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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,
v. STEVEN FAAUSU, Appellant. No. 68649-6-1 DIVISION ONE UNPUBLISHED OPINION FILED: July 29, 2013 Leach, C.J.

— Steven Faausu appeals his conviction for possession of a controlled substance while in a countyjail. On appeal, he claims for the first time that the trial court denied his right to a fair trial by permitting an unauthorized person, the alternate juror, to participate in the jury's deliberations. Because Faausu fails to establish manifest error, we affirm. Background The State charged Faausu with violation of the Uniform Controlled Substances 

### Act1 under RCW 69.50.4013 and sought a sentencing enhancement for possessing a controlled substance in a correctional facility under RCW 9.94A.533(5). The trial court 

### impaneled 13 jurors for trial. Following the parties' closing arguments, the court selected juror 10 as an alternate under CrR 6.5. The clerk's minutes recite, "Court excused the alternatejuror. Thatjuror is seating [sic] inseat#10." The court told juror

1 Ch. 69.50 RCW.No. 68649-6-1 / 2 10, "We appreciate your service here. You get to go home a little earlier than the others." The court then stated, "We are going to let you all go back in the jury room. You have the Instructions. Let us know ifand when you reach a verdict. You may retire to thejury room at this time." Thejury found Faausu guilty as charged and also returned a special verdict that Faausu committed the offense while in a countyjail. After reading the verdict into the record, the clerk polled the jurors. The trial transcript indicates that the clerk polled 13 jurors, including juror 10, the alternate juror. Faausu made no objections. The court imposed a standard range sentence. Faausu appeals. Analysis 

### Generally, we will not consider issues raisedfor the first time on appeal.2 An appellant may raise a claimed error for the first time on appeal by demonstrating "that 

### the error is 'manifest' andtruly ofconstitutional dimension."3 Amanifesterrorresults in actual prejudice to the litigant.4 "'If the record from the trial court is insufficient to determine the merits of the constitutional claim, then the claimed error is not manifest and review is notwarranted.'"5 Fauusu alleges, "[T]he polling of the jury demonstrates that 13 people participated in the deliberations, one of whom was not authorized to participate." He 

### 2Evman v. McGehee. 173Wn. App. 684, 698, 294 P.3d 847 (2013) (quoting State v Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007)); RAP 2.5(a). 

### 3 Evman, 173 Wn. App. at 698 (citing Kirkman, 159 Wn.2d at 926; State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)); RAP 2.5(a)(3). 

### 4Parrell-Sisters MHC, LLC v. Spokane County, 147 Wn. App. 356, 364, 195 P.3d 573 (2008) (citing State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980 P.2d 1257 (1999)). 

### 5Evman, 173Wn. App. at 699 (quoting WWJ Corp., 138Wn.2d at 602). -2-No. 68649-6-1 / 3


### argues, "The inexplicable involvement of an unauthorized 13thjuror in the deliberations of Mr. Faausu's case requires a new trial." Article I, section 21 ofthe Washington Constitution states, "The right of trial by 

### jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or morejurors in civilcases 

### in any court of record." Our Supreme Court has declared, "[T]here can be no question that [ajury] must reach itsdecision in private, free fromoutside influence. This principle is ofconstitutional stature."6 

### In State v. Cuzick,7 our Supreme Court held that permitting an alternate juror to be present during deliberations in a criminal trial was reversible error. In Jones v. Sisters of Providence in Washington, Inc.,8 a civil case, the court relied on Cuzick to hold that an alternate juror's participation during deliberations constituted prejudicial
error. The court inJones stated, "UnderCuzick, prejudice is presumed where there has 

### been a breach in the sanctity of the jury roombecause it is impossible, or at least overly burdensome, to determine what occurred inthejury room and what effect the alternate 

### had on theotherjurors."9 The clerk's minutes and the trial transcript indicate that the court excused juror 

### 10before thejury began itsdeliberations. The record does notindicate ifjuror 10left the courtroom, retiredinto the jury room after being excused, or was present in thejury 6State v. Cuzick, 85 Wn.2d 146, 149, 530 P.2d 288 (1975). 

### 785Wn.2d 146, 148-51, 530 P.2d 288 (1975). 

### 8140Wn.2d 112, 117-19, 994 P.2d 838 (2000). 9Jones, 140Wn.2d at 118-19 (citing Cuzick, 85Wn.2d at 150 (prejudice 

### presumed "unless 'itaffirmativelyappears that there wasnot, andcould nothavebeen, anyprejudice.'" (quoting Statev. Carroll, 119Wash. 623, 624, 206 P. 563 (1922)))). -3-No. 68649-6-1 / 4 

### box when the jury returned itsverdict. The transcript of the clerk's poll provides the only evidence suggesting that the alternate juror may have been present during 

### deliberations.10 This transcript repeats the exact samequestions and responses for eachjuror and identifies each by number only. The record provides no explanation for the discrepancy between the clerk's minutes and trialtranscript on the one hand and the 

### polling transcript on the other. The record contains no other information about any participant's observations as to what occurred. 

### On the record before us, an error in reporting the polling is at least as likely as a 13th person's presence during jury deliberations. Because this is a direct appeal, we do not have and cannot consider extrinsic evidence to resolve the conflict in the record. Because Faausu must demonstrate manifest error from the record and cannot do so,

we decline to review this issue. Conclusion Because the record contains insufficient evidence to establish that the alternate jurorparticipated inthejury's deliberations, we affirm.

WE CONCUR:



### 10 No audiorecording of thetrial exists. -4-

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