Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             )
                                                 )    No.  65910-3-I
                       Respondent,               )
                                                 )    DIVISION ONE
   v.                                            )
                                                 )
MATTHEW S. HOWEM,                                )    UNPUBLISHED OPINION
                                                 )
                       Appellant.                )    FILED:  January 17, 2012
                                                 )

       Leach, A.C.J.  --  Matthew Howem appeals from his convictions for second 

degree assault, unlawful imprisonment, felony harassment, and fourth degree 

assault.  He contends that the trial court violated his constitutional right to a 

public trial by conducting an in-chambers conference with counsel to discuss the 

jury instructions.  Because the selection of jury instructions involves purely legal 

matters, however, the in-chambers conference did not implicate Howem's public 

trial rights.  And because Howem's proposed instruction on a lesser degree 

offense did not arise out of the charged act of second degree assault, defense 

counsel's decision to withdraw the proposed instruction was not deficient 

performance.  We therefore affirm the trial court.

                                        FACTS 

No. 65910-3-I / 2

       The State charged Matthew Howem with  one count of second degree 

assault, one count of unlawful imprisonment, one count of felony harassment, 

and one count of fourth degree assault following  two incidents involving his 

former girl friend.  Only the facts underlying the second degree assault charge 

are relevant to the issues raised on appeal.

       At trial, Brittney Younkin testified that she met Howem in June 2009 and 

that the two soon began dating.  After a month or two, Younkin and Howem 

moved in with Bennett Tjolker, Howem's longtime friend, who lived in a mobile 

home.  Younkin acknowledged that the couple argued frequently.  

       One evening in September or October 2009, Younkin returned home and 

found Howem outside tending a bonfire.  Howem suspected that Younkin was 

cheating on him and asked for her photos of her ex-boyfriend so that he could 

burn them.  Hoping to alleviate Howem's concerns, Younkin retrieved the photos 

from her parents' home and gave them to Howem.  

       After Howem threw the photos on the fire, Younkin went inside to the 

couple's bedroom and lay down on the bed.  A short time later, Howem followed 

Younkin into the bedroom.  He appeared to be upset, and the couple soon 

began arguing.  Howem eventually became angry, grabbed a digital picture 

frame, and threw it onto the floor, breaking it.  He then went over to Younkin, 

who was lying on her back on the bed.  

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No. 65910-3-I / 3

       According to Younkin, Howem leaned over her, put his hands around her 

neck, and began strangling and shaking her.  Howem applied enough pressure 

on Younkin's throat to make it difficult for her to breathe, and she became light-

headed.  Unable to push Howem off, Younkin started screaming for Tjolker to 

help.

       Tjolker, who had heard the screaming and knew that something "wasn't 

right," tried to open the door but found that it was locked.  He heard Younkin 

yelling for help and started banging on the door, telling the two to "[k]nock it off."

       At some point, Howem stopped strangling Younkin and opened the door.  

Younkin came out of the room crying and ran outside, where she became sick.  

Tjolker held Howem back for a short time.

       Howem eventually went outside and apologized.  Younkin did not report 

the incident to the police at the time because Howem "had smoothed it over to 

the point where I felt like he wouldn't do it again."

       Howem  gave a fundamentally different account of the altercation.  He 

acknowledged that he was out by the bonfire when Younkin came home but 

maintained that it was her idea to burn the photos.  Howem claimed                   that 

Younkin's ex-boyfriend had called him earlier and said that he was still seeing 

her.  He urged Howem to confirm this by checking Younkin's cell phone log.

       Howem then confronted Younkin in the kitchen-dining area of the mobile 

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No. 65910-3-I / 4

home.  He eventually grabbed the cell phone from Younkin and showed her the 

record of a call from her ex-boyfriend.  During the scuffle, Younkin hit Howem 

"lightly in the jaw," and he "kind of pushed her by her shoulder and threw her 

down on the ground."  

       After showing Younkin the cell phone log, Howem  walked into the 

bedroom "just to sleep it off and just call it a night."  A short time later, Younkin 

followed Howem into the bedroom.  Howem closed the door but did not lock it.  

Younkin wanted to talk about the situation, but Howem repeatedly told her to 

leave and that he no longer wanted to be with her.  Younkin eventually left the 

room.  Howem flatly denied choking, punching, or slapping her and  denied 

becoming violent.

       After the incident in the mobile home, Howem and Younkin moved to a 

house in Lynden for a  few months.  The couple eventually broke up but 

continued to see one another for a time.  After Howem allegedly assaulted her 

again in April 2010, Younkin called the police and reported both assaults.

       Before closing argument, the trial court met with counsel in chambers to 

discuss jury instructions.  Initially, the defense requested lesser degree 

instructions of third degree assault and fourth degree assault for the second 

degree assault charge.  After the in-chambers conference, defense counsel 

noted for the record that upon further reflection, he had agreed with the trial 

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No. 65910-3-I / 5

court that the defendant was not entitled to the instructions and had withdrawn 

them.

       The jury found Howem guilty as charged and determined that all counts 

were crimes of domestic violence.  Based on Howem's offender score of nine, 

the court imposed concurrent standard range sentences with a maximum term of 

84 months.

                                      ANALYSIS

       Howem first contends that the trial court violated his constitutional right to 

a public trial when it conducted an in-chambers, off-the-record conference to 

select the jury instructions.  He argues that his convictions must be reversed 

because the trial court effectively closed the courtroom without first considering 

the factors set forth in State v. Bone-Club.1

       Both the Sixth Amendment and article I, section 22 of the Washington 

Constitution guarantee criminal defendants the right to a public trial.  Article I, 

section 10 of the Washington Constitution further provides that "[j]ustice in all 

cases shall be administered openly, and without unnecessary delay."                 This 

provision guarantees the public and the press the right to open and accessible 

judicial proceedings.2

       But not all in-chambers conferences implicate the right to a public trial. 

    1 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995); see also State v. Strode, 
167 Wn.2d 222, 227-29, 217 P.3d 310 (2009).
    2 State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006).

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No. 65910-3-I / 6

The public trial right applies only to "'adversary proceedings,'" including  the 

"presentation of evidence, suppression hearings, and jury selection."3         The right 

does not attach where the trial court resolves "'purely ministerial or legal issues 

that do not require the resolution of disputed facts.'"4   Whether a trial court 

procedure violates a criminal defendant's right to a public trial is a question of 

law that we review de novo.5  

       In  State v. Koss,6 the court rejected a comparable challenge to an in-

chambers discussion in which the parties agreed to remove accomplice 

language from the burglary instruction.  The court concluded that because the 

discussion of jury instructions was a "ministerial legal matter" that did not include

the resolution of disputed facts, the in-chambers conference did not implicate the 

defendant's public trial right.7

       Howem contends that Koss is both distinguishable and wrongly decided.  

He  argues that the selection of jury instructions may be a highly adversarial 

process, with parties disagreeing about the applicable law and facts, including 

    3 In re Det. of Ticeson, 159 Wn. App. 374, 384, 246 P.3d 550 (2011) 
(quoting State v. Koss, 158 Wn. App. 8, 16, 241 P.3d 415 (2010), petition for 
review filed, No. 85306-1 (Wash. Nov. 16, 2010)).
    4 Ticeson, 159 Wn. App. at 384 (internal quotation marks omitted) (quoting 
Koss, 158 Wn. App. at 17).
    5 State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).
    6 158 Wn. App. 8, 241 P.3d 415 (2010).
    7 Koss, 158 Wn. App. at 17; see also In re Pers. Restraint of Lord, 123 
Wn.2d 296, 306, 868 P.2d 835 (1994) (because the settling of pretrial 
instructions involved only discussion of legal matters, defendant had no 
constitutional right to be present).

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No. 65910-3-I / 7

whether or not the evidence supports an instruction on a lesser degree or lesser 

included offense.  But he cites no authority suggesting that such circumstances 

change the overall nature of the court's resolution of the choice and wording of 

jury instructions.

       Whether jury instructions correctly state the applicable law is a question 

of law.8   When determining whether the evidence supports the giving of an 

instruction, including a lesser included or lesser degree instruction, the trial court 

must consider the evidence in the light most favorable to the requesting party.9  

Although its analysis may be based on disputed facts, the trial court does not 

make credibility assessments or otherwise resolve those disputed facts.  And 

Howem does not suggest that the trial court made any factual determinations in 

settling the instructions in this case.  Because the selection of jury instructions is 

a fundamentally legal determination, the in-chambers conference here did not 

implicate Howem's right to a public trial.10      We  decline Howem's invitation to 

reject the analysis in Koss.  

       Howem next contends that he received ineffective assistance when 

    8 State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002).
    9 See State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 
(2000).
    10 See Ticeson, 159 Wn. App. at 386 (in-chambers conference on the 
admissibility of deposition testimony does not implicate the public's right to open 
proceedings); State v. Sublett, 156 Wn. App. 160, 182, 231 P.3d 231, review 
granted, 170 Wn.2d 1016, 245 P.3d 775 (2010) (in-chambers conference to 
address a jury question about instruction did not implicate the public trial right).

                                           -7- 

No. 65910-3-I / 8

defense counsel withdrew the proposed instruction on the lesser degree offense 

of fourth degree assault.  He argues that because he denied choking Younkin 

but admitted pushing her to the ground, the evidence supported an inference 

that he committed only a simple assault and that he was therefore entitled to an 

instruction on the lesser degree offense.  But because Howem's admission did 

not relate to the charged incident, he was not entitled to an instruction on fourth 

degree assault.

       To prevail on his claim of ineffective assistance, Howem must show both 

(1) that defense counsel's representation fell below an objective standard of 

reasonableness and (2) resulting prejudice, i.e., a reasonable probability that but 

for counsel's deficient performance the result of the proceeding would have 

been different.11   A defendant must overcome the  "strong presumption" that 

counsel's performance was reasonable.12           We review ineffective assistance 

claims de novo.13

       A criminal defendant is entitled to an instruction on an inferior degree 

offense if 
       "(1) the statutes for both the charged offense and the proposed 
       inferior degree offense proscribe but one offense; (2) the 
       information charges an offense that is divided into degrees, and 
       the proposed offense is an inferior degree of the charged offense; 
       and (3) there is evidence that the defendant committed only the 

    11 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
    12 State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
    13 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

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No. 65910-3-I / 9

       inferior offense."[14]  

It is undisputed that the legal prong of this test was satisfied here.  The assault 

statutes proscribe the single offense of assault, and fourth degree assault is an 

inferior degree offense of first and second degree assault.15  

       In State v. Porter,16 our Supreme Court noted that application of the lesser 

included or lesser degree offense analysis necessarily rests on an independent 

threshold requirement that "the lesser crime be based on the same criminal 

transaction supporting the charged offense."  
       The Workman test[17] has, in fact, no role to play in making this 
       essential threshold determination; the court need consider only 
       whether the allegedly included offense arises from the same act or 
       transaction supporting the charged crime.        Only upon concluding 
       that the threshold requirement has been met should the court 
       proceed to apply the two-pronged Workman test.[18]

       In  Porter, the defendant was charged with selling cocaine to an 

undercover officer.  At trial, he denied selling cocaine to the undercover officer 

but claimed that he attempted to purchase cocaine from another person who was 

also present during the transaction.  But because the lesser included offense of 

attempted possession of cocaine "was not based on the same criminal act or 

transaction giving rise to the charged crime of delivery of cocaine,"                the 

    14 Fernandez-Medina, 141 Wn.2d at 454 (internal quotation marks omitted) 
(quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)); RCW 
10.61.003.
    15 See RCW 9A.36.011, .021, .041; see also Fernandez-Medina, 141 Wn.2d 
at 455.
    16 150 Wn.2d 732, 739, 82 P.3d 234 (2004).
    17 State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
    18 Porter, 150 Wn.2d at 739-40.

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No. 65910-3-I / 10

defendant was not entitled to have the jury instructed "on his alternative criminal 

conduct."19

       Here, the State charged Howem with a single act of second degree 

assault based on strangulation.20 The evidence at trial established only a single, 

discrete act of strangulation that occurred in the couple's bedroom.  Howem's 

testimony described an unrelated simple assault that occurred at a different time 

and in a different location.  By Howem's own account, that incident had ended 

before both Howem and Younkin went into the bedroom.  Howem flatly denied 

strangling Younkin or committing any act of assault in the bedroom.

       State v. Lyon,21 cited by Howem, is distinguishable.  In Lyon, the court 

held that a felony murder defendant was entitled to a lesser included assault 

instruction based on evidence that the victim's death resulted from a later, 

unrelated assault by another person.  But the State in Lyon conceded that the 

factual prong of the Workman test was met, and the court focused its analysis on 

the legal prong.22      The court had no occasion to consider the threshold 

requirement for the Workman test set forth in Porter.

       Under the circumstances, Howem's admission of criminal conduct was not 

    19 Porter, 150 Wn.2d at 740.
    20 RCW 9A.36.021(g).
    21 96 Wn. App. 447, 979 P.2d 926 (1999).
    22 Lyon, 96 Wn. App. at 450-51.  In In re Personal Restraint of Andress, 147 
Wn.2d 602, 616, 56 P.3d 981 (2002), our Supreme Court held that under the 
then current statute, second degree assault could not serve as the predicate 
felony for second degree felony murder, effectively overruling Lyon. 

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No. 65910-3-I / 11

based on the same act or transaction giving rise to the charged act of assault.  

Accordingly, he was not entitled to an instruction on a lesser degree offense, 

and defense counsel's withdrawal of the proposed instruction was not deficient 

performance.  Howem has therefore failed to demonstrate ineffective assistance 

of counsel.

                                    CONCLUSION

       Affirmed.

WE CONCUR:

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