Instruction 14 further informed the jury how to initiate and carry out the deliberative process, and explained that each juror has the right to be heard. Sullivan did not object to these two instructions, or propose any additional instructions.
¶ 4 After deliberating less than two hours, the jury found Sullivan guilty as charged. A poll of the jury confirmed that their verdict was unanimous. Sullivan appeals.
ANALYSIS
Unanimity Instruction
¶ 5 The primary issue in this case is whether the trial court erred by failing to instruct the jury that they must complete all deliberations when all twelve jurors are in the jury room. Sullivan argues that without such an instruction, there is no basis to assume the verdicts rendered were the result of the common experience of all of the jurors.
¶ 6 Because Sullivan did not request such an instruction below, nor object to the trial courts instructions given, RAP 2.5(a) precludes him from raising this issue for the first time on appeal unless he can show that failure to provide the additional instruction is a manifest error affecting a constitutional right. RAP 2.5(a)(3) ; State v. OHara, 167 Wash.2d 91, 98, 217 P.3d 756 (2009). For an error to be manifest, there must be evidence of actual prejudice having practical and identifiable consequences [at] trial. OHara, 167 Wash.2d at 98-99, 217 P.3d 756. If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest. State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995), as amended (Sept. 13, 1995).
¶ 7 Sullivan relies primarily on State v. Lamar, 180 Wash.2d 576, 327 P.3d 46 (2014). In Lamar, the trial court provided the pattern jury instruction, WPIC 1.04, on the first day of jury deliberations. Lamar, 180 Wash.2d at 580, 327 P.3d 46. On the second day of deliberations, however, a juror fell ill and the trial court substituted an alternate juror. Instead of instructing the jury to begin deliberations anew, the trial court instructed the remaining jurors to spend some time reviewing and recapping the past deliberations to bring the alternate juror up to speed and then to resume deliberations. Lamar, 180 Wash.2d at 580-81, 327 P.3d 46.
¶ 8 While our Supreme Court found that the original instruction, patterned after WPIC 1.04, was constitutional, it held that the second instruction was manifest constitutional error because the instruction affirmatively told the reconstituted jury not to deliberate together as is constitutionally required. Lamar, 180 Wash.2d at 582, 327 P.3d 46. The court then determined the error was prejudicial because the jury is presumed to follow the trial courts instructions, absent evidence to the contrary. Lamar, 180 Wash.2d at 586, 327 P.3d 46.
¶ 9 In this case, the trial court instructed the jurors with the identical instruction approved by the court in Lamar. Lamar, 180 Wash.2d at 585, 327 P.3d 46. This instruction informed the jurors that they had the duty to discuss the case with each other and to deliberate together in an effort to reach a unanimous verdict. Juries are presumed to follow their instructions absent evidence to the contrary. State v. Dye, 178 Wash.2d 541, 556, 309 P.3d 1192 (2013). Here, the post-verdict poll in which the jurors confirmed they reached a unanimous verdict supports that presumption. Polling a jury, when properly carried out, is generally evidence of jury unanimity unless the record affirmatively shows a reason to seriously doubt that the right has been safeguarded. Lamar, 180 Wash.2d at 587-88, 327 P.3d 46.
¶ 10 Sullivan offers no evidence that the jury failed to deliberate as a whole. Instead, Sullivans argument relies entirely on speculation, arguing it is safe to assume one or more jurors left the jury room ..., if for no other reason than to use a bathroom during the two hours of deliberations. [S]peculation that a juror may have left the jury room during deliberations ... is insufficient to warrant review under RAP 2.5(a)(3). State v. St. Peter, 1 Wash. App. 2d 961, 963, 408 P.3d 361 (2018).
¶ 11 We hold that without evidence to demonstrate that the jury did not deliberate as a whole, the asserted error is not manifest and we decline to address Sullivans argument on the merits. See RAP 2.5(a)(3).
Scriveners Errors
¶ 12 The State concedes that Sullivans judgment and sentence has two scriveners errors that require correction. The judgment and sentence misstates the date on which he was found guilty, January 11, 2017 instead of January 10, 2017. It also incorrectly states the statutory maximum punishment as five years, instead of ten years for a class B felony. RCW 9A.52.030(2) ; RCW 9A.20.021(b). The remedy for clerical or scriveners errors in judgment and sentence forms is remand to the trial court for correction. CrR 7.8(a) ; see RAP 7.2(e).
¶ 13 We affirm Sullivans conviction, but remand for the trial court to correct the scriveners errors.
WE CONCUR:
Cox, J.
Becker, J.
Sullivans argument has been repeatedly rejected in unpublished opinions prior to Division Threes opinion in St. Peter. See, e.g., State v. Ahlquist, No. 76734-8-I, 2017 WL 3142427 (Wash. Ct. App. July 24, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/767348.pdf. review denied, 189 Wash.2d 1034, 407 P.3d 1145 (2018) ; State v. Tucker, No. 33714-6-III, 2016 WL 6236890 (Wash. Ct. App. Oct. 25, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/337146_unp.pdf. review denied, 187 Wash.2d 1022, 390 P.3d 343 (2017) ; State v. Walsh, No. 34396-1-III, 2017 WL 3048650 (Wash. Ct. App. July 18, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/343961_unp.pdf; State v. Burrill, No. 34079-1-III, slip op. at [3], 2018 WL 287180 (Wash. Ct. App. Jan. 4, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/340791_unp.pdf. We see no reason not to follow these previous decisions.