State v. Miller

179 Wash.App. 91

316 P.3d 1143

STATE of Washington, Respondent,

v.Thomas E. MILLER, Appellant.

No. 43215–3–II.

Court of Appeals of Washington, Division 2.

Jan. 22, 2014.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Sara I Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.

QUINN–BRINTNALL, J.P.T.¹

¶ 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 tractor-trailer. Miller appeals, arguing that (1) the trial court violated his and the public's right to an open and public trial by meeting with counsel 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

¶ 2 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 parking this tractor-trailer, wrote down his telephone number, and asked the employee to call him if there was any problem.

¶ 3 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.

¶ 4 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 the next 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.

¶ 5 On October 26, Miller went to the Department of Licensing (DOL) and signed a “Three–Year 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 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).

¶ 6 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.

¶ 7 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 to do, with respect to abandoned of 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 included an instruction based on RCW 63.21.010, the statute providing the procedure for legally claiming found property.²

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

ANALYSIS

Public Trial Right

¶ 9 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.

¶ 10 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 Wash.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 “ ‘[j]ustice in all cases shall be administered openly’ ” and without unnecessary delay. Lormor, 172 Wash.2d at 91, 257 P.3d 624 (alteration in original) (quoting Seattle Times Co. v. Ishikawa, 97 Wash.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 Wash.2d at 90, 257 P.3d 624.⁴

¶ 11 “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 Wash.2d 506, 514, 122 P.3d 150 (2005) (citing Peterson v. Williams, 85 F.3d 39, 43 (2d Cir.), cert. denied,519 U.S. 878, 117 S.Ct. 202, 136 L.Ed.2d 138 (1996)). Generally a trial court must conduct the five-part test set forth in State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995), to determine if a closed proceeding is warranted.⁵

¶ 12 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 Wash.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 Wash.2d at 71, 292 P.3d 715. We undertake this consideration by using the “experience and logic” test. Sublett, 176 Wash.2d at 72–73, 292 P.3d 715.⁶ Under 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 Wash.2d at 73, 292 P.3d 715 (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 Wash.2d at 73, 292 P.3d 715. 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, 176 Wash.App. 972, 309 P.3d 795, 797 (2013) (citing Sublett, 176 Wash.2d at 73, 292 P.3d 715).

A. Pretrial Conference

¶ 13 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.

¶ 14 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 Wash.2d at 75, 292 P.3d 715). Further, appellants bear the burden of perfecting the record for appellate review. RAP 9.2(b); see also State v. Bennett, 168 Wash.App. 197, 207 n. 9, 275 P.3d 1224 (2012). We turn to whether Miller has met these burdens.

¶ 15 The only evidence in the record before us concerning the trial court's pretrial in-chambers 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...