FILED
JUNE 2, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36718-5-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JESSIE M. ALLERT, )
)
Appellant. )
LAWRENCE-BERREY, J. — Jessie Allert appeals after a jury found him guilty of
multiple crimes, including hit and run, property damage. We accept the State’s
concessions that the hit and run conviction must be vacated and the restitution order must
be modified to exclude a witness’s travel expense. We otherwise affirm.
FACTS
Jessie Allert, while driving erratically and on sidewalks, struck and knocked over a
mailbox. Another driver witnessed Allert’s erratic driving and called 911. While on the
telephone, the caller saw Allert knock over the mailbox, get out of his car, and take the
mailbox over to some nearby storage unit sheds. Allert did not knock on any doors or
make any calls while there. He just drove away.
No. 36718-5-III
State v. Allert
Eventually, Undersheriff Scott Coppess received the report of Allert and his erratic
driving. Undersheriff Coppess located Allert, who stopped before the undersheriff had
activated his emergency lights. Allert admitted to erratic driving and hitting the mailbox,
but claimed he was tired and was planning on finding the owner of the mailbox to pay for
it. During the stop, the undersheriff learned that Allert was driving with a suspended
license, and placed him under arrest. A warrant search of Allert’s car found a loaded
rifle, a vial containing methamphetamine, and multiple plastic bags.
The State charged Allert with (1) possession of methamphetamine with intent to
deliver, with a special allegation that, at the time of the commission of the crime, he was
armed with a firearm, (2) driving under the influence, (3) driving with license suspended,
(4) hit and run, property damage,1 and (5) unlawful possession of a loaded firearm in a
motor vehicle.
During trial, Allert became noticeably ill and was coughing during jury selection.
When the State rested, Allert was still sick and defense counsel was not sure whether
Allert would testify. The trial court ended proceedings early in order to give Allert more
1
The State cited RCW 46.52.010 in its charging document. Under this statute,
there are two alternates for charging hit and run, property damage. The State’s charging
language mirrors RCW 46.52.010(2), “damage to property fixed or placed upon or
adjacent to any public highway.” Clerk’s Papers (CP) at 10.
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State v. Allert
time to recover. The next day, Allert decided not to testify and requested a jury
instruction regarding his right not to testify. The court then recessed.
When court reconvened, defense counsel placed on the record a prior ex parte
discussion she had with the trial court judge.
[P]rior to trial I let the—I let Your Honor know that my client was very sick
and I had talked with him, or I attempted to talk with him in the days prior
and he simply couldn’t . . . it was my impression that Jessie wanted—
wanted to move forward with trial. . . . I had brought these concerns to
Your Honor and counsel prior to jury selection and Your Honor did ask me,
well, what do you want to do? And I was kind of waffling because I—I just
wasn’t sure. I had some misgivings. However, and then State’s counsel
mentioned that they had—they had to fly somebody here from Hawaii, that
there was some additional costs that were incurred and I think it was
generally decided we would soldier on and Your Honor made a remark
yesterday about hopefully Mr. Allert would have enough time to heal if we
left—left early. I want to just make the—a clear record that it was indeed
my client’s decision to move forward with trial in light of his sickness . . . .
Report of Proceedings (RP) at 252-53.
The prosecutor then explained it was proper to place the pretrial ex parte chambers
discussion on the record to avoid possible public trial issues being raised on appeal. In
his opinion, the pretrial discussion was a ministerial issue concerning scheduling, not
anything that touched upon the facts or the disposition of the case itself. The trial court
agreed “there was no discussion of substantive matters.” RP at 255. Defense counsel
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No. 36718-5-III
State v. Allert
agreed there was no public trial issue, adding “our Judge is very competent and able to—
to protect that.” RP at 256.
Once the evidence was presented, the trial court instructed the jury. One
instruction purported to define hit and run, property damage. The instruction actually
defined hit and run, personal injury or death. See RCW 46.52.020. The instruction
provided:
(1) That on or about the 13th day of November, 2017, the Defendant
was the driver of a vehicle;
(2) That the Defendant’s vehicle collided with property fixed or adjacent
to any public highway;
(3) That the Defendant knew that he had been involved in an accident;
(4) That the Defendant failed to satisfy his obligation to fulfill all of the
following duties:
(a) Immediately stop the vehicle at the scene of the accident or as
close thereto as possible.
(b) Immediately return to and remain at the scene of the accident
until all duties are fulfilled,
(c) To take reasonable steps to either locate the operator or owner
of the property struck and give that person his name and
address and the name and address of the owner of the vehicle
he was operating or leave in a conspicuous place upon the
property struck a written notice giving his name and address
and the name and address of the owner of the vehicle he was
operating;
(5) That any of these acts occurred in Asotin County, the State of
Washington.
Clerk’s Papers (CP) at 29.
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State v. Allert
The jury returned a verdict of guilty on all charges. The trial court sentenced
Allert and imposed $1,271.09 of restitution damages, which included reimbursement for a
witness’s $750 plane ticket.
Allert timely appealed to this court.
ANALYSIS
Allert argues the trial court (1) violated his right to a public trial, (2) committed a
manifest constitutional error by erroneously instructing the jury on the elements of hit and
run, property damage, and (3) exceeded its statutory authority by imposing restitution to
compensate the State for a witness’s travel expense.
1. PUBLIC TRIAL
Allert contends the ex parte discussion between defense counsel and the court
constituted a courtroom closure that violated his right to a public trial. He argues the
discussion was akin to a competency hearing, and was therefore required to be held in
public. We disagree.
Both the United States Constitution and the Washington Constitution guarantee a
defendant the right to have an open and public trial by an impartial jury. Presley v.
Georgia, 558 U.S. 209, 212-13, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010); State v. Bone-
Club, 128 Wn.2d 254, 260-61, 906 P.2d 325 (1995); Seattle Times Co. v. Ishikawa, 97
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No. 36718-5-III
State v. Allert
Wn.2d 30, 36, 640 P.2d 716 (1982). Whether a trial court violated a defendant’s right to
a public trial is a question of law this court reviews de novo. State v. Paumier, 176
Wn.2d 29, 34, 288 P.3d 1126 (2012).
Before this court looks to whether a courtroom was actually closed, we first must
determine if the proceeding implicated the right to a public trial at all. State v. Smith, 181
Wn.2d 508, 514, 334 P.3d 1049 (2014). To determine whether the right to a public trial
attaches to a particular proceeding, we apply the “experience and logic” test. State v.
Whitlock, 188 Wn.2d 511, 521, 396 P.3d 310 (2017). Both prongs must be satisfied in
order for the right to a public trial to attach. Id.
When analyzing the experience prong, this court looks to “‘whether the place and
process have historically been open to the press and general public.’” State v. Sublett,
176 Wn.2d 58, 73, 292 P.3d 715 (2012) (quoting Press-Enter. Co. v. Superior Court, 478
U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). In analyzing the logic prong, we look
to “‘whether public access plays a significant positive role in the functioning of the
particular process in question.’” Id. (quoting Press-Enter., 478 U.S. at 8).
Allert’s argument reflects a misunderstanding of when the ex parte discussion
occurred and what was discussed. Because the discussion was placed on the record about
the time Allert waived his right to testify, he argues the ex parte discussion occurred just
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No. 36718-5-III
State v. Allert
prior to when he waived his right to testify and included this topic. The record does not
support this. Rather, the ex parte discussion occurred just before trial and was about
whether the trial would proceed. Defense counsel, upon learning the State had a witness
flying in from Hawaii, assured the court that Allert’s illness would not require a
continuance. She explained, “it was indeed my client’s decision to move forward with
trial in light of his sickness and I—I just—I want to make sure that that didn’t impair his
a—his—or factor into his ability as to testify or not testify.” RP at 253.
Allert does not analyze the public trial issue with respect to what actually occurred
below. We need not either. We nevertheless note that Allert provides no authority that
the experience and logic prongs are met when a party confirms to the trial court that the
trial will proceed.
2. IMPROPER JURY INSTRUCTION
Allert contends the trial court erred by giving an improper jury instruction for hit
and run, property damage. He argues, by giving the improper instruction, the trial court
reduced the State’s burden of proof. The State concedes this issue.
In a criminal case tried to a jury, due process requires the trial court to accurately
instruct the jury on every element required to convict the defendant of the crime alleged.
State v. Tyler, 191 Wn.2d 205, 216, 422 P.3d 436 (2018). Errors affecting the right to
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No. 36718-5-III
State v. Allert
have the State prove every element of the charged offense beyond a reasonable doubt may
be raised for the first time on appeal. State v. Johnson, 100 Wn.2d 607, 614, 674 P.2d
145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d
1000 (1985). We accept the State’s concession.2
3. IMPOSITION OF RESTITUTION
Allert contends the trial court erred by imposing a restitution award that included a
witness’s travel expense from Hawaii. The State rightly concedes this issue.
“The authority to impose restitution is not an inherent power of the court, but is
derived from statutes.” State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).
“When the particular type of restitution in question is authorized by statute, imposition of
restitution is generally within the discretion of the trial court and will not be disturbed on
appeal absent an abuse of discretion.” Id.
The applicable statute provides in relevant part:
[R]estitution ordered by a court pursuant to a criminal conviction shall be
based on easily ascertainable damages for injury to or loss of property,
actual expenses incurred for treatment for injury to persons, and lost wages
resulting from injury.
2
We have considered whether the unpreserved error may be raised on appeal, and
believe it can. We construe the erroneous instruction differently than our concurring
colleague.
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No. 36718-5-111
State v. Aller!
RCW 9.94A.753(3). We have previously held that witness expenses incurred for trial
purposes are not recoverable under RCW 9.94A.753. State v. Goodrich, 47 Wn. App.
114, 115, 733 P.2d 1000 (1987).
Here, the trial court imposed restitution and stated that $750 of the restitution
amount was to recover a witness's expense of buying a plane ticket to testify. This type
of expense is not allowed by statute and the trial court exceeded its authority by imposing
it. We direct the trial court to enter a modified restitution order that omits this travel
expense.
Reversed in part and remanded to modify restitution order.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
j
WE CONCUR:
AL.wl-~-
Melnick, J. 3 J
3The Honorable Rich Melnick is a Court of Appeals, Division Two, judge sitting
in Division Three under CAR 2l(a).
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No. 36718-5-111
KORSMO, J. (concurring)- I have signed the majority opinion, but write
separately to make one additional point. Mr. Allert did not object to the elements
instruction at trial. Accordingly, he waived his challenge to it and could not present it to
this court. However, the State's concession saves Allert in this instance.
The failure to raise an issue in the trial court normally precludes a party from
raising the issue on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d
492 (1988). The failure to challenge a jury instruction is a classic instance of waiver. Id.
at 689-691. One exception to that rule is that a claim of manifest constitutional error can
be asserted for the first time on appeal, if the record is adequate to address the issue.
State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). That exception is not
argued in this case.
With this observation, I join the majority opinion.
Korsmo, ~