                                                                         VILE°
                                                                 COURT OF APPEALS DIV I
                                                                  STATE OF WASHINGTON

                                                                  2018 AUG -6 AM 10: 514



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

STATE OF WASHINGTON,                     )       No. 76057-2-1
                                         )
                       Respondent,       )
                                         )
              v.                         )
                                         )
PAUL BENJAMIN SOUTHERLAND,               )       UNPUBLISHED OPINION
                                         )
                       Appellant.        )       FILED: August 6, 2018
                                         )

       VERELLEN, J. — Paul Southerland appeals his conviction for failure to register
as a sex offender. Because Southerland does not show that the trial court abused its

discretion in denying his for-cause challenge to a juror who was ultimately seated on

the jury, we affirm.

                                        FACTS

       The State charged Southerland by amended information with failure to register

as a sex offender. Southerland had prior convictions for child molestation in the first

degree and felony failure to register as a sex offender. The State alleged that

between August 27, 2014 and July 21, 2016, Southerland was required to register as

a sex offender and knowingly failed to do so.

       A jury convicted Southerland as charged, and the trial court sentenced him to

12 months and 1 day confinement. Southerland appeals.
No; 76057-2-1/2


                                          ANALYSIS

                                For-Cause Challenge to Juror

          Southerland argues that the trial court violated his right to a fair trial before an

impartial jury when it denied his motion to strike juror 7 for cause. Even assuming,

but not deciding, that Southerland has properly preserved this issue, his argument

fails.1

          "Actual bias is a ground for challenging a juror for cause,"2 and the trial court

has the duty to excuse any juror who is unfit by reason of bias.3 Actual bias occurs

when the juror's opinion, in reference to the action or to either party, satisfies the

court that the juror cannot try the issue impartially and without prejudice to the

substantial rights of the challenging party.4 That a juror has expressed "such opinion

shall not of itself be sufficient to sustain the challenge, but the court must be satisfied,

from all the circumstances, that the juror cannot disregard such opinion and try the




       1 The State contends that under State v. Clark, 143 Wn.2d 731, 762, 24 P.3d
1006 (2001), Southerland did not preserve this issue because he failed to use all of
his peremptory strikes. Southerland contends that State v. Fire, 145 Wn.2d 152, 158,
34 P.3d 1218(2001) establishes that he was not required to exercise all of his
peremptory strikes in order to bring this challenge. Because Clark and Fire are both
factually distinguishable from Southerland's appeal, we choose to resolve this issue
on the merits and do not address the preservation issue.
             v. Lawler, 194 Wn. App. 275, 281, 374 P.3d 278, review denied, 186
          2 State
Wn.2d 1020 (2016).
          3 RCW     2.36.110.
          4   Lawler, 194 Wn. App. at 281.


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No. 76057-2-1/3


issue impartially."5 The trial court may determine whether a litigant has successfully

rehabilitated a juror who expresses actual bias.6

       We review a trial court's decision on excusing jurors for cause for an abuse of

discretion.7 This standard recognizes that the trial court is in the unique position to

assess potential jurors'"tone of voice, facial expressions, body language, or other

forms of nonverbal communication."8 We simply cannot and should not make those

assessments as an appellate court.6

       Here, during voir dire, the prosecutor asked the jurors in the jury box,"What

was your reaction like when you heard the charge in this case?"1° After several other

jurors responded, the prosecutor asked juror 7 to share her thoughts. She

responded, "I would agree with what Juror Number 1 said, as well. I do agree that it's

not that hard to re-register, when there are many kids around that are not always

under supervision. So it's nice to have, to know if someone's registered or not."11

       Later, defense counsel asked what the potential jurors thought about the fact

that Southerland had a prior conviction for failure to register as a sex offender. Juror

7 explained her reaction:

      [DEFENSE COUNSEL]:            ... What did you think, then?



       5 RCW 4.44.190.
       6 State v. Witherspoon, 82 Wn. App. 634, 638, 919 P.2d 99 (1996).

       7 Id.

       8   Lawler, 194 Wn. App. at 287.
       9 Id.
       10 Report of Proceedings(RP)(Oct. 3, 2016) at 48.
       11   Id. at 49


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No. 76057-2-1/4


      PROSPECTIVE JUROR NO. 7: That I wasn't very observant or
      hearing everything you said, I was like --

     [DEFENSE COUNSEL]: Well, is that necessarily fair[?] [B]ecause
     when you hear child molestation, right, you're brand new, you're
     showing up[.] [VV]hat kind of case is this going to be[?] [A]nd then, all
     of a sudden, you hear, whammo, it's a criminal case [and] whammo, it's
     child molestation, right?

      PROSPECTIVE JUROR NO. 7: Right.

     [DEFENSE COUNSEL]: You think, oh, wow, okay. What was your
     thought process? Can you describe what was going on in your mind? I
     mean, can you imagine that --

      PROSPECTIVE JUROR NO. 7: Well, initially I was shocked, you know,
      1-- as many people were -- and that the failure to register --

     [DEFENSE COUNSEL]: Then you realized what's --

      PROSPECTIVE JUROR NO. 7: It was more a than a paper trail -- lack
      of paper trail, I understand that, and -- the repetitiveness of it, just right
      now --

     [DEFENSE COUNSEL]: Yeah. Right.

      PROSPECTIVE JUROR NO. 7: -- kind of makes it a bigger deal.

     [DEFENSE COUNSEL]: Yeah. Okay. A bigger deal, because, if you
     would?

      PROSPECTIVE JUROR NO. 7: Because just a failure of -- repetitive,
      as being responsible, you know, keeping papers and what have you.

     [DEFENSE COUNSEL]: Okay. So you've learned that Paul has
     allegedly been convicted of child molestation in the first degree. The
     State's got to prove that. The State's got to prove that he's allegedly
     been convicted of a second -- of a prior failure to register as a sex
     offender, right? So does that make it more likely that you're going to be
     thinking, I think he's guilty of this, you know?

      PROSPECTIVE JUROR NO. 7: I do, yes. I'm just waiting for evidence,
      obviously, but --

      [DEFENSE COUNSEL]: Yeah.



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No. 76057-2-1/5



       PROSPECTIVE JUROR NO. 7: -- if there is evidence, there
       should be --

      [DEFENSE COUNSEL]: Right.

       PROSPECTIVE JUROR NO. 7: -- in the judicial system --

      [DEFENSE COUNSEL]: Right.

       PROSPECTIVE JUROR NO. 7: -- then I would say he's guilty.

      [DEFENSE COUNSEL]: But at this point, are you really kind of
      thinking, okay, I mean --

       PROSPECTIVE JUROR NO. 7: I'm waiting for information.

      [DEFENSE COUNSEL]: Okay. But at this -- okay.(12]

Defense counsel then asked who agreed that "the situation got a little bit more

difficult for defense" given Southerland's prior conviction for failure to register, and

juror 7 raised her card.13 She again raised her card when asked who would want to

hear from Southerland during the trial.

       At the end of voir dire, defense counsel challenged juror 7 for cause:

      [DEFENSE COUNSEL]: Yes please, Your Honor, Juror Number 7 had
      said that she thought she wouldn't -- that she was really in line with
      guilt, if I'm not misstating it, when she learned the new information
      about the allegation of the felony failure to register conviction.

       THE COURT: [Prosecutor]?

      [PROSECUTOR]: Your Honor, may I voir dire Number 7? I don't recall
      that.

       THE COURT: Yes.



       12   Id. at 64-66.
       13   Id. at 66.


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No. 76057-2-1/6


      [PROSECUTOR]: Juror Number 7, we've spoken about the State's
      burden in this case, the State's burden to establish everything that I'm
      alleging beyond a reasonable doubt; do you understand that?

       PROSPECTIVE JUROR NO. 7: Sure.

      [PROSECUTOR]: Can you hold the State to that burden?

       PROSPECTIVE JUROR NO. 7: Yes, I can.

      [PROSECUTOR]: Can you hold the State to that burden even though
      you had initially misheard or not heard all of the allegation in this case?

       PROSPECTIVE JUROR NO. 7: Yes.

      [PROSECUTOR]: And can you do so in a fair and unbiased manner?

       PROSPECTIVE JUROR NO. 7: Yes.

      [PROSECUTOR]: Thank you. The State would object, Your Honor.

       THE COURT: And based on my notes, I'm going to deny the challenge
       of Juror Number 7.

      [DEFENSE COUNSEL]: Okay.(141

After exercising six of seven peremptory strikes, defense counsel accepted the jury

with juror 7 impaneled.

       Southerland argues that several of juror 7's comments indicate that she would

not follow the court's instructions on his presumption of innocence and the burden of

proof carried by the State. But in her original conversation with defense counsel,

juror 7 stated that she was waiting for "evidence" and "information" before she

decided whether or not Southerland was guilty. And the prosecutor later rehabilitated

juror 7 by confirming that she would hold the State to its burden of proof in a fair and



       14   Id. at 148-49.


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No. 76057-2-1/7


unbiased manner. Therefore, the record does not indicate that juror 7 expressed

serious doubts as to her ability to be impartial. The trial court did not abuse its

discretion in denying Southerland's challenge.

       Southerland argues that juror 7's statements in this case are analogous to

juror statements in State v. Gonzales15 and State v. Fire16 and require reversal. But

in both of those cases, the challenged jurors unequivocally admitted a bias and

indicated that the bias would likely affect their deliberations.17 Juror 7 made no such

unequivocal admission, and she specifically confirmed that she would hold the State

to its burden of proof in a fair and unbiased way. Therefore, Gonzales and Fire are

distinguishable.

       Southerland also argues that State v. Irbv15 and Hughes v. United States19 are

controlling. They are not. In those cases, a juror displayed actual bias, but no one

challenged the juror for cause.2° Both courts held that the defendant could raise the



       15 1 1 1   Wn. App. 276, 45 P.3d 205 (2002).
      16 100 Wn. App. 722, 998 P.2d 362(2000), rev'd on other grounds, 145 Wn.2d
152, 34 P.3d 1218 (2001).
        17 Gonzales, 111 Wn. App. at 277-82(no rehabilitation attempted where juror
stated it would be difficult to disbelieve a police witness, indicated the bias would
likely affect her deliberations, and admitted she did not know if she could presume
innocence in the face of officer testimony indicating guilt); Fire, 100 Wn. App. at 728
(despite affirming one-word answers that he could be fair, juror indicated actual bias
by saying he considered defendant to be a "baby raper" who should be "severely
punished," that children are more credible than adults, and that his strong feelings
about the case could affect his determination of guilt or innocence).
       18   187 Wn. App. 183, 347 P.3d 1103(2015).
       19 258     F.3d 453(6th Cir. 2001).
     29 Irby, 187 Wn. App. at 190 (juror stated, "I would like to say he's guilty");
Hughes, 258 F.3d at 456 (juror stated, "I don't think I could be fair.").


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No. 76057-2-1/8


issue of juror bias for the first time on appeal and that reversal was required where no

one attempted to elicit an assurance that the juror had an open mind on the issue of

guilt.21 Here, the prosecutor did elicit an assurance that juror 7 could be fair and

unbiased. Irby and Hughes do not require reversal.

       Finally, Southerland argues that, even though the prosecutor attempted to

rehabilitate juror 7, such rehabilitation did not go to the actual bias she expressed.

Southerland identifies those biases as a failure to apply the presumption of

innocence fairly and a failure to state she could follow the court's instructions on the

law. But based on juror 7's statement that she was waiting for "evidence" and

"information" before she decided whether Southerland was guilty, she was not biased

against the presumption of innocence. And nothing in the record indicates that juror

7 expressed she could not follow the court's instructions. Therefore, rehabilitation on

those issues was not necessary.

       We affirm.




WE CONCUR:




4        .401, 46,7-




       21 Irby, 187 Wn. App. at 196-97; Hughes, 258    F.3d at 463.


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