                                                                               FILED
                                                                      OCTOBER 25, 2016
                                                                   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. 33714-6-111
                      Respondent,              )
                                               )
     V.                                        )
                                               )
                                                         UNPUBLISHED OPINION
DALE TUCKER, JR.,                              )
                                               )
                   Appellant.                  )

       KORSMO, J. -     Dale Tucker, Jr., appeals his convictions for residential burglary

and third degree theft. He contends the trial court's failure to instruct the jury that

deliberations must include all twelve jurors at all times deprived him of a fair trial and

unanimous jury verdicts. Since Mr. Tucker shows no manifest error affecting a

constitutional right, we decline to address this issue raised for the first time on appeal and

affirm the convictions.
No. 33714-6-III
State v. Tucker


                                           FACTS

       The State charged Mr. Tucker with residential burglary and second degree theft.

The case proceeded to a jury trial. The State produced evidence that Mr. Tucker was

prohibited by a court order from entering his deceased grandmother Betty Durfee's

residence near Newport. On May 8, 2015, Mr. Tucker unlawfully entered the residence

and was recorded on video taking meat from a freezer in the kitchen. The video showed

Mr. Tucker pulling his shirt up over his face when he saw the cameras. Among items

missing from the residence were food, heaters, a radio, and antlers. Mr. Tucker's cousin

Robert Bradbury had set up cameras inside and outside the Durfee residence. Mr.

Bradbury and another cousin, Cheyenne Bradbury, each identified Mr. Tucker as the

person in the kitchen video and in outdoor still pictures recorded on May 8. A sheriff's   I!
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deputy who had known Mr. Tucker since grade school likewise identified him as the

person in the kitchen video. The defense did not present any evidence.

       There were no objections to the jury instructions or requests for additional        Ii
instructions. Instruction 2 provided in part:

       As jurors, you have a duty to discuss the case with one another and to              I
       deliberate in an effort to reach a unanimous verdict. Each of you must
       decide the case for yourself, but only after you consider the evidence
       impartially with your fellow jurors[.]
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Clerk's Papers at 22. Instruction 19 set out the deliberations process and unanimity       l
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requirement for the jury to return a verdict.                                              l
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No. 33714-6-III
State v. Tucker


The jury found Mr. Tucker guilty of residential burglary and lesser degree third degree

theft. The jury reached its verdict in approximately 51 minutes. Mr. Tucker appealed the

judgment and sentence.

                                           ANALYSIS

                                 1. Claimed Instructional Error

          Mr. Tucker contends that by failing to instruct the jury that its deliberations must

involve all twelve jurors collectively at all times, the trial court violated his right to a fair

trial and unanimous verdicts.

          Mr. Tucker did not request such an instruction below, nor did he otherwise object

to the trial court's instructions given. Thus, RAP 2.5(a) precludes him from raising this

issue for the first time on appeal unless he can show that lack of the additional instruction

is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. O'Hara, 167

Wn.2d 91, 98, 217 P.3d 756 (2009). In assessing whether a claimed error is "manifest,"

the trial record must be sufficiently complete for this court to determine whether the

asserted error "actual[ly] prejudice[ d]" the appellant by having "practical and identifiable

consequences [at] trial." Id. at 98-99 (citations omitted). "If the facts necessary to

adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown

and the error is not manifest." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251

(1995).




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No. 33714-6-III
State v. Tucker


       The Washington State Constitution requires that in a criminal prosecution an

impartial jury render a unanimous verdict. Const. art. I,§§ 21, 22; State v. Lamar, 180

Wn.2d 576, 583, 327 P.3d 46 (2014). As further recognized in Lamar:

       The requirement that 12 persons reach a unanimous verdict is not met
       unless those 12 reach their consensus through deliberations which are the
       common experience of all of them. It is not enough that 12 jurors reach a
       unanimous verdict if 1 juror has not had the benefit of the deliberations of
       the other 11. Deliberations provide the jury with the opportunity to review
       the evidence in light of the perception and memory of each member.
       Equally important in shaping a member's viewpoint are the personal
       reactions and interactions as any individual juror attempts to persuade
       others to accept his or her viewpoint.

Id. at 585 (quoting Peoplf! v. Collins, 17 Cal. 3d 687,693, 552 P.2d 742, 131 Cal. Rptr.

782 (1976)); see also State v. Fisch, 22 Wn. App. 381,383,588 P.2d 1389 (1979) (citing           !
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12-juror consensus requirements as stated above in Collins and finding no violation).            I
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       Mr. Tucker asserts the trial court's failure to instruct the jury that deliberation may

only occur when all twelve jurors are present collectively is manifest constitutional error      Il
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because it left his jurors with "not just theoretical" opportunities for improper                '
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deliberations that would violate the "common experience" requirement for constitutionally
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valid unanimity. Br. of Appellant at 13. For example, he posits that because the jury            l
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reached verdicts on two counts in less than one hour on a summer Friday afternoon, there
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is a reasonable probability the presiding juror sped up the process to finish before the
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weekend by dividing the jury in two, with six jurors deciding each count and each group          l
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agreeing to follow the recommendation of the other. He also contends it is likely that one
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No. 33714-6-III
State v. Tucker


or more jurors left the jury room to use the restroom while the remaining jurors continued

to discuss the case, yet the record fails to show the jury was ever properly instructed not to

engage in such improper deliberations. Finally, he contends there is a reasonable

possibility that some jurors discussed the case outside of every other juror's presence-

whether by telephone, over lunch, simply walking to and from the jury room, or even in

the jury room itself-and the court gave no admonishment against such discussions. 1

           Mr. Tucker's arguments are based on pure speculation about juror conduct or what

might have occurred during deliberations. No facts in the record support his example

allegations that any juror failed to follow the court's instructions or otherwise acted

improperly, that deliberations ever lacked a jury member, or that the verdicts were not the

unanimous consensus of all twelve jurors. He thus shows no manifest error affecting a

constitutional right and we decline to address the merits of his nonpreserved claim of

error. 2




           1 The
               record shows the trial court did give such admonishments to the jury at the
outset of trial, as well as a similar instruction at the close of the first day of trial and again
at the lunch recess on the second day of the two-day trial. See Suppl. Report of
Proceedings at 6-15; Report of Proceedings at 149, 253-54.
        2 We do observe that Mr. Tucker's cited cases involving manifest constitutional
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error for unanimity violations when the court failed to instruct the jury to start
deliberations anew upon seating of an alternate juror are inapposite because no alternate
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juror was seated here. See Lamar, 180 Wn.2d at 586; State v. Blancaflor, 183 Wn. App.
215, 224-25, 334 P.3d 46 (2014); State v. Ashcraft, 71 Wn. App. 444, 462-64, 859 P.2d
60 (1993). Mr. Tucker cites no other authority that manifest constitutional error occurred           I
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here.                                                                                                t
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No. 33714-6-111
State v. Tucker


                                         2. Appellate Costs

       Mr. Tucker requests that we exercise our discretion and decline to award appellate

costs to the State ifhe does not prevail on appeal. He reasons that the trial court found he

lacks sufficient funds to prosecute an appeal and was therefore indigent and entitled to

review at public expense. Analogizing to State v. Blazina, 182 Wn.2d 827, 834, 344 P.3d

680 (2015) (trial court must make individualized findings of current and future ability to

pay before imposing legal financial obligations), he asserts his ability to pay must be

determined before appellate costs are imposed. The State has not responded to Mr.

Tucker's request.

       RAP 14.2 states, "A commissioner or clerk of the appellate court will award costs

to the party that substantially prevails on review, unless the appellate court directs

otherwise in its decision terminating review." Under RCW 10.73.160(1), we have broad

discretion to grant or deny appellate costs to the prevailing party. See State v. Nolan, 141

Wn.2d 620, 626, 8 P.3d 300 (2000); State v. Sinclair, 192 Wn. App. 380, 388, 367 P.3d

612 (2016). Although Mr. Tucker has made his request in his opening brief as suggested

by Sinclair, he has not moved to extend time in order to comply with this court's June 10,

2016 general order governing requests to deny an i:i,ppellate cost award. Given the timing

of the filing of Mr. Tucker's opening brief (April 29, 2016, prior to the filing of our

general order), we deny his request without prejudice to his prompt filing of a motion to




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No. 33714-6-III
State v. Tucker


extend time and the motion and supporting updated financial disclosure required by our

general order.

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




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