyou gave to Mr. Anderson to drive, howwouldyou have it [now]? [Witness:] That's agoodquestion. [Prosecutor:] Nothing further. RP at 264 (emphasis added). 

### D. Imposition of LFOs Mr. Anderson argues the trial court erred by imposing LFOs againsthim. He argues when LFOs are imposed against a person withoutthe ability to pay, they violate due process. The State counters with three responses: First, Mr. Anderson did notraise any LFO objection to the trial court, and this courttherefore shouldrefuse to considerthis unpreserved error. Second, all ofthe LFOs imposed on Mr. Anderson are mandatory. Third, citing State v. Blank, 131 Wn.2d 230,930 P.2d 1213 (1997), the State argues that constitutional concerns are not implicated until the State seeks to enforce payment. Mr. verify this argument was made below, we will not consider it on appeal. RAP 2.5(a). 12No. 33141-5-III State v. Anderson
Anderson does not dispute his failure to object below or the mandatory nature ofthe LFOs imposed. He insteadresponds that we should review and strike the LFOs because such reliefis consistent with State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). In Blazina, the court exercised its discretion under RAP 2.5(a) to review the defendant's argument first raised on appeal that the trial court violated RCW 10.01.160(3) when it imposed discretionary LFOs without considering his ability to pay. Blazina, 182 Wn.2d at 830. Contrary to Mr. Anderson's argument, Blazina does not encourage either review or reversal ofmandatory LFOs. We, therefore, exercise our discretion and decline to review Mr. Anderson's unpreserved claimed LFO error. SAG ISSUE 1: Whether the trial court improperly admittedevidence concerning two duplicate keys recoveredatscene of the crime Mr. Anderson does not specify exactly which witness or what keys were allegedly used prejudicially by the State. However, during the trial Mr. Dugdale and Sergeant Vigesaa testified about the contents ofthe Maxima when they recovered it. Mr. Dugdale testified one ofthe items the police recovered from the Maxima was a reproduction ofthe key to the Maxima made without his consent. Sergeant Vigesaa confirmed with Mr. Dugdale the reproduced key was not Mr. Dugdale's. The police found the key along with
a mechanic's check sheet stating the key was for the Maxima.

13No. 33141-5-III State v. Anderson SergeantVigesaatestified he recovered two otherreproduced vehicle keys at the
scene. He explained it is very common to find multiple sets ofkeys (some shaved and
some unshaved) when investigating stolen motorvehicles. Sergeant Vigesaabasedhis explanation onthe approximately 500 stolen motorvehicle investigations he has been involved in as a police officer. He further explained, based on his experience, it is
common practice for motor vehicle thieves to have multiple sets ofkeys to multiple vehicles, and it is possible for someone to have a key made for a stolen vehicle. On cross-examination, SergeantVigesaa testifiedthat as many as 60 percent ofstolen vehicle
cases involve shaved keys, and as many as 50 percent involve damage to a vehicle (e.g. punctured ignition, removed stereo, etc.). Defense counsel noted Sergeant Vigesaa's report did not include information about any shavedkeys or damage to the Maxima. All relevant evidence is admissible unless its admissibility is otherwise limited. ER402. Relevant evidence maybe excludedby a trial court ifthe danger ofunfair prejudice substantially outweighs the probative value. ER403. Factstending to establish
a party'stheory ofthe case will generally be found to be relevant. Mak, 105 Wn.2d at 703. Evidence likely to elicit an emotional response ratherthan a rational decision carries
a risk ofunfairprejudice. Salas, 168 Wn.2d at 671. The State usedthe keys at trial to show that Mr. Anderson was guilty ofpossession ofa stolen motorvehicle. Sergeant
14No. 33141-5-III State v. Anderson Vigesaa never used this evidence to assert that Mr. Anderson had stolen other vehicles or
was a career criminal. There is no evidence the use ofthe keys at trial elicited an emotional reaction from thejury. On cross-examination, defense counsel effectively countered Sergeant Vigesaa's testimony by noting that he did not indicate in his report that a shaved key was recovered at the scene or that the Maxima was damaged, despite earlier testimony that shaved keys or damage to a vehicle occurs in 50 percentto 60 percent ofstolen vehicle cases. The evidence ofthe keys was not overlyprejudicial and
was relevant as part ofthe State's case against Mr. Anderson for the crime ofpossessing a stolen motor vehicle. We find no abuse oftrial court discretion. SAG ISSUE 2: Whether the Statepresentedsufficient evidence toprove the knowledge element of the crime charged Mr. Anderson argues the State failed toprove he knew the car was stolen. In a criminal case, the State must provide sufficient evidence to prove each element ofthe charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a defendant challenges the sufficiency ofthe evidence, the proper inquiry is ''whether, afterviewing the evidence in the light most favorable to the State, any rational trier offact could have found guiltbeyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence mustbe drawn in favor ofthe State and 15No. 33141-5-III State v. Anderson interpreted most strongly againstthe defendant." Id. Furthermore, "[a] claim of insufficiency admits the truth ofthe State's evidence and all inferences that reasonably
can be drawn therefrom." Id. In a challenge to the sufficiency ofthe evidence, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). This court's role is not to reweigh the evidence and substitute itsjudgment for that ofthejury. See State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980). Instead, because thejurors observed the witnesses testify firsthand, this court defers to thejury's resolution ofconflicting testimony, evaluation ofwitness credibility, and the decision regarding the persuasiveness and the appropriate weightto be given the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). A person is guilty ofa class B felony, possession ofstolen vehicle, ifhe or she possesses a stolen motorvehicle. RCW 9A.56.068(1). The statute lacks a "knowledge" element. Butwe infer "knowledge" is an element because we doubt the legislature intended to incarcerate someone up to 10 years for driving a carhe did notknow was stolen. See 1lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL, 77.21 cmt. (3d ed. 2008) (The legislature musthave intended "knowledge"to be an element ofthe offense, or else the class B felony would be a strict liability offense
16No. 33141-5-III State v. Anderson
for simple possession.). Attrial, the State offered the following evidence to show Mr. Anderson acted with knowledge that the car was stolen. Mr. Anderson told the sergeanthe had borrowed the car, and the woman who testified did a very poorjob corroborating Mr. Anderson's story. Ajury could infer that ifthe witness's story was false, so was Mr. Anderson's. Also, Mr. Anderson fled and resisted arrest soon after the sergeanttold him he was driving a stolen
car. Viewing the evidence in the light most favorable to the State, a rational trier offact could find, beyond a reasonable doubt, Mr. Anderson knew the carwas stolen. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:



# _J-~ ,S· Fearing, CJ.

# (f' 1 Pennell, J.

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