### FILED JUNE 13, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. ISRAEL SANCHEZ-FABIAN, Appellant. ) ) ) ) ) ) ) ) ) No. 34361-8-111

UNPUBLISHED OPINION
FEARING, C.J.

- Israel Fabian challengesthe sufficiency ofevidence for his conviction for second degree assault arising from his attack on a prison cell mate. Fabian contends the State failed toprove he inflicted substantial injury, an element ofsecond degree assault, onhis victim. He also complains thatthe trial court interruptedhis testimony and the court's interruptionthereafter intimidatedhim from testifying. We affirm Fabian's conviction. FACTS This prosecution arises from an altercation between Israel Fabian and Ignacio Cobos. Thetwo shared a cell at Connell's Coyote Ridge Corrections Center. OnAugust 10, 2015, Fabian attacked Cobos with fist punches tothe head and facial area. Department ofCorrections officers responded to the thumping, orderedFabianto ceaseNo. 34361-8-111 State v. Sanchez-Fabian
the blows, and wrestled himto the ground whenhe disobeyed. Registered Nurse JeffNelsontreated Ignacio Cobos for multiple bruises, swelling, facial lacerations, scratches, andthe "appearance ofa broken nose or deviated septum." Report ofProceedings (RP) at 71-72. A deviated septum occurs whenthe thin wall between the nostrils shifts to one side. Cobos' nose, consistentwith a deviated septum, deviated to the right and bled at the bridge. The boxes from Israel Fabianrendered Cobos confused and in shock. Forthree months, Cobos sufferedpain in his ribs. PROCEDURE The State ofWashington charged Israel Fabian with assault inthe second degree. During the trial, Ignacio Cobos testified he did not rememberbeing Fabian's cellmate or any altercation with Fabian. Duringtrial, Registered Nurse JeffNelson testified abouttreating Ignacio Cobos: Q. Doyou recall whatyou treated Mr. Cobos for? A. Multiple bruises, swelling, lacerations, scratches aroundthe face and the appearance ofa deviated septum. Got an order from Doctor Rendleman to verifythat. THE WITNESS: Okay. He had multiple bruises, swelling, scratches, lacerations to his face, forehead, brows. The appearance ofa broken nose or deviated septum. We got him x-rayedto confirmthat. RP at 71-72. Israel Fabian's trial attorney informed him ofhis rightto testify and notto testify. Fabian electedto testify in his defense. Fabian admitted striking Ignacio Cobos. Fabian
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declared that Cobos pressured him intojoining aprison gang and sharing a room with him. The trial court, from a concern that the Department ofCorrections might issue Fabian an infraction based onthis testimony, interrupted Fabian's testimony. The wise trial courtrequested Fabian's counsel outline the risks ofhis testimony in orderto ensure Fabian knowingly and intelligently waived his right to remain silent. After a brief discussion with his attorney, Fabian continued his testimony. Israel Fabian testified that Ignacio Cobos frequently showed anger because Fabian failed to cleanthe cell to the specifications ofCobos. Fabian also averred that Cobos threatened to kill him. On cross-examination Fabian explained: I didn'twantto hit him, buthe made me get madwith the things he did to me. I wanted to resolve the things the rightway. I wantedthemto get me out ofthat room, but I wasn't able to get it. RP at 98. Afterthe State cross-examined Israel Fabian, Fabian's attorney asked questions on redirect. Fabian never refused to testify, and the trial court neverprohibited him from offeringtestimony. Fabian answered approximately forty questions after the trial court interrupted his testimony. Thejury found Israel Fabian guilty ofsecond 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 ofappeal. Fabian 3 

# I tNo. 34361-8-III State v. Sanchez-Fabian
attached a statement ofcontinued 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 ofworking seventy hours perweek performing food preparation at $11.25 per hour. LAWAND ANALYSIS Issue 1: Whether sufficient evidence supportedthe substantial bodily injury element of Israel Fabian 's convictionfor seconddegree 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 JeffNelson lacked qualifications to diagnose a brokennose
or deviated septum and thus the State lacked sufficient evidence ofa fracture or substantial disfigurement. The State responds that the evidence supports ajury finding that Cobos sustained a fractured bone. The State adds that substantial disfigurement and bruising alone suffices to establish substantial bodily injury. We agree withthe State. Evidence suffices to convict ifa rational trier offact 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 supportthejury'sverdict. State v. Brooks, 45 Wn. App. 824,826, 727 P.2d 988 (1986). When reviewing evidence, this court draws all reasonable inferences in favor ofthe State. State v. Partin, 88 Wn.2d 899, 4 

# ! iNo. 34361-8-111 State v. Sanchez-Fabian 906-07, 567 P.2d 1136 (1977). Only the trier offact weighs the evidence andjudgesthe credibility ofwitnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). Israel Fabian asserts that the testimony ofJeffNelson 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 ofNelson to testify to Cobos' injuries. Fabian also fails to provide any authority on appeal requiring a physician's medical diagnosis ofinjuries for purposes ofproving a crime. No case or statute requires testimony ofa doctorto 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 confomthat." RP at71-72. 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 ofassault in the second degree ifhe or she
... [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm. RCW 9A.04.110(4)(b) defines "substantial bodily harm": "Substantialbodily harm" means bodily injury which involves a temporary but substantial disfigurement, orwhich causes a temporary but


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### State v. Sanchez-Fabian
substantial loss or impairment ofthe function ofany bodilypart or organ, or which causes a fracture ofany bodilypart. The statute references a "fracture" as an alternate basis for a conviction. NeitherRCW 9A.36.021 orRCW 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 ofmoment,' and 'an important or material matter, thing, orpart.'" 

### State v. McKague, 172 Wn.2d 802, 805- 06, 262 P.3d 1225 (2011) (quoting WEBSTER'S THIRD NEW INTERNATIONALDICTIONARY 2280 (2002)). The term "substantial," as used in RCW 9A.36.021(l)(a), signifies a degree ofharm that is considerable and necessarily requires a showing greaterthan an injury merely having some existence. Our state high courthas not limited the meaning of "substantial" to any particular dictionary definition, butthe 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, defendantJay McKague punched Kee Ho Chang in the head several times and pushed him to the ground, causing his headto strike the pavement. The Supreme Courtruled that Chang's resulting facial bruising and swelling lasting several days, and the lacerations to his face, the back ofhis head, and his
arm were severe enoughto allow thejuryto find that the injuries constituted substantial buttemporary disfigurement. In 

### State v. Hovig, 149 Wn. App. 1, 5,202P.3d 318 (2009), this court held that red and violetteeth marks lasting up to two weeks constituted

6No. 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 thatbruises from being hit by a shoe were temporary but substantial disfigurement. JeffNelson testified that Ignacio Cobos suffered, in addition to a broken nose or deviated septum, multiple bruises, swelling, facial lacerations, and scratches. Forthree months, Cobos sufferedpain in his ribs. Based on precedent, these injuries qualify as substantial bodily harm. Issue 2: Whether the trial court's warning to IsraelFabian about incriminating himself violatedany right of Fabian? Answer 2: No. Israel Fabian filed a statement ofadditional ground wherein he contends the trial court frightened him into silence by interrupting his testimony to explainthe potential negative consequences ofhis testimony aboutjoining a gang. Fabian claims the warning joltedhim into remaining silentwhen 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 ofpotentially incriminating himselfin an unrelated crime. The trial court interrupted Israel Fabian's testimony from a concern the Department ofCorrections would issue Fabian infractions based onhis testimony. Nevertheless, Fabian never refused to testify, and the trial court neverprohibited him 7No. 34361-8-III 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 ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.
Fearing, C. WE CONCUR:

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