                                                                                               I   Fn
                                                                                       OURS' OF PPFALS
                                                                                           DIVISION, IT
                                                                                    2013 JUL 23       all 9: 14
    IN THE COURT OF APPEALS OF THE STATE OF W

                                        DIVISION II

STATE OF WASHINGTON,                                              No. 427(


                             Respondent,

       V.




ERIC CAMPOS-
           ORTIZ,                                          UNPUBLISHED OPINION




       PENOYAR J. —      Eric Campos Ortiz appeals his unlawful possession of a controlled
                                     -

substance conviction. He argues that the trial court erred by excluding one of his statements as

    serving hearsay." Because the trial court did not rule on whether this statement was
self-


hearsay, there is no ruling for us to review. Campos Ortiz alleges further errors in his statement
                                                     -

of additional grounds (SAG), none of these issues require reversal. We affirm.
                           but
                                             FACTS


       Police arrested Campos Ortiz on July 8, 2011, for trespassing at the Tacoma Center
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Motel. An officer searched him incident to arrest and discovered three small white rocks later
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determined to be cocaine in his pants' pocket. The State charged Campos Ortiz with unlawful
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possession of a controlled substance (cocaine)on July 11, 2011.

       At the suppression hearing, the motel manager, who was present at Campos-Ortiz's
arrest, testified that he heard Campos Ortiz tell the police that the pants he was wearing were not
                                       -

his. Based on this statement, defense counsel informed the trial court that he was going to file a

supplemental jury instruction for unwitting possession. The prosecutor stated that he was not

going to offer the manager's testimony that he heard Campos Ortiz say the pants were not his
                                                            -
because it was "self-
                    serving hearsay."Report of Proceedings (Oct. 12, 13, 14, 2011) at 59. The
42798 2 II
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trial court then said, Well,if one of your witnesses opens the door it' fair game."RP (Oct. 12,
                       "                                              s

13, 14, 2011)at 59.

       At trial, the motel manager testified for the State and was cross -examined by Campos-

Ortiz. Campos Ortiz did not ask the manager whether the manager heard him say the pants were
              -

not his. Campos Ortiz later testified in his own defense and stated that the pants were.not his.
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       At the close of the evidence, Campos Ortiz proposed a missing witness jury instruction
                                            -

because the State failed to re call the manager to testify that he had heard Campos Ortiz tell the
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police that the pants were not his. The trial court asked why Campos Ortiz had not elicited that
                                                                     -

information from the manager on cross -examination, and Campos Ortiz said that he could not
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have done so because the trial court had excluded that information as hearsay. The trial court

declined to give the missing witness instruction.

       The jury convicted Campos Ortiz of unlawful possession. The trial court sentenced him
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to three months of confinement. Campos Ortiz appeals.
                                       -

                                           ANALYSIS


I.     HEARSAY


        Campos Ortiz argues that the trial court erred by excluding as hearsay the motel
               -

manager's testimony that the manager heard Campos Ortiz tell the police during his arrest that
                                                  -

the pants he was wearing were not his. Because the trial court did not rule on this issue, there is

nothing for us to review.

        During pretrial proceedings, the prosecutor stated that he would not offer the motel

manager's testimony because it was hearsay, and the court replied, " ell, if one of your
                                                                   W

witnesses opens the door it' fair game."RP (Oct. 12, 13, 14, 2011)at 59. At that point, the trial
                           s

court did not engage in any hearsay analysis or rule that the statement was excluded. Moreover,
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42798 2 II
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Campos Ortiz did not give the trial court occasion to rule on the admissibility of the statement by
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asking the court for clarification or by attempting to ask the manager about the statement in

cross -examination.       The lack of a hearsay ruling is further evidenced by the trial court asking

Campos Ortiz why he failed to elicit the statement from the manager on cross -examination. The
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trial court made no ruling on this issue, and there is nothing for us to review.

II.      SAG


         Campos Ortiz first argues that the arresting officer failed to read him his Miranda' rights.
                -
When asked whether he read Campos Ortiz his Miranda rights, the arresting officer said, "
                                  -                                                     I

don't recall. I' assuming, yes. I generally do that after I place somebody into custody." RP
               m

Oct. 12, 13, 14, 2011) at            148.   Although the officer's answer was not equivocal, even if the

officer had failed to read Campos Ortiz his Miranda rights, this would not affect the trial's
                                  -

outcome because the State did not attempt to introduce any of Campos -Ortiz's post -arrest

statements.


         Campos Ortiz next argues that one of the jurors lied when he said he did not see Campos-
                -
Ortiz   in   handcuffs.    Although the trial court has a duty to dismiss unfit jurors, Campos Ortiz
                                                                                               -

fails to show that the trial court erred by not dismissing the juror under these circumstances.

Furthermore, we will not review a trial court's credibility determinations.

         Before the trial began, one of the jurors observed Campos Ortiz in custody. The juror
                                                                   -

told the court that, while he did not specifically see handcuffs, he saw Campos Ortiz, with his
                                                                                -

hands behind his back, walking with a corrections officer. He further stated that, based on his

previous experiences        as   a   juror, he   knew —before   seeing Campos Ortiz being escorted by a
                                                                              -

corrections officerthat Campos Ortiz was in custody because of the deputy's presence in the
                    —          -

  Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
                           S
                                                         3
42798 2 II
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courtroom. The juror said that he did not tell the other jurors what he saw and that it did not

make any difference to him whether Campos Ortiz was in custody because "[ eing arrested is
                                          -                             b]

not   a   sign   of   guilt.   RP ( Oct.   12, 13, 14, 2011) at 22. Neither party objected to the juror

continuing to serve. RP at 22.

          Under RCW 2. 6.
                     3  110


          It shall be the duty of a judge to excuse from further jury service any juror,who in
          the opinion of the judge, has manifested unfitness as a juror by reason of bias,
          prejudice, indifference, inattention or any physical or mental defect or by reason
           of conduct or practices incompatible with proper and efficient jury service.

We review the trial court's decision to dismiss a juror to determine if its decision is manifestly

unreasonable or based on untenable grounds or reasons. State v. Grenning, 142 Wn. App. 518,

540, 174 P. d 706 (2008);
          3             State v. Rohrich, 149 Wn. d 647, 654, 71 P. .638 (2003).
                                                2                 M

           Here, the trial     court did not   err   by allowing the juror   to continue to serve.   The juror

already knew Campos Ortiz was in custody before he actually saw Campos Ortiz being led by
                    -                                                  -
the corrections officer.         Further he stated that it did not make any difference to him whether

Campos Ortiz was in custody. Although Campos-Ortiz contends that the juror was lying, this is
       -

a credibility determination, and we do not review a trial court's credibility determination. State

v. Thomas, 150 Wn. d 821, 874 75,83 P. d 970 (2004).
                 2            -      3

           Campos Ortiz next argues that he was not allowed to give his testimony because the
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prosecutor limited his answers to "yes"or "no." Campos Ortiz was allowed to testify fully
                                              But      -

during direct examination. His theory was unwitting possession, and he was able to testify

during direct examination that the pants were not his and that he did not know there were drugs

in the pockets.




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42798 2 II
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       Finally, Campos Ortiz argues that his attorney should have offered the motel security
                       -

footage from his arrest. Campos Ortiz does not provide any citations to the record regarding this
                                -

footage or allege why the footage should have been included as evidence. Because he failed to

inform us of the nature and occurrence of this alleged error, we do not address this issue. RAP

c).
10. 0(
  1

       Affirmed.


       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

040,
2.6.it is so ordered.
  0




We concur:




         j or ,   J.




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