IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80898-2-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) THOMAS LYLE CLAYBROOK, ) ) Appellant. ) )
ANDRUS, A.C.J. — Thomas Claybrook challenges his convictions for felony
harassment, unlawful imprisonment, and second degree assault arising out of the
brutal beating of his girlfriend, R.C. Claybrook, who represented himself at trial,
contends the trial court violated his right to be present when it removed him from
the courtroom during the direct examination of R.C. without first warning him that
his disruptive and disrespectful behavior could lead to his removal. Claybrook also
argues that convicting him of two counts of assault for what he contends was a
single course of conduct violates the constitutional prohibition against double
jeopardy.
We conclude that the trial court erred by removing Claybrook from the
courtroom without first warning him that his disruptive behavior could result in his
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80898-2-I/2
removal but this error was harmless beyond a reasonable doubt. We further
conclude that there is no double jeopardy violation and thus affirm his convictions.
FACTS
R.C. met Claybrook in October of 2018 and the two were dating by January
2019. Claybrook often stayed with R.C. in her Shoreline apartment. After they
began dating, Claybrook became controlling, often going through R.C.’s phone to
monitor her contacts with friends and requiring her to end friendships with other
men.
On February 24, 2019, R.C. resigned from her job and spent the day with
Claybrook. R.C. had discovered something disturbing about Claybrook’s past and
wanted to confront him about it. 1 Feeling upset, R.C. decided to have a few
alcoholic drinks with Claybrook to “help out with the tension.” When they arrived
at her apartment, R.C. confronted Claybrook about his past. Claybrook, who
wanted to have sex with R.C., became “more and more upset” when she refused
his sexual advances and insisted on discussing his past. They argued for 15 to 20
minutes before R.C. felt that “enough was enough” and told Claybrook to leave.
R.C. testified that Claybrook then punched her in the head as she tried to
walk away, causing her to see stars and fall to the floor. Claybrook straddled R.C.
and threatened to kill her. Terrified, R.C. tried to appease Claybrook and offered
to “go lay back in bed” and give in to being intimate with him, but Claybrook stated
he did not trust her enough to let her up.
1 R.C. had discovered that Claybrook had previously been convicted of child molestation. In order to avoid undue prejudice to Claybrook, the prosecutor agreed to elicit only that R.C. had “discovered something from his past that was upsetting to her.”
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When he threatened her again, R.C. screamed for help, hoping someone
nearby might hear her. Claybrook put his hands around her neck and strangled
her until she blacked out. R.C. was unsure how long she was unconscious but
Claybrook was still sitting on her when she regained consciousness.
R.C. told Claybrook she needed to use the bathroom, where she planned
to use her phone to call for help. Claybrook let her get up off the floor, but refused
to let R.C. close the door and insisted on watching her while she used the toilet.
When Claybrook turned to lock the sliding door to the apartment, R.C. ran
to the kitchen in only her underwear and grabbed a small knife to defend herself.
She told Claybrook she wanted to leave and would stab him if he came near her.
Claybrook knocked the knife out of R.C.’s hand. R.C. attempted to escape out her
front door but Claybrook slammed the door shut before she could get out.
Claybrook locked the door and began beating R.C. with his fists. R.C. tried to alert
her neighbors by banging on the walls and shouting for help. In response,
Claybrook dragged her into the bathroom by her hair and told her to stay there until
he left the apartment. She looked in the mirror and could see that one eye was
swollen shut, and there was blood everywhere.
R.C. grabbed a small pair of scissors from the bathroom and again tried to
escape while Claybrook was packing up his belongings. With the scissors hidden
behind her back, R.C. pleaded with Claybrook to let her leave. When Claybrook
tried to shove her back into the bathroom, R.C. lunged at him with the scissors.
Claybrook wrestled the scissors from her and used them to stab R.C. in the back
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of her head, her back, and her left arm. Claybrook then shoved her back into the
bathroom and closed the door.
R.C. again attempted to flee. She grabbed a decorative rock that she kept
on a nearby table and struck Claybrook in the head when he approached her.
Claybrook staggered backwards and R.C. ran for the door. Before R.C. could open
the door, Claybrook caught her and punched her again to prevent her from leaving.
While Claybrook was locking the door, R.C. picked up a metal luggage dolly and
tried unsuccessfully to hit him with it. Claybrook seized the dolly from her and beat
her with it, striking her multiple times in the head and torso until she was “seeing
stars” and having trouble with her vision.
Claybrook continued packing his bags, and R.C. made a fourth attempt to
escape. When Claybrook again tried to intervene, she kicked him in the groin and
was finally able to escape. Once outside the apartment, R.C. began screaming
and knocking on neighbors’ doors.
R.C.’s neighbor, Margaret Studley, testified that she called 911 after hearing
a loud "thump and then kind of a dragging sound," followed by a woman's voice
screaming. Studley thought the noises sounded "very violent" and that the woman
seemed to be "in real trouble." As Studley went into the hallway to meet
responding deputies, R.C. burst out of her apartment exclaiming "he's killing me,
he's trying to kill me. . . ."
Several King County Deputy Sheriffs responded to R.C.’s apartment within
approximately three minutes of the 911 call. Detective Edgar Pena and Deputy
Sean Nelson observed Claybrook jump down from R.C.’s low balcony and quickly
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walk away. When they contacted Claybrook outside the apartment, he was
sweating profusely and his face, neck, hands, and clothes were covered in blood.
Suspecting Claybrook was involved in the incident, Detective Pena detained him.
Meanwhile, Deputies Robert Knight and Sean Barber entered the
apartment building and found R.C. cowering in the hallway, dressed in only a T-
shirt and underwear. She was “screaming, crying, and just covered in blood and
had very obvious injuries.” She was “bleeding from pretty much every orifice of
her face,” which was “extremely swollen,” and she had “obvious strangulation
marks around her neck.” She also had a number of “small stab-type wounds.” She
was hysterical and extremely anxious, which made questioning her difficult, but
she was able to report that Claybrook had strangled and beaten her and stabbed
her with scissors. She repeatedly told officers and medical responders that she
was afraid that Claybrook was going to kill her.
Deputies saw R.C.’s apartment was in total disarray. There were “items on
the floor, items broken, and things knocked over.” There was blood spattered on
the walls and floor, a pool of blood in the living room, and blood throughout the
bathroom. They also found a “fairly large” tuft of what looked like R.C.’s hair on
the ground.
R.C. was transported to Northwest Hospital where her injuries, including
two nasal bone fractures and multiple lacerations to her face and hands, were
treated.
The State charged Claybrook with two counts of second degree assault,
one count of felony harassment, and one count of unlawful imprisonment. All were
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charged as domestic violence offenses. One of the assault charges further alleged
that Claybrook had been armed with a deadly weapon when he hit R.C. with the
metal dolly and that this assault caused a level of injury substantially greater than
necessary to accomplish the crime.
Claybrook represented himself at trial. Throughout the trial and pre-trial
hearings, Claybrook was unruly and disruptive. He frequently argued with the trial
court and interrupted the prosecutor’s examination of witnesses with non-legal
objections and inappropriate commentary on the testimony. His attempts to cross-
examine witnesses sometimes devolved into confused and tangential diatribes,
despite the court’s repeated admonitions that he needed to ask appropriate
questions.
During the direct examination of R.C., Claybrook became extremely
disruptive. He repeatedly “objected” and interrupted R.C.’s answers with his own
testimony about the incident and began fake-coughing words like “bullshit” and
“extortion.” After Claybrook’s interruptions became so persistent that R.C. could
not focus enough to carry on with her testimony, the trial court excused the jury so
that it could address the issue with Claybrook. When the trial court reprimanded
Claybrook for his behavior and attempted to advise him on how to properly object,
Claybrook became antagonistic. The court responded
THE COURT: You're going to be removed, and you can watch the rest—
MR. CLAYBROOK: No, f[***], I object to that, too.
THE COURT: —of the proceeding. You can watch the proceedings.
MR. CLAYBROOK: She's f[***]ing lying.
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THE COURT: And then I'll bring you back for cross-examination.
Claybrook became angry and shouted at the court that his objections were proper
and demanded to know what “playbook” the court was using. The trial court
reiterated
THE COURT: You're going to be removed.
MR. CLAYBROOK: No, I'm not.
THE COURT: You can watch the remainder—
MR. CLAYBROOK: I object. You said 3.5.
THE COURT: —of the direct examination—
MR. CLAYBROOK: F[***] no.
THE COURT: —in a courtroom, but I am not going to—
MR. CLAYBROOK: It says right here if you're lying, I can object.
THE COURT: —listen and I'm not going to have her subjected to this type of behavior. . . . And we will set up the video cart. I'm doing this reluctantly because the witness is uncomfortable. She asked me to stop because she cannot focus. . . . We'll bring you back, but we're not going to continue like this.
The trial court had Claybrook escorted to a different room in the courthouse, in
which there was a remote video screen that allowed him to watch a live camera
feed of the courtroom proceedings. As Claybrook watched the remainder of R.C.’s
testimony, he attempted to shout at her and “curse[] her out,” unaware that his
microphone was muted. After the video technician informed him that no one in the
courtroom could hear him, he continued cursing at R.C. and eventually began
yelling at the officers present in the remote observation room.
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The trial court permitted Claybrook to return to the courtroom to cross-
examine R.C. The trial court warned Claybrook that it would cut him off if he
argued with R.C. or used cross-examination as an opportunity to testify. Claybrook
cross-examined R.C. without incident.
The jury convicted Claybrook on all charges, entered special verdicts finding
the crimes were domestic violence offenses and, for the assault in count 4, found
that Claybrook was armed with a deadly weapon and that R.C.’s injuries
substantially exceeded that necessary for the crime. The trial court imposed an
exceptional 119-month sentence based on these aggravating factors. Claybrook
appeals.
ANALYSIS
A. Constitutional Right to be Present at Trial
Claybrook first argues that his removal from the courtroom during R.C.’s
testimony violated his constitutional right to be present at trial. We agree but
conclude that this error was harmless beyond a reasonable doubt.
Criminal defendants have a constitutional right to be present at trial. State
v. Davis, 195 Wn.2d 571, 578, 461 P.3d 1204 (2020); U.S. CONST. amend. VI;
WASH. CONST. art. I, § 22. But that right is not absolute. State v. Chapple, 145
Wn.2d 310, 318, 36 P.3d 1025 (2001). A defendant’s persistent, disruptive
conduct can constitute a voluntary waiver of the right to be present in the
courtroom. State v. DeWeese, 117 Wn.2d 369, 381, 816 P.2d 1 (1991); Illinois v.
Allen, 397 U.S. 337, 343, 90. S. Ct. 1057, 25 L. Ed. 2d 353 (1970). This court
reviews de novo whether a defendant’s constitutional right to be present has been
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violated. State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011) (citing State v.
Strode, 167 Wn.2d 222, 225, 217 P.3d 310 (2009)).
While the appropriate method for dealing with a disruptive defendant should
be left to the trial judge's discretion, Washington courts recognize basic guidelines
to assist trial courts in exercising their discretion. Chapple, 145 Wn.2d at 320.
First, the trial court must warn the defendant that his conduct may lead to removal.
Id. Second, the defendant's conduct must be severe enough to justify removal.
Id. Third, the trial court should employ the least severe alternative that will prevent
the defendant from disrupting the trial. Id. Fourth, the defendant must be allowed
to reclaim his right to be present upon assurances that his or her conduct will
improve. Id. These guidelines are intended to ensure that trial courts exercise
their discretion in a manner that affords defendants a fair trial while maintaining the
safety and decorum of the proceedings. Id.
Claybrook argues, and the State concedes, that the trial court violated his
right to be present at trial when it removed him without first warning him that
continued disruptive behavior could result in removal. In this case, the trial court’s
first statement to Claybrook regarding his removal was a definitive statement that
he was going to be removed and that he could watch the proceedings from a
remote location and return to cross-examine R.C. Despite Claybrook’s persistently
disruptive behavior throughout the entirety of the trial and pre-trial hearings, the
court never discussed the potential consequences of his actions. Therefore, we
accept the State’s concession and conclude that the trial court violated his right to
be present at trial.
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While the State acknowledges that the trial court erred in removing
Claybrook without the requisite warnings, it argues that this error was harmless
beyond a reasonable doubt. We agree.
The violation of a defendant's right to be present at trial is subject to
harmless error analysis. Irby, 170 Wn.2d at 885. The State has the burden of
proving the error was harmless, and must do so beyond a reasonable doubt. Id.
at 886. A constitutional error is harmless if we are convinced beyond a reasonable
doubt that the jury verdict would have been the same absent the error. State v.
A.M., 194 Wn.2d 33, 41, 448 P.3d 35 (2019). The error is harmless if the untainted
evidence is “‘so overwhelming that it necessarily leads to a finding of guilt.’” State
v. Frost, 160 Wn.2d 765, 782, 161 P.3d 361 (2007) (quoting State v. Guloy, 104
Wn.2d 412, 426, 705 P.2d 1182 (1985)).
Claybrook argues that his removal from the courtroom was prejudicial
because he lacked the ability to object to “gruesome, disturbing, and duplicative”
photographs that were admitted in his absence.
During R.C.’s direct testimony, the State introduced a number of pictures
showing the injuries she suffered. Many of the photos depicting R.C.’s bloody face,
taken on the night of Claybrook’s arrest, were admitted without objection from
Claybrook. Exhibits 83 through 90, which were admitted in Claybrook’s absence,
depicted R.C.’s injuries at different points in time during the week following the
assault. Claybrook contends that the latter set of photos were unnecessarily
gruesome and duplicative of photographs the court had already admitted and that,
had he been present, he would have objected to their admission.
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Claybrook, however, has failed to demonstrate that the trial court would
have sustained such an objection. Gruesome photos are admissible if their
probative value outweighs their prejudicial effect. State v. Hoffman, 116 Wn.2d
51, 88, 804 P.2d 577 (1991). The State offered the photos to establish one of the
alleged aggravating factors—whether R.C.’s injuries “substantially exceeded the
level of bodily harm necessary to constitute substantial bodily harm, as defined in
Instruction 21.” “Substantial bodily harm” was defined in Instruction 21 as “bodily
injury that involves a temporary but substantial disfigurement, or that causes a
temporary but substantial loss or impairment of the function of any bodily part or
organ, or that causes a fracture of any bodily part.” These post-hospitalization
photographs were highly probative of the severity of R.C.’s injuries and the
duration of her suffering. Additionally, while the photos did depict bruising and
suturing, they were no more graphic than photographs of R.C.’s injuries on the
night of the assault, to which Claybrook raised no objection. Claybrook thus has
not demonstrated that the unfair prejudicial impact of admitting Exhibits 83 to 90
outweighed their probative value.
It is similarly unlikely the trial court would have excluded the photos as
duplicative. While similar to other photos of R.C., these exhibits showed the jury
R.C.’s injuries in the days following the event, rather than at the time of the event.
They were not identical to other photographic exhibits and served the unique
purpose of showing how R.C.’s injuries healed over time.
More significantly, even if the trial court had excluded the contested photos,
there is overwhelming untainted evidence demonstrating Claybrook’s guilt. R.C.
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immediately identified Claybrook as her attacker when police arrived and again at
trial. She testified in great detail about how he strangled and brutally beat her. Her
testimony was corroborated by her injuries, which included a broken nose, minor
stab wounds, and “obvious strangulation marks around her neck.” When
responding officers arrived on the scene just minutes after Studley called 911, they
found Claybrook leaving R.C.’s apartment via her balcony. He was covered in
blood and sweating profusely. The police searched R.C.’s apartment and found
no one else there. There is overwhelming untainted evidence that Claybrook
assaulted, imprisoned, and threatened to kill R.C.
Claybrook also contends that his absence from the courtroom for a portion
of R.C.’s testimony was inherently prejudicial because the jurors may have drawn
improper conclusions about his absence. This contention is entirely speculative.
There is nothing to suggest Claybrook’s temporary absence from the courtroom
contributed to the jury verdict, especially in the light of the overwhelming amount
of untainted evidence that demonstrated his guilt.
We are convinced beyond reasonable doubt that the verdict would have
been the same had Claybrook not been erroneously removed from the courtroom.
This error was harmless.
B. Double Jeopardy
Claybrook next argues the double jeopardy clause bars his two assault
convictions because the acts constituted a single course of conduct. The record
does not support this argument.
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The double jeopardy provisions of the federal and state constitutions protect
a defendant from being punished multiple times for the same offense. State v.
Muhammad, 194 Wn.2d 577, 615-16, 451 P.3d 1060 (2019) (opinion of Gordon
McCloud, J.); WASH. CONST. art. I, § 9; U.S. CONST. amend V. This court reviews
double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180 Wn.2d 975,
979-80, 329 P.3d 78 (2014).
In order to “avoid the risk of a defendant being ‘convicted for every punch
thrown in a fistfight,’” we consider assault a course of conduct crime. Id. (quoting
State v. Tili, 139 Wn.2d 107, 116, 985 P.2d 365 (1999)). The ultimate
determination of whether multiple assaultive acts constitute one course of conduct
depends on a totality of the circumstances. Id. at 985. To guide its analysis, this
court considers (1) whether the acts took place over a lengthy period of time or
occurred in rapid succession, (2) whether the acts took place in the same location,
(3) whether the defendant had different motivations for the different acts, (4)
whether the acts were interrupted by any intervening events, and (5) whether there
was an opportunity for the defendant to reconsider his actions. Id. No one factor
is dispositive. Id.
The jury convicted Claybrook of two counts of assault in the second degree.
During closing arguments, the State indicated that the first assault charge was
based on Claybrook’s strangulation of R.C., and the second was based on
Claybrook’s physical attack of R.C. with the metal dolly, after she tried to escape
the apartment for the third time. Weighing the totality of the circumstances in this
case, we conclude that the assaultive acts at issue here do not constitute a single
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course of conduct and that Claybrook’s convictions do not violate the prohibition
against double jeopardy.
While both assaults occurred in the same location—R.C’s apartment—and
Claybrook’s motive for each—to prevent R.C. from seeking help—appears to have
been the same, they occurred over a significant period of time and were interrupted
by several intervening events during which Claybrook had time to reconsider his
actions.
First, Claybrook’s assaultive acts occurred over a significant period of time.
R.C. testified they arrived at her apartment between 8:30 p.m. and 8:45 p.m. and
that she confronted him about his past within a half hour of arriving home,
sometime between 9:00 p.m. and 9:15 p.m. They then argued for about 15 to 20
minutes before he knocked her to the floor and strangled her. From this evidence,
the first assault occurred sometime between 9:15 p.m. and 9:35 p.m. The second
assault, where Claybrook repeatedly struck R.C. with the metal dolly, occurred
shortly before police arrived just after 10 p.m. Thus, there would have been
somewhere between 25 and 45 minutes between the two charged assaults.
Second, the record demonstrates multiple periods of relative calm between
the assaults. After Claybrook strangled R.C., but before he beat her with the metal
dolly, Claybrook allowed her to get up and use the toilet. He stood by watching
while she used the bathroom, and then walked away to the sliding door. After she
tried to escape, Claybrook twice physically forced her into the bathroom. The first
time, R.C. had time to look at herself in the mirror and assess her injuries. Not
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until R.C.’s third attempt to escape the apartment did Claybrook beat her with the
metal dolly.
Finally, these intervening events demonstrate that Claybrook had
opportunities to reconsider his actions after he strangled R.C. For instance,
Claybrook told R.C. that he was not sure if he could trust her enough to let her up
from the floor, and when she was using the bathroom, he stood there calmly
monitoring her before locking the sliding door. When R.C. tried to escape, he
forced her into the bathroom, told her to stay there, and began packing his bags to
leave. This clearly shows that Claybrook was considering his actions,
contemplating what he should do next, and planning to leave before R.C. could
report the incident or seek help. Thus, he had adequate time to reconsider his
assaultive actions before he pummeled her with the metal dolly.
Claybrook analogizes his case to Villanueva-Gonzalez and In re Personal
Restraint Petition of White, 1 Wn. App. 2d 788, 407 P.3d 1173 (2017). In
Villanueva-Gonzalez, the defendant head-butted his girlfriend, breaking her nose,
and then grabbed her by the neck and strangled her. 180 Wn.2d at 978. A jury
convicted Villanueva-Gonzalez of two separate counts of assault. Id. at 979. The
Washington Supreme Court held that the defendant’s actions constituted one
course of conduct because they took place in the same location, over a short time
period with no interruptions, and with no evidence suggesting a different
motivation, intent, or opportunity to reconsider his actions. Id. at 985-86.
In White, following an argument over child custody, the defendant pointed
a gun at his girlfriend, threatened to kill her, then pushed her to the floor where he
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beat and strangled her. 1 Wn. App.2d at 790. A jury convicted White of two counts
of second degree assault for this conduct. White argued these convictions violated
double jeopardy. Id. at 791. This court agreed, noting that the assaultive acts at
issue appeared to be based on the same motive and occurred in the same location
within a short period of time, with no evidence of interruptions, periods of calm, or
time for White to reconsider his actions. Id. at 796. That incident was “one
continuous struggle from the time White pointed a gun at [the victim] to throwing
her on the floor and beating her to the time he began to strangle her.” Id. at 796.
The State, by contrast, relies on State v. Aquiningoc, noted at 188 Wn. App.
1038 (2015), and State v. Pinkney, noted at 11 Wn. App. 2d 1079 (2020). 2 In
Aquiningoc, the defendant was convicted of second and fourth degree assault
following a violent incident involving his estranged wife. 2015 WL 4090100 at *2.
For some unspecified period of time, Aquiningoc and his wife calmly discussed the
possibility of reconciliation but he became verbally and physically abusive as their
discussion progressed. Id. at *1. After assaulting his wife, he began packing his
clothes from the closet and his wife fled to the master bathroom. When he finished
packing, he found his wife in the master bathroom and slapped her so forcefully
that she banged her head on the toilet. Id. at *2. This court rejected Aquiningoc’s
double jeopardy claim because the two assaults were not a continuous course of
conduct and the facts were distinguishable from those of Villaneuva-Gonzalez. It
concluded that “the assaultive acts in this case occurred over a relatively long
period of time, during which Aquiningoc and his victim moved to several locations
2 Under GR 14.1(c), we cite these cases here because doing so is necessary for a reasoned decision.
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throughout the apartment.” Id. at *4. And the first assault was “punctuated by
several instances of relative calm,” during which the defendant had opportunities
to reconsider his actions. Id. at *4. The court rejected his double jeopardy claim
on this basis.
Likewise, in Pinkney, we rejected the argument that two second degree
assault convictions violated double jeopardy. In that case, the defendant got drunk
and began threatening his girlfriend. 2020 WL 1893662 *1. When she went into
the bedroom to call 911, Pinkney came into the room, grabbed her by the neck
and squeezed. Id. at *1. He let go, pushed her onto the bed and left the room. Id.
He returned to the bedroom as she was begging him to leave and strangled her a
second time. Id. at *1-2. This court again distinguished the facts from those of
Villaneuva-Gonzalez, and concluded there was no double jeopardy violation even
though both assaults occurred in the girlfriend’s bedroom and occurred over a
short period of time because when Pinkney stopped the first assault and left the
bedroom, he had the opportunity to reconsider his actions and made the decision
to assault her again. Id. at * 3. The court also found Pinkney’s intent during the
second assault appeared different than the first assault because the second was
more serious and he seemed determined to cause her more physical harm. Id.
Claybrook’s case is more analogous to Aquiningoc and Pinkney than either
Villanueva-Gonzalez or White. In contrast to Villanueva-Gonzalez and White,
Claybrook’s assaultive acts occurred over a significant period of time. Rather than
multiple, rapid-fire assaults, Claybrook’s assaults happened over a minimum of 25
minutes. And the assaultive acts were not continuous over this time. Rather, as
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in Aquiningoc, Claybrook’s assaults were separated by moments of relative calm,
such as when R.C. was using the toilet or when he was focused on packing his
bags. And like Pinkney, Claybrook left R.C. alone in the bathroom after initially
strangling her, giving him sufficient opportunity to reconsider his actions. These
intervening events demonstrate that Claybrook had opportunities to reconsider his
actions after he strangled her. He nevertheless chose to assault R.C. a second
time with the metal dolly to prevent her from leaving the apartment.
Considering the totality of the circumstances, we conclude Claybrook’s two
assault convictions did not violate double jeopardy.
We affirm.
WE CONCUR:
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