Filed Washington State Court of Appeals Division Two
November 27, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 50712-9-II
Respondent,
v. UNPUBLISHED OPINION
YELENA ALEXANDER SHUBOCHKINA,
Appellant.
MAXA, C.J. – Yelena Shubochkina appeals her conviction of second degree identity theft
arising out of her unauthorized use of a credit card. On the second day of jury deliberations, the
trial court excused a juror and replaced her with an alternate juror. But the court did not instruct
the jury on the record that they must disregard all previous deliberations and begin deliberations
anew with the alternate juror.
We hold that the trial court erred in failing to instruct the reconstituted jury on the record
to disregard previous deliberations and to begin deliberations anew with the alternate juror. We
also reject Shubochkina’s assertion in a statement of additional grounds (SAG) that that her
conviction of the inferior degree offense of second degree identity theft should be dismissed with
prejudice because the jury found her not guilty of first degree identity theft.
Accordingly, we reverse Shubochkina’s conviction of second degree identity theft and
remand for further proceedings.1
1 Shubochkina also argues that she received ineffective assistance of counsel because counsel failed to object to certain evidence and asserts in her SAG that the trial court erred by imposing No. 50712-9-II
FACTS
The State charged Shubochkina with first degree identity theft for the use of a credit card
belonging to a man with whom she lived. At trial, the court instructed the jury on both first
degree identity theft and the inferior degree offense of second degree identity theft.
Following closing argument, the trial court temporarily excused juror 5, who was selected
as the alternate juror. The court made it clear that its instructions about jurors’ activities outside
the courtroom, including not discussing the trial or investigating the evidence, continued to apply
to the alternate. Then the jury deliberated for approximately an hour and a half.
The next day, before the jury had resumed deliberations, the court informed the parties
that it had excused a juror because of a death in the family. The court stated that the alternate
juror had been contacted and would be returning to the courtroom that morning. The jury was
advised not to begin deliberations until the alternate juror arrived.
The court then gave both parties an opportunity to comment. The prosecutor requested
that the “the jury be advised that now that they have a new member of the jury that they must
restart all deliberations.” Report of Proceedings (RP) at 341.
The trial court did not have any discussion with the alternate juror when she returned.
Instead, the court’s judicial assistant directed her to go straight into the jury room. The court
also did not instruct the jury on the record that they were required to disregard prior deliberations
and restart deliberations anew. Instead, the court stated, “[The judicial assistant] will again
remind them that they must start anew with Juror No. 5 because they did have about an hour and
legal financial obligations after finding that she was indigent. Because we reverse Shubochkina’s conviction, we do not address these claims.
2 No. 50712-9-II
a half of deliberations yesterday.” RP at 341-42. The judicial assistant’s directions to the jury
were not placed on the record.
The jury returned a verdict that afternoon. The jury found Shubochkina not guilty of first
degree identity theft but guilty of the second degree identity theft.
Shubochkina appeals her conviction.
ANALYSIS
A. REPLACING A DELIBERATING JUROR WITH AN ALTERNATE JUROR
Shubochkina argues that the trial court erred in replacing the excused juror with an
alternate juror without instructing the reconstituted jury on the record to disregard previous
deliberations and begin deliberations anew with the alternate juror. We agree.2
1. Legal Principles
CrR 6.5 addresses the procedure for replacing an initial juror with an alternate juror after
the jury has begun deliberations. When alternate jurors are temporarily excused, “the trial judge
shall take appropriate steps to protect alternate jurors from influence, interference or publicity,
which might affect that juror’s ability to remain impartial.” CrR 6.5. Before seating an alternate
juror for deliberations, the trial court “may conduct brief voir dire.” CrR 6.5. In addition, “[i]f
the jury has commenced deliberations prior to replacement of an initial juror with an alternate
juror, the jury shall be instructed to disregard all previous deliberations and begin deliberations
anew.” CrR 6.5.
Article I, sections 21 and 22 of the Washington Constitution guarantee criminal
defendants the right to an impartial jury and a unanimous verdict. See State v. Armstrong, 188
2 Shubochkina also argues that the trial court erred in replacing the excused juror with an alternate juror without questioning the alternate juror about her continuing impartiality. Because we reverse on other grounds, we do not address this issue.
3 No. 50712-9-II
Wn.2d 333, 340, 394 P.3d 373 (2017). Replacing an initial juror with an alternate juror directly
relates to these constitutional rights. State v. Ashcraft, 71 Wn. App. 444, 463, 859 P.2d 60
(1993). Therefore, complying with CrR 6.5 has constitutional implications. State v. Lamar, 180
Wn.2d 576, 582-86, 327 P.3d 46 (2014). This court reviews claims of constitutional error de
novo. State v. Blancaflor, 183 Wn. App. 215, 222, 334 P.3d 46 (2014).
The failure to give an appropriate jury instruction under CrR 6.5 is subject to a harmless
error analysis. See id. at 228.
2. Failure to Instruct Jury to Restart Deliberations
CrR 6.5 clearly states that when an alternate juror replaces an initial juror, “the jury shall
be instructed to disregard all previous deliberations and begin deliberations anew.” (Emphasis
added.) Courts repeatedly have held that the trial court’s failure to give such an instruction on
the record is reversible error of constitutional magnitude. Lamar, 180 Wn.2d at 585-86;
Blancaflor, 183 Wn. App. at 218, 222; State v. Stanley, 120 Wn. App. 312, 318, 85 P.3d 395
(2004); Ashcraft, 71 Wn. App. at 464. “An appellate court must be able to determine from the
record that jury unanimity has been preserved.” Ashcraft, 71 Wn. App. at 465.
Here, the trial court did not instruct the reconstituted jury to disregard all previous
deliberations and begin deliberations anew with the alternate juror. Instead, the court stated that
the judicial assistant “will again remind them that they must start anew with Juror No. 5 because
they did have about an hour and a half of deliberations yesterday.” RP at 341-42.
The State argues that the trial court’s statement that the judicial assistant would remind
the jury to start deliberations anew was an instruction to the jury on the record. However, we
Free access — add to your briefcase to read the full text and ask questions with AI
Filed Washington State Court of Appeals Division Two
November 27, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 50712-9-II
Respondent,
v. UNPUBLISHED OPINION
YELENA ALEXANDER SHUBOCHKINA,
Appellant.
MAXA, C.J. – Yelena Shubochkina appeals her conviction of second degree identity theft
arising out of her unauthorized use of a credit card. On the second day of jury deliberations, the
trial court excused a juror and replaced her with an alternate juror. But the court did not instruct
the jury on the record that they must disregard all previous deliberations and begin deliberations
anew with the alternate juror.
We hold that the trial court erred in failing to instruct the reconstituted jury on the record
to disregard previous deliberations and to begin deliberations anew with the alternate juror. We
also reject Shubochkina’s assertion in a statement of additional grounds (SAG) that that her
conviction of the inferior degree offense of second degree identity theft should be dismissed with
prejudice because the jury found her not guilty of first degree identity theft.
Accordingly, we reverse Shubochkina’s conviction of second degree identity theft and
remand for further proceedings.1
1 Shubochkina also argues that she received ineffective assistance of counsel because counsel failed to object to certain evidence and asserts in her SAG that the trial court erred by imposing No. 50712-9-II
FACTS
The State charged Shubochkina with first degree identity theft for the use of a credit card
belonging to a man with whom she lived. At trial, the court instructed the jury on both first
degree identity theft and the inferior degree offense of second degree identity theft.
Following closing argument, the trial court temporarily excused juror 5, who was selected
as the alternate juror. The court made it clear that its instructions about jurors’ activities outside
the courtroom, including not discussing the trial or investigating the evidence, continued to apply
to the alternate. Then the jury deliberated for approximately an hour and a half.
The next day, before the jury had resumed deliberations, the court informed the parties
that it had excused a juror because of a death in the family. The court stated that the alternate
juror had been contacted and would be returning to the courtroom that morning. The jury was
advised not to begin deliberations until the alternate juror arrived.
The court then gave both parties an opportunity to comment. The prosecutor requested
that the “the jury be advised that now that they have a new member of the jury that they must
restart all deliberations.” Report of Proceedings (RP) at 341.
The trial court did not have any discussion with the alternate juror when she returned.
Instead, the court’s judicial assistant directed her to go straight into the jury room. The court
also did not instruct the jury on the record that they were required to disregard prior deliberations
and restart deliberations anew. Instead, the court stated, “[The judicial assistant] will again
remind them that they must start anew with Juror No. 5 because they did have about an hour and
legal financial obligations after finding that she was indigent. Because we reverse Shubochkina’s conviction, we do not address these claims.
2 No. 50712-9-II
a half of deliberations yesterday.” RP at 341-42. The judicial assistant’s directions to the jury
were not placed on the record.
The jury returned a verdict that afternoon. The jury found Shubochkina not guilty of first
degree identity theft but guilty of the second degree identity theft.
Shubochkina appeals her conviction.
ANALYSIS
A. REPLACING A DELIBERATING JUROR WITH AN ALTERNATE JUROR
Shubochkina argues that the trial court erred in replacing the excused juror with an
alternate juror without instructing the reconstituted jury on the record to disregard previous
deliberations and begin deliberations anew with the alternate juror. We agree.2
1. Legal Principles
CrR 6.5 addresses the procedure for replacing an initial juror with an alternate juror after
the jury has begun deliberations. When alternate jurors are temporarily excused, “the trial judge
shall take appropriate steps to protect alternate jurors from influence, interference or publicity,
which might affect that juror’s ability to remain impartial.” CrR 6.5. Before seating an alternate
juror for deliberations, the trial court “may conduct brief voir dire.” CrR 6.5. In addition, “[i]f
the jury has commenced deliberations prior to replacement of an initial juror with an alternate
juror, the jury shall be instructed to disregard all previous deliberations and begin deliberations
anew.” CrR 6.5.
Article I, sections 21 and 22 of the Washington Constitution guarantee criminal
defendants the right to an impartial jury and a unanimous verdict. See State v. Armstrong, 188
2 Shubochkina also argues that the trial court erred in replacing the excused juror with an alternate juror without questioning the alternate juror about her continuing impartiality. Because we reverse on other grounds, we do not address this issue.
3 No. 50712-9-II
Wn.2d 333, 340, 394 P.3d 373 (2017). Replacing an initial juror with an alternate juror directly
relates to these constitutional rights. State v. Ashcraft, 71 Wn. App. 444, 463, 859 P.2d 60
(1993). Therefore, complying with CrR 6.5 has constitutional implications. State v. Lamar, 180
Wn.2d 576, 582-86, 327 P.3d 46 (2014). This court reviews claims of constitutional error de
novo. State v. Blancaflor, 183 Wn. App. 215, 222, 334 P.3d 46 (2014).
The failure to give an appropriate jury instruction under CrR 6.5 is subject to a harmless
error analysis. See id. at 228.
2. Failure to Instruct Jury to Restart Deliberations
CrR 6.5 clearly states that when an alternate juror replaces an initial juror, “the jury shall
be instructed to disregard all previous deliberations and begin deliberations anew.” (Emphasis
added.) Courts repeatedly have held that the trial court’s failure to give such an instruction on
the record is reversible error of constitutional magnitude. Lamar, 180 Wn.2d at 585-86;
Blancaflor, 183 Wn. App. at 218, 222; State v. Stanley, 120 Wn. App. 312, 318, 85 P.3d 395
(2004); Ashcraft, 71 Wn. App. at 464. “An appellate court must be able to determine from the
record that jury unanimity has been preserved.” Ashcraft, 71 Wn. App. at 465.
Here, the trial court did not instruct the reconstituted jury to disregard all previous
deliberations and begin deliberations anew with the alternate juror. Instead, the court stated that
the judicial assistant “will again remind them that they must start anew with Juror No. 5 because
they did have about an hour and a half of deliberations yesterday.” RP at 341-42.
The State argues that the trial court’s statement that the judicial assistant would remind
the jury to start deliberations anew was an instruction to the jury on the record. However, we
interpret CrR 6.5 as requiring the trial court to give a formal instruction to the jury on the record
4 No. 50712-9-II
stating that they must restart deliberations. The informal direction from a judicial assistant here
did not satisfy the CrR 6.5 requirement.3
We hold that the trial court erred by not instructing the jury on the record to disregard
previous deliberations and begin deliberations anew with the alternate juror. And the State does
not argue that any error was harmless in this case. The appropriate remedy for this error is
reversal of Shubochkina’s conviction with remand for a new trial. See Blancaflor, 183 Wn. App.
at 229.
B. CONVICTION OF INFERIOR DEGREE OF CHARGED CRIME
Shubochkina asserts in her SAG that her conviction of second degree identity theft is
invalid because the jury found her not guilty of first degree identity theft. We disagree.
A criminal defendant generally can be convicted only of crimes that are charged in the
information. State v. Corey, 181 Wn. App. 272, 275, 325 P.3d 250 (2014). However, under
RCW 10.61.003, where the defendant is charged with a crime consisting of different degrees,
“the jury may find the defendant not guilty of the degree charged in the indictment or
information, and guilty of any degree inferior thereto.”
Here, Shubochkina was charged by amended information with first degree identity theft.
The trial court gave a jury instruction regarding the possibility of convicting Shubochkina of
second degree identity theft and gave both a definitional instruction and a to-convict instruction
on second degree identity theft. Under the plain language of RCW 10.61.003, the jury could
validly convict Shubochkina of second degree identity theft as an inferior degree offense even
though the jury found her not guilty of first degree identity theft.
3 Even if a judicial assistant’s informal direction to the jury could satisfy CrR 6.5, here that direction was not made on the record and the record does not show what the judicial assistant actually told the jury.
5 No. 50712-9-II
Accordingly, we reject Shubochkina’s SAG claim.
CONCLUSION
We reverse Shubochkina’s conviction of second degree identity theft and remand for
further proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, C.J.
We concur:
WORSWICK, J.
MELNICK, J.