                                                                     FILED
                                                                 JANUARY 9, 2018
                                                            In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                            )          No. 34854-7-III
                                                )          (consolidated with
                      Respondent,               )          No. 34855-5-III)
                                                )
       v.                                       )
                                                )         PUBLISHED OPINION
DONNY JAMES ST. PETER,                          )
                                                )
                      Appellant.                )

       PENNELL, J. — A jury convicted Donny James St. Peter of several felonies.

On appeal, Mr. St. Peter argues the trial court failed, sua sponte, to instruct the jury that

it must deliberate only when all twelve jurors are assembled together in the jury room.

We affirm.

                                           FACTS

       The facts of Mr. St. Peter’s case are not pertinent to the arguments on appeal. In

brief, the trial judge issued standard Washington pattern criminal jury instructions at the

close of trial. No exceptions were taken by either party. Jury deliberations lasted less

than an hour. The jury then rendered guilty verdicts on all crimes charged.
Nos. 34854-7-III; 34855-5-III
State v. St. Peter


                                           ANALYSIS

       Mr. St. Peter argues he was denied his constitutional right to a unanimous verdict

when the trial court failed to instruct the jury that it must deliberate only when all twelve

jurors are assembled together in the jury room. Because Mr. St. Peter did not raise this

issue at the time of trial, our review turns on whether Mr. St. Peter can establish a

“manifest error affecting a constitutional right” as contemplated by RAP 2.5(a)(3).

       Mr. St. Peter has not met the applicable standard for appellate review of an

unpreserved error. Although Mr. St. Peter had a constitutional right to ensure all

12 jurors participated in deliberations, State v. Lamar, 180 Wn.2d 576, 580, 584-85,

327 P.3d 46 (2014), there are no facts suggesting this did not occur. To establish

manifest error, “[t]he defendant must make a plausible showing that [an alleged] error”

affected his or her rights at trial and “resulted in actual prejuidice, which means that the

claimed error had practical and identifiable consequences in the trial.” Id. at 583. No

such showing has been made. Mr. St. Peter’s speculation that a juror may have left the

jury room during deliberations or that a postverdict jury poll could have revealed a

nonunanimous verdict 1 is insufficient to warrant review under RAP 2.5(a)(3).




       1
           Mr. St. Peter declined the trial court’s offer to have the jury polled.

                                                 2
Nos. 34854-7-111; 34855-5-111
State v. St. Peter


       Our court has rejected arguments identical to the ones raised by Mr. St. Peter in at

least three unpublished decisions: State v. Tucker, No. 33714-6-111 (Wash. Ct. App.

Oct. 25 , 2016) (unpublished), https://www.courts.wa.gov/opinions/pdf/337l46_unp.pdf,

review denied, 187 Wn.2d 1022 (2017); State v. Walsh , No. 34396-1-111 (Wash. Ct. App.

July 18, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/34396 l _ unp.pdf;

and State v. Burrill, No 34079-1-111 (Wash. Ct. App. Jan. 4, 2018) (unpublished),

https://www.courts.wa.gov/opinions/pdf/34079l_unp.pdf. We reject Mr. St. Peter' s

assignment of error for the reasons previously articulated in Tucker, Walsh , and Burrill.

                                     CONCLUSION

       The judgment of conviction is affirmed. Mr. St. Peter' s motion to not award

appellate costs is granted.




                                          Pennell, L
WE CONCUR:




Fearini,c.J '




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