                                                                    rtLE0
                                                            COURT OF APPEALS DIV I
                                                             STATE OF WASHIKGTON
                                                            20I8 SEP 17 AM 8:36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                     )
                                              )         No. 76671-6-1
                        Respondent,           )
                                              )         DIVISION ONE
                v.                            )
                                              )         UNPUBLISHED OPINION
 KEVIN LEEROY CRUSON,                         )
                                              )
                        Appellant.            )         FILED: September 17, 2018
                                              )
       APPELWICK, C.J. — Cruson was convicted of first degree criminal trespass -

domestic violence, and violation of a no-contact order. He argues that the trial

court erred in instructing the jury on how to deliberate to reach valid unanimous

verdicts. We affirm.

                                      FACTS

       The State charged Cruson with residential burglary - domestic violence,

violation of a no-contact order, and bail jumping. The State alleged that on

September 23, 2015, Cruson broke into the home of Nickee Gwinner, the mother

of his two children, in violation of a no-contact order, and subsequently failed to

appear as ordered at a pretrial hearing on October 5, 2016.

       A trial was held on March 6 through 14, 2017. After giving jury instructions,

the trial court told the jury,

       You're free as a group to conduct your deliberations in any way that
       seems suitable to you and is consistent with the instructions I've
       given, but I have a few suggestions that may help you proceed more
       smoothly. Unlike the instructions about the law, these remarks are
       only suggestions and they won't be given to you in writing.
No. 76671-6-1/2


The court then made broad suggestions to the jury, encouraging them to "respect

each other's opinions," and to "listen carefully to each other." It also gave

examples of different ways to conduct a vote.

      The jury found Cruson not guilty of residential burglary, but guilty of the

lesser included offense of first degree criminal trespass - domestic violence, and

guilty of violating a no-contact order. The jury could not reach a unanimous verdict

on the bail jumping charge. Cruson appeals.

                                   DISCUSSION

       Cruson's sole argument on appeal is that the trial court erred in instructing

the jury on how to deliberate to reach valid unanimous verdicts, depriving him of

his right to a fair trial and unanimous verdicts. He argues that the court failed to

instruct the jury on the constitutional framework for jury deliberations, and

affirmatively misinstructed the jury that it could "conduct [its] deliberations in any

way that seems suitable."

       The state constitution requires that a jury be unanimous in its verdict in a

criminal case. State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46 (2014). A

unanimous jury vote is a consensus reached after each juror examines the

evidence and the parties' arguments about what the evidence means, in light of

the jury instructions, and all of the jurors exchange their individual perceptions,

experiences, and assessments. Id. at 585.

       Because Cruson did not object to the trial court's instructions below, RAP

2.5(a) precludes him from raising this issue for the first time on appeal unless he

can show that the instruction is a "manifest error affecting a constitutional right."


                                             2
No. 76671-6-1/3


RAP 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). For an

error to be manifest, there must be evidence of"actual prejudice" having "practical

and identifiable consequences [at] trial." Id. at 99 (quoting State v. Kirkman, 159

Wn.2d 918, 935, 155 P.3d 124 (2007)). "[T]o determine whether an error is

practical and identifiable, the appellate court must place itself in the shoes of the

trial court to ascertain whether, given what the trial court knew at that time, the

court could have corrected the error. Id. at 100. If the trial court could not have

foreseen the potential error or the record on appeal does not contain sufficient

facts to review the claim, the alleged error is not manifest. Lamar, 180 Wn.2d at

583.

       Cruson argues that the trial court properly instructed the jury that

deliberation must occur in the jury room. But, he asserts that the trial court did not

"instruct the jury that deliberations may only proceed when all [12] jurors are

present." And, Cruson contends that the trial court made matters worse when it

"affirmatively misinformed the jury, 'You're free as a group to conduct your

deliberations in any way that seems suitable to you and is consistent with the

instructions."

       The trial court instructed the jurors with the identical instruction approved by

the court in Lamar. 180 Wn.2d at 580, 585. In two published decisions, this court

has rejected arguments that the trial court must instruct the jury that deliberations

may proceed only when all 12 jurors are present: State v. Sullivan, 3 Wn. App. 2d

376, 379, 380-81, 415 P.3d 1261 (2018)and State v. St. Peter, 1 Wn. App. 2d 961,

962-63, 408 P.3d 361 (2018). Failure to give such an instruction was not error.


                                              3
No. 76671-6-1/4


       The trial court's additional statement, "You're free as a group to conduct

your deliberations in any way that seems suitable to you and is consistent with the

instructions I've given," did not affirmatively misinform the jury. It is not comparable

to the error in Lamar, when the trial court instructed the jury to bring the alternate

juror "up to speed" after deliberations had taken place. See Lamar, 180 Wn.2d at

580-81. Here, the trial court did not contradict its earlier instructions in which it

explicitly told jurors, in accordance with 11 Washington Practice: Washington

Pattern Jury Instructions: Criminal 1.04 (4th ed. 2016), that they had a duty to

discuss the case with each other and to deliberate in an effort to reach a

unanimous verdict.

       Cruson has not established manifest error.

       Alternatively, Cruson argues that even without evidence of actual prejudice,

we should reverse his conviction. Citing State v. Wise, 176 Wn.2d 1, 288 P.3d

1113 (2012), he argues that the trial court's "failure to instruct a jury on how to

reach constitutionally valid verdicts" constitutes structural error. Structural error is

a special category of constitutional error that affects the framework within which

the trial proceeds, rather than simply an error in the trial process itself. Id. at 13-

14.   Structural error is not subject to harmlessness analysis, nor should a

defendant be required to prove specific prejudice in order to obtain relief. Id. at 14.

       In Wise, our Supreme court held that it was structural error when the trial

court closed voir dire to individually question prospective jurors in chambers

without first considering factors from State v. Bone-Club, 128 Wn.2d 254, 258-59,

906 P.2d 325(1995). 176 Wn.2d at 15. Unlike Wise, Cruson has not established
No. 76671-6-1/5


that any error occurred when the jury was not instructed that all jurors must be

present during all deliberations. No jury instruction on the issue was requested.

No jury instruction on the issue was denied. No authority is cited that such an

instruction was required or that denial of such a request is necessarily error. Error

must exist before we need to decide what type of error it is and whether prejudice

must be shown.

       We affirm.




WE CONCUR:
