Filed
Washington State
Court of Appeals
Division Two
January 12, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53157-7-II
Respondent,
v. UNPUBLISHED OPINION
JOHNNY WESLEY MILLER,
Appellant.
MAXA, J. – Johnny Miller appeals his convictions of three counts of first degree child
rape and two counts of first degree child molestation. He argues that he was denied a fair trial
based on his allegation that the trial judge was asleep during parts of the trial. However, the
record does not support Miller’s allegation. Therefore, we affirm Miller’s convictions.
FACTS
The State charged Miller in Clark County Superior Court with three counts of first degree
child rape and two counts of first degree child molestation. Miller waived his right to a jury trial,
and the trial court conducted a bench trial. The State presented testimony from several witnesses
during the two-day trial, including the victim and the victim’s mother. The State also played a
recording of the victim’s forensic interview.
The trial court found Miller guilty of all counts. The court thoroughly explained the
evidence on which it relied to find Miller guilty.
No. 53157-7-II
During sentencing, Miller stated, “During my trial I watched – I seen with my own eyes
you dozed off a couple times in my trial.” 2 Report of Proceedings (RP) at 248. The trial judge
denied sleeping during the trial.1 Miller appeals his convictions.
ANALYSIS
Miller claims that the trial judge was asleep during parts of the trial, which he argues
constitutes structural error entitling him to a new trial without having to show prejudice. We
conclude that there is insufficient evidence in the record that the judge was asleep during the
trial.
The record contains a video transcript of Miller’s trial. Both parties represent that the
video camera showing the courtroom and the judge was sound activated, meaning that the judge
appeared on the video only when speaking or briefly when a sound was picked up by the
microphone near the bench.
Miller relies on multiple video snippets lasting one to five seconds and one lasting 10
seconds from the testimony of the victim and her mother and the recording of the forensic video.
He claims that these snippets show that the judge had his eyes closed and on one occasion
appeared to be waking from sleep. The State disputes Miller’s allegations, arguing that the video
does not show what Miller claims. The State asserts that the record shows the judge blinking or
closing his eyes for a second or two while moving around and making deliberate movements.
1
The trial transcript states that when Miller accused him of sleeping, the trial judge responded,
“Mr. Miller . . . I did [sic] nod off during the trial no matter what you think.” 2 RP at 250. As
Miller acknowledges, the word “did” appears to be a typographical error and should read
“didn’t.”
2
No. 53157-7-II
The video record does not demonstrate that the trial judge was asleep during any portion
of the trial. In some of the video snippets it is unclear whether or not the judge had his eyes
closed. But even if the judge closed his eyes for a few seconds, even multiple times, does not
mean that he was asleep. Certainly a person can briefly close his or her eyes without sleeping.
And common experience shows that some people close their eyes while listening.
Miller argues that the video snippets provide circumstantial evidence that the trial judge
was asleep. But video showing that the judge closed his eyes for a few seconds simply is not
sufficient to constitute even circumstantial evidence of sleeping. And the one video segment
lasting longer – 10 seconds – shows the judge rubbing his eyes and his face and then facing
toward the witness. It is unclear whether his eyes are open or closed as he faced the witness.
In addition, Miller provides no evidence other than the video snippets that the trial judge
was asleep. He does not point to any instances in the record where the trial judge was
unresponsive or was unable to respond to inquiries, rule on objections, or otherwise preside over
the proceedings.
We conclude that there is insufficient evidence in the record to support Miller’s
allegation that the trial judge was asleep during his trial. Therefore, we reject Miller’s structural
error argument.
CONCLUSION
We affirm Miller’s convictions.
3
No. 53157-7-II
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.
MAXA, J.
We concur:
WORSWICK, J.
SUTTON, A.C.J.
4