                                                                           FILED
                                                                        JUNE 13, 2017
                                                                 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. 34361-8-111
                     Respondent,              )
                                              )
       V.                                     )
                                              )
ISRAEL SANCHEZ-FABIAN,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. -   Israel Fabian challenges the sufficiency of evidence for his

conviction for second degree assault arising from his attack on a prison cell mate. Fabian

contends the State failed to prove he inflicted substantial injury, an element of second

degree assault, on his victim. He also complains that the trial court interrupted his

testimony and the court's interruption thereafter intimidated him from testifying. We

affirm Fabian's conviction.

                                          FACTS

       This prosecution arises from an altercation between Israel Fabian and Ignacio

Cobos. The two shared a cell at Connell's Coyote Ridge Corrections Center. On August

10, 2015, Fabian attacked Cobos with fist punches to the head and facial area.

Department of Corrections officers responded to the thumping, ordered Fabian to cease
No. 34361-8-111
State v. Sanchez-Fabian


the blows, and wrestled him to the ground when he disobeyed.

      Registered Nurse Jeff Nelson treated Ignacio Cobos for multiple bruises, swelling,

facial lacerations, scratches, and the "appearance of a broken nose or deviated septum."

Report of Proceedings (RP) at 71-72. A deviated septum occurs when the thin wall

between the nostrils shifts to one side. Cobos' nose, consistent with a deviated septum,

deviated to the right and bled at the bridge. The boxes from Israel Fabian rendered

Cobos confused and in shock. For three months, Cobos suffered pain in his ribs.

                                      PROCEDURE

      The State of Washington charged Israel Fabian with assault in the second degree.

During the trial, Ignacio Cobos testified he did not remember being Fabian's cellmate or

any altercation with Fabian.

      During trial, Registered Nurse Jeff Nelson testified about treating Ignacio Cobos:

             Q. Do you recall what you treated Mr. Cobos for?
             A. Multiple bruises, swelling, lacerations, scratches around the face
      and the appearance of a deviated septum. Got an order from Doctor
      Rendleman to verify that.

             THE WITNESS: Okay. He had multiple bruises, swelling,
      scratches, lacerations to his face, forehead, brows. The appearance of a
      broken nose or deviated septum. We got him x-rayed to confirm that.

RP at 71-72.

      Israel Fabian's trial attorney informed him of his right to testify and not to testify.

Fabian elected to testify in his defense. Fabian admitted striking Ignacio Cobos. Fabian



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State v. Sanchez-Fabian


declared that Cobos pressured him into joining a prison gang and sharing a room with

him. The trial court, from a concern that the Department of Corrections might issue

Fabian an infraction based on this testimony, interrupted Fabian's testimony. The wise

trial court requested Fabian's counsel outline the risks of his testimony in order to ensure

Fabian knowingly and intelligently waived his right to remain silent. After a brief

discussion with his attorney, Fabian continued his testimony.                                  I
       Israel Fabian testified that Ignacio Cobos frequently showed anger because Fabian
                                                                                               t
failed to clean the cell to the specifications of Cobos. Fabian also averred that Cobos

threatened to kill him. On cross-examination Fabian explained:

              I didn't want to hit him, but he made me get mad with the things he
       did to me. I wanted to resolve the things the right way. I wanted them to
       get me out of that room, but I wasn't able to get it.

RP at 98.

       After the State cross-examined Israel Fabian, Fabian's attorney asked questions on

redirect. Fabian never refused to testify, and the trial court never prohibited him from

offering testimony. Fabian answered approximately forty questions after the trial court

interrupted his testimony.

       The jury found Israel Fabian guilty of second degree assault. The trial court

sentenced Fabian to twenty months' incarceration. The court waived imposing legal

financial obligations for the court appointed attorney and court costs.

       The trial court found Israel Fabian indigent for purposes of appeal. Fabian

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No. 34361-8-III
State v. Sanchez-Fabian


attached a statement of continued indigency to his opening brief. He claims no assets, a

fourth-grade education, three children, $1,100.00 in legal financial obligations, and a

history of working seventy hours per week performing food preparation at $11.25 per

hour.

                                  LAW AND ANALYSIS

        Issue 1: Whether sufficient evidence supported the substantial bodily injury

element of Israel Fabian 's conviction for second degree assault.

        Answer 1: Yes.

        Israel Fabian requests us to reverse his conviction for second degree assault

because the State failed to prove he inflicted substantial bodily injury on Ignacio Cobos.

He argues Registered Nurse Jeff Nelson lacked qualifications to diagnose a broken nose

or deviated septum and thus the State lacked sufficient evidence of a fracture or

substantial disfigurement. The State responds that the evidence supports a jury finding

that Cobos sustained a fractured bone. The State adds that substantial disfigurement and

bruising alone suffices to establish substantial bodily injury. We agree with the State.

        Evidence suffices to convict if a rational trier of fact could find each element of

the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628

(1980). Both direct and indirect evidence may support the jury's verdict. State v.

Brooks, 45 Wn. App. 824,826, 727 P.2d 988 (1986). When reviewing evidence, this

court draws all reasonable inferences in favor of the State. State v. Partin, 88 Wn.2d 899,

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State v. Sanchez-Fabian


906-07, 567 P.2d 1136 (1977). Only the trier of fact weighs the evidence and judges the

credibility of witnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d

306 (1989).

       Israel Fabian asserts that the testimony of Jeff Nelson failed to establish Ignacio

Cobos' injuries because Nelson is not a doctor and only a physician may testify as an

expert and diagnose medical conditions. We disagree. During trial, Fabian failed to

object to the qualifications of Nelson to testify to Cobos' injuries. Fabian also fails to

provide any authority on appeal requiring a physician's medical diagnosis of injuries for

purposes of proving a crime. No case or statute requires testimony of a doctor to

establish substantial bodily injury in a criminal assault prosecution. Finally, Nelson

testified that a doctor and x-ray confirmed Cobos' injuries. When mentioning Cobos'

broken nose or deviated septum, Nelson testified that he "[g]ot an order from Doctor

Rendleman to verify that" and "[w]e got him x-rayed to confom that." RP at 71-72.

       The State did not even need to prove a fractured bone to convict Israel Fabian of

second degree assault. RCW 9A.36.021(1) declares:

              A person is guilty of assault in the second degree if he or she ...
       [i]ntentionally assaults another and thereby recklessly inflicts substantial
       bodily harm.

RCW 9A.04.110(4)(b) defines "substantial bodily harm":

             "Substantial bodily harm" means bodily injury which involves a
       temporary but substantial disfigurement, or which causes a temporary but


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State v. Sanchez-Fabian


       substantial loss or impairment of the function of any bodily part or organ,
       or which causes a fracture of any bodily part.

The statute references a "fracture" as an alternate basis for a conviction.

       Neither RCW 9A.36.021 or RCW 9A.04.110 define "substantial." The dictionary

definition of "substantial" is "' something having substance or actual existence,'

'something having good substance or actual value,' 'something of moment,' and 'an

important or material matter, thing, or part.'" State v. McKague, 172 Wn.2d 802, 805-

06, 262 P.3d 1225 (2011) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

2280 (2002)). The term "substantial," as used in RCW 9A.36.021(l)(a), signifies a

degree of harm that is considerable and necessarily requires a showing greater than an

injury merely having some existence. Our state high court has not limited the meaning of

"substantial" to any particular dictionary definition, but the court has held the harm must

be considerable in amount, value, or worth. State v. McKague, 172 Wn.2d at 806.

       In State v. McKague, 172 Wn.2d 802, defendant Jay McKague punched Kee Ho

Chang in the head several times and pushed him to the ground, causing his head to strike

the pavement. The Supreme Court ruled that Chang's resulting facial bruising and

swelling lasting several days, and the lacerations to his face, the back of his head, and his

arm were severe enough to allow the jury to find that the injuries constituted substantial

but temporary disfigurement. In State v. Hovig, 149 Wn. App. 1, 5,202 P.3d 318 (2009),

this court held that red and violet teeth marks lasting up to two weeks constituted


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No. 34361-8-III
State v. Sanchez-Fabian


substantial bodily injury. In State v. Ashcraft, 71 Wn. App. 444, 455, 859 P.2d 60

( 1993 ), we ruled that bruises from being hit by a shoe were temporary but substantial

disfigurement.

       Jeff Nelson testified that Ignacio Cobos suffered, in addition to a broken nose or

deviated septum, multiple bruises, swelling, facial lacerations, and scratches. For three

months, Cobos suffered pain in his ribs. Based on precedent, these injuries qualify as

substantial bodily harm.

       Issue 2: Whether the trial court's warning to Israel Fabian about incriminating

himself violated any right of Fabian?

       Answer 2: No.

       Israel Fabian filed a statement of additional ground wherein he contends the trial

court frightened him into silence by interrupting his testimony to explain the potential

negative consequences of his testimony about joining a gang. Fabian claims the warning

jolted him into remaining silent when he possessed the right to testify on his behalf. We

reject Fabian's contention as counterfactual. Fabian also cites no legal authority

supporting his position that a trial court should not warn an accused of potentially

incriminating himself in an unrelated crime.

       The trial court interrupted Israel Fabian's testimony from a concern the

Department of Corrections would issue Fabian infractions based on his testimony.

Nevertheless, Fabian never refused to testify, and the trial court never prohibited him

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State v. Sanchez-Fabian


from offering testimony. Fabian answered approximately forty questions after the trial

court interrupted his testimony. We compliment the trial court for taking steps to

preserve the accused's constitutional rights.

                                       CONCLUSION

          We affirm Israel Fabian's conviction for second degree assault. Because of

Fabian's indigency and other legal financial obligations, we deny the State costs on

appeal.

       A majority of the panel has determined this opinion will not be printed in the
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Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                Fearing, C.

WE CONCUR:




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