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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
STATE OF WASHINGTON, Respondent, v. BARRY DONALD STRONG, Appellant. UNPUBLISHED OPINION No. 39262-3-II

Serko, J.P.T.1 -- A jury found Barry Donald Strong guilty of second degree theft. He appeals, arguing that (1) the trial court violated his public trial right by closing the court on four occasions without weighing the five Bone-Club2 factors, (2) the prosecutor commented on his right to silence by eliciting testimony that he refused to name a potential suspect, (3) he received ineffective assistance of counsel when his trial counsel failed to object to testimony that Strong was in jail, (4) the trial court commented on the evidence by handing a calculator to a witness struggling with math, and (5) insufficient evidence supports a finding that he acted as an

1

Judge Susan Serko is serving as a judge pro tempore of the Washington State Court of Appeals pursuant to CAR 21(c).
2

State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

No. 39262-3-II accomplice. We disagree and affirm. FACTS On July 15, 2008, at around 2:00 pm, Strong and a companion entered a T-Mobile store in Clark County, Washington. Strong and his companion asked about device availability and rate plans and then tested phones. The pair left after Strong's companion stated that he wanted to bring his girlfriend in later to check out some phones. Strong had driven his companion to the store in a white Cadillac. Strong and his companion returned a few hours later with a woman;3 again Strong drove the white Cadillac. Strong and his companions asked more questions about the phones, and the man checked out Bluetooth headset devices. Strong and the woman abruptly left the store, and he yelled to the store in general that they would stick with "Cricket." II Verbatim Report of Proceedings (VRP) at 56. A sales representative observed Strong drive out of the parking lot. Strong's male companion stayed in the store and picked up four Bluetooth headsets. The man approached the register and began asking questions about which one was the best device. As the man approached the register, Strong drove the Cadillac slowly past the store's front door and the man watched the vehicle. The man then stated that he would ask his friends, and he walked toward the front door. The man hesitated at the door, but ran out as soon as a store employee walked toward him. A store employee chased the man. The Cadillac pulled up behind the man, who jumped into the backseat while the vehicle was still moving. The State charged Strong with second degree theft4 pursuant to former RCW

3

Investigators never identified the man and woman with Strong.

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No. 39262-3-II 9A.56.040(1)(a) (2007).5 At trial, a T-Mobile sales representative testified that two of the

Bluetooth headsets were worth $99.99 each and the other two were worth $119.99 each, for a total value of $439.96. A jury found Strong guilty of second degree theft. ANALYSIS I. Right to a Public Trial First, Strong argues that the trial court violated his right to a public trial four times by holding conferences with the prosecutor and defense counsel either in the hallway or in chambers. He contends that he is entitled to a new trial. We disagree. Before being sworn in, a juror informed the trial court that she knew one of the testifying officers: A JUROR: Yes, I recognize the name of -- THE COURT: One second, please. You need to hear this, Mr. Petersen [the prosecutor]. Go ahead. A JUROR: I recognize the name of an officer. The name is Barbara Kipp. I must not have heard her name when you were saying it. THE COURT: Gentlemen, may I see you in chambers for just a second, please. Ma'am, why don't you go ahead and have a seat in that first row. (Chambers conference; not recorded.) THE COURT: Stay seated. Okay. Ma'am, how do you know Ms. Kipp? THE JUROR: She worked at one point with my husband. THE COURT: Okay. And what does your husband do? THE JUROR: He works for the State of Washington investigating child abuse. THE COURT: Okay, he's with CPS?
4

The State also charged Strong with bail jumping, and the jury found him guilty of that offense. Strong does not appeal that conviction.
5

In 2009, the legislature amended RCW 9A.56.040, raising the value amounts for second degree theft from $250--$1,500 to $750--$5,000. Laws of 2009, ch. 431,

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