                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                          November 27, 2018
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                               No. 50712-9-II

                                 Respondent,

         v.                                                     UNPUBLISHED OPINION

    YELENA ALEXANDER SHUBOCHKINA,

                                 Appellant.


        MAXA, C.J. – Yelena Shubochkina appeals her conviction of second degree identity theft

arising out of her unauthorized use of a credit card. On the second day of jury deliberations, the

trial court excused a juror and replaced her with an alternate juror. But the court did not instruct

the jury on the record that they must disregard all previous deliberations and begin deliberations

anew with the alternate juror.

        We hold that the trial court erred in failing to instruct the reconstituted jury on the record

to disregard previous deliberations and to begin deliberations anew with the alternate juror. We

also reject Shubochkina’s assertion in a statement of additional grounds (SAG) that that her

conviction of the inferior degree offense of second degree identity theft should be dismissed with

prejudice because the jury found her not guilty of first degree identity theft.

        Accordingly, we reverse Shubochkina’s conviction of second degree identity theft and

remand for further proceedings.1



1
  Shubochkina also argues that she received ineffective assistance of counsel because counsel
failed to object to certain evidence and asserts in her SAG that the trial court erred by imposing
No. 50712-9-II


                                               FACTS

       The State charged Shubochkina with first degree identity theft for the use of a credit card

belonging to a man with whom she lived. At trial, the court instructed the jury on both first

degree identity theft and the inferior degree offense of second degree identity theft.

       Following closing argument, the trial court temporarily excused juror 5, who was selected

as the alternate juror. The court made it clear that its instructions about jurors’ activities outside

the courtroom, including not discussing the trial or investigating the evidence, continued to apply

to the alternate. Then the jury deliberated for approximately an hour and a half.

       The next day, before the jury had resumed deliberations, the court informed the parties

that it had excused a juror because of a death in the family. The court stated that the alternate

juror had been contacted and would be returning to the courtroom that morning. The jury was

advised not to begin deliberations until the alternate juror arrived.

       The court then gave both parties an opportunity to comment. The prosecutor requested

that the “the jury be advised that now that they have a new member of the jury that they must

restart all deliberations.” Report of Proceedings (RP) at 341.

       The trial court did not have any discussion with the alternate juror when she returned.

Instead, the court’s judicial assistant directed her to go straight into the jury room. The court

also did not instruct the jury on the record that they were required to disregard prior deliberations

and restart deliberations anew. Instead, the court stated, “[The judicial assistant] will again

remind them that they must start anew with Juror No. 5 because they did have about an hour and




legal financial obligations after finding that she was indigent. Because we reverse
Shubochkina’s conviction, we do not address these claims.


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No. 50712-9-II


a half of deliberations yesterday.” RP at 341-42. The judicial assistant’s directions to the jury

were not placed on the record.

       The jury returned a verdict that afternoon. The jury found Shubochkina not guilty of first

degree identity theft but guilty of the second degree identity theft.

       Shubochkina appeals her conviction.

                                            ANALYSIS

A.     REPLACING A DELIBERATING JUROR WITH AN ALTERNATE JUROR

       Shubochkina argues that the trial court erred in replacing the excused juror with an

alternate juror without instructing the reconstituted jury on the record to disregard previous

deliberations and begin deliberations anew with the alternate juror. We agree.2

       1.    Legal Principles

       CrR 6.5 addresses the procedure for replacing an initial juror with an alternate juror after

the jury has begun deliberations. When alternate jurors are temporarily excused, “the trial judge

shall take appropriate steps to protect alternate jurors from influence, interference or publicity,

which might affect that juror’s ability to remain impartial.” CrR 6.5. Before seating an alternate

juror for deliberations, the trial court “may conduct brief voir dire.” CrR 6.5. In addition, “[i]f

the jury has commenced deliberations prior to replacement of an initial juror with an alternate

juror, the jury shall be instructed to disregard all previous deliberations and begin deliberations

anew.” CrR 6.5.

       Article I, sections 21 and 22 of the Washington Constitution guarantee criminal

defendants the right to an impartial jury and a unanimous verdict. See State v. Armstrong, 188



2
  Shubochkina also argues that the trial court erred in replacing the excused juror with an
alternate juror without questioning the alternate juror about her continuing impartiality. Because
we reverse on other grounds, we do not address this issue.


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No. 50712-9-II


Wn.2d 333, 340, 394 P.3d 373 (2017). Replacing an initial juror with an alternate juror directly

relates to these constitutional rights. State v. Ashcraft, 71 Wn. App. 444, 463, 859 P.2d 60

(1993). Therefore, complying with CrR 6.5 has constitutional implications. State v. Lamar, 180

Wn.2d 576, 582-86, 327 P.3d 46 (2014). This court reviews claims of constitutional error de

novo. State v. Blancaflor, 183 Wn. App. 215, 222, 334 P.3d 46 (2014).

       The failure to give an appropriate jury instruction under CrR 6.5 is subject to a harmless

error analysis. See id. at 228.

       2.    Failure to Instruct Jury to Restart Deliberations

       CrR 6.5 clearly states that when an alternate juror replaces an initial juror, “the jury shall

be instructed to disregard all previous deliberations and begin deliberations anew.” (Emphasis

added.) Courts repeatedly have held that the trial court’s failure to give such an instruction on

the record is reversible error of constitutional magnitude. Lamar, 180 Wn.2d at 585-86;

Blancaflor, 183 Wn. App. at 218, 222; State v. Stanley, 120 Wn. App. 312, 318, 85 P.3d 395

(2004); Ashcraft, 71 Wn. App. at 464. “An appellate court must be able to determine from the

record that jury unanimity has been preserved.” Ashcraft, 71 Wn. App. at 465.

       Here, the trial court did not instruct the reconstituted jury to disregard all previous

deliberations and begin deliberations anew with the alternate juror. Instead, the court stated that

the judicial assistant “will again remind them that they must start anew with Juror No. 5 because

they did have about an hour and a half of deliberations yesterday.” RP at 341-42.

       The State argues that the trial court’s statement that the judicial assistant would remind

the jury to start deliberations anew was an instruction to the jury on the record. However, we

interpret CrR 6.5 as requiring the trial court to give a formal instruction to the jury on the record




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No. 50712-9-II


stating that they must restart deliberations. The informal direction from a judicial assistant here

did not satisfy the CrR 6.5 requirement.3

          We hold that the trial court erred by not instructing the jury on the record to disregard

previous deliberations and begin deliberations anew with the alternate juror. And the State does

not argue that any error was harmless in this case. The appropriate remedy for this error is

reversal of Shubochkina’s conviction with remand for a new trial. See Blancaflor, 183 Wn. App.

at 229.

B.        CONVICTION OF INFERIOR DEGREE OF CHARGED CRIME

          Shubochkina asserts in her SAG that her conviction of second degree identity theft is

invalid because the jury found her not guilty of first degree identity theft. We disagree.

          A criminal defendant generally can be convicted only of crimes that are charged in the

information. State v. Corey, 181 Wn. App. 272, 275, 325 P.3d 250 (2014). However, under

RCW 10.61.003, where the defendant is charged with a crime consisting of different degrees,

“the jury may find the defendant not guilty of the degree charged in the indictment or

information, and guilty of any degree inferior thereto.”

          Here, Shubochkina was charged by amended information with first degree identity theft.

The trial court gave a jury instruction regarding the possibility of convicting Shubochkina of

second degree identity theft and gave both a definitional instruction and a to-convict instruction

on second degree identity theft. Under the plain language of RCW 10.61.003, the jury could

validly convict Shubochkina of second degree identity theft as an inferior degree offense even

though the jury found her not guilty of first degree identity theft.



3
 Even if a judicial assistant’s informal direction to the jury could satisfy CrR 6.5, here that
direction was not made on the record and the record does not show what the judicial assistant
actually told the jury.


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No. 50712-9-II


        Accordingly, we reject Shubochkina’s SAG claim.

                                          CONCLUSION

        We reverse Shubochkina’s conviction of second degree identity theft and remand for

further proceedings.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.


 We concur:



 WORSWICK, J.



 MELNICK, J.




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