State v. Upreti

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STATE OF WASHINGTON, Respondent, v. ARBIN UPRETI, Appellant.

No. 57496-9-II

Court of Appeals of Washington, Division 2

May 7, 2024

UNPUBLISHED OPINION

Che J.

Arbin Upreti appeals his conviction for third degree rape of LB. At trial, after the first witness testified, the trial court raised concerns about juror 4 being inattentive. After considering the matter further, the trial court observed that juror 4 paid less attention to the minority women in the courtroom and instructed the parties to observe the juror. The State observed additional inattentiveness. And the trial court made oral findings that juror 4 paid less attention to the minorities than Caucasians. The State echoed the court's concern for the minority attorneys, the judicial officer, the victim, and the defendant. The court declined to question the juror individually as individuals are unaware of their implicit biases. Finally, the court added that "at a minimum juror number four is not paying attention to the evidence so not doing her job" and excused the juror over Upreti's objection. 1 Rep. of Proc. (RP) at 125.

Upreti appeals, arguing that (1) the trial court abused its discretion by not conducting further inquiry before excusing juror 4, and (2) there is insufficient evidence to support the third degree rape conviction. Upreti's arguments fail and we affirm.

FACTS

The State charged Upreti with the second degree rape of LB or, in the alternative, third degree rape.

I. Trial Evidence

In December 2019, LB saw Upreti at the gym on a military base and they exchanged cell phone numbers. LB and Upreti ultimately agreed to meet at LB's apartment. After a couple of drinks, the two began making out. Upreti performed oral sex on LB. They ended up in LB's bedroom.

When Upreti attempted sexual intercourse, LB told Upreti "'no'" and to "get protection." 2 RP at 195. LB continued to move her hips side to side to prevent Upreti from vaginally penetrating her as she told him no and to get protection. LB could feel Upreti continuing to try to penetrate her. The two grappled while Upreti tried to subdue and penetrate LB. Throughout the grappling, LB told Upreti to stop and get protection. During this grappling Upreti asked if he could perform oral sex again, and LB explicitly said no. Upreti ignored LB's unwillingness and performed oral sex and anally penetrated LB with his finger.

Eventually Upreti was on top of LB and employed a leg lock maneuver. LB tried to push Upreti backwards, moved her hips in an evasive manner, shook her head no, and continued repeating, "'No. You need to go get protection.'" 2 RP at 213.

Upreti performed a different maneuver and ultimately vaginally penetrated LB. After Upretri released LB's arms, she fell backwards. Upreti attempted to penetrate her again; LB resisted and continued to tell him to stop and get protection. Upreti again grappled LB into a new position and vaginally penetrated her. LB told Upreti no, "no less than ten times." 2 RP at 225.

Subsequently, Upreti went to the bathroom, returned, and appeared to fall asleep. LB also went to the bathroom and then laid back in the bed. LB testified that she was in shock. About 15 minutes later, Upreti attempted to vaginally penetrate LB again. LB moved her hips evasively, used her hand to push Upreti away, and told him, "'No. You need to stop.'" 2 RP at 232. Upreti gave up and fell asleep.

LB texted her friend to call her and pretend that one of LB's soldiers needed to be picked up. Her friend did not call. About ten minutes later, LB pretended someone called her telling her to pick up one of her soldiers. LB and Upreti discussed the call. Upreti attempted to give LB a hug and left. LB proceeded to the hospital on the military base.

A nurse, Khadijah Bakari, conducted a sexual assault examination on LB. LB initially chose to file a restricted report. Restricted reports are not sent to military command. LB told the nurse that she had been sexually assaulted. The nurse found erythema, or redness, on the top of LB's cervix. And that redness is consistent both with consensual and nonconsensual intercourse. The nurse said LB reported pain and some soreness in the area, but no pain elsewhere.

LB reported the sexual assault to law enforcement when she got home. Detective Julie Mullen met with LB several days later. LB recounted the details of the rape to the detective.

Upreti testified that LB asked him if he had protection, which he denied having. Upreti maintained that LB never told him that he needed to get protection. Upreti's defense was that the entire sexual encounter was consensual and LB did not ask him to stop, nor did he employ any force to control LB. Upreti agreed that he attempted to have sex with LB again after they got back in the bed, but he stopped when LB moved his hand away.

The jury convicted Upreti of third degree rape.

II. Juror Fitness

After nurse Bakari-the first witness-testified, the trial court recounted a sidebar conversation regarding juror 4 possibly sleeping during the proceeding. The court stated juror 4 closed her eyes during the court's opening instruction, but she did not appear to be sleeping. The court further noted that juror 4 appeared to listen to the evidence at times, but she "turn[ed] her chair completely away from the witness." 1 RP at 63. But the court could not see juror 4 for much of the opening arguments. Due to the court's concerns about juror 4's body language, the court asked the three attorneys to particularly observe juror 4 going forward and noted that it would continue observing juror 4 as well.

Defense counsel Purtzer generally thought juror 4 was paying attention as she was taking notes. Counsel Shen for the State observed that juror 4 closed her eyes during "a lot of my opening statement" and some of defense counsel's opening statement. 1 RP at 64. Counsel Zhou, also for the State, observed that juror 4 closed her eyes and remained still during the court's opening instructions. Counsel Zhou also observed that juror 4 adjusted herself when counsel Shen gave her opening statement, closed her eyes again, moved her head, and appeared to be "nodding off." 1 RP at 65. Then, juror 4 maintained those mannerisms through defense counsel's opening, opened her eyes once about halfway through, and closed them again.

After considering the matter overnight, the court was concerned that juror 4's "body language was much more attentive to Mr. Purtzer as opposed to myself, Ms. Shen or the witness [Bakari], and we are all minority women." 1 RP at 69. During a recess, counsel Zhou observed that juror 4 appeared to rest her head on her hand with her eyes closed at points during the morning proceedings. Counsel Zhou thought juror 4 was napping, but also noted that the juror was attentive at times to the witness-Detective Mullen. Defense counsel requested that the court bring in juror 4 to ask her about the nodding off.

The court responded:

I think we may have a more insidious problem. I have been observing juror number four carefully. She is directing her attention at the lectern consistently. She did that throughout the testimony of Ms. Bakari. She did that throughout the time that Ms. Shen was questioning both Ms. Bakari and Detective Mullen. She is, however, shifting her focus to Mr. Purtzer when he is speaking and she is shifting her focus to Detective Mullen when she is speaking. So my concern is increasing that-both for Mr. Upreti and for the minorities here, is I'm not certain that this is something she is aware of, and I'm not certain that it is simply her posture. I don't have a concern that she's sleeping, but her body language when a minority person is testifying or directing the questions or even when the court is instructing is very different. In contrast, the entire panel appears to be making eye contact with the different speakers or not making eye contact with anyone. At times the panel turns its direction and attention to me, and number four has not ever done that, has not made eye contact with me, and generally when I am speaking closes her eyes. So I am concerned about a more insidious issue which may actually impact Mr. Upreti as well.

1 RP at 120-21. The State echoed the court's concern for minority attorneys, the judicial officer, Upreti, and LB-as a minority woman. The State also observed that juror 4's eyes were open the entire time defense counsel engaged in cross-examination. Defense counsel admitted he was "not as attuned to those problems" and deferred to the court when asked about his opinion on juror 4. 1 RP at 122.

The court said it would dismiss juror 4 citing concerns about the differences between the juror's observation style toward Caucasians and other minority groups along with the clear body language that juror 4 was not focused on the evidence and did not wish to be there. And the court decided not to question juror 4 individually reasoning that individuals are unaware of their implicit biases. Defense counsel objected. The court overruled the objection, adding that "at a minimum juror number four is not paying attention to the evidence so not doing her job." 1 RP at 125. Upreti appeals.

ANALYSIS

I. Juror Fitness

A. Inattention and Bias

Upreti argues that the trial court abused its discretion by excusing juror 4 without conducting additional investigation and because there was insufficient evidence of bias. We disagree.^[1]

"We review a trial court's decision to excuse a juror for abuse of discretion." State v. Jorden, 103 Wn.App. 221, 226, 11 P.3d 866 (2000). The judge has the obligation "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...