State Of Washington, Respondent V. Anthony Sumait, Appellant (Majority)
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F ¬ LFD NAM OF APPEALS DIVISION LT WASHI1416TO IN THE COURT OF APPEALS OF THE STATE (" STATE OF WASHINGTON E DIVISION II E,+ T No. 43853 -4 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION ANTHONY M. SUMAIT, Appellant. HUNT, J. Anthony He argues that ( 1) M. Sumait appeals his jury trial conviction for second degree assault. the evidence was insufficient to prove second degree assault because it showed only his mere presence at the scene, and ( 2) a side -bar held off the record violated his right to a public trial. We affirm. FACTS Two men approached Charles Burnett outside the home he shared with his girlfriend, Jennifer Minkler, asked about a vehicle he had for sale, and then asked him for a cigarette or " a Verbatim Report of Proceedings ( VRP) ( light." come back the Burnett next shot one of alive on the day, the and men, they hit him with July 31, 2012) at wooden " clubs." Daniel Holcomb; the other ran ground and a wooden stick with a metal 67. Burnett told the men to VRP ( July 31, 2012) at 57. away. The police found Holcomb cap nearby. The stick later tested positive for Burnett' s and Holcomb' s DNA (deoxyribonucleic acid). About a quarter of a mile from Burnett' s residence, officers found the other man who had run away, Burnett to Anthony Sumait. ask about a Sumait told one officer that ( 1) he and Holcomb had approached truck; ( 2) he ( Sumait) had asked Burnett for a cigarette; and ( 3) Burnett No. 43853 -4 -II had then reached into his pocket, pulled out a gun, and started shooting. Sumait asserted that no one had assaulted Burnett. The State charged Sumait with second degree assault of Burnett with a deadly weapon, RCW 9A.36. 021( 1)( State asked c), the trial as either a principal or an accomplice. Before calling its first witness, the for court a side bar conference; Sumait did 1 not object. The State' s witnesses testified as described above. In addition, Minkler testified ( 1) that both men had struck Burnett " numerous times "2 with wooden clubs; and ( 2) that a group of four men had been at her residence that night, two of whom had remained on the other side of the residence and had not been involved in the assault or the shooting. 3 Sumait presented no evidence. The jury convicted him of second degree assault. Sumait appeals his conviction. ANALYSIS I. SUFFICIENT EVIDENCE Sumait first argues that the evidence ( 1) was insufficient to prove that he was involved in the assault because there was no evidence that he was the person who actually struck Burnett or that he was an accomplice to the person who did strike Burnett, and ( 2) established only his presence at the scene. We disagree. 1 This side -bar was not reported, and the record on appeal does not show what the side -bar concerned. 2 VRP ( July 31, 2012) at 62. 3 Because it was dark when the assault occurred, neither Minkler nor Burnett could identify the assailants. 2 No. 43853 -4 -II When reviewing a challenge to the sufficiency of the evidence, we ask " whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the most evidence and direct P. 3d 132 ( 2005). witnesses, strongly against evidence are beyond a reasonable doubt." State v. Hosier, 157 We must draw all reasonable inferences in favor of the State, Wn.2d 1, 8, 133 P. 3d 936 ( 2006). interpreted crime the defendant." equally reliable." Hosier, 157 Wn.2d at 8. " Circumstantial State v. Moles, 130 Wn. App. 461, 465, 123 We defer to the jury on issues of conflicting testimony, credibility of and persuasiveness of the State v. Thomas, 150 Wn.2d 821, 874 -75, 83 evidence. P. 3d 970 ( 2004). 4 Sumait argues that this case is similar to State v. Asaeli, in which we held that the State had failed to establish more than the mere presence of a defendant whose second degree felony murder conviction we reversed. 569 -70, 208 P. 3d 1136, review See Br. of Appellant ( citing State v. Asaeli, 150 Wn. App. 543, denied, 167 Wn.2d 1001 ( 2009)). This argument fails: There was no evidence that Asaeli had been involved in the murder in his case; here, in contrast, Minkler testified that both men who had approached Burnett had been active participants in assaulting him. And Sumait admitted that he had been one of the two men who had approached Burnett. Taken in the light most favorable to the State, evidence established that ( 1) two men approached Burnett, ostensibly to ask him about a vehicle he had for sale, and asked Burnett for a cigarette or 4 for " a light "; (2) Burnett told them to come back later; ( 3) the two men then struck Abrogated in part on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004). 3 No. 43853 -4 -II Burnett " had numerous" approached times Burnett with wooden " clubs "; and asked for and ( 4) Sumait was one of the two men who a cigarette. VRP ( July 31, 2012) 67, 62, 57. Although Minkler testified about two men in addition to the two who had assaulted Burnett, she made clear that ( 1) these other two men did not approach Burnett, and ( 2) both of the men who approached Burnett him. assaulted We hold that this evidence was sufficient to establish that Sumait was directly involved in the assault of Burnett and to support the jury' s verdict. II. PUBLIC TRIAL Sumait next argues that the side bar conference violated his right to a public trial. We cannot reach the merits of this argument. N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial, or constitute a closure 58, 71, 292 P. 3d 715 ( 2012). must examine 72 -73. the of the " this test is the " whether the core values of the public trial second prong of closed to the public." State v. Sublett, 176 Wn.2d To determine whether a public trial violation has occurred, we alleged closure under The first prong if the test is the " experience and experience" right are logic" prong, logic" test. 5 Sublett, 176 Wn.2d at prong, which requires us to examine implicated." Sublett, 176 Wn.2d which requires us to determine "` at 73. The 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. 5 Although only four justices signed the lead opinion in Sublett, Justice Stephens' s concurrence majority who adopted the " experience and logic" test. 176 Wn.2d at 136 ( Stephens, J., More recently, a unanimous Supreme Court cited Sublett in applying the concurring). created a experience and logic" test in In re Personal Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d 872 ( 2013). 4 No. 43853 -4 -II Ct. 2735, 92 L. Ed. 2d 1 ( 1986)). In order to apply this test, we must be able to determine from the record before us on appeal the nature of the alleged closure. Here, the record shows only that there was a side -bar at the State' s request; the record reflects no information about the content of this side bar conference. Because our review is limited to the record on appeal, we cannot determine whether this side -bar conference implicated Sumait' s public trial rights; therefore, we do not further consider this issue. 6 We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. 6 The proper procedure for raising issues dependent on matters outside the record is by way of a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). 5
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