Sullivan appeals his conviction for one count of burglary in
the second degree. Sullivan argues that he was deprived of
his constitutional right to a unanimous jury verdict because
the trial court failed, sua sponte, to instruct the jury that
all deliberations must always involve all jurors. We affirm
Sullivan's conviction. We remand, however, for the trial
court to correct two scrivener's errors in Sullivan's
State charged Sullivan with one count of burglary in the
second degree. The State alleged that on October 23, 2016,
Sullivan and codefendant Aaron Fox unlawfully entered an
unoccupied home in Renton with intent to commit a crime.
was held on January 4 through 10, 2017. The State proposed a
set of the standard jury instructions, including Washington
Pattern Jury Instruction (WPIC) 1.04 which states:
As jurors, you have a duty to discuss the case with one
another and to 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. During your deliberations, you should not
hesitate to reexamine your own views and to change your
opinion based upon further review of the evidence and these
instructions. You should not, however, surrender your honest
belief about the value or significance of evidence solely
because of the opinions of your fellow jurors. Nor should you
change your mind just for the purpose of reaching a verdict.
14 further informed the jury how to initiate and carry out
the deliberative process, and explained that each juror has
the right to be heard. Sullivan did not object to these two
instructions, or propose any additional instructions.
deliberating less than two hours, the jury found Sullivan
guilty as charged. A poll of the jury confirmed that their
verdict was unanimous. Sullivan appeals.
primary issue in this case is whether the trial court erred
by failing to instruct the jury that they must complete all
deliberations when all twelve jurors are in the jury room.
Sullivan argues that without such an instruction, "there
is no basis to assume the verdicts rendered were the result
of the common experience of all of the jurors."
Sullivan did not request such an instruction below, nor
object to the trial court's instructions given, RAP
2.5(a) precludes him from raising this issue for the first
time on appeal unless he can show that failure to provide 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). For
an error to be manifest, there must be evidence of
"actually prejudice" having "practical and
identifiable consequences [at] trial."
O'Hara, 167 Wn.2d at 98-99. "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), as amended (Sept. 13, 1995).
relies primarily on State v. Lamar, 180 Wn.2d 576,
327 P.3d 46 (2014). In Lamar, the trial court
provided the pattern jury instruction, WPIC 1.04, on the
first day of jury deliberations. Lamar, 180 Wn.2d at
580. On the second day of deliberations, however, a juror
fell ill and the trial court substituted an alternate juror.
Instead of instructing the jury to begin deliberations anew,
the trial court instructed the remaining jurors to spend some
time "reviewing" and "recapping" the past
deliberations to bring the alternate juror "up to
speed" and then to resume deliberations. Lamar,
180 Wn.2d at 580-81.
our Supreme Court found that the original instruction,
patterned after WPIC 1.04, was constitutional, it held that
the second instruction was "manifest constitutional
error" because the instruction "affirmatively told
the reconstituted jury not to deliberate together as is
constitutionally required." Lamar, 180 Wn.2d at
582. The court then determined the error was prejudicial
because the jury is presumed to follow the ...