IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
MATTHEW S. HOWEM,
FILED: January 17, 2012
Leach, A.C.J. — Matthew Howem appeals from his convictions for second
degree assault, unlawful imprisonment, felony harassment, and fourth degree
assault. He contends that the trial court violated his constitutional right to a
public trial by conducting an in-chambers conference with counsel to discuss the
jury instructions. Because the selection of jury instructions involves purely legal
matters, however, the in-chambers conference did not implicate Howem’s public
And because Howem’s proposed instruction on a lesser degree
offense did not arise out of the charged act of second degree assault, defense
counsel’s decision to withdraw the proposed instruction was not deficient
performance. We therefore affirm the trial court.
No. 65910-3-I / 2
The State charged Matthew Howem with one count of second degree
assault, one count of unlawful imprisonment, one count of felony harassment,
and one count of fourth degree assault following two incidents involving his
former girl friend. Only the facts underlying the second degree assault charge
are relevant to the issues raised on appeal.
At trial, Brittney Younkin testified that she met Howem in June 2009 and
that the two soon began dating. After a month or two, Younkin and Howem
moved in with Bennett Tjolker, Howem’s longtime friend, who lived in a mobile
home. Younkin acknowledged that the couple argued frequently.
One evening in September or October 2009, Younkin returned home and
found Howem outside tending a bonfire. Howem suspected that Younkin was
cheating on him and asked for her photos of her ex-boyfriend so that he could
burn them. Hoping to alleviate Howem’s concerns, Younkin retrieved the photos
from her parents’ home and gave them to Howem.
After Howem threw the photos on the fire, Younkin went inside to the
couple’s bedroom and lay down on the bed. A short time later, Howem followed
Younkin into the bedroom.
He appeared to be upset, and the couple soon
Howem eventually became angry, grabbed a digital picture
frame, and threw it onto the floor, breaking it. He then went over to Younkin,
who was lying on her back on the bed.
No. 65910-3-I / 3
According to Younkin, Howem leaned over her, put his hands around her
neck, and began strangling and shaking her. Howem applied enough pressure
on Younkin’s throat to make it difficult for her to breathe, and she became lightheaded. Unable to push Howem off, Younkin started screaming for Tjolker to
Tjolker, who had heard the screaming and knew that something “wasn’t
right,” tried to open the door but found that it was locked. He heard Younkin
yelling for help and started banging on the door, telling the two to “[k]nock it off.”
At some point, Howem stopped strangling Younkin and opened the door.
Younkin came out of the room crying and ran outside, where she became sick.
Tjolker held Howem back for a short time.
Howem eventually went outside and apologized. Younkin did not report
the incident to the police at the time because Howem “had smoothed it over to
the point where I felt like he wouldn’t do it again.”
Howem gave a fundamentally different account of the altercation.
acknowledged that he was out by the bonfire when Younkin came home but
maintained that it was her idea to burn the photos.
Howem claimed that
Younkin’s ex-boyfriend had called him earlier and said that he was still seeing
her. He urged Howem to confirm this by checking Younkin’s cell phone log.
Howem then confronted Younkin in the kitchen-dining area of the mobile
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home. He eventually grabbed the cell phone from Younkin and showed her the
record of a call from her ex-boyfriend. During the scuffle, Younkin hit Howem
“lightly in the jaw,” and he “kind of pushed her by her shoulder and threw her
down on the ground.”
After showing Younkin the cell phone log, Howem walked into the
bedroom “just to sleep it off and just call it a night.” A short time later, Younkin
followed Howem into the bedroom. Howem closed the door but did not lock it.
Younkin wanted to talk about the situation, but Howem repeatedly told her to
leave and that he no longer wanted to be with her. Younkin eventually left the
Howem flatly denied choking, punching, or slapping her and denied
After the incident in the mobile home, Howem and Younkin moved to a
house in Lynden for a few months.
The couple eventually broke up but
continued to see one another for a time. After Howem allegedly assaulted her
again in April 2010, Younkin called the police and reported both assaults.
Before closing argument, the trial court met with counsel in chambers to
discuss jury instructions.
Initially, the defense requested lesser degree
instructions of third degree assault and fourth degree assault for the second
degree assault charge.
After the in-chambers conference, defense counsel
noted for the record that upon further reflection, he had agreed with the trial
No. 65910-3-I / 5
court that the defendant was not entitled to the instructions and had withdrawn
The jury found Howem guilty as charged and determined that all counts
were crimes of domestic violence. Based on Howem’s offender score of nine,
the court imposed concurrent standard range sentences with a maximum term of
Howem first contends that the trial court violated his constitutional right to
a public trial when it conducted an in-chambers, off-the-record conference to
select the jury instructions. He argues that his convictions must be reversed
because the trial court effectively closed the courtroom without first considering
the factors set forth in State v. Bone-Club.1
Both the Sixth Amendment and article I, section 22 of the Washington
Constitution guarantee criminal defendants the right to a public trial. Article I,
section 10 of the Washington Constitution further provides that “[j]ustice in all
cases shall be administered openly, and without unnecessary delay.”
provision guarantees the public and the press the right to open and accessible
But not all in-chambers conferences implicate the right to a public trial.
128 Wn.2d 254, 258-59, 906 P.2d 325 (1995); see also State v. Strode,
167 Wn.2d 222, 227-29, 217 P.3d 310 (2009).
State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006).
No. 65910-3-I / 6
The public trial right applies only to “‘adversary proceedings,’” including the
“presentation of evidence, suppression hearings, and jury selection.”3 The right
does not attach where the trial court resolves “‘purely ministerial or legal issues
that do not require the resolution of disputed facts.’”4
Whether a trial court
procedure violates a criminal defendant’s right to a public trial is a question of
law that we review de novo.5
In State v. Koss,6 the court rejected a comparable challenge to an inchambers discussion in which the parties agreed to remove accomplice
language from the burglary instruction. The court concluded that because the
discussion of jury instructions was a “ministerial legal matter” that did not include
the resolution of disputed facts, the in-chambers conference did not implicate the
defendant’s public trial right.7
Howem contends that Koss is both distinguishable and wrongly decided.
He argues that the selection of jury instructions may be a highly adversarial
process, with parties disagreeing about the applicable law and facts, including
In re Det. of Ticeson, 159 Wn. App. 374, 384, 246 P.3d 550 (2011)
(quoting State v. Koss, 158 Wn. App. 8, 16, 241 P.3d 415 (2010), petition for
review filed, No. 85306-1 (Wash. Nov. 16, 2010)).
Ticeson, 159 Wn. App. at 384 (internal quotation marks omitted) (quoting
Koss, 158 Wn. App. at 17).
State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).
158 Wn. App. 8, 241 P.3d 415 (2010).
Koss, 158 Wn. App. at 17; see also In re Pers. Restraint of Lord, 123
Wn.2d 296, 306, 868 P.2d 835 (1994) (because the settling of pretrial
instructions involved only discussion of legal matters, defendant had no
constitutional right to be present).
No. 65910-3-I / 7
whether or not the evidence supports an instruction on a lesser degree or lesser
included offense. But he cites no authority suggesting that such circumstances
change the overall nature of the court’s resolution of the choice and wording of
Whether jury instructions correctly state the applicable law is a question
When determining whether the evidence supports the giving of an
instruction, including a lesser included or lesser degree instruction, the trial court
must consider the evidence in the light most favorable to the requesting party.9
Although its analysis may be based on disputed facts, the trial court does not
make credibility assessments or otherwise resolve those disputed facts. And
Howem does not suggest that the trial court made any factual determinations in
settling the instructions in this case. Because the selection of jury instructions is
a fundamentally legal determination, the in-chambers conference here did not
implicate Howem’s right to a public trial.10 We decline Howem’s invitation to
reject the analysis in Koss.
Howem next contends that he received ineffective assistance when
State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002).
See State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150
See Ticeson, 159 Wn. App. at 386 (in-chambers conference on the
admissibility of deposition testimony does not implicate the public's right to open
proceedings); State v. Sublett, 156 Wn. App. 160, 182, 231 P.3d 231, review
granted, 170 Wn.2d 1016, 245 P.3d 775 (2010) (in-chambers conference to
address a jury question about instruction did not implicate the public trial right).
No. 65910-3-I / 8
defense counsel withdrew the proposed instruction on the lesser degree offense
of fourth degree assault. He argues that because he denied choking Younkin
but admitted pushing her to the ground, the evidence supported an inference
that he committed only a simple assault and that he was therefore entitled to an
instruction on the lesser degree offense. But because Howem’s admission did
not relate to the charged incident, he was not entitled to an instruction on fourth
To prevail on his claim of ineffective assistance, Howem must show both
(1) that defense counsel’s representation fell below an objective standard of
reasonableness and (2) resulting prejudice, i.e., a reasonable probability that but
for counsel’s deficient performance the result of the proceeding would have
A defendant must overcome the “strong presumption” that
counsel’s performance was reasonable.12
We review ineffective assistance
claims de novo.13
A criminal defendant is entitled to an instruction on an inferior degree
“(1) the statutes for both the charged offense and the proposed
inferior degree offense proscribe but one offense; (2) the
information charges an offense that is divided into degrees, and
the proposed offense is an inferior degree of the charged offense;
and (3) there is evidence that the defendant committed only the
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
No. 65910-3-I / 9
It is undisputed that the legal prong of this test was satisfied here. The assault
statutes proscribe the single offense of assault, and fourth degree assault is an
inferior degree offense of first and second degree assault.15
In State v. Porter,16 our Supreme Court noted that application of the lesser
included or lesser degree offense analysis necessarily rests on an independent
threshold requirement that “the lesser crime be based on the same criminal
transaction supporting the charged offense.”
The Workman test has, in fact, no role to play in making this
essential threshold determination; the court need consider only
whether the allegedly included offense arises from the same act or
transaction supporting the charged crime. Only upon concluding
that the threshold requirement has been met should the court
proceed to apply the two-pronged Workman test.
In Porter, the defendant was charged with selling cocaine to an
undercover officer. At trial, he denied selling cocaine to the undercover officer
but claimed that he attempted to purchase cocaine from another person who was
also present during the transaction. But because the lesser included offense of
attempted possession of cocaine “was not based on the same criminal act or
transaction giving rise to the charged crime of delivery of cocaine,” the
Fernandez-Medina, 141 Wn.2d at 454 (internal quotation marks omitted)
(quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)); RCW
See RCW 9A.36.011, .021, .041; see also Fernandez-Medina, 141 Wn.2d
150 Wn.2d 732, 739, 82 P.3d 234 (2004).
State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
Porter, 150 Wn.2d at 739-40.
No. 65910-3-I / 10
defendant was not entitled to have the jury instructed “on his alternative criminal
Here, the State charged Howem with a single act of second degree
assault based on strangulation.20 The evidence at trial established only a single,
discrete act of strangulation that occurred in the couple’s bedroom. Howem’s
testimony described an unrelated simple assault that occurred at a different time
and in a different location. By Howem’s own account, that incident had ended
before both Howem and Younkin went into the bedroom. Howem flatly denied
strangling Younkin or committing any act of assault in the bedroom.
State v. Lyon,21 cited by Howem, is distinguishable. In Lyon, the court
held that a felony murder defendant was entitled to a lesser included assault
instruction based on evidence that the victim’s death resulted from a later,
unrelated assault by another person. But the State in Lyon conceded that the
factual prong of the Workman test was met, and the court focused its analysis on
the legal prong.22
The court had no occasion to consider the threshold
requirement for the Workman test set forth in Porter.
Under the circumstances, Howem’s admission of criminal conduct was not
Porter, 150 Wn.2d at 740.
96 Wn. App. 447, 979 P.2d 926 (1999).
Lyon, 96 Wn. App. at 450-51. In In re Personal Restraint of Andress, 147
Wn.2d 602, 616, 56 P.3d 981 (2002), our Supreme Court held that under the
then current statute, second degree assault could not serve as the predicate
felony for second degree felony murder, effectively overruling Lyon.
No. 65910-3-I / 11
based on the same act or transaction giving rise to the charged act of assault.
Accordingly, he was not entitled to an instruction on a lesser degree offense,
and defense counsel’s withdrawal of the proposed instruction was not deficient
performance. Howem has therefore failed to demonstrate ineffective assistance