                                                          TILED
                                                 COURT OF APPEALS DIV I
                                                  STATE OF WASHINGTON
                                                  2018FEB 12 A1110:51



  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                     )      No. 75546-3-1
                                         )
                     Respondent,         )
                                         )
            v.                           )
                                         )
FRANCISCO LOPEZ-RAMIREZ,                 )      UNPUBLISHED OPINION
                                         )
                    Appellant.           )      FILED: February 12, 2018
                                         )

       VERELLEN, C.J. — Francisco Lopez-Ramirez was arrested and charged with
two counts of indecent exposure at a Seattle college campus. Before trial, the

security footage for one of the counts was inadvertently erased, but two witnesses

testified about the contents of the missing video, which purportedly showed

another suspect. Because Lopez-Ramirez does not establish the missing video

was material exculpatory evidence and cannot prove the State acted in bad faith,

the trial court properly denied his motion to dismiss based on destruction of

evidence.

       Lopez-Ramirez moved for a jury drawn from a fair cross section of the

community, arguing black residents in King County were underrepresented in jury

venires. Because Lopez-Ramirez does not establish the representation is not fair

and reasonable in relation to the number of black residents in the community and
No. 75546-3-1-2


that the alleged underrepresentation is a result of systematic exclusion, the trial

court properly denied his motion and proposed remedy.

       And, contrary to his contention, sufficient evidence supported his conviction

on count!.

       We affirm.

                                       FACTS

       The State charged Francisco Lopez-Ramirez by amended information with

two counts of indecent exposure based on two incidents on February 3, 2016 at

the Seattle Central Community College library. Count I occurred around 4:00 p.m.

and involved victim Y.M. Count!! occurred around 11:00 a.m. and involved victim

S.Y. Police arrested Lopez-Ramirez after the second incident(count 1), and

count 11 was added once officers realized he was responsible for the earlier

offense.

Count 11— 11:00 a.m. Incident

       Lopez-Ramirez approached S.Y. in the college library. He sat down at the

same table as S.Y. and waved and smiled at her in order to get her attention. S.Y.

noticed his zipper was pulled down, his genitals were exposed, and he was

masturbating with his hand. S.Y. initially tried to ignore him, but then she quickly

gathered her belongings and reported him to the library staff. A still photograph

showing the location where S.Y. had been sitting was introduced at trial.

       Joel Workinger, a campus security officer, responded and spoke to S.Y.,

who was upset, shy, and reserved. Workinger and S.Y. returned to the area




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No. 75546-3-1-3



where the incident took place. S.Y. noticed J.B. in the book rows about 15 to 20

feet from where she had been sitting and told the security officer that he was the

offender. She did not come closer to identify J.B. because she was upset and

wanted to leave the area. J.B. was arrested based on S.Y.'s positive identification.

Count I — 4:00 p.m. Incident

       Later that afternoon, Y.M. sat down in the same library to study and saw

Lopez-Ramirez exposing himself. Two surveillance videos, Exhibits 1 and 8,

captured his conduct. Exhibit 1 shows him from the front and side, and Exhibit 8

shows him from behind, together with Y.M. and two other women sitting near her.

       Exhibit 8 shows Lopez-Ramirez lingering in the entryway to the bathroom,

peeking out occasionally or leaving the area when people enter and exit. He

eventually sits down in a chair near Y.M.'s table. He gets up a few times to take

books from a cart, sits back down, and specifically moves his body to the right so

that his groin area faces Y.M. and the two other women sitting nearby. The video

shows Y.M. getting up, briefly talking with the other women,then walking away to

report Lopez-Ramirez's activities.

       Exhibit 1 shows the same sequence of events from the front and side. It

shows Lopez-Ramirez moving his hand up and down in his groin area, staring

toward Y.M. and two other women. The video shows him continuing this behavior

until the security officer approached him. In photographs taken from the security

footage, Lopez-Ramirez's penis is exposed.




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No. 75546-3-1-4



      The following day, college public security director Elman McClain compared

the footage from the 4:00 p.m. incident to the video from the 11:00 a.m. incident.

He observed S.Y. reporting the 11:00 a.m. incident to library staff, traced her

footsteps backward on the video, and noticed Lopez-Ramirez seated next to her

just before she reported the incident. He saw J.B. walk past S.Y. but did not show

him sitting down near her. McClain immediately called the police to inform them

that S.Y. might have misidentified J.B.. J.B. was released, and Lopez-Ramirez

was charged with count II.

       Lopez-Ramirez had been convicted twice for indecent exposure in 2013,

and stipulated to these offenses at trial. A jury convicted Lopez-Ramirez on both

counts of indecent exposure. Lopez-Ramirez appeals.

                                    ANALYSIS

I. Preservation of Evidence

       After campus security and police realized J.B. had been wrongly identified,

Officer Malone of the Seattle Police Department requested a copy of all

surveillance videos. The college security officer provided a USB storage device

with the videos. The campus security recording system automatically overwrites

recordings after 90 days. Approximately 96 days later, Officer Malone realized the

videos had failed to record on the storage device. Officer Malone asked for a

second copy of the videos, but the college was only able to turn over the videos of

count I, the 4:00 p.m. incident, not the video regarding count II because police had




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No. 75546-3-1-5



not initially asked the college to retain it. Only McClain and Officer Malone saw

the video related to count II.

        Lopez-Ramirez argues the trial court should have dismissed count 11

because the State failed to retain material exculpatory evidence,land thus violated

his due process rights.

        The constitutional right to due process demands fundamental fairness and

a meaningful opportunity to present a complete defense.1 "To comport with due

process, the prosecution has a duty to disclose material exculpatory evidence to

the defense and a related duty to preserve such evidence for use by the

defense."2 Defendants have a right to have material evidence preserved for use

at tria1.3

        "The government's failure to preserve material exculpatory evidence

requires dismissal." Material evidence is "evidence which possesses an

'exculpatory value that was apparent before it was destroyed,' and is 'of such a

nature that the defendant would be unable to obtain comparable evidence by other


       1 State v. Wittenbarper, 124 Wn.2d 467, 474-75, 880 P.2d 517(1994).
       2 State v. Armstrong, 188 Wn.2d 333, 344, 394 P.3d 373(2017)(quoting
at 475).
       3 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963); see Wittenbarger, 124 Wn.2d at 475(observing that the United States
Supreme Court has been unwilling to impose on police "an undifferentiated and
absolute duty to retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution")(quoting Arizona v.
Youngblood, 488 U.S. 51, 58, 1098. Ct. 333, 102 L. Ed. 2d 281 (1988)).
        4 State   v. Copeland, 130 Wn.2d 244, 279, 922 P.2d 1304(1996)(emphasis
added).




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No. 75546-3-1-6



reasonably available means.'"5 Where the dispute concerns potentially useful

evidence, rather than material exculpatory evidence, the defendant must show bad

faith on the part of the police.6

       Lopez-Ramirez contends the video of J.B. was materially exculpatory and

could not be replaced. We disagree.

       Here, Exhibit 8 showed Lopez-Ramirez committing count!, Y.M. testified

that the video was accurate, and it showed the defendant sitting near her. As to

count II, S.Y. maintained that the man who exposed himself also sat near her.

McClain and Officer Malone testified that the lost video showed J.B. walking by

S.Y., but did not show him sitting near her. There was no suggestion that the

video showed J.B. committing any crime that could be offered to contradict the

evidence ultimately presented at tria1.7

       Lopez-Ramirez relies on State v. Boyd, but in that case,

       [t]he first trial ended with the jury unable to reach a verdict. At both
       trials, there was a substantial dispute as to whether police arrested
       the correct individual. The jury was confronted with two divergent
       lines of testimony. There was no tangible or physical evidence
       directly supporting either version of events.[51

       The dispute as to S.Y.'s initial identification of J.B. was quickly resolved

once campus security personnel reviewed the video footage. S.Y.'s description of


       5 Id. at 279-80 (quoting     Wittenbarqer, 124 Wn.2d at 475).
       6   Id. at 280.
      7 See id. ("Also, as the trial court correctly concluded, there was no
evidence that any[DNA] retest results would have been exculpatory.").
      8 29 Wn. App. 584, 590,629 P.2d 930(1981).




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No. 75546-3-1-7



the suspect's behavior matched Y.M.'s, and the surveillance video produced at

trial showing Lopez-Ramirez's behavior strengthened this connection. Unlike in

Boyd, the jury here was confronted with a streamlined version of events from the

victims, campus security, and law enforcement, and the jury considered evidence

showing Lopez-Ramirez was the individual who committed both crimes.

       Lopez-Ramirez also suggests State v. Burden is instructive.9 That case

involved a retrial after the first jury could not reach a resolution. Before the second

trial, the clerk's office lost the jacket the defendant wore when he was arrested for

possessing cocaine. The lost evidence in Burden was "a key piece of evidence."19

Burden's theory was that the coat did not belong to him and that he did not know

drugs were in the pocket.11 Division Two of this court noted the fit and appearance

of the coat were important factors at trial, specifically "[t]he fit of the coat and the

name in it raised issues of ownership."12 The State argued the "tight fit" of the coat

proved Burden could feel the paper bag of drugs in the jacket, but admitted the

coat had a name in it that was not Burden's.13 There was also no testimony

offered at the first trial regarding "some of the specifics about the coat," because it

was physically present as an exhibit.14 The court agreed with the trial court's



       9 104 Wn. App. 507, 17 P.3d     1211 (2001).
       19   Id. at 512.
       11   Id.
       12   Id. at 512-13.
       13 Id. at 513.

       14   Id.




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No. 75546-3-1-8



determination that a substitute coat would "raise credibility issues that would

prejudice" the defendant, concluding the coat was material exculpatory evidence

and thus not merely "potentially useful."15 Unlike Burden, the missing video in this

case merely placed J.B. at the library walking past S.Y. rather than sitting near

her.

       Lopez-Ramirez does not establish the missing evidence was material

exculpatory evidence and does not offer compelling arguments that the evidence

was lost as a result of bad faith.

       We conclude the absence of the security footage for count 11 did not violate

Lopez-Ramirez's due process rights.

II. Fair Cross Section Requirement

       Before trial, Lopez-Ramirez filed a motion to form a jury venire from a fair

cross section of the community. Lopez-Ramirez's counsel relied upon a 20-day

study by a University of Washington professor purporting to show a racial disparity

in representation on jury panels. He requested that he be provided demographic

information about potential jurors in the jury assembly room so he could fashion a

jury based on ethnic makeup. Counsel suggested after the selected jurors were

brought to the courtroom, the parties and the court should conduct their "own little

census as to who actually shows up and how they look based on how comfortable




       15   Burden, 104 Wn. App. at 514.



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No. 75546-3-1-9



we are doing that, trying to subjectively guess on the folks cultural or ethnic

background."16 The court denied the motion in an oral ruling:

       The statistics apparently show that when compared to the number of
       eligible black citizens in the community the underrepresentation of
       black jurors may not be unreasonable even assuming there is
       underrepresentation. This evidence does not establish that the
       process by which King County summons citizens and potential jurors
       is a result of a systematic exclusion of black jurors, therefore the
       defense motion on this record must be denied •(17]

The court also ruled Lopez-Ramirez's proposed remedy was improper for several

reasons.

       Lopez-Ramirez argues the trial court erred in denying his motion. We

disagree.

       Under the Sixth and Fourteenth Amendments to the United States

Constitution, a criminal defendant has a right to "a jury drawn from a fair cross

section of the community."18 "Restricting jury service to only special groups or

excluding identifiable segments playing major roles in the community cannot be

squared with the constitutional concept of jury trial."19 But defendants are not

entitled to "a jury of any particular composition,"2° and a jury selection process is




       16   Report of Proceedings(June 6, 2016) at 73.
       17   Id. at 88-89.
       "'Taylor v.   Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692,42 L. Ed. 2d 690
(1975).
       16   Id. at 530.
       2° Id. at 538.




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No. 75546-3-1-10



adequate "so long as it may be fairly said that the jury lists or panels are

representative of the community."21

       To establish a violation of the fair cross section requirement, a defendant

must show that "(1) the group alleged to be excluded is a distinctive group in the

community;(2)that the representation of this group in the source from which juries

are selected is not fair and reasonable in relation to the number of such persons in

the community; and (3)this underrepresentation is due to systematic exclusion of

the group in the jury-selection process."22

       In Washington, juries are selected according to requirements of statutes

and court rules.23 Our legislature has a "history of revising the methods for

compiling the jury lists in an effort to make the pool of eligible jurors more inclusive

and representative."24 Washington's methods of creating a jury list are broader

and more inclusive than required by law.25 In 2005 and 2009, our legislature

undertook considerable efforts to expand the category of eligible voters,26 such as

allowing jurors to report to the courthouse closest to their residence and restoring

voting rights to convicted felons, thus making them eligible to serve as jurors.




       21   Id.
       22   Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579
(1979).
       23   RCW 2.36.054-.065; GR 18.
       24 State v. Lanciloti, 165 Wn.2d 661, 668-69, 201 P.3d 323(2009).
       25 State v. Cienfuegos, 144 Wn.2d 222, 232, 25 P.3d 2011 (2001).

       26 See     Lanciloti, 185 Wn.2d at 664; LAWS OF 2009, ch. 325.




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No. 75546-3-1-11



       It is undisputed that black residents are a distinctive group in the

community, but Lopez-Ramirez does not establish underrepresentation and

systematic exclusion.27

       The challenger must prove "that the representation of the group in venires

is not fair and reasonable in relation to the number ofsuch persons in the

community."28 Our Supreme Court has emphasized that merely showing

underrepresentation is insufficient.29 Courts have recognized each method of

measuring whether a distinctive group in the jury pool is fair and reasonable has

its flaws.3°

       The absolute disparity method examines the difference between the

percentage of the distinctive group in the community and the percentage of that

group in the jury poo1.31 Our Supreme Court has used the absolute disparity

method and held that a level of underrepresentation greater than that claimed by

Lopez-Ramirez was insufficient to support a constitutional violation.32



       27   In re Pers. Restraint of Yates, 177 Wn.2d 1, 20, 296 P.3d 872(2013).
       28   Duren, 439 U.S. at 364(emphasis added).
       29 Yates, 177 Wn.2d    at 20-21.
       39 People v. Smith, 463 Mich. 199, 204, 615 N.W.2d 1 (2000).
      31 United States v. Hernandez-Estrada, 749 F.3d 1154, 1160 (9th Cir.), cert.
denied, 135 S. Ct. 709, 190 L. Ed. 2d 445(2014).
        32 Lopez-Ramirez contends the black resident share of the adult population
in the Seattle jury assignment area is 4.14 percent, but the black resident share of
the jury pool by persons answering the survey during the 20 days was 2.29
percent. In State v. Hilliard, 89 Wn.2d 430, 442, 573 P.2d 22(1977), the court
held that a level of underrepresentation greater than that at issue in this case was
insufficient to support a constitutionally significant disparity. In that case, the black



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No. 75546-3-1-12



       Lopez-Ramirez suggests the comparative disparity method would be more

appropriate here, but courts have recognized this method overstates the

underrepresentation when used with groups that are a small percentage of the

community's population.33 It is undisputed that the black population in King

County is relatively small and, according to the data presented by Lopez-Ramirez,

the comparative disparity for black residents in the Seattle jury assignments is

35.5 percent. In dealing with similar population sizes, courts have rejected

constitutional claims involving disparities equal to or higher than that offered by

Lopez-Ramirez.34 Lopez-Ramirez does not establish that the underrepresentation

is constitutionally unfair or unreasonable in relation to the size of the black

population in the community.

       Lopez-Ramirez also contends the underrepresentation is the result of

systematic exclusion in the jury selection process. Specifically, that the "court

does not effectively summons people who live in poorer, more mobile zip codes

with more minority residents."35


resident population constituted 1.3 percent of the jury pool and 4 percent of the
county's population.
       33 Hernandez-Estrada, 749 F.3d at 1162; United States v. Weaver, 267
F.3d 231, 242(3rd Cir. 2001)("When comparative disparity has been used, it has
been emphasized that the significance of the figure is directly proportional to the
size of the group relative to the general population, and thus is most useful when
dealing with a group that comprises a large percentage of the population.").
       34 Weaver, 267 F.3d at 243; United States v. Orange, 447 F.3d 792, 798
(10th Cir. 2006); United States v. Chanthadara, 230 F.3d 1237, 1257(10th Cir.
2000); People v. Ramos, 15 Cal. 4th 1133, 1159, 938 P.2d 950(1997).
       35 Appellant's   Br. at 17.




                                          12
No. 75546-3-1-13



       A mere showing of underrepresentation does not establish systematic

exclusion of the group in the jury selection process.36 Systematic exclusion

requires blatantly different treatment of underrepresented groups.37

       Lopez-Ramirez cites cases from other states and federal authority, but they

are not compelling in this setting. In view of the Washington legislature and King

County's efforts to expand minority participation in jury selection, Lopez-Ramirez

fails to establish systematic exclusion.

       Lopez-Ramirez's fair cross section challenge fails.

III. Sufficiency of the Evidence

       Lopez-Ramirez argues there was insufficient evidence to show his conduct

as to count I was intentionally open and obscene, as required by RCW 9A.88.010.

He relies largely on evidence that he attempted to conceal himself.

       Under the sufficiency of the evidence test, we examine "whether, after

viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found guilty beyond a reasonable doubt."38 All reasonable

inferences from the evidence must be drawn in favor of the State and interpreted

most strongly against the defendant.39


       36  Duren, 439 U.S. at 366.
        37 See id. (`Such a gross discrepancy between the percentage of women in
jury venires and the percentage of women in the community requires the
conclusion that women were not fairly represented in the source from which petit
juries were drawn in Jackson County.").
       38 State   v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
       39   id.




                                           13
No. 75546-3-1-14



      ROW 9A.88.010(1) provides, in relevant part:

      A person is guilty of indecent exposure if he or she intentionally
      makes any open and obscene exposure of his or her person or the
      person of another knowing that such conduct is likely to cause
      reasonable affront or alarm.

      "Open" in this setting requires an act "such that the common sense of

society would regard the specific act performed as indecent and improper."4°

      Here, the security video shows Lopez-Ramirez intentionally exposing his

genitals to Y.M. and two other women. Although he shielded his genitals from

individuals walking by, he positioned his body and pelvis so that Y.M. and the two

other women would be able to see, and Y.M. did see. The "common sense of

society" would regard Lopez-Ramirez's behavior as indecent and improper.

      We conclude a rational trier of fact could have found Lopez-Ramirez guilty

beyond a reasonable doubt.

      We affirm.




WE CONCUR:




      40 State v. Eisenshank, 10 Wn. App. 921, 924, 521 P.2d 239 (1974).




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