FILED
COURT OF APPEALS
DIVISION It
IN THE COURT OF APPEALS OF THE STATE OF WASHINGMT 17
M1 8: 42
ST,
DIVISION II
BY
STATE OF WASHINGTON, No. 45952 -3 - II
TY
Respondent,
v.
DAWAYNE CHARLES MCCASH, UNPUBLISHED OPINION
Appellant.
WoRSwIcK, J. — Dawayne Charles McCash appeals his conviction and sentence for third
degree assault, arguing that the superior court erred when it considered jury challenges at sidebar
and also erred in imposing a community custody condition requiring him to undergo a substance
abuse evaluation and comply with any treatment recommendations. We conclude that the
superior court' s jury selection procedures did not infringe McCash' s right to a public trial and
affirm his conviction. The State concedes that the superior court failed to make the findings
required to impose the challenged community custody conditions. We affirm McCash' s
conviction and -remand-for-the superior -court -to- strike the community custody provision requiring
McCash to engage in substance abuse evaluation and treatment.'
FACTS
The State charged McCash with one count of third degree assault for assaulting a law
enforcement officer. At a pretrial conference, the parties discussed jury selection. The trial
judge proposed that he would cap the jury pool at 40 and would then question prospective jurors
1 A commissioner of this court initially considered McCash' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel.
No. 45952 -3 -II
about hardships due to the length of the trial. He stated that he planned to then dismiss all
potential jurors who expressed hardship concerns. He requested the parties make challenges for
cause during voir dire. Specifically, the court stated:
Challenge for cause. If there is a challenge for cause make it as soon as you feel
it' s appropriate in the middle of voir dire. I will subtract out the time that we spend
dealing with the challenge for cause and add it back on to the end of your time. I
keep track of it up here.
Report of Proceedings ( RP) at 8 - 9. Neither party objected to the proposed procedure.
The clerk' s minutes detail jury selection.2 After voir dire, the parties exercised
peremptory challenges, apparently in writing. The clerk' s minutes also contain a notation, " The
Court addressed the release of juror #12 with counsel." Suppl. Clerk' s Papers at 16.
The judge explained that juror 12 had been excused due to medical issues. 3 The judge
placed the reasons for his decision to dismiss this juror on the record because "[ ajnyone looking
at this would wonder why he was excused because nobody talked to him." RP at 17. The court
learned of this medical issue because the juror " has a bladder condition that would have required
a recess about ten minutes before we were done, which would have been very awkward for
everyone." RP at 17.
After trial, which included testimony that McCash smelled of alcohol at the time of the
offense, the jury found McCash guilty. The superior court sentenced McCash to 90 days in
custody, with credit for time served, and 12 months of community custody. Proposed
community custody conditions included a prohibition on McCash' s consumption of alcohol. The
2 Voir dire was not transcribed.
3 McCash does not specifically argue that juror 12' s dismissal (or other hardship dismissals)
violated his public trial right. Under RCW 2. 36. 100, a trial court has broad discretion to excuse
prospective jurors based on undue hardship or extreme inconvenience.
2
No. 45952 -3 -I1
State did not ask the court to make a finding that chemical or alcohol dependency contributed to
the crime and the superior court did not make such a finding. Nevertheless, the judgment and
sentence requires McCash to undergo a substance abuse evaluation and comply with any
recommended treatment.
ANALYSIS
SIDEBAR JURY CHALLENGES
McCash first argues that the superior court erred when it did not hear challenges for
cause in open court. The record, however, does not support that the superior court heard any
challenges for cause, whether at sidebar or in open court. See In re Pers. Restraint of Yates, 177
Wn.2d 1, 27 -28, 296 P. 3d 872 ( 2013) ( concluding that petitioner failed to show that the
courtroom was actually closed ").
Here, the superior court requested the parties to present challenges for cause during voir
dire. The clerk' s minutes show that the court and both attorneys engaged in voir dire between
9: 43 AM and 10: 04 AM. There is no indication that either party presented any juror challenges
during voir dire. The clerk' s minutes next contained a detailed record of peremptory challenges.
As with the voir dire portion of the clerk' s minutes, this section does not show that either party
raised a challenge for cause. Accordingly, McCash fails to demonstrate that the superior court
heard any challenges for cause. Accordingly, his argument that the superior court violated his
right to an open court by hearing challenges for cause at sidebar fails. Cf. State v. Love, 176 Wn.
App. 911, 309 P. 3d 1209 ( 2013), review granted in part, 340 P. 3d 228 ( 2015).
McCash next argues that the superior court erred in conducting peremptory challenges in
writing or at sidebar. We held in State v. Dunn, 180 Wn. App. 570, 321 P. 3d 1283 ( 2014),
review denied, 340 P. 3d 228 ( 2015), and again in State v. Marks, Wn. App. , 339
No. 45952 -3 -II
P. 3d 196, 198 ( 2014), that exercising peremptory challenges does not implicate the public trial
right. Accordingly, we hold that the superior court did not violate McCash' s public trial right by
allowing counsel to make peremptory challenges at a sidebar conference. See also State v.
Smith, 181 Wn.2d 511, 334 P. 3d 1049 ( 2014) ( traditional sidebar conferences do not implicate a
public trial right).
COMMUNITY CUSTODY
McCash next argues that the superior court erred in imposing the community custody
condition that required McCash to undergo a substance abuse evaluation and comply with
recommended treatment.4 The State concedes error.
RCW 9. 94A.607( 1) provides:
Where the court finds that the offender has a chemical dependency that has
contributed to his or her offense, the court may, as a condition of the sentence and
subject to available resources, order the offender to participate in rehabilitative
programs or otherwise to perform affirmative conduct reasonably related to the
circumstances of the crime for which the offender has been convicted and
reasonably necessary or beneficial to the offender and the community in
rehabilitating the offender.
Emphasis added.)
Nothing in the record shows that the superior court made any findings as to whether
McCash' s substance abuse contributed to his offense. Because the record lacks such a finding,
we remand to the superior court to strike this community custody condition. See State v. Jones,
118 Wn. App. 199, 209, 76 P. 3d 258 ( 2003) ( striking mental health evaluation condition because
sentencing court did not " make a finding that Jones was a person whose mental illness had
contributed to his crimes ").
4 Although McCash did not object at sentencing, we can reach a sentencing error for the first
time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008).
4
No. 45952 -3 -II
We affirm McCash' s conviction and remand for the superior court to strike the
community custody provision requiring McCash to engage in a substance abuse evaluation and
comply with treatment.
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.
We concur:
A.C. J.
A• ;
Melnick, J.
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