FILED
COURT OF AP SEA S
DIVISION
2011 APR - 8 AM 8; 53
STATE OF WASHINGTON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43855 -1 - II
Respondent,
v.
BRYAN VANCE DUNN, PART PUBLISHED OPINION
Appellant.
JOHANSON, J. — A jury found Bryan Vance Dunn guilty of one count of residential
burglary and three counts of unlawful imprisonment. Dunn argues that ( 1) the trial court violated
his right to a public trial, ( 2) the information was defective as to the unlawful imprisonment
counts, ( 3) the jury instruction defining knowledge was erroneous, ( 4) the prosecutor engaged in
misconduct during closing argument, ( 5) the trial court erred by excluding videos taken on a
victim' s cell phone, and ( 6) the trial court violated Dunn' s right to be present. We address his
arguments regarding the right to a public trial in the published portion of this opinion. Dunn' s
arguments are addressed in the unpublished portion of this opinion. We affirm
remaining
Dunn' s convictions.
No. 43855 -1 - II
FACTS
On May 13, 2012, three minors, J. P., A. P., and M. C., were at J. P. and A.P.' s house.' J.P.
was 14 at the time; A.P., J.P.' s younger sister, was 11; M.C., a close friend of J. P. and A.P., was
13. Shortly after the girls woke up, someone knocked on the door. A.P. answered the door and a
Hispanic man she did not know, later identified as Luciano Cruz, was at the door. A.P. closed
the door and went to ask J. P. what to do. J. P. returned to the living room with A.P. and M.C. and
saw that Cruz and two white men had entered the house and were sitting on the couch. One of
the white men was later identified as Dunn. J.P. repeatedly told the men to leave the house, but
they just laughed at her. Cruz told the girls to go get dressed because they were leaving.
After the girls got dressed, Cruz, Dunn, and the third man took the girls to a two -door car.
The three girls got into the car' s backseat with Cruz. Dunn was driving and the third man sat in
the front passenger seat. Dunn drove to a house on St. John' s Street, where Cruz and the other
man got out of the car and went into the house. The three girls remained in the car and spoke to
each other in Spanish. When Cruz and the other man returned to the car, Cruz was carrying a
plate of food with hot sauce on it. Some hot sauce dripped onto A.P.' s leg, and Cruz wiped it off
with his finger and then licked his finger.
Dunn took everyone to a Burgerville drive -
thru. Dunn then stopped at a house the girls
said was M. C.' s house although it was not M.C.' s house. When the car stopped, Cruz got out;
then all three girls got out, jumped a fence, and ran across a field. The girls ran to a video store
and they called J. P. and A.P.' s older sister to pick them up. About the same time, J.P. was able
We refer to the minor victims by their initials to protect their privacy.
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to contact her mother, Anita Carvajal, who immediately returned home. Carvajal and the girls
arrived home at approximately the same time and they contacted the police.
Vancouver Police Department officers and detectives responded to Carvajal' s home.
Detective Julie Carpenter interviewed each girl separately. Then the girls directed the detectives
to the St. John' s Street house. A few days later, Detective Edward Letarte met A.P. and J. P. at
school where both girls identified Dunn as the car' s driver. Letarte spoke with each girl
separately. After his arrest, Dunn gave a statement to the police.
The State filed a second amended information charging Dunn with one count of
residential burglary and three counts of unlawful imprisonment. After a CrR 3. 5 hearing, the
trial court found that Dunn' s statement to police was admissible. Dunn also asked to admit cell
Phone videos that J. P. had recorded during the incident. The trial court excluded the cell phone
videos, ruling that the videos lacked relevance, contained nothing that would be helpful to the
jury and that they were relevant only to collateral issues that " would simply distract from the
evidence." Report of Proceedings ( RP) ( Aug. 14, 2012) at 83.
At trial, J.P.; A.P.; and M.C. testified to the facts related above, although there were some
minor discrepancies in their testimony. For example, M.C. and A.P. testified that the girls ran to
the video store, then went to M.C.' s house, then went back to the video store so that J. P. and
A.P.' s older' sister could pick them up. J.P. testified that the girls went to M.C.' s house and then
to the video store. The girls' mothers testified that they never gave anyone permission to take
their daughters anywhere.
Dunn' s statement was played for the jury. In the statement, Dunn said that he had just
met Cruz and was doing some work on Cruz' s truck. He was driving Cruz because Cruz had
been drinking and could not drive. Dunn stated that he picked up the girls from the house and
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No. 43855 -1 - II
drove them around, first to the St. John' s house, then to Burgerville, and then to the house the
girls identified as M.C.' s house. However, he believed that Cruz had permission to pick the girls
up and take them to M. C.' s house. He did not realize that something was wrong until the girls
ran out of the car and across the field.
Jury voir dire was conducted in open court with Dunn present. After the prospective
jurors were questioned and the attorneys exercised their challenges for cause, the trial court
invited counsel to exercise peremptory challenges and to finalize jury selection at the clerk' s
station. The jury found Dunn guilty of one count of residential burglary and three counts of
unlawful imprisonment. Dunn appeals.
ANALYSIS
Dunn argues that the trial court violated his right to a public trial and his right to be
present by allowing the attorneys to exercise peremptory challenges during a side bar. Following
Division Three' s opinion in State v. Love, 176 Wn. App. 911, 309 P. 3d 1209 ( 2013), we hold
that the trial court did not violate Dunn' s right to a public trial by allowing the attorneys to
exercise peremptory challenges during a side bar.
PUBLIC TRIAL RIGHT
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise,
176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). We review alleged violations of the public trial right de
novo. Wise, 176 Wn.2d at 9. The threshold determination when addressing an alleged violation
of the public trial right is whether the proceeding at issue even implicates the right. State v.
Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012). In Sublett, our Supreme Court adopted a two -
part " experience and logic" test to address this issue: ( 1) whether the place and process
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No. 43855 -1 - II
historically have been open to the press and general public ( experience prong), and ( 2) whether
the public access plays a significant positive role in the functioning of a particular process in
question ( logic prong). 176 Wn.2d at 72 -73. Both questions must be answered affirmatively to
implicate the public trial right. Sublett, 176 Wn.2d at 73.
Dunn argues that the trial court violated his public trial right because the trial court
conducted the peremptory challenges portion of jury selection at the clerk' s station. In Love,
Division Three of this court addressed whether challenges during voir dire implicate the public
trial right. There, the court held that neither " prong of the experience and logic test suggests that
the exercise of cause or peremptory challenges must take place in public." Love, 176 Wn. App.
at 920. The public trial right does not attach to the exercise of challenges during jury selection.
Love, 176 Wn. App. at 920. We agree with Division Three that experience and logic do not
suggest that exercising peremptory challenges at the clerk' s station implicates the public trial
right. Accordingly, we hold that the trial court did not violate Dunn' s public trial right and we
affirm.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
Dunn makes five additional arguments. First, he argues that the information charging the
three counts of unlawful imprisonment was defective because it did not include the statutory
language defining " restrain." Second, Dunn argues that the jury instructions were erroneous
because the instruction defining knowledge created an improper mandatory presumption. Third,
Dunn argues that the prosecutor committed misconduct during closing argument by misstating
the law. Fourth, he argues that the trial court erred by excluding the video that J.P. recorded on
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No. 43855 -1 - II
her cell phone during the incident. Fifth, he argues that the trial court violated his right to be
present by allowing the attorneys to exercise peremptory challenges during a side bar. We reject
Dunn' s arguments.
DEFECTIVE INFORMATION
Dunn argues that the information charging him with three counts of unlawful
imprisonment was defective because it did not include the statutory definition of " restrain."
However, the case law on which Dunn relies has been overruled. Under the controlling law, the
information charging Dunn with unlawful imprisonment is not constitutionally defective.
The second amended information charged Dunn with three counts of unlawful
imprisonment as follows:
That BRYAN VANCE DUNN, in the County of Clark, State of Washington, on
or about May 13, 2012 ... did knowingly restrain [ the victim], a human being,
contrary to Revised Code of Washington 9A.40. 040( 1), and /
or was an accomplice
to said crime pursuant to RCW 9A.08. 020.
Clerk' s Papers at 11. Dunn argues that the information is defective under State v. Johnson, 172
Wn. App. 112, 138 -39, 297 P. 3d 710 ( 2012), review granted, 178 Wn. 2d 1001 ( 2013). In
Johnson, Division One of this court held that definitional elements are essential elements of a
crime which must be included in the charging document. 172 Wn.2d at 140.
But after our Supreme Court' s decision in State v. Allen, 176 Wn.2d 611, 294 P. 3d 679
2013), Division One overruled its decision in Johnson. State v. Rattana Keo Phuong, 174 Wn.
App. 494, 545 n. 42, 299 P. 3d 37 ( 2013). In Rattana Keo Phuong, the court held that the
statutory definition of " restrain" is not an essential element of the crime of unlawful
2 The language regarding unlawful imprisonment is consistent throughout all three informations
filed in this case.
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No. 43855 -1 - II
imprisonment and, thus, does not need to be included in the charging document. 174 Wn. App.
at 545.
Dunn' s argument relies exclusively on the information' s failure to include the statutory
definition of " restrain." But under Rattana Keo Phuong, the information contains all the
essential elements of unlawful imprisonment ( i. e., knowingly restrained). Therefore, the
information was not constitutionally defective. Rattana Keo Phuong, 174 Wn. App. at 544 -45.
JURY INSTRUCTIONS
Dunn alleges that the jury instruction defining knowledge created a mandatory
presumption that relieved the State of its burden of proof. The instructional error is invited error
that Dunn may not challenge on appeal. " Under the doctrine of invited error, even where
constitutional rights are involved, we are precluded from reviewing jury instructions when the
defendant has proposed an instruction or agreed to its wording." State v. Winings, 126 Wn. App.
75, 89, 107 P. 3d 141 ( 2005).
Here, Dunn did not propose the knowledge instruction he now objects to; however, he did
affirmatively agree to its wording. During the discussion regarding jury instructions, Dunn noted
an error in the knowledge instruction. After the error was corrected, Dunn stated he had no other
exceptions to the instructions. By noting an error in the instruction and then stating there were
no additional problems with the instruction, Dunn agreed to the knowledge instruction as given
and, thus, invited the error. Accordingly, we are precluded from reviewing the alleged error.
Although we do not reach the merits of Dunn' s claim, we note that Dunn' s claims
regarding both the jury instructions and prosecutorial misconduct are based on an incorrect
premise. Specifically, Dunn posits that under the unlawful imprisonment statute, Dunn was
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No. 43855 -1 - II
required to know that taking a child under the age of 16 without a parent' s consent was a crime.
RCW 9A.40. 010( 6). Dunn is mistaken.
The unlawful imprisonment statute requires that the defendant knowingly restrains
another person. RCW 9A.40. 040. Restrain means
to restrict a person' s movements without consent and without legal authority in a
manner which interferes substantially with his or her liberty. Restraint is " without
consent" if it is accomplished by ( a) physical force, intimidation, or deception, or
b) any means including acquiescence of the victim, if he or she is a child less
than sixteen years old or an incompetent person and if the parent, guardian, or
other person or institution having lawful control or custody of him or her has not
acquiesced.
RCW 9A.40. 010( 6). Thus, the State needs to prove that Dunn knew that ( 1) he did not have
lawful authority to restrict the girls' movements ( i. e., Dunn was not the girls' parent or legal
guardian), ( 2) the girls were under the age of 16, and ( 3) the girls' parents had not given their
consent. Dunn did not need to know that these actions were a crime. See RCW 9A.08. 010( 1)( b)
A person knows or acts knowingly or with knowledge when: ( i) he or she is aware of a fact,
facts, or circumstances or result described by a statute defining an offense. ").
Dunn relies on State v. Warfield, 103 Wn. App. 152, 5 P. 3d 1280 ( 2000), to support his
proposition, but Dunn' s reliance on Warfield is misplaced. In Warfield, the defendants were
private citizens who believed that they had the lawful authority to arrest, detain, and transport the
victim based on the victim' s arrest warrant from Arizona. 103 Wn. App. at 155. However, it
was discovered that the misdemeanor warrant had no lawful effect in Washington. Warfield, 103
Wn. App. at 155. The court held that " knowingly" applied to all the elements of restraint, not
Warfield, 103 Wn. App. at 156. Because the
simply the restriction of a person' s movement.
defendants acted under the good faith belief that the Arizona warrant gave them the authority to
arrest, detain, and transport the victim, they did not knowingly act without lawful authority.
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Warfield, 103 Wn. App. at 159. Warfield does not require that a defendant know that his actions
constitute the crime of unlawful imprisonment.
PROSECUTORIAL MISCONDUCT
Dunn argues that the prosecutor engaged in misconduct during closing argument by
misstating the law. Specifically, Dunn argues that the prosecutor argued that the jury could find
Dunn guilty of unlawful imprisonment simply for intentionally driving the car. Dunn
mischaracterizes the prosecutor' s argument. The prosecutor' s argument, although inartful, was
not improper. Further, Dunn cannot show that an instruction to the jury could not have cured the
error. Accordingly, Dunn' s prosecutorial misconduct claim fails.
To prevail on a prosecutorial misconduct claim, a defendant must show that in the
context' of the record and all the trial circumstances, the prosecutor' s conduct was improper and
prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011). To show prejudice, a
defendant must show a substantial likelihood that the misconduct affected the verdict.
Thorgerson, 172 Wn.2d at 442 -43. In analyzing prejudice, we do not look at the comment in
isolation but in the context of the total argument, the issues in the case, the evidence, and the
instructions given to the jury. State v. Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007), cert.
denied, 554 U.S. 922 ( 2008). If a defendant fails to object to misconduct at trial, he fails to
preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned
that it caused an enduring prejudice that could not have been cured with an instruction to the
jury. Thorgerson, 172 Wn.2d at 443. The focus of this inquiry is more on•whether the resulting
prejudice could have been cured, rather than the flagrant or ill-intentioned nature of the remark.
State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012).
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3
Dunn identifies one instance in which he alleged the prosecutor misstated the law:
All I have to show to you is that he himself did it intentionally or his accomplice
did it intentionally. I submit to you that both fit and that' s what I have to prove to
you.
RP ( Aug. 16, 2014) at 40. However, the prosecutor' s statement was not made in relation to the
unlawful imprisonment charge. The prosecutor made the statement while discussing the
elements of the residential burglary charge. To prove residential burglary, the State is required
to prove that the defendant entered or remained unlawfully with the intent to commit a crime.
RCW 9A. 52. 025. In this case, the predicate crime for the residential burglary charge was
unlawful imprisonment ( i. e., removing the girls without permission). The State was explaining
that to meet the required element of residential burglary he had to show that Dunn intentionally
committed unlawful imprisonment ( i. e., intentionally removed the girls from the house without
permission). Although the State' s argument may have been inartful, it was not a misstatement of
the law when considered in the context of the entire argument.
Further, Dunn cannot show that the prejudice from the comment would not have been
cured by an objection and curative instruction. Here, the prosecutor' s statement was a brief
statement made within an extensive closing argument. Had Dunn objected, any prejudice could
have been cured by referring the jury back to the proper elements of the charged crimes.
Accordingly, Dunn cannot meet his burden to show prosecutorial misconduct.
3 At oral argument, Dunn' s appellate counsel argued that she incorporated all the prosecutor' s
closing arguments that she referenced in earlier sections of her briefing into her argument
regarding prosecutorial misconduct. Counsel' s argument is not well taken. Even assuming her
brief adequately assigned error to the additional sections of the State' s closing arguments for the
purposes of prosecutorial misconduct, counsel fails to present any argument supporting her
contention that the additional sections of the prosecutor' s argument were misconduct. RAP
10. 3( a)( 6).
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EXCLUSION OF CELL PHONE VIDEOS
Dunn argues that the trial court improperly excluded the cell phone videos because they
were relevant to impeach the girls' testimony that ( 1) they were fearful while in the car, ( 2)
inappropriate touching occurred in the car, and ( 3) the girls cowered in the car at the first house.
Further, Dunn argues that the trial court erred by excluding the cell phone videos because they
were of poor quality and there would be difficulty showing them to the jury. Because the videos
were irrelevant, the trial court did not abuse its discretion by excluding the cell phone videos.
We review the trial court' s decision to exclude evidence for an abuse of discretion. State
v. Lord, 161 Wn.2d 276, 294, 165 P. 3d 1251 ( 2007). A trial court abuses its discretion when its
decision is " manifestly unreasonable or exercised on untenable grounds or for untenable
reasons." Lord, 161 Wn.2d at 283 -84.
Criminal defendants have a constitutional right to present evidence in their defense. State
v. Hawkins, 157 Wn. App. 739, 750, 238 P. 3d 1226 ( 2010), review denied, 171 Wn.2d 1013
2011). The evidence must be admissible; there is no constitutional right to present irrelevant
evidence: State v. Lord, 161 Wn.2d at 294. " Evidence tending to establish a party' s theory, or to
or disprove the testimony of an adversary, is always relevant and admissible." State v.
qualify
Harris, 97 Wn. App. 865, 872, 989 P. 2d 553 ( 1999), review denied, 140 Wn.2d 1017 ( 20.00).
Dunn moved for admission of four separate cell phone videos that J. P. recorded on her
4
cell phone. In one of them, the screen is black for almost the entire video. Two of the other
videos are only a few seconds long and, at best, the video establishes the cell phone was either in
4
The cell phone videos were designated as part of the record on appeal. During oral argument
both attorneys stated that they were able to play the video with sound; however, it does not
appear that the video designated with the record contained the proper audio files. Even accepting
Dunn' s allegations regarding the audio as true ( i. e., the girls were giggling and talking), our
analysis regarding the relevance of the videos does not change.
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No. 43855 -1 - II
the house or in the car. Dunn argued that one of the videos was relevant as impeachment
evidence because it showed the three girls getting in the car after stopping at the St. John' s Street
house when all three girls testified they did not leave the car, although one video shows the girls
getting into the car. However, there is no indication where the car is or when this occurred.
Furthermore, all the girls testified that when Cruz returned from the St. John' s Street house, he
had a plate of food and there was no plate of food in the video. Therefore, it is unknown what
the video shows. Further, the entire video is approximately two minutes long and, at best, shows
the girls getting into the back of a car. There is no dispute that Dunn drove the girls around in a
car. The dispute was whether. Dunn knew or should have known that he did not have the legal
authority to drive the girls. The video was not relevant on this point.
Moreover, the State did not have to prove that the girls were fearful while they were in
the car with Dunn. The State had to prove that Dunn knew he did not have legal authority to
take the girls, that the girls were under the age of 16, and that he did not have the girls' parents'
permission to take the girls. The trial court did not abuse its discretion by finding that the cell
phone videos were irrelevant to the facts at issue in this case.
Dunn points specifically to the trial court' s statement referring to the videos as the
equivalent of a " blurry photograph" and argues that the videos " show far more than a blurry
photograph and demonstrate the girls' casual demeanor in the men' s presence." Br. of Appellant
at 30. The only video in which the viewer can even see the girls only shows one of the girls for a
few brief seconds. The videos do not show the girls interacting with any of the men in the car.
The only thing that can be discerned from the video is that the girls got into the car with the men
and a brief glimpse of a girl' s face. Nothing in the video establishes that the girls had a casual
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demeanor with the men or that they lacked fear as Dunn suggests. The trial court did not abuse
its discretion by excluding the cell phone video.
RIGHT TO BE PRESENT
Dunn argues that the trial court violated his right to be present by allowing the attorneys
to exercise peremptory challenges at the clerk' s station. Here, the record is unclear whether
Dunn was present when the attorneys exercised their peremptory challenges. Dunn was present
during jury voir dire, and it appears that Dunn' s claim is based on the allegation that he did not
join counsel at the clerk' s station when they exercised their peremptory challenges. At best, this
allegation is supported by the trial court' s statement,
All right, very well. It sounds like we' re ready to proceed with peremptory
challenges. So when you' re ready, Counsel, I' ll ask you to step up to the clerk' s
station and she will be passing a chart back and forth.
RP ( Aug. 13, 2012 Jury Voir Dire) at 95. Although the trial court did not specifically call Dunn
to the clerk' s station with his attorney, there is no indication that he did or did not accompany
counsel when counsel exercised the peremptory challenges. Because the record is unclear
whether Dunn was present at the clerk' s station during the exercise of peremptory challenges, the
claim relies, at least in part, on facts outside the record on appeal. We do not address issues on
direct appeal that rely on facts outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899
P. 2d 1251 ( 1995).
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Accordingly, we affirm Dunn' s convictions.
Werncur:
ORSWICK, C. J.
LEE, J.
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