¶37 (dissenting) — I respectfully dissent from the majority’s decision that the trial court committed reversible error by essentially compelling the jury to complete the verdict form on count I. Although I agree with the majority’s resolution of Ford’s other assignments of error for both counts, I write separately to refute its conclusion that the trial court’s oral instruction to the jury rose to the level of “manifest” constitutional error4 that Ford may raise for the first time on appeal, even though he neither objected to the trial court’s oral instruction below nor proposed a different instruction or course of action. Furthermore, I agree with the State that the record fails to show a substantial likelihood that the trial court’s oral instruction to the jury, to complete the verdict form on count I, affected the outcome of Ford’s case.
FACTS
¶38 At trial, the jury received two verdict forms: count I for second-degree rape of a child and count II for third-*545degree rape of a child. After the jury informed the trial court that it had finished deliberating, the trial court asked the foreperson, “Has the jury reached a unanimous verdict?” The foreperson responded, ‘Yes.” The trial court then asked the foreperson, “Would you pass the verdict forms to my bailiff.” IV Report of Proceedings (RP) at 390. But when the trial court began reading from the verdict forms, it noticed that the jury had left count I blank, even though it had filled in count II, finding Ford guilty of third-degree rape of a child.
¶39 The trial court stated, “I’m sending the jury back to the jury room. Verdict form No. 1 is completely blank. It must be filled in.” After excusing the jury, the trial court added, “I believe we have just a momentary delay [.] I think they just forgot to fill out the form.” TV RP at 390. No one objected to the trial court’s oral instructions; nor did anyone propose a different course of action. The trial court then said, “I’m inclined to have [the bailiff] tell them if they have a question to write the question out and submit it to us. Is that agreeable?” IV RP at 391. Both parties agreed; yet, before the trial court took any action, the jury returned to the courtroom with a completed verdict form on count I, finding Ford guilty of second-degree rape of a child.
ANALYSIS
¶40 The majority adopts Ford’s argument, raised for the first time on appeal, that the trial court’s oral instruction to the jury, that the jury “must be in agreement on count I,” affected the outcome of the verdict, thereby denying Ford his right to a fair trial.5 (Emphasis added.) But, contrary to Ford’s argument, the trial court did not use that language, even though, as the majority notes, the trial court did not articulate the option of failing to reach a unanimous verdict. Instead the trial court stated, “I’m sending the jury back to the jury room. Verdict form No. 1 is completely *546blank. It must be filled in.” IV RP at 390 (emphasis added). In my view, the trial court’s instruction under the circumstances here do not rise to the level of coercion addressed in State v. Boogaard, 90 Wn.2d 733, 735, 585 P.2d 789 (1978).
¶41 In Boogaard, after the jury had deliberated for six or seven hours, the trial court asked the bailiff to inquire “how the jury stood numerically” because it was getting late at night.6 When the bailiff told the trial court that the jury’s vote was 10-2, the trial court polled the jurors to determine whether further deliberations would be fruitful. In spite of one juror’s statement that it would not be possible to reach a verdict in 30 minutes, the trial court instructed the jury to deliberate for an additional half hour. Thirty minutes later, the previously deadlocked jury reached a unanimous verdict finding Boogaard guilty.
¶42 Here, in contrast, the jury informed the trial court that it had reached a verdict. Unlike the jury in Boogaard, the jury here said nothing about their being deadlocked, and there were no identifiable juror “holdouts.” Majority at 540. The jury’s foreperson also responded, “Yes,” when the trial court asked if the jury had reached a “unanimous verdict.” Under these facts, the jury’s leaving one count blank on the verdict form, without comment, does not equate to the Boogaard jury’s clearly articulated deadlock; therefore, with all due respect to my learned colleagues, the majority’s attempted analogy to Boogaard does not succeed.
¶43 Similarly, I respectfully disagree with the majority’s speculation that “it is equally possible that the jury walked back to the jury room . . . and any holdouts simply acquiesced.” Majority at 540 (emphasis added). Such speculation does not satisfy the applicable standard of review, which, as the majority acknowledges, Ford must meet to raise this challenge for the first time on appeal — he must show a “manifest” error, not merely a “possible” error, affecting a constitutional right. Majority at 537-38, 540-41. Such speculation about the mere possibility of the jury’s *547having been “coerced” by the court’s instruction to fill in the blank does not rise to the level of “manifest” error under the facts of this case, not even under the case law that the majority cites.
¶44 On the contrary, the mere “possibility’ that there may have been a hold-out juror who changed his or her vote after returning to the jury room (as was beyond doubt the case in Boogaard) does not establish “manifest” error because it does not show (1) “a reasonable probability that the trial’s outcome would have differed if the [alleged] error had not occurred,”7 (2) “a substantial likelihood that the [alleged] trial irregularity affected the jury verdict, thereby denying the defendant a fair trial,”8 or (3) “[a] ‘strong, affirmative showing of misconduct. .. necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury.’ ”9
¶45 Nor does the record reflect that the trial court told the jury that it “must be in agreement.” Br. of Appellant at 16 (emphasis added). This undisputed fact undermines the majority’s conclusion that the trial court’s oral instruction to fill in the blank on the verdict form “directly conflicted” with the written jury instructions, which expressly provided that the jury need not reach a unanimous verdict on each charge. Contrary to the majority’s assertion, the trial court did not orally instruct the jury to reach a “unanimous verdict” on count I.
¶46 Instead, the trial court merely sought to correct what appeared to everyone present in the courtroom to have been an inadvertent oversight by the jury: The foreperson had already announced that the jury had reached a verdict, creating an inherent inconsistency with the blank verdict *548form for count I. Consistent with the trial court’s appraisal,10 the jury quickly filled in the blank after they returned to the jury room, before the trial court and counsel could complete their discussion about what further action, if any, to take. In short, the record here, in stark contrast to the record in Boogaard, does not support the majority’s conclusion that it is “substantially likely”11 that the court’s oral instruction affected the outcome of Ford’s verdict on count I. Majority at 540-41.
¶47 I agree with the majority that it would have been preferable for the trial court first to have brought the blank verdict form to the jury’s attention and then to have asked the jurors if they had intended to leave it blank. But I respectfully disagree with the majority’s conclusion that the trial court committed reversible error when, upon discovering the apparently inadvertently blank verdict form, the trial court simply told the jury that the form “must be filled in” with no objection by Ford. According to the foreperson, the jurors had already reached a verdict; thus, their having filled in the verdict form on count II implied that they had simply neglected to fill in the verdict form on count I. Under these circumstances, which differ dramatically from those in Boogard, the trial court’s oral instruction was not “substantially likely”12 to affect the jury’s already determined, but not yet filled in, verdict form on count I.
¶48 Consistent with the trial court’s action here, even Ford’s defense counsel, George Brintnall, interpreted the jury’s blank verdict form as a mere oversight. Brintnall stated that the trial court’s instruction to fill in the blank “didn’t seem to [affect the jurors’ decision] because they *549came back in five minutes, or four minutes” with the completed form. Brintnall added, “I could not see a procedural issue there. The jury seemed to have made a decision already, they just hadn’t filled out the forms correctly.” IV RP at 434-35.
¶49 Again, in stark contrast to the facts in Boogard, the record here is consistent with defense attorney Brintnall’s unrefuted appraisal: After the trial court notified the jury that part of the verdict form was blank, the jury returned to jury room, completed the form, and returned to the courtroom after only a few minutes. The reasonable inference from this very short time is that the jury simply filled in the blank with its previously determined, but unrecorded, verdict on count I and spent no time on further deliberation. These facts clearly demonstrate that the trial court’s instruction to the jury did not “suggest the need for agreement” or otherwise interfere with or affect the jury’s deliberative process13 as CrR 6.15(f)(2) prohibits.14
¶50 I would hold (1) the record indicates that, after reaching a unanimous decision on count I, the jury inadvertently forgot to complete the verdict form on that count; (2) Ford fails to show that the trial court’s oral instruction to the jury — that the verdict form for count I “must be filled in” — was “substantially likely” to affect that previously decided, though as yet unrecorded, verdict; and (3) the oral instruction to the jury does not rise to the level of “manifest” error that Ford can raise for the first time on appeal. I would affirm both counts.
Review granted at 168 Wn.2d 1005 (2010).
See majority at 537-38.
See majority at 540; Br. of Appellant at 16.
Boogaard, 90 Wn.2d at 735.
Majority at 538 (citing State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004)).
Majority at 538 (citing State v. Hicks, 41 Wn. App. 303, 313, 704 P.2d 1206 (1985) (citing State v. Davenport, 100 Wn.2d 757, 762-63, 675 P.2d 1213 (1984))).
Majority at 538 (emphasis added) (quoting State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631, cert. denied, 536 U.S. 943 (2002); Br. of Resp’t at 5).
“I believe we have just a momentary delay [.] I think they just forgot to fill out the form.” IV RP at 390.
Nor does the majority harmonize its view — that it was “equally possible” that hold-out jurors might have abandoned their positions, Majority at 540 — with the majority’s later conclusion that it was “substantially likely that the [trial] court’s instruction affected the outcome of Ford’s trial.” Majority at 540-41.
Majority at 540.
See majority at 538-39.
See majority at 539.