State Of Washington, Respondent/cr-appellant V. Rodney B. Summers, Appellant/cr-respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	;
No. 67341-6-1
Respondent, 	CO 	CO o
DIVISION ONE 	• —i
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UNPUBLISHED OPINION 	—
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RODNEY BYRON SUMMERS, O
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Appellant. 	i 	FILED: June 10, 2013 	CO
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GROSSE, J. — During jury deliberations in Rodney Summers' trial for
child 	molestation 	and 	child 	rape, 	Summers 	participated 	by 	telephone 	in
proceedings involving questions from the jury. 	For the first time on appeal,
Summers contends the court violated his state and federal constitutional rights
because he was not physically present when the court and counsel addressed
the 	jury's 	questions. 	Because 	Summers 	fails 	to 	demonstrate 	manifest
constitutional error, we affirm his conviction. 	We affirm his sentence in part, but
remand for the court to strike the domestic violence penalty.
FACTS
Based on allegations that Summers sexually abused 	his former step
daughter, the State charged him with one count of first degree child molestation
and four counts of first degree rape of a child. 	During jury deliberations, the jury
sent out two questions:
[(1)] Re: Detective Martin - the detective was present throughout
the 	trial. 	Midway 	in 	the 	trial, 	Detective 	Martin 	gave
witness/testimony re the case. 	Is the dective [sic] allowed to be
both co-council [sic] and/or the plaintiff and or the witness[?].

No. 67341-6-1/2
[(2)] A jury member goes home after the trial goes to the jury. The
member looked up the definition of "presumption of innocence" &
"beyond 	a 	reasonable 	doubt" 	Should 	the 	jurror 	[sic] 	be
dismissed!?].
The court discussed these questions in open court with both counsel present.
Although Summers was not present, he listened to the proceedings by telephone
from the jail.
The court first called in and questioned the presiding juror. The juror said
that Juror No. 3 had looked up the definitions of "presumption of innocence" and
"reasonable doubt" in some books but had not disclosed what the books said.
Neither counsel questioned the presiding juror.
The court then questioned Juror No. 3. 	He said the definitions he looked
up were consistent with the definitions in the court's instructions. He confirmed
that he did not tell the other jurors what he read. 	He told them only that there
was no difference between what he read and the court's instructions. Defense
counsel declined to ask any questions. 	Summers and his counsel then spoke
privately by telephone.
Following a recess, the parties and the court continued to discuss the
jury's questions 	with 	Summers 	listening 	on 	the 	telephone. 	The 	prosecutor
proposed 	answering 	the 	jury's 	second 	question 	by 	re-reading 	the 	court's
introductory instruction regarding the jurors' duties. 	Defense counsel agreed on
the condition that the entire instruction would be re-read. 	Summers raised no
objection.
The court called the jury in and re-read the instruction. 	The court asked if
any of the jurors "heard something that would in any way affect your ability to

No. 67341-6-1/3
deliberate based on the evidence you heard and the instructions you received
from the Court, and to put aside anything else you've heard." 	When 	no juror
raised their hand, the court directed the jury to resume deliberations.
Shortly thereafter, the court answered the jury's first question as follows:
"The state is allowed to designate a managing witness."
The jury convicted Summers as charged. 	He appeals.
ANALYSIS
For the first time on appeal, Summers contends the trial court violated his
federal 	and 	state 	constitutional 	rights 	and 	CrR 	3.4 	when 	it answered 	jury
questions during deliberations in his absence.1 	Summers fails to satisfy the
criteria for review.
We generally will not review a claim of error raised for the first time on
appeal.2 An exception exists for "manifest" errors affecting a constitutional right.3
Violations of procedural rules, such as CrR 3.4, do not satisfy this standard,4
Violations of the state constitutional right to appear and defend or the federal
constitutional right to be present may amount to manifest constitutional error if
the defendant can plausibly show that the error had 	practical and identifiable
consequences at trial.5 This requires a showing of actual prejudice.6
1 State v. Irbv. 170 Wn.2d 874, 880-85, 246 P.3d 796 (2011) (addressing federal
and state rights).
2 RAP 2.5(a).
3 RAP 2.5(a)(3).
4 See State v. Gentry. 125 Wn.2d 570, 616, 888 P.2d 1105 (1995).
5 State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
6 State v. O'Hara. 167 Wn.2d 91, 99, 217 P.3d 756 (2009).

No. 67341-6-1/4
Assuming without deciding that Summers had a constitutional right to be
physically present during the court's handling of the jury inquiries, 	he fails to
demonstrate that his absence resulted in actual prejudice. 	Contrary to Summers'
assertions, prejudice in this setting is not presumed.7 	Moreover, while Summers
was not physically present during the 	resolution of the jury's questions, 	it is
undisputed 	that 	he 	participated 	in the 	proceedings 	by telephone 	and 	was
afforded an opportunity to consult privately with his attorney. 	His speculative
allegations as to what he or the jury might have done had he been physically
present are insufficient to establish manifest error.8
In addition, Summers' analogy to cases involving denial of the right to a
public trial is misplaced. 	Prejudice in such cases is presumed.9 As noted above,
prejudice is not presumed for violations of the right to be present or the right to
appear and defend.10
Summers next challenges several conditions of his sentence.11 	He first
contends the $100 domestic violence penalty imposed by the court pursuant to
7 Irby, 170 Wn.2d at 886 (citing State v. Caliquri. 99 Wn.2d 501, 664 P.2d 466
(1983)). 	Summers' disagreement with the holdings in these cases 	must be
addressed to the State Supreme Court.
8 See O'Hara. 167 Wn.2d at 99 (in 	determining whether alleged error had
identifiable consequences, "the trial record must be sufficient to determine the
merits of the claim" and if the necessary facts are not in the record, the error is
not manifest); State v. Sterling. 23 Wn. App. 171, 177, 596 P.2d 1082 (1979)
("speculation or possibility is insufficient to show prejudice").
9 See State v. Paumier. 176 Wn.2d 29, 288 P.3d 1126 (2012).
10 Irby, 170Wn.2dat886.
11 The State contends this argument cannot be raised for the first time on appeal.
But a trial court may impose a sentence only as authorized by statute, In re Pers.
Restraint of Tobin, 165 Wn.2d 172, 175, 196 P.3d 670 (2008), and unauthorized
conditions of a sentence may be challenged for the first time on appeal. State v.
Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). 	Since Summers contends the

No. 67341-6-1/5
RCW 10.99.080 was unauthorized. 	He argues that the penalty can only be
imposed for 	offenses committed 	after June 4, 	2004. 	Because his 	offenses
occurred before that date, he concludes, and the State does not dispute, that the
statute and penalty are inapplicable. 	The State argues, however, that the penalty
was nevertheless authorized by the court's discretionary power to impose a fine
of up to $50,000 for each of Summers' felonies. 	But the court did not exercise
that discretion. 	Rather, 	it specifically and expressly imposed the 	"Domestic
Violence 	Penalty 	(for 	offenses 	committed 	after 	06-04-2004)" 	under 	"RCW
10.99.080." 	Because that penalty is unauthorized in these circumstances, and
because there is no indication that the court would have imposed a discretionary
fine in lieu of the statutory penalty, we remand for the court to strike the penalty.
Summers also challenges a community custody condition requiring him to
"Participate in polygraph and plethysmograph examinations as directed by the
supervising 	Community 	Corrections 	Officer 	[(CCO)]." 	He 	contends
plethysmograph testing is proper only if ordered by a sexual deviancy treatment
provider because a CCO could order testing for reasons not related to treatment.
This contention is controlled bv State v. Riles.12
In Riles, the court upheld conditions requiring plethysmograph testing as
part of the defendant's sexual deviancy treatment.13 	The conditions approved in
statute cited 	by the trial 	court does 	not authorize the penalty imposed, 	his
argument may be raised for the first time on appeal.
12 135 Wn.2d 326, 957 P.2d 655 (1998).
13 Riles, 135 Wn.2d at 343-45. 	The Riles court also struck a condition requiring
plethysmograph testing because the offender was not also ordered to undergo
sexual deviancy treatment or therapy. The court held that "[i]t is not permissible
for a court to order plethysmograph testing without also imposing crime-related

No. 67341-6-1/6
Riles are substantially similar to the conditions imposed in this case.14 	In both
cases, the defendants were ordered to participate in sexual deviancy treatment
and to submit to plethysmograph testing at the direction of the CCO. 	Under
Riles, the plethysmograph testing condition in this case is proper because it is
accompanied by, and implicitly related to, a condition requiring sexual deviancy
treatment. 	In the event plethysmograph testing is ordered for an impermissible
purpose, Summers may challenge it at that time.15
For the first time on appeal, Summers also argues that, absent a finding
that plethysmograph testing is likely to reap its intended benefits in this case, the
treatment 	which 	reasonably 	would 	rely 	upon 	plethysmograph 	testing 	as 	a
physiological assessment measure." Riles, 135 Wn.2d at 345.
14 The conditions upheld in Riles stated:
(1) Within thirty days of release from confinement, enter into and
make reasonable progress in . . . sexual deviancy therapy, with a
therapist approved by your [CCO].
(4) 	Submit to 	polygraph 	and plethysmograph testing 	upon 	the
request of your therapist and/or [CCO], at your own expense.
Conditions 13 and 16 in this case state:
13. 	Participate in 	a sexual deviancy treatment with 	a certified
provider 	and 	make progress 	in 	any 	recommended 	course 	of
treatment. 	Follow all conditions outlined in your treatment contract.
Do 	not change therapists 	without 	advanced 	permission of the
supervising [CCO].
16. 	Participate in polygraph and plethysmograph examinations as
directed by the supervising [CCO].
Riles, 135Wn.2dat337.
15 See State v. Riles, 86 Wn. App. 10, 16-17, 936 P.2d 11(1997).

No. 67341-6-1/7
condition requiring such testing violates his right to freedom from bodily intrusion.
But as the State points out, the alleged error is not manifest because the facts
necessary to review it are not in the record. 	Consequently, the alleged error
cannot be raised for the first time on appeal.16
Finally, 	Summers 	contends 	the 	condition 	requiring 	him 	to 	submit 	to
polygraphs ordered by his CCO violates his right to privacy. 	He concedes that
polygraphs may be used to monitor conditions of community custody, but argues
that the condition 	in this 	case fails to 	expressly limit polygraph 	use to that
purpose. We agree that the better practice is to expressly limit polygraph use and
advise counsel and the court to do so in the future. 	Nevertheless, reversal is not
required when, as 	here, polygraph use is implicitly limited when read in the
context of the entire order.17 	In addition, if Summers is required to submit to a
polygraph assessment, he may lodge his objection to the order as applied at that
time.18
Affirmed in part and remanded in part.
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WE CONCUR:
rf5*^ Cox J.
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16 State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
17 State v. Combs, 102 Wn. App. 949, 952-53, 10 P.3d 1101 (2000).
18 See Riles, 86 Wn. App. at 16-17.