IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

KARRLEE THERESA CLEMENTS,

Appellant.

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No. 35112-2-III

OPINION PUBLISHED 

IN PART

SIDDOWAY, J. — Dicta in the Washington Supreme Court’s 1931 decision in 

Beglinger v. Shield expressed then-prevailing common law that once a jury’s verdict is 

accepted and the jury is discharged, “‘[t]he power of a jury over their verdict . . . ceases 

. . . and they cannot be recalled to alter or amend it.’” 164 Wash. 147, 152, 2 P.2d 681

(quoting 27 RULING CASE LAW Verdict § 67, at 895 (1920)). Well-reasoned modern 

cases reject this bright line rule, recognizing that if a jury’s discharge is rescinded within 

a short period of time and external influences have not compromised its impartiality, 

reempaneling a jury can be a more reasonable response to an error in a verdict than is the 

alternative of a new trial.

Karrlee Clements appeals her convictions and exceptional sentence for first degree 

theft and first degree identity theft, arguing in part that her conviction for identity theft 

FILED

AUGUST 2, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35112-2-III

State v. Clements

2

cannot stand where the jury, having completed a flawed verdict form, was momentarily 

discharged before being recalled to complete a corrected verdict form. Following a 

reference hearing and clarification of the timing and circumstances of the jury’s brief 

discharge, we conclude the conviction can stand. 

For that reason, and because Karrlee1raises no other viable issues on appeal, we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

Catherine Clements worked as a nuclear operator for 24 years at the Hanford 

Nuclear Reservation. She retired in 2013, at age 55. She did not yet qualify for Social 

Security, but her house was paid off and until she did qualify, she planned to live frugally 

using assets in a 401(k) account that she held with The Vanguard Group. 

A couple of years later, Catherine’s daughter-in-law, Monique, expressed concern 

about a conversation she had recently had with Catherine’s daughter, Karrlee. Karrlee

told Monique that she had withdrawn some funds from her mother’s 401(k) account.

Karrlee told Monique that withdrawals from the account were permitted for limited 

purposes, one being home improvements. She said that friends would provide her with 

inflated bids for improvement projects for her mother’s home, she would withdraw the 

funds, pay the actual cost for the home improvement, and pocket the difference.

 

1 Given the common last name of most of the witnesses, we refer to them by their 

first names. No disrespect is intended. 
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Assisted by her brother-in-law, who always helped Catherine with computer 

transactions, Catherine discovered that the registered user address for her online account 

with Vanguard had been changed from her brother-in-law’s e-mail address to an address

belonging to Karrlee. Using Vanguard’s security questions for Catherine, they were able 

to access account statements and discovered that substantial funds had been withdrawn. 

The next day, Catherine and her son, daughter-in-law, and brother-in-law went to the 

Kennewick Police Department to file a police report. 

Investigation by Kennewick police revealed that Karrlee used a number of e-mail 

addresses to access her mother’s 401(k) account online. Karrlee had also applied for an 

American Express credit card in her mother’s name and then created subaccounts, 

obtaining six cards in variations on Karrlee’s own name. Through transfers from the 

401(k) account, to the American Express card in Catherine’s name, to a subaccount in a 

variation on her own name, Karrlee had withdrawn over $200,000 from her mother’s 

401(k) account between May 2014 and August 2015. Catherine eventually realized that 

Karrlee had tricked her into providing the answer to Catherine’s security question for 

online access to the Vanguard account. Claiming to be preparing a family tree, Karrlee

asked Catherine for Catherine’s mother’s unusual and unusually-spelled maiden name. 

Catherine provided the information but no family tree was ever prepared.

Karrlee was charged with theft and identity theft with aggravating circumstances:

that the crimes were major economic and domestic violence offenses. She defended on 
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the basis that the funds were withdrawn with her mother’s permission, to be used for

improvements to her mother’s home. Karrlee lived with her mother, and Karrlee’s 

boyfriend had moved into Catherine’s home as well. 

Catherine testified at trial that she knew Karrlee and her boyfriend had undertaken 

some improvement projects in her home. But Catherine testified that Karrlee continually 

said her boyfriend was paying for the improvements “[b]ecause he was gonna be livin’ in 

the house.” Report of Proceedings (RP) at 234. 

At trial, the State offered photographs of projects Karrlee had undertaken on the 

house, many of which remained unfinished or had been finished poorly. It presented 

evidence that the home, which Catherine had since sold, sold for only $135,000. 

The jury found Karrlee guilty on both counts, and found both aggravators. When 

the jury returned its verdicts and the clerk read them aloud, however, the first and second 

verdict forms indicated a finding of guilt of theft in the first degree, neither addressing 

identity theft in the first degree—an irregularity that went unnoticed. A special verdict 

form for the major economic offense aggravator was predicated on having found Karrlee 

guilty of identity theft, however. See Clerk’s Papers (CP) at 152 (“We, the jury, having 

found the defendant guilty of Identity Theft in the First Degree return a special verdict by 

answering as follows . . . .”). The jury had been properly instructed on the different 

crimes charged in count I and count II and the prosecutor had discussed the different 

crimes in his closing argument. E.g., RP at 322 (“She’s guilty of theft in the first degree. 
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She’s guilty of identity theft in the first degree. It is a major economic offense, and it was 

by a family or a household member. It’s important to hold her accountable, and I’ll ask 

you to do that by finding her guilty as charged.”). 

After polling the jury, the trial court told the jurors, “You are all now discharged 

as jurors and discharged from my instructions regarding independent research and 

speaking about the case. You are free to talk to anyone you wish, and you’re also free to 

decline to talk to anyone.” RP at 343. The court went on to say, “I always enjoy the 

opportunity to chat with jurors after a verdict,” and invited them to stay if they wanted to 

meet after the court completed “a little bit of business here in the courtroom.” Id. The 

court also stated, however, “If not, you’re sure free to go as soon as you hit the door.” Id. 

The jurors were then escorted from the courtroom. 

The report of proceedings reflects what happened next:

(Whereupon the jurors were escorted from the courtroom.)

[DEFENSE COUNSEL]: Your Honor, I heard something from the 

clerk that sounded odd to me. It said Count II was theft in the first degree, 

and they found her guilty of theft in the first degree as Count II.

THE COURT: The verdict forms, may I have them?

THE CLERK: (Indicating.)

THE COURT: Count I is the theft and Count II is the identity theft.

[DEFENSE COUNSEL]: That’s not how I heard it.

THE COURT: Oh my. Oh my. Will you run and stop any jurors 

from leaving the building, please?

THE CLERK: (Indicating.)

[PROSECUTOR]: What is it?
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THE COURT: They both say theft in the first degree. Verdict Form 

One says theft in the first degree as charged in Count I. Verdict Form Two 

says theft in the first degree as charged in Count II.

[To the lawyers:] You may be seated, if you wish.

[DEFENSE COUNSEL]: I’ve never had this issue come up, your 

Honor.

THE COURT: I have.

[DEFENSE COUNSEL]: Okay.

THE COURT: Do we still have all of our jurors?

THE BAILIFF: Uh-huh.

RP at 344-45.

The court then told counsel that it believed the proper course of action was to 

recall the jurors, explain that there was an error in one of the verdict forms, not identify 

what it was, give them the four blank verdict forms (with the second form corrected), and 

have them complete the forms a second time. Neither party objected or requested any 

questioning of the jurors about what had transpired following their discharge. The 

following then occurred:

(Whereupon the jurors were escorted into the courtroom.)

THE COURT: Ladies and gentlemen, I made an error. Specifically, 

I made an error on one of the four verdict forms. So, I must tell you a 

couple of things. One, you are not discharged as jurors. You’re still jurors 

subject to all of the instructions of the Court. Two, once we get the 

corrected verdict—once we get that verdict form corrected you will be 

given four new blank verdict forms, and my instructions to you will be to 

resume deliberations until you have reached your verdicts.

Notice I’m not telling you what the error was because I’m afraid that 

if I were to do so that could be interpreted as my giving you certain 

instructions as to what to do, okay? So, Madam Bailiff will take you back 

to the jury room. In the meantime, these instruction forms—blank 
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instruction forms will be prepared and you should have them within five or 

ten minutes.

THE BAILIFF: Do I have to bring the evidence back?

THE COURT: Yes.

So, it’s just as if you had not reached any verdict. You are to resume 

your deliberations until you can reach verdicts.

And their notepads are still in the jury room?

THE BAILIFF: Nope. I will retrieve them.

THE COURT: Okay, good. All right, why don’t you accompany 

the bailiff back to the jury room.

(Whereupon the jurors were escorted from the courtroom.)

RP at 349-50. 

Following a short period of additional deliberation,

2

the jurors returned the second 

set of verdict forms, finding Karrlee guilty on both counts and again finding both

aggravating factors. 

After oral argument of this appeal, the panel ordered a reference hearing to take 

evidence and answer the panel’s questions about events transpiring following the jury’s 

initial discharge. The superior court conducted a hearing in which it heard from the 

deputy clerk and bailiff who were present for the trial, and from Karrlee’s defense 

lawyer.3 Based on the testimony of the witnesses, all of whom the superior court found 

 

2 According to the clerk’s minutes, the jury was escorted out of the courtroom at 

2:43 p.m. Court was back in session with parties present to hear the second verdict by 

3:08 p.m. The court had stated it would be “five or ten minutes” before the corrected 

verdict forms would be provided. RP at 349. We do not know whether the parties had to 

be located for the return of the second verdicts or had remained in the courtroom. 

3 Karlee was represented at the reference hearing by a different court appointed 

lawyer. Findings of Fact Pursuant to Order for Reference Hr’g at 3.
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credible and to have a good understanding of the events, the court found that the 

following events happened at the following times:

2:26 p.m. Court is in session for the announcement of the 

verdicts.

Between 2:29 and 2:32 p.m. Jurors were excused.

Between 2:30 and 2:34 p.m. Jurors were stopped and notified not to leave 

the building pursuant to the trial court’s 

directive.

Between 2:31 and 2:36 p.m. Bailiff answers “Uh-huh” to the court’s 

question, “Do we still have all of our jurors?”

Findings of Fact Pursuant to Order for Reference Hr’g at 3. 

The superior court found that between the time jurors were excused following the 

taking of the first verdicts and the time they were stopped and notified not to leave the 

building, they were being taken to the jury room or were in the hallway outside the jury 

room. It found that the clerk told the bailiff not to release the jurors as the bailiff was 

escorting them to the jury room, at which point the bailiff had the jurors line up in the 

hallway in preparation for returning to the courtroom. 

More important than the time of day, which is necessarily a range, the superior 

court found that “at most between 1-2 minutes elapsed from the time the jurors were 

excused and the Judge asked the clerk to stop the jurors.”4 Id. at 2. The court also found 

that it was only another 1-2 minutes before the bailiff returned and indicated to the trial 

 

4 The court found that the trial was held in the courtroom closest to the jury rooms, 

partially explaining how the clerk and bailiff were able to stop the jurors so quickly. Id.

at 1.
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judge that “we still have all of our jurors.” Id. at 3. The balance of the 16 minutes was 

consumed by the jury providing its verdicts, being polled, being excused, and waiting in 

the hallway to return.

The court made additional findings that the bailiff who served at the trial is strict 

about juror access to social media and has a practice of telling jurors to either leave their 

cell phones in their vehicles or use their phones only with her permission and with her 

monitoring the call. The court found no evidence that any jurors were in communication 

with anyone other than their fellow jurors and the bailiff before returning to the 

courtroom. It added that it is not positively known that there were no communications, 

however. 

The court imposed an exceptional sentence of 20 months of total confinement. 

Karrlee appeals.

ANALYSIS

Karrlee makes two related assignments of error to the second set of verdicts: that 

they violated her right to trial by jury and, if not, then her trial lawyer provided 

ineffective assistance of counsel by bringing the problem with the verdict form to the 

court’s attention in time to cure the error. She raises two alleged evidentiary errors, two 
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alleged instructional errors, and two alleged sentencing errors.

5

 We address her claims of 

error in the foregoing order.

In the published portion of this opinion, we address only her assignment of error to 

the second set of verdicts.

I. ERRORS RELATED TO THE INITIAL DISCHARGE OF THE JURY

Karrlee contends that reassembling the jury after its discharge and allowing jurors 

to return a second set of verdicts violated her constitutional right to a sentence authorized 

by a jury’s verdict. But the harm she alleges is one associated with a different 

constitutional concern: her right to an impartial jury. We conclude that Karrlee’s right to 

a sentence authorized by a jury’s verdict is not implicated in this case. Her right to an 

impartial jury is. 

Dicta in Beglinger, 164 Wash. 147, suggests that a jury’s discharge is a bright line 

after which it cannot be reempaneled. The dicta relies on common law, but also reasons 

that jurors, once discharged, may be exposed to external influences. Insofar as Beglinger 

was based on common law, we find the 87-year-old common law to be outdated. Insofar 

as it reflects a valid concern about risks to a discharged jury’s impartiality, it fails to 

consider that there can be instances when jurors are stopped and recalled before they can 

be improperly influenced by contact with other persons or sources of information. We 

 

5 She also makes a claim of cumulative error. Finding no error, we need not 

address it.
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take this opportunity to embrace and expand on the reasoning of State v. Edwards,

15 Wn. App. 848, 552 P.2d 1095 (1976), which recognized that a bright line rule is too 

severe. 

A. The constitutional right to a verdict authorized by the jury is not implicated

when jurors are reempaneled

Karrlee cites State v. Williams-Walker, 167 Wn.2d 889, 896, 225 P.3d 913 (2010) 

and State v. Morales, 196 Wn. App. 106, 383 P.3d 539 (2016), review denied, 187 Wn.2d 

1015 (2017), for her argument that the trial court’s action violated her constitutional right 

to a sentence authorized by a jury. In Williams-Walker, jurors in three cases consolidated 

for appeal returned special verdicts finding that the defendants committed crimes while 

armed with a “deadly weapon.” Rather than adding the two years to the defendants’

sentences that was statutorily authorized for a deadly weapon enhancement, however, the 

sentencing courts added the five years statutorily authorized for a firearm enhancement—

the aggravator with which each defendant had been charged. While it was implicit in the 

guilty verdicts that the jury found use of firearms by the defendants, the Supreme Court 

declined to hold the guilty verdicts sufficient to authorize the firearm enhancements, 

holding instead that “[w]hen the jury is instructed on a specific enhancement and makes 

its finding, the sentencing judge is bound by the jury’s finding.” Williams-Walker, 167 

Wn.2d at 899.
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Similarly, in Morales, which relies on Williams-Walker, the defendant was 

charged with child molestation in the first degree but the verdict form completed by the 

jury addressed child molestation in the second degree. The jury had not been instructed 

on the latter crime. As happened here, there was an error in the verdict form that was not 

caught when the verdict was returned. A week after the jury was discharged, and in 

response to a defense motion to set aside the verdict, the trial court corrected the verdict

relying on CrR 7.8, convicting the defendant of the greater crime. This court reversed, 

holding that the defendant’s right to a jury-authorized sentence had been violated. In 

Morales, as in Williams-Walker, the jury was not reassembled to enter a second verdict 

that would have authorized the defendant’s sentence.

The trial court in this case was aware of the then-recent Morales decision, citing 

it6to the lawyers as the reason it was going to recall the jurors: 

Let me give you the benefit of some law, okay? Once a jury is discharged 

there’s a fairly recent case that would provide that the defendant—the Court 

is without authority to change a verdict form to find a defendant guilty of a 

count that’s not specifically on the verdict form.

RP at 346. The court explained that in some cases a court can make a correction, “[b]ut 

this is not one of those cases because it has the wrong crime on the verdict form.” Id. at 

346-47.

 

6 The trial court did not cite it by name, but its discussion of the case took place on 

February 1, 2017, and the Morales decision had been filed a little over four months 

earlier. 
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The constitutional right to a sentence authorized by the jury applies when the court 

convicts a defendant based on its correction to the jury’s verdict rather than the verdict 

itself. Because the trial court in this case did not make a correction and based its 

judgment and sentence on the jury’s second set of verdicts, the constitutional right to a 

sentence authorized by a jury is not implicated.

B. Announcing a jury’s discharge does not foreclose recall under modern

common law

In Beglinger, our Supreme Court held in dicta that a jury cannot be reassembled 

after being discharged. In that case, a verdict whose effect was to award Mr. Beglinger

$5,000 in damages against three defendants, jointly and severally, was read; the jurors 

were polled, and the court “‘advised the jury that seven of their number had completed 

their jury service and were permanently excused, and advised the remaining five they 

would report back to the department of the presiding judge on Monday morning.’” 

Beglinger, 164 Wash. at 149. It had not filed the verdict or stated the jurors were 

discharged, however. 

At that point, with the jurors still in the box, it was pointed out by one juror that 

the verdict in favor of the plaintiff had been intended to be in the total amount of 

$10,000, with $5,000 payable by three defendants and another $5,000 payable by a

fourth. All the other jurors agreed. There was discussion about returning to the jury 

room to correct the verdict, but the trial court stated that their information “‘came too 
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late’” since the jury had been polled and acknowledged the verdict rendered as their 

verdict. Id. Rather than allow the jurors to correct their verdict, the trial court granted a 

new trial.

On appeal, the Supreme Court stated it had not been too late for the jurors to 

correct their verdict. “‘Until a verdict is received and filed for record, the trial court may 

send the jury back to consider and clarify or correct mistakes appearing on the face of the 

verdict.’” Id. at 152. It is this holding for which Beglinger is most often cited.

The Beglinger court went on to opine about the different result that would obtain 

when a jury is discharged:

[A]fter a verdict has been received and recorded and the jury discharged, it 

can no longer function as a jury.

The power of a jury over their verdict, unlike that of the 

court, ceases on their discharge. With their assent to the verdict as 

recorded their functions with respect to the case cease and the trial is 

closed, and after the verdict is received and the jury discharged the 

control of the jury is at an end, and they cannot be recalled to alter or 

amend it. 27 [RULING CASE LAW Verdict § 67, at] 895 [(1920)].

Id. at 152. The court did not rely for this proposition on any Washington decision, but 

instead on a treatise on the common law, Ruling Case Law, that was published in 1920.

Beglinger’s dicta was repeated in State v. Badda, 68 Wn.2d 50, 61, 411 P.2d 411 

(1966). It was once again dicta; in Badda, an error in the verdict form was recognized as 

soon as the verdict was read, and jurors were directed to resume their deliberations with 

corrected forms. 
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In Edwards, 15 Wn. App. 848, this court qualified (if not rejected) the principle 

that a jury’s power over its verdict ceases with discharge. Edwards dealt with a jury’s 

discharge following a declared mistrial. Word was received that the jurors could not 

agree, and the trial court called them into open court and inquired of the foreman if there 

was a possibility the jury could reach an agreement within a reasonable time. Upon 

receiving a negative answer, the court said:

“The court will declare a mistrial, gentlemen. Mr. Connelly and Mr. 

Vlosich, I will request that you note the trial of this matter and this cause 

for retrial immediately, gentlemen.”

Id. at 848. The jury filed from the court room and into the adjacent jury room where, 

“within a minute or two thereafter,” jurors told the bailiff they had reached a decision on 

one count. Id. at 849. The bailiff notified the court. The trial court put the bailiff under 

oath, and asked if there was “‘any way possibly anybody could have reached that jury?’” 

Id. at 850. The bailiff responded, “‘No way.’” Id. The trial court called the jurors into 

the courtroom again, where they returned their verdict on the one count, which the court 

accepted.

This court affirmed, taking the opportunity to construe “discharged” in RCW 

4.44.3407as a function of what happens, not what is said:

 

7 RCW 4.44.340 provides:

In all cases where a jury are discharged or prevented from giving a verdict, 

by reason of accident or other cause, during the progress of the trial or after 

the cause is submitted to them, the action shall thereafter be for trial anew.
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A discharge will occur in fact when a jury is permitted to pass from the 

sterility of the court’s control and allowed to separate or disperse and 

mingle with outsiders. In such cases, contamination is presumed even 

though the jurors may not have taken advantage of the opportunity to 

discuss the case.

On the other hand, a trial judge’s verbal discharge of the jury after 

receiving its verdict in a criminal case, does not preclude a later correction 

of the verdict to conform to the actual finding where the jury has not 

separated or dispersed, but has remained sequestered and insulated from

any outside influence and the correction is not one of substance resulting 

from further deliberation on the merits of the cause. Cf. Beglinger v. 

Shield, 164 Wash. 147, 2 P.2d 681 (1931); State v. Badda, 68 Wn.2d 50, 

411 P.2d 411 (1966).

Edwards, 15 Wn. App. at 850-51 (citations omitted). The court also spoke favorably of 

Commonwealth v. Brown, 367 Mass. 24, 323 N.E.2d 902 (1975), which involved facts 

similar to this case except that it was the jury foreman rather than one of the lawyers who 

raised a problem with the verdict moments after it was returned and filed. Even though 

the correction in that case was from a verdict of not guilty to a verdict of guilty, the jury 

was returned to the courtroom and allowed to correct its verdict. “No more than [four]

minutes elapsed from the time the jury was discharged until they returned to the court.” 

Id. at 851.

A survey of state and federal decisions in American Law Reports demonstrates 

that the common law of many other jurisdictions prefers reempaneling a jury rather than 

requiring a new trial when a problem with a verdict is caught quickly, before any taint of 

extraneous influences. 
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Although some courts follow the view that a trial court cannot order or 

permit jurors to revisit the verdict after they have been formally discharged, 

many courts have considered that a jury’s discharge is a function of what 

has happened, rather than what was said, and have developed a handful of 

views delineating the circumstances under which a formally discharged 

jury may be reassembled to take further action.

David J. Marchitelli, Annotation, Criminal Law: Propriety of Reassembling Jury to 

Amend, Correct, Clarify, or Otherwise Change Verdict after Jury has been Discharged, 

or has Reached or Sealed its Verdict and Separated, 14 A.L.R.5th 89 (1993). 

Among the “handful of views” of circumstances under which a jury can be 

reempaneled is that a court retains jurisdiction to reconvene a jury that has not yet “left 

the court’s control,” in the sense of being exposed to outside influences. Id. at § 5 (1993 

& Supp. 2018); e.g., People v. Kimbell, 168 Cal. App. 4th 904, 907, 85 Cal. Rptr. 3d 796 

(2008). A similar view is that jurors cannot be reassembled following discharge if they 

have “separated” in the sense of mingling with nonjurors or being influenced by outside 

interests. 14 A.L.R.5th, § 6 (1993 & Supp. 2018). An example of this view is Teixeira v. 

State, which holds:

Until the jury has left the courtroom and dispersed, the judge should be able 

to allow them to complete their verdict. Wharton’s Criminal Procedure

states:

The mere announcement of the discharge of the jurors does not 

preclude recalling them if they have not yet dispersed and mingled 

with the bystanders. Although the decisions are not uniform, it has 

often been held that, when the jurors have rendered their verdict and 

have been discharged, but have not yet left the courtroom or the 

courthouse, the trial judge may recall the order of discharge and 
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reassemble the jurors to amend their verdict as to a matter of form 

or, in some cases, substance.

213 Md. App. 664, 676, 75 A.3d 371 (2013) (quoting Hoffert v. State, 319 Md. 377, 390, 

572 A.2d 536 (1990) (Chasanow, J., dissenting) (quoting 4 CHARLES E. TORCIA,

WHARTON’S CRIMINAL PROCEDURE § 578, at 141 (12th ed. 1976))).

Other views are that a discharged jury may be recalled after what is only a 

momentary separation, 14 A.L.R.5th, § 9 at 136-37; e.g., Webber v. State, 652 S.W.2d 

781, 782 (Tex. Crim. App. 1983) (momentary separation, and it appeared no one had 

talked to jurors about the case); and that a discharged jury can be reassembled to correct

what is an obvious error in form, 14 A.L.R.5th, § 10 at 137-41; e.g., Serio v. City of 

Brookhaven, 208 Miss. 620, 45 So. 2d 257 (1950) (original verdict form contained a 

textual error corrected in second form).

Finally, a 2016 decision of the United States Supreme Court in Dietz v. Bouldin, 

which recognized the inherent authority of federal courts to rescind a discharge order and 

recall a jury in a civil case,

8

also recognized and rejected outdated common law. 

 

8 The Supreme Court observed that “[g]iven additional concerns in criminal cases, 

such as attachment of the double jeopardy bar, we do not address here whether it would 

be appropriate to recall a jury after discharge in a criminal case.” Dietz v. Bouldin, 

___ U.S. ___, 136 S. Ct. 1885, 1895, 195 L. Ed. 2d 161 (2016). Despite being a civil 

case, Dietz is instructive in rejecting the common law and on the constitutional right to an 

impartial jury, discussed hereafter.
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Refusing a request by the appellant to impose a common law-based categorical bar on 

reempaneling a jury after it has been discharged, the Court stated:

Even assuming that the common-law tradition is as clear as [appellant]

contends, the common law is less helpful to understanding modern civil 

trial practice. At common law, any error in the process of rendering a 

verdict, no matter how technical or inconsequential, could be remedied only 

by ordering a new trial. But modern trial practice did away with this 

system, replacing it with the harmless-error standard now embodied in Rule 

61. 

Jury practice itself no longer follows the strictures of the common 

law. The common law required that juries be sequestered from the rest of 

society until they reached a verdict. This generally meant no going home at 

night, no lunch breaks, no dispersing at all until they reached a verdict.

Courts are no longer required to impose these requirements on juries in 

order to prevent possible prejudice. Accordingly, while courts should not 

think they are generally free to discover new inherent powers that are 

contrary to civil practice as recognized in the common law, the advent of 

modern federal trial practice limits the common law’s relevance as to the 

specific question whether a judge can recall a just-discharged jury.

___ U.S. ___, 136 S. Ct. 1885, 1895-96, 195 L. Ed. 2d 161 (2016) (citations omitted). 

C. A defendant’s right to an impartial jury is the paramount concern in 

deciding whether to reassemble a discharged jury

A criminal defendant’s right to an impartial jury is guaranteed by article I, section 

22 of the Washington Constitution and the Sixth Amendment to the United States 

Constitution, which provide equivalent protections. State v. Munzanreder, 199 Wn. App. 

162, 174, 398 P.3d 1160, review denied, 189 Wn.2d 1027, 406 P.3d 280 (2017). 

Although Beglinger never identified a constitutional concern as a basis for its dicta, an 

affidavit of the trial judge describing what had occurred implicitly recognized the 
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importance of the jurors’ protection from extraneous influences.9 Edwards, too, focused 

on whether discharged jurors had the opportunity to “disperse and mingle with outsiders” 

or had, instead, “remained sequestered and insulated from any outside influence.” 15 

Wn. App. at 850-51.

The United States Supreme Court in Dietz, explaining why the power to rescind a 

discharge order and recall a dismissed jury “must be carefully circumscribed,” identified 

the “guarantee of an impartial jury that is vital to the fair administration of justice” as the 

principal concern: 

The potential for taint looms even larger when a jury is reassembled 

after being discharged. While discharged, jurors are freed from instructions 

from the court requiring them not to discuss the case with others outside the 

jury room and to avoid external prejudicial information. . . .

Any suggestion of prejudice in recalling a discharged jury should 

counsel a district court not to exercise its inherent power.

 

9 The affidavit stated, in part:

[D]uring all of the period of time involved and referred to, there was in the 

court room, from the time the jury left the jury room, only the presiding 

judge, the Honorable Malcolm Douglas, his two bailiffs, and the jury and

affiant; that at no time did the jury, until finally discharged by the court 

after the colloquy above mentioned, have an opportunity to mingle with the 

public or any person or persons at all, in that the court room itself contained 

no persons at any time from the arrival of affiant until after the jury had left 

the jury box except those hereinbefore specified, and said jury did not leave 

the jury box and did not separate after its retirement to deliberate upon its 

verdict until after all of the above had taken place as herein stated.

Beglinger, 164 Wash. at 150-51.
No. 35112-2-III

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21

136 S. Ct. at 1893-94 (citations omitted). The Court identified factors relevant to the 

constitutional concern that a trial court should consider before reassembling a discharged 

jury. The trial court should consider not only any direct evidence of taint, but also the 

length of delay between discharge and recall, whether jurors have spoken to anyone about 

the case after discharge, whether jurors witnessed an emotional reaction to their verdict, 

and whether jurors have accessed their smartphones or the internet. Id. at 1894-95.

D. Applying these principles to Karrlee’s case

Karrlee’s briefing on appeal emphasized that the clerk’s minutes indicated “at 

least 16 minutes passed between the jury’s verdicts and their re-assembly in the 

courtroom.” Br. of Appellant at 30. That 16 minute time frame was based on minutes 

indicating that the court reconvened for the return of the jury’s first verdicts at 2:26 p.m., 

and that after the problem with the verdict form was discovered, discussed and the court 

decided how to proceed, the jury was brought back into the courtroom at 2:42 p.m. 

Based on findings from the reference hearing, we now know that most of the 16 minutes 

passed before jurors left the courtroom and after they had been stopped and were waiting 

in the hallway for instructions to return. 

There were at most several moments between the time jurors in Karrlee’s case 

were discharged and informed they were being recalled; moments during which jurors 

were being escorted to the jury room. The time was so short that neither a cautious court 

nor counsel expressed a need to question the jurors about what they had been doing in 
No. 35112-2-III

State v. Clements

22

those few minutes. Neither the bailiff nor the clerk witnessed anything that would taint 

the jury.

There is overwhelming evidence that the error in the initial second verdict form

was overlooked by jurors and that nothing happened that changed their intended verdicts. 

At the outset of trial, the court read the charges against Karrlee to the jurors; the jurors 

received proper instructions on both crimes charged; the judge’s instructions referred to 

“both of the crimes,” e.g., RP at 306; and the prosecutor talked to jurors in closing 

argument about the two different crimes and asked jurors to find Karrlee guilty of both. 

In the first set of verdicts, the jurors completed a special verdict that stated, “We, the jury, 

having found the defendant guilty of Identity Theft in the First Degree, return a special 

verdict by answering as follows . . . .” CP at 152. Jurors never questioned the special 

verdict’s reference to them “having found [Karrlee] guilty of Identity Theft in the First 

Degree.” Id.

In light of these circumstances, the trial court reasonably rescinded the jury’s 

discharge and allowed it to return corrected verdicts rather than ordering a new trial.

Affirmed.

A majority of the panel having determined that only the foregoing portion of this 

opinion will be printed in the Washington Appellate Reports and that the remainder 

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it 

is so ordered.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL

If the trial court properly reempaneled the jury, Karrlee argues that her trial lawyer 

provided ineffective assistance of counsel by immediately pointing out the problem with 

the second verdict form. Had he stayed silent and raised the defect later, she argues, the 

trial court would have been powerless to correct the verdict. Karrlee would have a basis 

for a new trial.

10

 

Effective assistance of counsel is guaranteed by both the Sixth Amendment to the 

United States Constitution and article I, section 22 of the Washington Constitution. 

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); 

State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective 

assistance of counsel, a defendant must show two things: “(1) defense counsel’s 

representation was deficient, i.e., it fell below an objective standard of reasonableness 

based on consideration of all the circumstances; and (2) defense counsel’s deficient 

representation prejudiced the defendant, i.e., there is a reasonable probability that, except 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). A claim 

 

10 Alternatively, Karrlee argues that a reasonable attorney would have moved 

within 10 days for a new trial. We hold that Karrlee had no right to a new trial. Failure 

to make an unsuccessful argument at an earlier time cannot constitute ineffective 

assistance of counsel. 
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of ineffective assistance of counsel can be raised for the first time on appeal. State v. 

Brown, 159 Wn. App. 1, 17, 248 P.3d 518 (2010). 

“A fair assessment of attorney performance requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. It is because of the difficulties inherent in making the 

evaluation that courts “must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance” that the defendant must 

overcome. Id.

Every indication is that the lawyers overlooked the flaw in the second verdict form 

before deliberations, leading to a problem that was unforeseen. We question whether the 

average reasonable lawyer, faced with this unforeseen problem, would have the 

command of relevant case law to make the split-second calculation that Karrlee argues 

should have been made. We need not answer our own question, however, because even 

if Karrlee’s trial lawyer had a command of the relevant case law, he would not have 

known that Karrlee would lose her right to a new trial if he immediately disclosed the 

problem to the court. In light of the dicta in Beglinger and Badda, he might have 

believed that a decision by the trial court to recall the jurors would be error.

Karrlee fails to overcome the presumption that her trial lawyer’s performance was 

reasonable. 
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State v. Clements

25

III. CLAIMED EVIDENTIARY ERRORS

A. The trial court did not err in admitting business records under 

RCW 10.96.030(2)

At the end of the first day of trial, the State announced its intention to offer records 

of Catherine’s Vanguard, American Express and BanCorp accounts the next day, using 

custodial affidavits as permitted by RCW 10.96.030. When a party has complied with 

requirements for advance notice and custodial affidavits, chapter 10.96 RCW allows 

business records to be admitted without the usual live authentication testimony from the 

record custodian. The statute applies only in criminal cases. It was based on legislative 

findings, set forth in the statute, that business records needed for criminal prosecution are 

“often maintain[ed] . . . in a location outside the state of Washington,” and that the 

“ability of law enforcement and the criminal justice system to effectively perform their 

duties to the public often depends upon . . . being able to obtain and use records relevant 

to crimes.” RCW 10.96.005.

A party seeking to offer records under RCW 10.96.030 must provide “written 

notice of that intention to all adverse parties, and must make the record and affidavit, 

declaration, or certification available for inspection sufficiently in advance of their offer 

into evidence to provide an adverse party with a fair opportunity to challenge them.” 

RCW 10.96.030(3). A motion opposing admission in evidence of the record “shall be 

made and determined by the court before trial and with sufficient time to allow the party 
No. 35112-2-III

State v. Clements

26

offering the record time, if the motion is granted, to produce the custodian of the record.” 

Id. The failure to “timely file” a motion objecting to the admission of the record 

“constitute[s] a waiver of objection to admission of the evidence.” RCW 10.96.030(4)11 

The statute gives the trial court discretion to grant relief from the waiver if the objecting

party shows good cause for its failure to earlier object. Id. 

Karrlee’s counsel admitted that the State sent him an e-mail “several months ago 

indicating that they wanted to use RCW 10.96.030” to authenticate documents. RP at 96. 

He nonetheless pointed out that the custodians’ affidavits fell short of the statute’s 

requirements, and “[i]t’s not our job to get the State’s evidence correct” and “not my job 

to run out to them and say, ‘Hey, fix it.’” RP at 102-03.

The trial court construed the statute as providing that a party opposing admission 

of the records waives an objection based on defects in the custodial affidavit by, as the 

State had argued, “‘laying in the weeds.’” RP at 104. It overruled Karrlee’s objection.

On appeal, Karrlee contends that her objection to the records based on the 

shortcomings of the custodial affidavits was timely and should have been sustained. 

 

11 Karrlee points out a drafting error in subsection (4) of the statute. The 

subsection refers to a “motion under subsection (4)” which, logically, could be referring 

only to a motion under subsection (3). Br. of Appellant at 17 n.3. While legitimately 

identifying a problem with the statute, even Karrlee recognizes that in this respect, 

subsection (4) should not be given a “strict literal reading.” Id. We agree. We would 

provide further analysis if Karrlee relied on subsection (4)’s self-reference, which she 

does not.
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Generally, we review a trial court’s decision of whether evidence is admissible for abuse 

of discretion. State v. Dow, 168 Wn.2d 243, 248-49, 227 P.3d 1278 (2010). But 

determining the meaning of RCW 10.96.030 presents a question of law. The application 

of law is reviewed de novo. Id. (citing State v. Law, 110 Wn. App. 36, 39, 38 P.3d 374 

(2002)).

Karrlee relies on subsection (2) of the statute and especially on language she 

highlights:

“To be admissible without testimony from the custodian of records, 

business records must be accompanied by an affidavit, declaration, or 

certification by its record custodian or other qualified person that includes 

contact information for the witness completing the document and attests to 

the following:

(a) The witness is the custodian of the record or sets forth evidence that the 

witness is qualified to testify about the record;

(b) The record was made at or near the time of the act, condition, or event 

set forth in the record by, or from information transmitted by, a person with 

knowledge of those matters;

(c) The record was made in the regular course of business;

(d) The identity of the record and the mode of its preparation; and

(e) Either that the record is the original or that it is a duplicate that 

accurately reproduces the original.”

Br. of Appellant at 9 (quoting RCW 10.96.030(2)). She argues that the required content 

of the affidavit, declaration, or certificate is clear.

We agree. But the statute also provides, as the trial court recognized, that a basis 

for objection can be waived. We do not determine a statute’s plain meaning by looking 

at one of its subsections in isolation; rather, we assess its plain meaning by “viewing the 
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28

words of a particular provision in the context of the statute in which they are found, 

together with related statutory provisions, and the statutory scheme as a whole.” Burns v. 

City of Seattle, 161 Wn.2d 129, 140, 164 P.3d 475 (2007) (citing Dep’t of Ecology v. 

Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). To say that the failure of 

a party to file a motion “shall constitute a waiver of objection to admission of the 

evidence” has a meaning that is clear. “[T]he evidence” is the custodially-authenticated 

record. By failing to file a motion, Karrlee waived any objections to admission of the 

financial records. 

Karrlee argues that RCW 10.96.030(3) authorizes a motion to object to admission 

in evidence of a record, but not a motion to object to admission of a custodial affidavit,

declaration, or certification. See Br. of Appellant at 17-18. We don’t disagree, but the 

State never needed the court to admit the custodial affidavits. While they likely were 

filed with the court or marked as an exhibit to ensure their inclusion in the record, they 

did not have to be admitted or admissible. See ER 104(a) (“Preliminary questions 

concerning . . . the admissibility of evidence shall be determined by the court . . . . In 

making its determination it is not bound by the Rules of Evidence except those with 

respect to privileges.”). 

Karrlee also argues that the analysis of the Supreme Court in State v. Neal, 144 

Wn.2d 600, 30 P.3d 1255 (2001) supports her construction of RCW 10.96.030. Neal 

construed CrR 6.13(b), which, like RCW 10.96.030, identifies the required content of a 
No. 35112-2-III

State v. Clements

29

certification that can support the admission of a written report without further proof or 

foundation. But CrR 6.13(b) has no waiver provision. Neal reasoned that if a

certification of a report meets CrR 6.13(b)’s requirements, then ER 802’s rule of 

hearsay’s inadmissibility12 does not apply to the report; if the certification does not meet 

the requirements, then ER 802’s rule of inadmissibility does apply. Neal, 144 Wn.2d at 

609-10. ER 802’s rule of inadmissibility is not a problem for the State in this case, 

because by failing to file a timely motion, Karrlee waived any objection to the financial 

records based on ER 802.

“‘Ultimately, in resolving a question of statutory construction, . . . court[s] will 

adopt the interpretation which best advances the legislative purpose.’” Citizens All. for 

Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 437, 359 P.3d 753 (2015) 

(quoting Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258 (1990)). There is a clear 

legislative purpose in requiring that a party’s notice of intent to rely on RCW 10.96.030 

and a motion opposing admission of the proposed record each take place sufficiently in 

advance of trial that the party offering the record has time, if the opposition is sustained,

to produce a custodian. The clear purpose is to flush out objections that could be cured in 

some manner if disclosed, including by bringing a custodian to trial. Karrlee’s 

construction would frustrate this legislative purpose.

 

12 “Hearsay is not admissible except as provided by these rules, by other court 

rules, or by statute.” ER 802.
No. 35112-2-III

State v. Clements

30

Read as a whole, RCW 10.96.030 has a meaning that is clear. The trial court

correctly construed it in ruling on Karrlee’s objection.

B. Karrlee’s objection to the manner in which the State addressed information 

volunteered by Catherine during trial was not preserved

Karrlee filed motions in limine, one of which asked that the court require her 

mother “to refrain from making statements beyond the scope of examination.” CP at 14. 

Defense counsel explained to the court that the reason for that particular motion was that 

when he interviewed Catherine before trial,

at some points it was very off topic, that got into things that are completely 

irrelevant to this case, and I just want to make sure the State knows I’ll be 

jumpin’ up and down and let’s avoid potential mistrial issues if we can.

RP at 10. The prosecutor responded by informing the court that given the relationship 

between Catherine and Karrlee, there could be a “slew of back and forth allegations” if 

the court allowed it, “which I’m sure the Court won’t.” RP at 11. He stated that he and 

family members had warned Catherine to “try to listen to the question and answer the 

question only. I don’t know what more we can really do.” RP at 10. While the court 

granted Karrlee’s other motions in limine, it reserved ruling on this motion, requiring 

Karrlee to object if the problem arose at trial. 

Catherine’s propensity to volunteer manifested itself during direct examination, 

when the State asked her about a Visa credit card she had in the past, and she began to go 

off topic before being stopped by the prosecutor:
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31

A. . . . and in 2010 I found out I had a balance of $10,000.00 on it, 

and I hadn’t been usin’ it, and when I got the printout I saw all the printouts 

of, at that time, my daughter and her—

Q. Let me hold—let me stop you right there. 

All I asked, just for now, was just what sort of credit card you had.

RP at 224. Defense counsel did not object. 

During an afternoon recess, with Catherine still on the stand, the prosecutor—not 

defense counsel—explained that what Catherine had been about to get into was the fact 

that Karrlee’s ex-husband, Rocco Morris, had run up the $10,000 on Catherine’s Visa 

card. He told the court he would like to establish that thereafter, Catherine had warned 

her daughter and was extremely careful with her use of credit cards. The trial court 

disclosed that its impression from Catherine’s testimony was that Karrlee may have run 

up the $10,000. It then ruled: 

THE COURT: Okay. I think 404(b) would be violated if you were 

to have testimony that associated this defendant with the Rocco Morris’

misuse of the card.

. . . .

. . . That would not be appropriate, but I do think it would be 

appropriate to correct the impression that the jury may have that the 

defendant is the one who misused that card and ran up the $10,000.00. If 

you want to argue that that made Catherine Clements more careful, I don’t 

see a problem with that so long as you don’t, again, associate the defendant 

with the misappropriation that apparently occurred several years ago. 

Any objection to that, [Defense Counsel]?

[DEFENSE COUNSEL]: No.

RP at 231 (emphasis added). 
No. 35112-2-III

State v. Clements

32

Acting on the court’s directive, the State later clarified with Catherine that it was 

Rocco who used the Visa credit card, asking, “Anyway, you mentioned something about 

him, Rocco, putting or accessing credit cards and running up like $10,000.00 in debt[?]” 

RP at 241. Catherine explained that she had taken out one credit card, which Rocco had 

maxed out, and when he was arrested “the police found credit cards in my name in his 

wallet.” RP at 242. The State clarified, “Rocco was the one that was actually charged?” 

RP at 242. Catherine confirmed that Rocco was charged, and her daughter was not. 

Defense counsel did not object. 

Karrlee now argues for the first time that “[t]his was hardly clearing up the 

misimpression the court expressed concern about, and violated the court’s ruling to make 

no further association between Karrlee and the incident.” Br. of Appellant at 23. She

argues that the court’s ruling was in error or an abuse of discretion. Error, if any, was not 

preserved. See RAP 2.5(a). 

IV. CLAIMED INSTRUCTIONAL ERRORS

Before closing argument, the trial court asked the lawyers to provide formal 

exceptions and objections to the court’s jury instructions. Defense counsel answered, 

“We have none.” RP at 295. For the first time on appeal, Karrlee argues that the jury 

instructions on the theft charge defined only “deception,” not “by color or aid of 

deception,” and that the version of the pattern “to-convict” instruction for identity theft 

failed to accurately state the knowledge element. Karrlee characterizes both challenges 
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State v. Clements

33

as involving omission of an essential element, and therefore manifest constitutional error

that she can raise for the first time on appeal. See RAP 2.5(a)(3). 

A. Failure to define “by color or aid of deception”

Karrlee argues that the trial court’s instructions omitted an essential element of 

theft by deception: reliance.

In State v. Casey, 81 Wn. App. 524, 528, 915 P.2d 587 (1996), this court 

concluded that reliance, which was an essential element of the former crime of larceny by 

false pretenses, continues to be an essential element of the crime of theft by deception. 

The State argued in Casey that the legislature removed reliance as an element when it 

enacted the theft statute, which does not explicitly require reliance.13 This court 

disagreed, pointing out that the legislature preserved the “operative language ‘by color or 

aid of’” deception. Id. (emphasis added). It stated that “substitution of the term 

‘deception’ for ‘false pretenses’ merely indicates an intent to broaden the scope of the 

statute to include more kinds of devious behavior.” Id. 

It has been over 20 years since Casey was decided, and the Washington pattern toconvict instruction for theft in the first degree still does not include the word “reliance” as 

a required element of theft by deception. See 11A WASHINGTON PRACTICE:

 

13 RCW 9A.56.020(1)(b) includes, as a means of committing first degree theft, 

“By color or aid of deception to obtain control over the property or services of another or 

the value thereof, with intent to deprive him or her of such property or services.”
No. 35112-2-III

State v. Clements

34

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 70.02, at 46 (4th ed. 2016) 

(WPIC). The Washington Pattern Jury Instruction Committee continues to state the 

essential element of reliance in what is considered the equivalent language from the theft 

statute: “by color or aid of deception.” Id.; RCW 9A.56.020(1)(b). The trial court’s toconvict instruction for theft in the first degree, its jury instruction 7, was based on WPIC 

70.02 and required the jury to find the essential element of obtaining control over 

property of another “by color or aid of deception.” CP at 134.

Karrlee argues that the court should have provided jurors with an instruction 

defining “by color or aid of deception.” A pattern instruction, WPIC 79.03, defines the 

expression and Karrlee could have requested that it be given, but she did not. As earlier 

noted, she did not object when the pattern instruction defining “deception” (WPIC 79.04) 

was given instead. A failure to define a term is not manifest constitutional error. State v. 

O’Hara, 167 Wn.2d 91, 100-01, 217 P.3d 756 (2009). Argument that it would have been 

better to define “by color or aid of deception” was not preserved. 

B. Failure to use the current version of WPIC 131.02

Karrlee’s second claim of instructional error is that the trial court’s to-convict 

instruction for identity theft failed to include an essential knowledge element recognized 

in State v. Zeferino-Lopez, 179 Wn. App. 592, 319 P.3d 94 (2014). In that case, 

involving an immigrant who bought a Social Security card for $100 so he could get work, 

the State successfully argued to the trial court that while it was required by RCW 
No. 35112-2-III

State v. Clements

35

9.35.020(1) to prove the defendant knowingly obtained, possessed, or used the Social 

Security card, it was not required to prove that the defendant knew the number on the 

card belonged to another person. Zeferino-Lopez, 179 Wn. App. at 595. The statute 

provides, “No person may knowingly obtain, possess, use, or transfer a means of 

identification or financial information of another person, living or dead, with the intent to 

commit, or to aid or abet, any crime.” Id. at 596.

This court disagreed, holding that “‘as a matter of ordinary English grammar,’ the 

adverb ‘knowingly’ applies to both the verbs and the object of the sentence.” Id. at 598 

(quoting Flores-Figueroa v. United States, 556 U.S. 646, 650, 657, 129 S. Ct. 1886, 173 

L. Ed. 2d 853 (2009)). Following Zeferino-Lopez, the pattern to-convict instruction for 

identity theft was modified by the addition of a requirement that the following be proved 

beyond a reasonable doubt: “(3) That the defendant knew that the means of identification 

or financial information belonged to another person.” WPIC 131.02.

The to-convict instruction given in Karrlee’s case was a pre-December 2015 

version of WPIC 131.02 and addressed the knowledge element as being that Karrlee 

“knowingly obtained, possessed, or used a means of identification or financial 

information of another person.” CP at 135 (Jury Instruction 8). Again, Karrlee did not 

object to the instruction. She now argues that it is deficient without the modification 

made to WPIC 131.02 in 2015. 
No. 35112-2-III

State v. Clements

36

Her argument overlooks the fact that the instruction given tracks the language of 

RCW 9.35.020(1) and is the very language that this court held in Zeferino-Lopez “as a 

matter of ordinary English grammar” conveys knowledge of both the actions and the 

object. The modification of the WPIC is more fairly characterized as a clarification than 

a correction. The court in Zeferino-Lopez did not find fault with the jury instruction; it 

found fault with the prosecutor’s argument about what the instruction required the State 

to prove.

In any event, if the instruction was erroneous, the error was harmless under even 

constitutional harmless error analysis. Karrlee consistently testified that she knew the 

401(k) account belonged to her mother. 

V. CLAIMED SENTENCING ERRORS

Karrlee argues the trial court erred when it calculated her offender score by 

counting her two convictions separately. Because of the likelihood that the length of an 

exceptional sentence is based in part on what the standard range would have been, she 

argues that remand for resentencing is required. She also argues that the sentence was 

based on untenable grounds and was clearly excessive.

A. Miscalculated offender score

Karrlee argues that the trial court erred by failing to treat her two crimes as the 

same criminal conduct in calculating her offender score. Her trial lawyer did not contend 

that her crimes constituted the same criminal conduct at sentencing. 
No. 35112-2-III

State v. Clements

37

A trial court calculates a defendant’s offender score for sentencing purposes by 

counting current offenses and past convictions. RCW 9.94A.589(1)(a). The offender 

score for a given current offense includes all other current offenses unless the trial court 

finds “that some or all of the current offenses encompass the same criminal conduct.” Id.

In that event, those current offenses are counted as one crime in arriving at the offender 

score. Offenses constitute the same criminal conduct if they “require the same criminal 

intent, are committed at the same time and place, and involve the same victim.” Id. All 

three criteria must be present. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 

(1992).

“Deciding whether crimes involve the same time, place, and victim often involves 

determinations of fact,” and it is well settled that “a court’s determination of same 

criminal conduct will not be disturbed unless the sentencing court abuses its discretion or 

misapplies the law.” State v. Chenoweth, 185 Wn.2d 218, 220-21, 370 P.3d 6 (2016). 

Here, the State identifies an issue of fact as to whether there were two victims of the theft 

count: Catherine and Vanguard. The parties agree that Catherine was the only victim of 

identity theft.

Karrlee complains that this factual dispute is being raised for the first time on 

appeal. But if the identity of additional victims was not raised below, it is because 

Karrlee did not argue same criminal conduct at sentencing. For purposes of Karrlee’s 
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State v. Clements

38

prosecution, the State had no burden to prove that anyone other than Catherine was a 

victim.

For sentencing issues that involve discretion, a failure to raise the issue in the trial 

court operates as a waiver. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 

P.3d 618 (2002). A sentencing court is not required to undertake a same criminal 

conduct analysis sua sponte. State v. Nitsch, 100 Wn. App. 512, 524-25, 997 P.2d 1000 

(2000). We will not entertain Karrlee’s unpreserved challenge to the trial court’s 

calculation of her offender score.

B. Challenge to exceptional sentence as based on untenable grounds and

clearly excessive

Finally, Karrlee argues that sentencing her to one month incarceration for every 

$10,000 she stole was an untenable basis for imposing a 20-month sentence. While the 

State suggested a $10,000 per month approach to arriving at the length of an exceptional 

sentence, the trial court’s written findings of fact and conclusions of law provide different

reasons for the sentence it imposed: the standard range sentence, which Karrlee did not 

dispute; the jury’s justified finding that the offenses were major economic offenses; the 

monetary loss was substantial; the crimes involved a high degree of sophistication and 

planning; and the scheme occurred over a long period of time. All are tenable reasons for 

the sentence.
No. 35112-2-111 

State v. Clements 

Nor is the sentence excessive, given these circumstances. Its length, in light of the 

record, does not "shock the conscience." State v. Knutz, 161 Wn. App. 395, 411, 253 

P.3d 437 (2011). 

Costs on review. Ms. Clements has moved the panel to deny an award of costs 

should the State substantially prevail on review, which it has. 14 In a report as to 

continued indigency, she demonstrates substantial liabilities including the restitution 

ordered in this case, which is a priority. We deny an award of costs on review. 

Affirmed. 

WE CONCUR: 

$ 

Fearingn 

Pennell, A.CJ. 

14 Ms. Clements also challenges this division's general order, In re the Matter of 

Court Administration Order re: Request to Deny Cost Award (Wash. Ct. App. June 10, 

2016), as inconsistent with RAP 14.2. There is no inconsistency; our general order 

merely creates a second opportunity for an appellant to avoid an award of costs by 

demonstrating indigency. It identifies the information the panel will require if it is asked 

to deny costs in its opinion. See https://www.courts.wa.gov/appellate_trial_courts 

/?fa=atc.genorders&di v= III. 

39