Price, J.

Kevin Hochhalter, Olympic Appeals PLLC, 4570 Avery Ln. Se. #c-217, Lacey, WA, 98503, for Appellant.

Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, for Respondent.

PUBLISHED IN PART OPINION

Price, J.

¶ 1 Chad Ferguson appeals his convictions following a jury trial. Ferguson argues that the trial court abused its discretion in denying his request for a mistrial when COVID-19 protocols affected his trial. He also argues that the trial court erred when it denied his request for a jury instruction on criminal trespass as a lesser included offense of first degree burglary and he received ineffective assistance of counsel.

¶ 2 In the published portion of this opinion, we hold that the trial court did not abuse its discretion by making trial management decisions that modified courtroom procedures in response to the COVID-19 pandemic. In the unpublished portion, we reject Ferguson's remaining arguments. We affirm.

FACTS

I. BACKGROUND

¶ 3 On April 16, 2019, Doug Brown and his son, Brandon Brown, left Doug's house to go to the store. When they returned, they noticed a man, who they recognized to be Ferguson, inside the garage. An altercation occurred, and soon thereafter, Ferguson fled the scene by running through a nearby field to a neighbor's home. The police responded and ultimately found Ferguson at the neighbor's house. Ferguson was arrested.

¶ 4 Ferguson was initially charged with first degree burglary of Doug's house. By the time his trial date arrived, Ferguson's charges were amended to also include felony harassment, third degree malicious mischief, second degree criminal trespass of the neighbor's house, bail jumping, and witness tampering.

II. TRIAL COURT ’ S COVID-19 PROTOCOLS

¶ 5 Following delay and multiple continuances partly due to the COVID-19 pandemic, Ferguson's case proceeded to trial. Ferguson's jury trial was the first to take place in the county since the beginning of the COVID-19 pandemic. Accordingly, the trial court implemented a variety of COVID-19 protocols for the trial. As shown in the video record of Ferguson's trial, some members of the jury were seated behind the counsel tables in the courtroom gallery because of the need to socially distance the jurors and the participants. And everyone in the court room was instructed to wear face masks. The trial court also instructed the jurors to raise their hands if they could not hear something during the trial. ¶ 6 Plexiglass partitions were also placed between participants, including between Ferguson and his counsel at their table. Throughout the trial, Ferguson and his counsel would lean or move back behind the partition to speak to each other and would pass notes to each other.

¶ 7 After all witnesses had testified, Ferguson's counsel requested a mistrial based on the COVID-19 protocols. Specifically, counsel argued the plexiglass partition between counsel and Ferguson, coupled with the seating arrangement for the jurors, compromised their ability to have necessary attorney-client communications. Ferguson's counsel contended that because they could not hear each other through the plexiglass partition, the jurors were possibly able to overhear private communications. Counsel stated, "[Ferguson] speaks too loudly, and so I was -- I think -- the jurors were sitting within six feet of him. And usually they're on the other side of the room." Verbatim Rep. of Proc. (VRP) at 482. The trial court suggested that a mistrial based on the trial layout should have been requested on "day one" of the trial, not just before closing arguments, and denied the motion for a mistrial. VRP at 487.

¶ 8 The jury found Ferguson guilty of first degree burglary, third degree malicious mischief, second degree criminal trespass, bail jumping on a class A felony, and tampering with a witness.

¶ 9 Ferguson appeals.

ANALYSIS

I. BACKGROUND OF COVID-19 AND COURT OPERATIONS

¶ 10 On February 29, 2020, Governor Jay Inslee declared a state of emergency due to the COVID-19 pandemic. Order, No. 25700-B-602, In re Response by Washington State Courts to the Public Health Emergency in Washington State , at 1 (Wash. Mar. 4, 2020) (March 4 Order). In response to this emergency, our Supreme Court issued a series of orders authorizing trial courts to alter their regular operations and procedures. See, e.g., id. As the March 4 Order recited:

[D]uring this state of emergency, it may become necessary for courts in these counties to close, relocate, or otherwise significantly modify their regular operations; and

[T]he presiding judges in these counties need sufficient authority to effectively administer their courts in response to this state of emergency, including authority to adopt, modify, and suspend court rules and orders as warranted to address the emergency conditions.

Id.

¶ 11 Less than three weeks later, on March 20, 2020, our Supreme Court noted that public health authorities and government officials were making increasingly stringent public health recommendations. Amended Order, No. 25700-B-607, In re Statewide Response by Washington State Courts to the COVID-19 Public Health Emergency , at 1 (Wash. Mar. 20, 2020) (March 20 Order).

[D]uring this state of emergency, the Centers for Disease Control and Prevention and the Washington State Department of Health have recommended increasingly stringent social distancing measures of at least six feet between people, and encouraged vulnerable individuals to avoid public spaces; and

[C]onsistent with these recommendations, Governor Inslee has barred gatherings of more than fifty people and ordered all schools, businesses, faith-based organizations, and other public venues to close during the ongoing public health emergency, and the CDC has recommended restricting gatherings to no more than 10 people ....

Id.

¶ 12 Our Supreme Court recognized that court facilities were not well-equipped for the spatial demands of social distancing:

[M]any court facilities in Washington are ill-equipped to effectively comply with social distancing and other public health requirements

and therefore continued in-person court appearances jeopardize the health and safety of litigants, attorneys, judges, court staff, and members of the public ....

Id. at 1-2.

¶ 13 Because the crisis was "increasing daily," our Supreme Court required that courts consider closing or "significantly modify[ing] their operations" for public health and safety:

[P]ursuant to this Court's March 4, 2020 order, many Washington courts have already taken important steps to protect public health while ensuring continued access to justice and essential court services; however, the crisis is increasing daily and it may become necessary for courts to close, suspend in-building operations or otherwise significantly modify their operations ....

Id. at 2. The March 20 Order also suspended all criminal trials until after April 24, 2020. Id. at 3.

¶ 14 Our Supreme Court then decided to extend the suspension of criminal trials several more times, until after May 4, 2020, and again until July 6, 2020. Order, No. 25700-B-615, In re Statewide Response by Washington State Courts to the COVID-19 Public Health Emergency , at 3 (Wash. Apr. 13, 2020) (April 13 Order); Order, No. 25700-B-618, In re Statewide Response by Washington State Courts to the COVID-19 Public Health Emergency , at 3 (Wash. Apr. 29, 2020) (April 29 Order).

¶ 15 When criminal jury trials were permitted to resume on July 6, 2020, our Supreme Court again instructed trial courts to alter typical courtroom procedures to allow for social distancing and provided the respective presiding judges with the authority to make required modifications:

[S]afely resuming jury trials will require modifications to court rules and procedures to allow for social distancing and compliance with public health protocols, to minimize the risk of coronavirus exposure by jurors, court personnel, litigants and the public ....

Order, No. 25700-B-631, In re Statewide Response by Washington State Courts to the COVID-19 Public. Health Emergency , at 1-2 (Wash. June 18, 2020) (June 18 Order). The Supreme Court further ordered, "[C]ourts must conduct all such proceedings consistent with the most protective applicable public health guidance in their jurisdiction ...." Id. at 3.

II. COVID-19 PROTOCOLS FOR FERGUSON ’ S TRIAL

¶ 16 Against this backdrop of modified court operations rooted in the public health emergency, Ferguson argues that the trial court's COVID-19 protocols for his September 2020 trial were trial irregularities and the trial court erred when it denied his motion for a mistrial. The State argues that the COVID-19 precautions were permissible trial management decisions within the discretion of the trial court. We agree with the State.

A. LEGAL PRINCIPLES

¶ 17 We review the trial court's denial of a motion for a mistrial for an abuse of discretion. State v. Garcia , 177 Wash. App. 769, 776, 313 P.3d 422 (2013), review denied , 179 Wash.2d 1026, 320 P.3d 718 (2014). "A trial court's denial of a mistrial motion will be overturned only when there is a substantial likelihood that the error affected the jury's verdict." Id.

¶ 18 Trial irregularities are irregularities that occur during a criminal trial that implicate the defendant's due process right to a fair trial. State v. Davenport , 100 Wash.2d 757, 761 n.1, 675 P.2d 1213 (1984). We examine three factors "when determining whether an irregularity warrants a mistrial: ‘(1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it.’ " Garcia , 177 Wash. App. at 776, 313 P.3d 422 (internal quotation marks omitted) (quoting State v. Emery , 174 Wash.2d 741, 765, 278 P.3d 653 (2012) ).

¶ 19 Courts have also categorized certain trial court decisions as "trial management decisions." See State v. Dye , 178 Wash.2d 541, 547, 309 P.3d 1192 (2013) (whether presence of facility dog with witness during live testimony violated defendant's fair trial rights was analyzed as a trial management decision); State v. Caver , 195 Wash. App. 774, 780, 381 P.3d 191 (2016) (whether the trial court's refusal to allow the defendant to wear jail clothes was a due process violation was analyzed as a trial management decision), review denied , 187 Wash.2d 1013, 388 P.3d 496 (2017) ; State v. Jaime , 168 Wash.2d 857, 862, 233 P.3d 554 (2010) (provisions for the order and security of the courtroom were analyzed as trial management decisions). Because the trial court is generally in the best position to perceive and structure its own proceedings, the trial court has broad discretion over trial management decisions. Dye , 178 Wash.2d at 547, 309 P.3d 1192.

¶ 20 Some examples of trial management decisions are provisions for the order and security of the court room and the manner and order of interrogating witnesses. Id. at 547-48, 309 P.3d 1192. The physical layout of the courtroom is also generally a matter of the trial court's discretion. State v. Johnson , 77 Wash.2d 423, 425, 462 P.2d 933 (1969) ("Physical arrangement of the courtroom, including placement of jurors, counsel and parties, and the location of bench, witness box, court reporter and clerk during all stages of trial" are discretionary matters for the trial court.).

¶ 21 We review trial management decisions under an abuse of discretion standard. Caver , 195 Wash. App. at 780, 381 P.3d 191. The trial court abuses its discretion if:

(1) The decision is "manifestly unreasonable," that is, it falls "outside the range of acceptable choices, given the facts and the applicable legal standard";

(2) The decision is "based on untenable grounds," that is, "the factual findings are unsupported by the record"; or

(3) The decision is "based on untenable reasons," that is, it is "based on an incorrect standard or the facts do not meet the requirements of the correct standard."

Dye , 178 Wash.2d at 548, 309 P.3d 1192 (quoting In re Marriage of Littlefield , 133 Wash.2d 39, 47, 940 P.2d 1362 (1997) ).

¶ 22 However, if the trial management decision is inherently prejudicial, we scrutinize it more closely. See Caver , 195 Wash. App. at 780, 381 P.3d 191. The court in Caver explained:

When the decision is "inherently prejudicial," we scrutinize it closely, asking if it was "necessary to further an essential state interest." To determine if a courtroom arrangement is "inherently prejudicial," we ask if it presents "an unacceptable risk" of bringing "impermissible factors" into play. This risk comes from "the wider range of inferences that a juror might reasonably draw" from the arrangement. We use "reason, principle, and common human experience" to evaluate the likely effects of a measure on a juror's judgment.

Id. (internal quotation marks and footnotes omitted) (quoting State v. Finch , 137 Wash.2d 792, 846, 975 P.2d 967 (1999) ; Jaime , 168 Wash.2d at 862, 233 P.3d 554 ; Estelle v. Williams , 425 U.S. 501, 504, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) ).

B. COVID-19 PROTOCOLS ARE TRIAL MANAGEMENT DECISIONS

¶ 23 As an initial matter, the parties disagree on whether COVID-19 protocols are more appropriately considered trial irregularities or trial management decisions. We hold that COVID-19 protocols are trial management decisions, not trial irregularities. The factors to determine whether trial irregularities warrant a mistrial, as a whole, are ill-fitting to analyze the question of whether any particular set of COVID-19 protocols merit a mistrial.

¶ 24 The first trial irregularity factor of "seriousness" could clearly be applied to COVID-19 protocols; these protocols could have the potential of seriously impacting the rights of defendants. One could imagine the possibility of protocols, if taken to their extremes, dramatically affecting the fairness of a trial. For example, placing the defendant and counsel in different rooms to prevent contact without some form of private communication could foreclose effective attorney-client consultation, or if jurors are so overly distanced such that evidence cannot be viewed, the right to present a defense would be compromised.

¶ 25 However, the second factor (whether it involved cumulative evidence) and the third factor (whether remedied by trial court instruction) cannot be readily applied to COVID-19 protocols. COVID-19 protocols do not directly involve evidence from a case, making the second factor irrelevant to analyzing whether these alterations warrant a mistrial. The third factor, too, is not applicable. While COVID-19 protocols would obviously require some initial comment to jurors from the trial court, this type of instruction would not be considered a curative instruction. The lack of meaningful application of two of the three factors shows that the question of whether COVID-19 protocols are appropriate should not be analyzed as trial irregularities, but as trial management decisions instead.

C. TRIAL COURT DID NOT ABUSE ITS DISCRETION

¶ 26 Here, Ferguson challenges the COVID-19 protocols used for his trial—specifically, the trial court's use of plexiglass partitions, the jurors’ position in the gallery, and the use of masks in the court room. Ferguson argues that the plexiglass between him and his counsel forced them to lean back to communicate with each other and may have allowed the jurors to overhear them. Ferguson also argues that the masks required him and his counsel to speak louder than they typically would, potentially disclosing their confidential attorney-client communications to the jurors and the State. Ferguson contends the trial court abused its discretion when it denied his request for a mistrial due to these protocols.

¶ 27 The State responds that the trial court did not abuse its discretion with these COVID-19 protocols. According to the State, because the trial court implemented these changes with the express permission of our Supreme Court to conduct jury trials " ‘consistent with the most protective applicable public health guidance,’ " the trial court did not abuse its discretion. Br. of Resp't at 13 (quoting June 18 Order at 3). The State further contends the possibility that the jurors overheard Ferguson's comments to his counsel is more attributable to his conduct, rather than the placement of the jurors. The plexiglass did not prevent communication between Ferguson and his counsel because they were able to pass notes, speak to each other by minimally backing up, and even the closest jurors were far enough away to not be able to hear if Ferguson did not speak too loudly. In other words, the State argues the presence of masking, plexiglass, and social distancing did not make Ferguson's trial unfair.

¶ 28 Whether these COVID-19 protocols warranted granting a mistrial is reviewed for an abuse of discretion. As the court in Dye noted, the trial court is in the best position to perceive and structure its own proceedings and has the discretion to alter its courtroom. Dye , 178 Wash.2d at 547-48, 309 P.3d 1192. The trial court in this case, knowing its own courtroom facilities and resources as it does, was therefore entitled, within the confines of reasonable discretion, to balance the need for public health and safety with the defendant's trial rights.

¶ 29 Ferguson's trial was the first in the county since the beginning of the pandemic and the suspension of all jury trials. The trial court implemented these protocols to ensure that the trial could safely proceed, as it was required to do by our Supreme Court. Plexiglass partitions, mandatory masking, and social distancing that forced jurors to be located throughout the gallery were all modifications to the trial court's typical courtroom arrangement and procedures that fall within the court's discretion and were based on the Supreme Court's multiple orders. And the impact on Ferguson's rights, while not negligible, was not onerous. Although Ferguson and his counsel were not able to communicate as easily as they would have been without the COVID-19 protections in place, the video record of the trial shows that he and his counsel were able to lean back minimally to speak around the plexiglass partition and write notes to each other. And the record shows that Ferguson and his counsel communicated in those ways frequently. Ferguson claims that he spoke louder than normal because of the masks, but private communication with his counsel would have been more likely because of the same social distancing requirements about which Ferguson now complains.

¶ 30 Even if these COVID-19 protocols are characterized as inherently prejudicial trial management decisions, they pass closer scrutiny. First, these protocols were clearly designed to further essential state interests. Each of the three main protocols challenged by Ferguson, the plexiglass partitions, required masking, and position of the jurors in the courtroom, was specifically designed to prevent the spread of the COVID-19 virus. And the instructions from our Supreme Court's multiple orders make it clear that the state was in the middle of an evolving public health emergency and stopping the spread of the virus and protecting the public, including litigants, were essential state interests.

¶ 31 Second, there was no risk of "impermissible factors" being brought into play from the "inferences that a juror might reasonably draw" from the protocols. See Caver , 195 Wash. App. at 780, 381 P.3d 191. In the face of the public health emergency, all jurors were keenly aware that modifications were being made in all segments of our society. No reasonable juror would draw any inference personally against Ferguson because of the implementation of plexiglass partitions, masks, and social distancing. COVID-19 protocols are simply not comparable to other inherently prejudicial decisions, like requiring the defendant to wear prison clothes or restraints that could signal dangerousness. See Caver , 195 Wash. App. at 780-81, 381 P.3d 191. Because impermissible factors were not brought into play and the changes furthered essential state interests, the COVID-19 protocols satisfy the closer scrutiny required for inherently prejudicial trial management decisions.

¶ 32 We acknowledge the difficult positions trial courts were placed in by the conflict between safety of the public and the rights of the criminally accused, especially in the initial phases of the public health emergency from the COVID-19 pandemic. Balancing these two important interests in the face of rapidly evolving science and guidance about the COVID-19 virus challenged the entire justice system, as evidenced by the multiple orders from our Supreme Court. One could imagine the possibility of some COVID-19 protocols that weigh too heavily on one interest at the expense of another interest. But here, the trial court's protocols enabled Ferguson's trial to take place with a reasonable balance between participant safety and Ferguson's rights. The COVID-19 protocols were not outside the range of acceptable choices to prevent the spread of the COVID-19 virus. Therefore, these changes were not manifestly unreasonable or an abuse of discretion. We hold the COVID-19 protocols implemented in Ferguson's trial were permissive trial management decisions and the trial court did not abuse its discretion by denying Ferguson's motion for a mistrial.

¶ 33 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

We concur:

Glasgow, C.J.

Lee, J.