State v. Berg, 177 Wash. App. 119

Berg and Reed were convicted by jury of attempted first-degree murder, first-degree burglary, first-degree kidnapping, first-degree robbery, and intimidating a witness; the jury found firearm enhancements and that the attempted murder targeted a police officer.
During trial an acquaintance, Joel Wyman, was asked to leave the courtroom during a recess by law enforcement, detained outside and told he was trespassed from the trial; the trial judge had not authorized exclusion and later issued an order forbidding exclusion without good cause.
Wyman did not return because he feared arrest; Berg moved for a mistrial alleging violation of the public-trial right and improper usurpation of courtroom control by police; the trial court denied relief.
On appeal Berg and Reed argued (1) their public-trial rights were violated by Wyman’s exclusion and (2) insufficient evidence supported first-degree kidnapping; the court also addressed (in unpublished portion) other claims (prosecutorial misconduct, ineffective assistance, unanimity, etc.) and rejected them.
The Court of Appeals held (a) exclusion of a single observer did not constitute a courtroom closure under Lormor, so no public-trial violation, (b) police usurped courtroom control but that error was harmless, and (c) under Green and Korum the evidence was insufficient to support first-degree kidnapping, so those convictions were vacated and resentencing remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of Wyman was a courtroom closure violating the public-trial right	Berg: exclusion of the observer violated Sixth and public access rights	State: exclusion of one person is not a closure; courtroom remained open	Court: No closure — exclusion of a single person does not constitute closure under Lormor; public-trial right not violated
Whether officers usurped the court’s authority over courtroom operations	Berg: police unlawfully excluded Wyman and interfered with court’s control	State: officers acted to investigate and secure trial; court later reaffirmed public access	Court: Officers did usurp authority (error) but trial court corrected by order; police action was improper
Whether the courtroom-operations error requires reversal	Berg: usurpation of authority requires reversal	State: error harmless because it did not affect trial outcome	Court: Error was harmless — took place during recess, no record showing prejudice; convictions otherwise stand
Whether evidence supported first-degree kidnapping (incidental restraint doctrine)	Berg & Reed: restraint was incidental to robbery; insufficient for kidnapping	State: restraint facilitated robbery and lasted substantial time; alternatively, threats/use of deadly force during flight support kidnapping	Court: Applying Green and Korum, restraint was incidental to robbery and insufficient to prove kidnapping; kidnapping convictions vacated

State v. Lormor, 172 Wn.2d 85 (Wash. 2011) (exclusion of a single spectator does not constitute courtroom closure)
State v. Green, 94 Wn.2d 216 (Wash. 1980) (incidental restraint doctrine: restraint incidental to another crime insufficient for kidnapping)
State v. Korum, 120 Wn. App. 686 (Wash. Ct. App.) (applies incidental restraint doctrine to home-invasion robberies; followed here)
State v. Bone-Club, 128 Wn.2d 254 (Wash. 1995) (five-part test for justified closure/sealing of proceedings)
Presley v. Georgia, 558 U.S. 209 (U.S. 2010) (addressing circumstances when exclusion of an observer may constitute closure)
State v. Wise, 176 Wn.2d 1 (Wash. 2012) (public-trial rights and application of Bone-Club standards)