### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 76757-7-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION TROY DANIEL SCOTT,

Appellant. FILED: November4, 2019 APPELWICK, C.J.

—Scott appeals his convictions for possession ofa stolen vehicle and possession of a controlled substance. He argues that the trial court violated his rights to trial byjury and a unanimous verdict by allowing an alternate jurorto enterthejury room during deliberations. He contends that defects in the trial record deprived him of his right to appeal. And, he asserts that the criminal filing fee and DNA collection fee should be stricken from his judgment and sentence. We affirm his convictions, but remand to the trial court to strike the criminal filing fee and DNA collection fee. FACTS On June 29, 2016, Richard McBride discovered that his 1998 red Kawasaki Ninja motorcycle was missing from his grandmother’s house in Bellingham. ThatNo. 76757-7-1/2

evening, he called the police to reportthe motorcycle as stolen. McBride told the police that he had drained the motorcycle’s oil and removed the battery. He also toldthem thatthe motorcycle had an ignition lock, which would preventthe steering column from being turned on unless itwas unlocked. On July 3, 2016, OfficerTodd Bridgman was parked in a parking lot at the Thomas Lake Centerin Mill Creek. While parked, he noticed a motorcycle pull into the parking lot. It struck him as unusual thatthe driver, Troy Scott, had a dirt bike style helmet despite riding a street bike. After Scott and his passengergot offthe motorcycle, Bridgman ran the motorcycle’s license plate. When he received the return on the plate, he sawthat its registration had expired in 2013. There was a note on the return thatthe plate had been replaced by a newone. Once Scott returned to the motorcycle, Bridgman asked him about the status of his license plate and registration. Scott indicated that he had recently boughtthe motorcycle, and explained that“itwas some type ofbank repossession thing.” He stated thatthe motorcycle was not stolen. He also explained that the motorcycle’s ignition had been damaged during the repossession. Bridgman had not mentioned the possibilitythatthe motorcycle was stolen. As Scott was talking to Bridgman, the dispatcher notified him that the motorcycle had been reported stolen out of Bellingham. Bridgman then told Scott thatthe motorcycle had been reported stolen, and that hewas going to detain him. Scott became very agitated and did not cooperate with Bridgman’s verbal commands. He ran from Bridgman, who eventually tackled Scott to the ground and placed him in handcuffs. Bridgman searched Scott and found a plastic
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‘baggie” in his front pocket. The baggie contained a white crystalline substance that Bridgman suspected was methamphetamine. After Scott’s arrest, Bridgman asked him how he acquired the motorcycle. Scotttold Bridgman that he had boughtthe motorcycle from a man named Dennis in Lake Stevens. He stated that Dennis had written up a bill of sale for the purchase of the motorcycle, but that he had left the documents relating to the purchase at home. Scott also explained thatthe motorcycle’s key had been lost,
so Dennis had punched the ignition. The State charged Scott with possession of a stolen vehicle while on communitycustody, and possession ofacontrolled substancewhile on community custody. Attrial, the State called fourwitnesses, including McBride. At the end of closing arguments, the trial court selected juror 7 as an alternatejuror. It directed juror 7 to remain in the courtroom while thejury exited the courtroom to begin deliberations in the jury room. The court then instructed juror7 as follows: Ifforany reason anotherjurorbecomes ill orforotherreasons unable to proceed, you will be substituted in forthatjurorto deliberate with the jury. For that reason, you will remain under the Court’s prior instructionsto not discuss the casewith the otherjurors, not discuss the case with anyone else.

. You’ll notbe required to remain here inthe courthouse so long as you can leave us a phone numberwhere we’re able to get ahold ofyou between the hours of 9:00 a.m. and 4:30 p.m. It allowed juror 7 to leave, and stated, “My law clerk is going to in just a minute assist in getting any belongings you might have out ofthejury deliberation room and getting a phone numberforyou.” Juror7 then exited the courtroom.
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Thejuryfound Scott guilty as charged. Scott appealed. After Scott appealed, the court reporter transcribing the case discovered that her stenotype machine had malfunctioned during trial. As a result, the machinefailed to record McBride’stestimony. Trial counsel forthe State and Scott prepared and signed an agreed report of proceedings reconstructing McBride’s testimony under RAP 9.4. DISCUSSION Scott makes three arguments. First, he argues thatthe trial courtviolated his rights to trial byjury and a unanimous verdict by allowing an alternatejurorto enter the jury room during deliberations. Second, he argues that defects in the trial record deprived him of his right to appeal. Third, he argues thatthe criminal filing fee and DNA (deoxyriboneucleic acid) collection fee should be stricken from hisjudgment and sentence. I. Presence ofAlternate Juror During Deliberations Scott argues firstthatthe trial courtviolated his rights to trial byjury and a unanimous verdict by allowing an alternate juror into the jury room during deliberations. The State notes that Scottfailed to objectwhen the trial court allowedjuror 7 to exit the courtroom to obtain personal belongings. Thus, he raises the issue forthe firsttime on appeal. Generally, we will not consider issues raised for the first time on appeal. RAP 2.5(a). However, an appellant may raise for the first time on appeal a manifest erroraffecting a constitutional right. RAP 2.5(a)(3).

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Scott relies on Statev. Cuzick, 85Wn.2d 146, 530 P.2d 288 (1975). There, the prosecutor asked thetrial courtto permitthe alternatejurorto attend thejury’s deliberations in case one of the regularjurors became ill. ki. at 147. Cuzick’s attorney did not object. j~ The court instructed the alternate jurorto retire with thejury, butto notparticipate in the discussions. j4~ Aftertheverdictwas entered, Cuzick appealed, arguing, in part, that the presence ofthe alternate juror during thejury’s discussions was prejudicial as a matterof law. Id. On appeal, the State Supreme Court noted that “there can be no question that [ajury] must reach its decision in private, free from outside influence.” kI. at 149. It noted that “[o]bjection to deviation from the authorized number ofjurors has been held nonwaivable.” ki. Even ifwaiverwas allowed, the courtfound that “the importance ofthejury secrecy principles affected is such that it can only be made informedly and affirmatively bythe defendant himself,” not implied from his counsel’s silence. ki. Assuming that the alternate juror substantially followed the trial court’s instructions, the court nonetheless held that “prejudice will be presumed to flow from a substantial intrusion ofan unauthorized person intothejury room unless ‘it affirmatively appears thatthere was not and could not have been any prejudice.” ki. at 149-50 (quoting State v. Carroll, 119 Wash. 623, 624, 206 P. 563 (1922)). Wherethe intrusion involvesthevisible presence ofa nonjurorforthefull length of deliberations, the court found that “the presumption of prejudice clearly has not been so conclusivelydefeated.” ki. Thus, it heldthatthe alternatejuror’s presence was reversible error. ki. at 151.
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The Cuzick court did not conduct a RAP 2.5(a) analysis in determining whether it could reach the issue of the alternate juror’s presence during deliberations. It clearly stated that the alleged error was nonwaivable, or that it could be raised forthefirsttime on appeal. See Cuzick, 85 Wn.2d at 149. But, even assuming that RAP 2.5 allows us to reach the issue here, Cuzick does not provide Scott the relief he seeks. Unlike Cuzick, the record here does notdefinitivelyshowjuror7’s presence during deliberations. According to thetrial transcript, thejurywas dismissed tothejury room to begin deliberations. The court then askedjuror7to remainfor instructions. It instructedjuror7 and then toldjuror 7, “My law clerk is going to in just a minute assist in getting any belongings you might have out ofthejury deliberation room and getting a phone numberforyou.” Juror 7 then exited the courtroom. The record does not affirm that eitherthe law clerk orjuror7 in fact entered thejury room. Because Scott has failed to demonstrate thatjuror 7 was actually present during deliberations, he has failed to demonstrate prejudice flowing from a substantial intrusion of an unauthorized person into the jury room. Accordingly, Scott has not shown thatthe trial court violated his constitutional rights to trial by jury and a unanimous verdict. II. Sufficiency ofTrial Record Scott argues second thatdefects in thetrial record deprived him of his right to appeal. A criminal defendant is constitutionally entitled to a record of sufficient completeness for appellate review of potential errors. State v. Tilton, 149 Wn.2d
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775, 781, 72 P.3d 735 (2003). However, a complete verbatim transcript is not required. State v. Classen, 143 Wn. App. 45, 54, 176 P.3d 582 (2008). In the absence of a complete record, the appellant may prepare a narrative report of proceedings under RAP 9.3, or an agreed report of proceedings under RAP 9.4. Tilton, 149 Wn.2d at 782. In reviewing whetherthe record is sufficientto allow review, we considerthe following factors: (1) whether all or only part of the trial record is missing or reconstructed, (2) the importance ofthe missing portion to reviewthe issues raised on appeal, (3) the adequacy of the reconstructed record to permit appellate review, and (4) the degree of resultant prejudice from the missing or reconstructed record, if any, to the defendant. Classen, 143 Wn. App. at 57. “The absence of a portion of the record is not reversible error unlessthe defendantcan demonstrate prejudice.” Statev. Burton, 165 Wn. App. 866, 883, 269 P.3d 337 (2012). Scottcontendsthatthe agreed reportofproceedings is inadequateto afford him review regarding issues related to a purported bill of sale marked as exhibit 10. The reconstructed testimony on exhibit 10 states the following: 42.The state asked Mr. McBride if he recognized a document that purported to be a bill ofsalefor his stolen motorcycle (believed to be marked as exhibit#10). Mr. McBride stated that he had seen a copy ofthe document after his motorcycle was stolen, butthat he did not create the document and that itwas not his signature on the document.
a. When the State asked Mr. McBrode about exhibit 10, the State did not describe it as a bill of sale for the stolen motorcycle. The exhibit was not published to the jury. The State asked Mr. McBride if he had made a Bill of Sale for his motorcycle, and he said no.
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43. Defense objected eitherduring orafter Mr. McBride’s response. 44.Thejurywas excused. 45.The state informed the court that the reasoning for asking about this purported bill of sale was that the state had received this document from a prior defense attorney who represented the defendant before counsel at trial, and the state expected that defense may

### try and offerthe purported bill of sale through one of its witnesses. Given that the document purported to be a bill of sale between Mr. McBride and the defendant, the state intended to ask about its authenticity, expecting Mr. McBride to testify that he [sic] it was not a document he created and that it was not his signature on the document. 46. Defense informed the state and the courtthatthey did not intend to offerthe purported bill ofsale or otherwise ask anywitnesses about it. 47. Based on the defense representation about the purported bill of sale, thestatethen saidthatitwould notaskanyfurtherquestions about the purported bill of sale (exhibit 10) and that the state would also not be offering exhibit 10. 48. Defense made afurtherobjection during argumentthatthe paper copy ofthe purported bill ofsale (exhibit 10) had been observed bythejury and thatthe bell had been rung. Defense argued that this shifted the burden to the defendant because the jury now knows something exists and theywill wonderwhywethe defense didn’t introduce it. Additional details of oral argument cannot be reconstructed. 49.Thejury re-entered the courtroom and the state proceeded with additional questioning of witness McBride not related to exhibit 10.

Scott arguesthatthe reconstructed record is inconsistent astowhetherthe jury sawthe purported bill ofsale. He points outthatthe handwritten note stated thatthe bill ofsalewas not published to thejury. But, according to paragraph 48, defense counsel argued that the jury had observed the document. He also

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emphasizes the following statement in paragraph 48, “Additional details of oral argument cannot be reconstructed.” Scott compares this case to State v. Larson, 62 Wn.2d 64, 381 P.2d 120 (1963), and Tilton. In Larson, the court reporter’s notes ofthe court proceedings were lost, and
a verbatim statement offacts could not be furnished. 62 Wn.2d at 65. Larson’s trial counsel had withdrawn by that time. ~ The State moved the trial court to furnish Larson with a narrative statement of facts consisting solely of the trial court’s notes. Larson’s appellate counsel argued that he could not intelligently testthe sufficiency ofthe statement offacts because he did not participate attrial. Id. He also asserted that it was “impossible for him to assign adequate errors withoutthe verbatim record ofthetrial court proceedings.” j4~. On appeal, Larson argued that he was denied due process stemming from the inadequate trial record. ki. at 66. The State Supreme Court found that because Larson’s appellate counsel did not represent him attrial, “he was unable to determine satisfactorily what errors to assign for the purpose of obtaining an adequate review on appeal.” ki. at 67. In regard to the errors that had been assigned, itfound that he was “unable to test the ‘sufficiency of completeness’ of the narrative statement offacts.” Id. The court held that if the reporter’s notes
were notfound within 30 days, the verdict must be reversed and Larson granted a newtrial. ki. In Tilton, the court reporter forgot to turn on the tape recorder until 36 minutes into Tilton’s testimony. 149 Wn.2d at 779. Before sentencing, his trial attorney withdrew and another attorney was substituted as counsel. j4~ at 780.
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Aftersentencing, the prosecutormoved to reconstructthe missing record. Id. The trial court ordered the prosecutor to prepare an affidavit of his recollections of Tilton’s testimony, and forward it to Tilton’s trial counsel to review and submit his
own affidavit. Id. Tilton’s trial counsel stated in his affidavit that he had no independent recollection ofTilton’s testimony and no notes. ~ He also objected to the reconstruction. k1. The trial court found that there were no conflicts of consequence in the affidavits, the affidavits should be allowed to reconstruct the record, and Tilton was not prejudiced bythe failure to record his testimony. ki. at 781. The State Supreme Courtdisagreed, finding the case similarto Larson. ki. at 783, 785. It noted thatTilton’s trial attorney had no notes and no independent recollection ofTilton’stestimony, and his appellate counsel was not presentattrial. k1. at783. Therefore, his appellate counsel was unabletojudge the completeness ofthe reconstructed record, determine appealable issues, or support appealable issues that depended on Tilton’s testimony. k1. The court also found that the portion of the record missing was of critical importance to Tilton’s appeal. ki. Specifically, it was “impossible using the reconstructed record to establish the elements of an ineffective assistance of counsel claim based on trial counsel’s failure to raise voluntary intoxication or diminished capacityas defenses,” despite significant evidence suggesting the defenseswere viable. j4~ Here, unlike Larson, the entire trial transcriptwas not lost. Only McBride’s testimonywas lost. And, unlike both Larson and Tilton, Scott’strial counsel signed the agreed report of proceedings reconstructing McBride’s testimony. Scott
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argues onlythat the reconstructed report of proceedings is deficient because it is inconsistent on an important fact: stating exhibit 10 was not published to thejury and stating thatthejury observed the exhibit. Specifically, Scott argues that he is unableto pursue (1) a claim oferror by the trial court for its “rulings regarding exhibit 10,” (2) a claim of error by the prosecutor for ‘tainting the jury with exhibit 10,” or (3) a claim of ineffective assistance of counsel by his trial attorneyfor“not seeking an appropriate remedy in light of exhibit 10.” He bases these claims on the possibility that the State’s examination of McBride resulted in responses that made “apparentexhibit 10 was a purported bill of sale forthe motorcycle, which McBride denied preparing.” He states that this would have allowed speculation that Scott had attempted to manufacture evidence for his defense. Exhibit 10 purported to be a bill of sale between McBride and Scott. McBride was the first witness to testify at Scott’s trial. During his testimony, the jury observed the prosecutor ask McBride if he had made a bill of sale for the motorcycle. McBride said no. Thejuryalso observed the prosecutorask McBride if “he recognized a document.” The prosecutordid not describe the document as a bill ofsaleforthe stolen motorcycle. McBride stated that “he had seen a copy of the document after his motorcycle was stolen, but that he did not create the document and that itwas not his signature on the document.” Scott’strial counsel objected either during or after McBride’s response. After the jury was excused, the prosecutorstated thatexhibit 10 purported to be a bill ofsale between McBride and Scott. The exhibitwas never admitted into evidence or published to thejury.
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The trial court did not rule on counsel’s objection, because the State indicated it would notofferexhibit 10 intoevidence. Scott’strial counsel sought no otherruling. Nothing in the reconstructed record shows that the jury saw the contents ofthe exhibit.Later, Officer Bridgman testified that he recalled Scott telling him that he had bought the motorcycle from someone named Dennis in Lake Stevens. Scott told him that Dennis had written up a bill ofsale forthe motorcycle. Scott called one witness, a man named Dennis Porterfrom Lake Stevens. Porter stated that he was Scott’s acquaintance, and that the day before Scott’s arrest, he saw a motorcycle on his property. He understood that the motorcycle
was not drivable. He observed Scott and another individual looking over the motorcycle and chatting. He also observed an exchange of money. He denied selling the motorcycleto Scott, and denied drafting a bill ofsaleforthe motorcycle. He also stated that there were three other people named Dennis residing at his house atthetime. Scott’strial counsel did not introduce a bill ofsale into evidence. Scott argues first that he is unable to pursue a claim of error by the trial courtfor its rulings regarding exhibit 10. But, nothing in the record suggests that the trial court made any rulings regarding the exhibit. The exhibit was not introduced into evidence. No ruling was required on the original objection since the State agreed not to offer the exhibit. And, Scott’s trial counsel did not move for a limiting instruction after the State asked McBride about the exhibit. As a result, there was no motion forthe courtto rule on.

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Scott argues second that he is unable to pursue a claim of misconduct by the prosecutor for “tainting the jury with exhibit 10.” However, Scott fails to articulate howthe prosecutor might have engaged in the suggested misconduct. Scott’s previous trial counsel provided the prosecutorwith a copy ofthe purported bill ofsale. He does not pointto a motion in limine preventing the prosecutorfrom asking about the exhibit, nor allege that the prosecutor violated such an order. Bridgman would latertestifythatScotttold him he had a bill ofsale. The prosecutor anticipated thatScottmight

### tryto introducethe exhibitthrough one ofitswitnesses. And, when assured that Scottwould not be introducing the exhibit, the prosecutor readilyagreed notto askfurtherquestions aboutthe exhibitorofferitintoevidence. Nothing in the record suggests an improper motive or conduct by the prosecutor that might have been fleshed out byfurtherdetails. Scott argues third that he is unable to pursue a claim of ineffective assistance of counsel by his trial attorney “for not seeking an appropriate remedy in light of exhibit 10.” Representation is not deficient if a trial counsel’s conduct
can be characterized as trial strategy ortactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). The record shows that Scott’s trial counsel did not seek a limiting instruction in light of the State’s questions about the exhibit. Scott’strial counsel argued that“the bell had been rung” astothe exhibit, a phrase commonlyevidencing a beliefthatthedamagewas done and could not be undone. Scott’s trial counsel does not suggest in the reconstructed record that any impediment existed to seeking a limiting instruction. But, it is unclear that a curative instruction would have been effective in lightof Bridgman’s latertestimony
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about a bill of sale between Scott and “Dennis,” without also seeking to exclude thattestimony. The decision to not request a limiting instruction could have been
a tactical decision to not highlight the State’s questions or McBride’s responses about the exhibit. Tactical decisions cannot be the basis of an ineffective assistance ofcounsel claim. ki. IfScott’s trial counsel thought hewould be harmed bythe State’s questions aboutexhibit 10, she could have precludedthis issue pretrial. Scott’s previoustrial counsel provided the State with a copy ofthe purported bill ofsale. Thus, his trial counsel should have known about the exhibit. His counsel could have filed a motion in limine to prevent the State from asking about the exhibit. The record does not showthat Scott’s trial counsel attempted to do so. His counsel’s failure to file a motion in limine is not dependent on details in the reconstructed record. However, Scott does not argue on appeal that this failure constituted ineffective assistance ofcounsel. He notesthat histrial counsel could not recall all the details regarding her argument about exhibit 10, but he does not argue that her decision to sign the agreed report of proceedings constituted ineffective assistance of counsel. The harm Scott alleges is thatthejury may have been led to speculate that he had manufactured evidence during the examination of McBride. Unlike Tilton, the record does not support an inference, let alone a conclusion, that but for missing details in the reconstructed portion ofthe record, the cause ofthe alleged harmwastrial courterror, prosecutormisconduct, orineffectivetrial counsel during McBride’s examination. Speculation is not a basis forordering a newtrial.
14No. 76757-7-1/15 Accordingly, Scott has failed to demonstrate that the reconstructed record prejudiced him ordeprived him of his rightto appeal. Ill. Legal Financial Obligations Scott argues last that his criminal filing fee and DNA collection fee should be stricken from hisjudgment and sentence. He relies on House Bill 17831 and Statev. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). In Ramirez, the State Supreme Court held that House Bill 1783 applies prospectively to cases on appeal. 191 Wn.2d at 747. House Bill 1783 amended RCW 36.18.020(2)(h) to prohibit courts from imposing the $200 filing fee on defendants who are indigent under RCW 10.101 .010(3)(a)-(c). LAWS OF2018, ch. 269, 

### § 17(2)(h). It also amended ROW43.43.7541, providing thatthe $100 DNA collection fee is not mandatory where “the state has previously collected the offender’s DNA as a result ofa previous conviction.” ki. 

### § 18. A person is indigent if he receives an annual income after taxes of 125 percent or less of the current federally established poverty level. ROW 10.101.010(3)(c). Here, Scott claimed indigency and moved the trial court for an orderallowing him to seek review ofhisjudgmentand sentence at publicexpense. He attached a financial statement to his motion stating that he was unemployed. He did not list any income in the statement. The trial court granted his motion. This sufficiently demonstrates Scott’s indigency.

1 ENGROSSED SUBSTITUTE H.B. 1783, 

### §~ 17(2)(h), 18, 65th Leg., Reg. Sess. (Wash. 2018) (House Bill 1783).
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And, the State concedes that it has previously collected Scott’s DNA as a result ofa prior conviction. Accordingly, we remand to the trial courtto strike the criminal filing fee and DNA collection feefrom Scott’sjudgment and sentence. We affirm Scott’s convictions, but remand to the trial court to strike the criminal filing fee and DNA collection fee.

WE CONCUR:



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