                                                                         FILED
                                                                      AUGUST 18, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals Division III




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

STATE OF WASHINGTON,                          )
                                              )          No. 36687-1-III
                     Respondent,              )
                                              )
       v.                                     )          UNPUBLISHED OPINION
                                              )
EDWIN ESPEJO,                                 )
                                              )
                     Appellant.               )

       KORSMO, A.C.J. — Edwin Espejo appeals his conviction for second degree

assault, arguing that the trial court erred in removing a juror and the evidence was

insufficient to support the jury’s verdict. We affirm.

                                          FACTS

       The charge arose from a jail assault involving a number of prisoners attacking

another. Surveillance video captured much of the incident. A group of inmates entered

the victim’s cell and several punched him, causing a concussion and a fractured nose

among other injuries.

       Mr. Espejo’s case proceeded to jury trial. A guard identified him on the video as

one of the inmates rushing into the cell, but was not allowed to identify him as one of the
No. 36687-1-III
State v. Espejo


assailants throwing punches. The victim denied being assaulted. The video was played

for the jury. Trial resumed at 1:36 p.m. on the final afternoon of testimony with

instructions and argument.

       The instructions permitted the jury to convict on theories of direct or accomplice

liability. At 2:54 p.m., the jury asked to see the video of the assault; the court granted the

request. Afterward, the jury foreperson sent out a note of concern for the behavior of one

of the jurors:

       Juror #13 seems incoherent about the case. She says she is a ward of the
       state and keeps going on about seeds & germination. She talks about Kool
       Aid Red, etc. Request an alternate please. She keeps going on about the
       Manhattan conspiracy.

Clerk’s Papers at 5. The note was sent out at 3:50 p.m. Id. With the agreement of the

parties, the court sent the jury home for the day and took the matter up the following

morning.

       Both counsel agreed to limited inquiry of the jurors concerning the situation. The

foreman stated that all of juror 13’s statements were unexpected and unrelated to the

deliberations. The judge questioned juror 13, who denied being a ward of the state but

acknowledged making that statement because she did not know the meaning of the term

“ward” in reference to “ward of the state.” She spontaneously went into a diatribe about

seeds and trying to understand the term “incoherent” when other jurors claimed she was

“incoherent.” She then went on to describe how Kool Aid red was relevant because “the


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State v. Espejo


mop was pink” and the Manhattan conspiracy was relevant because it was massive like

the jury’s efforts. She denied any concerns about participating on the jury. After

cautioning each juror not to discuss deliberations, the court questioned them about

irregularities. Without being prompted, each juror stated that juror 13 could not

comprehend the proceedings.

       The court decided to dismiss juror 13 due to her “inability to focus, track, and to

effectively participate in deliberations.” Report of Proceedings at 393. When asked

whether he wanted to use the alternate juror or to proceed with 11 jurors, defense counsel

spoke with his client and agreed that the alternate should be used. The alternate juror was

sworn in and deliberations began anew.

       The reconstituted jury convicted Mr. Espejo as charged. The trial court imposed a

standard range 8-month term of incarceration. Mr. Espejo timely appealed to this court.

A panel considered his case without hearing oral argument.

                                       ANALYSIS

       Mr. Espejo contends that the court erred in excusing juror 13 and that the evidence

was insufficient to support the verdict. We address the contentions in the order listed.

       Juror 13

       Mr. Espejo argues that the court improperly removed juror 13 due to her view

about the defendant’s innocence. No evidence supports his theory. The record



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State v. Espejo


establishes that the juror was removed for her unfitness. The trial court did not abuse its

discretion in making that determination.

       A judge is required to dismiss “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.” RCW 2.36.110. The determination of whether or not

to dismiss a juror pursuant to this statute is within the discretion of the trial court. State v.

Elmore, 155 Wn.2d 758, 768-69, 123 P.3d 72 (2005). A trial court abuses its discretion

when its decision is manifestly unreasonable, or based on untenable grounds or reasons.

State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). However, once a jury has

begun its deliberation, a heightened evidentiary standard may be applied in the “rare

case”. Elmore, 155 Wn.2d at 778. The “rare case” occurs when a juror is accused of (1)

engaging in nullification, (2) refusing to deliberate, or (3) refusing to follow the law. Id.

       Under those narrow circumstances, the appropriate evidentiary standard for the

trial court to apply is that of “any reasonable possibility.” Id. This standard requires the

trial court to determine whether any allegation is the result of the accused juror’s views

on the sufficiency of the evidence. Id. Where there is “any reasonable possibility” that

this is the case, the court may not dismiss the juror without committing a due process

violation. Id. The trial court’s application of this standard is reviewed for an abuse of

discretion. Id. at 781.

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State v. Espejo


       Mr. Espejo argues this is one of those rare cases. The record does not support his

argument. The original note from the jury expressly mentioned only fitness-related

behavior. Every juror rendered similar observations; not one mentioned any juror’s view

of the evidence, let alone juror 13’s view. Juror 13’s answers to the judge’s questioning

did not touch on the merits of the case against Mr. Espejo. Instead, all of the information

obtained from every juror focused on juror 13’s statements and behavior, not her view of

the merits of the case.

       The veteran trial judge understandably focused solely on the juror’s behavior. The

court had very tenable grounds for concluding that juror 13 was unfit for continued

service on the jury. There was no abuse of discretion.

       Sufficiency of the Evidence

       Mr. Espejo also argues that the evidence is insufficient to show that a crime was

committed because the victim denied being assaulted. The jury had ample evidence on

which to base its verdict.

       We review this claim under very well settled standards. Evidence is sufficient to

support a verdict if the trier-of-fact has a factual basis for finding each element of the

offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628

(1980). The evidence is viewed in the light most favorable to the prosecution. Id. at 221.

Appellate courts defer to the trier-of-fact on issues of conflicting testimony, credibility of

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State v. Espejo


witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71,

794 P.2d 850 (1990).

       As charged here:

       A person is guilty of assault in the second degree if he or she, under
       circumstances not amounting to assault in the first degree: (a) Intentionally
       assaults another and thereby recklessly inflicts substantial bodily harm.

RCW 9A.36.021(1). In turn, “substantial bodily injury” means:

       “Substantial bodily harm” means bodily injury which involves a temporary
       but substantial disfigurement, or which causes a temporary but substantial
       loss or impairment of the function of any bodily part or organ, or which
       causes a fracture of any bodily part.

RCW 9A.04.110(4)(b).

       Although the victim denied that an assault occurred, the video evidence establishes

that it did. A guard identified the defendant as one of those who entered the cell and

testified that he remained there throughout the incident. The jury could assess the

defendant’s actions and determine that he landed punches on the victim.

       The victim also suffered significant injuries: his right eye was swollen shut, he

suffered a concussion, and his nose was fractured. These injuries all satisfy the

“substantial bodily harm” standard. The evidence was sufficient to establish that a

second degree assault occurred and that Mr. Espejo was one of the attackers.




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State v. Espejo


      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                            _________________________________
                                            Korsmo, J.

WE CONCUR:


______________________________
Siddoway, J.


______________________________
Pennell, C.J.




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