State Of Washington, V Brian Glenn Cox, 45971-0

Background

In 2013 Brian Cox (defendant) was divorced and his wife Lisa obtained a protection order (no contact, no harassment, and 500-foot exclusion from residence with limited road exception).
Cox allegedly tailgated, honked, mouthed words, and extended his middle finger toward Lisa shortly after the order; police later recorded Cox soliciting a coworker (Lopez-Ortiz) to make Lisa “permanently disappear.”
A separate inmate (Parmley) testified that Cox asked about “getting rid of” Lopez-Ortiz while jailed; police recorded phone and in-person meetings with Lopez-Ortiz and covertly recorded the in-person meeting.
Cox was charged with two counts of criminal solicitation to commit first-degree murder (one concerning Lisa, one concerning Lopez-Ortiz) and one gross misdemeanor violation of a protection order (DV-VPO); a jury convicted on all counts.
On remand from the Washington Supreme Court (after a prior reversal on public-trial grounds), the Court of Appeals reconsidered multiple claims including public-trial right, jury unanimity for the DV-VPO conviction, prosecutorial misconduct, ineffective assistance of counsel, offender-score calculation, and various SAG claims; it affirmed convictions and sentence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Cox)	Held
Public-trial right during sidebar for-cause challenges	Sidebar occurred in open court, record made; no closure	Sidebar summary on the record is not equivalent to a transcript of the sidebar; closure denied public scrutiny	No closure under State v. Love; record and on-the-record summary satisfied public-trial safeguards; claim rejected
Jury unanimity for DV-VPO	Sufficient evidence supports either no-contact or no-harassment theory; express unanimity unnecessary when both supported	Prosecutor argued both theories so jurors may have convicted on different means, violating unanimity	Express unanimity not required because evidence supported both alternative means; conviction affirmed
Prosecutorial vouching regarding Parmley	Closing argument drew reasonable inferences from evidence showing Parmley had nothing to gain and faced reprisals	Argument improperly vouched for witness credibility, implying State had independent assurance	Not improper vouching; prosecutor argued permissible inferences; claim waived if not objected and, in any event, fails on merits
Offender-score inclusion of DV-VPO for felony solicitation	DV-VPO is a repetitive domestic-violence offense and counts as an "other current offense" for offender-score calculation	DV-VPO was not a prior conviction or not "repetitive," so it should not have been counted	Count III properly included as an "other current" repetitive domestic-violence offense under SRA; offender score of 1 proper

Key Cases Cited

State v. Love, 183 Wn.2d 598 (Wash. 2015) (framework for determining courtroom closure and public-trial right)
State v. Owens, 180 Wn.2d 90 (Wash. 2014) (jury unanimity and alternative means rule)
State v. Smith, 181 Wn.2d 508 (Wash. 2014) (standard of review for public-trial right)
State v. Ish, 170 Wn.2d 189 (Wash. 2010) (limits on vouching and plea-agreement references)
State v. McKenzie, 157 Wn.2d 44 (Wash. 2006) (prosecutor may draw reasonable inferences about witness credibility)
In re Pers. Restraint of Glasmann, 175 Wn.2d 696 (Wash. 2012) (prosecutorial misconduct standard; waiver and "flagrant and ill-intentioned" exception)
State v. Rodriguez, 183 Wn. App. 947 (Wash. Ct. App. 2014) (plain-language reading that VNCOs/VPOs fit the definition of repetitive domestic-violence offenses for scoring)
State v. Montgomery, 163 Wn.2d 577 (Wash. 2008) (limits on witness opinion testimony regarding defendant's guilt and manifest-error review)